Rural Business-Cooperative Service and Rural Utilities Service, U.S. Department of Agriculture.
Interim final rule with request for comments.
In this interim final rule with comment period, the U.S. Department of Agriculture (USDA) is adding a new part 4290 to implement the Rural Business Investment Program (RBIP) which is designed to promote economic development and create wealth and job opportunities among individuals living in rural areas and help to meet the equity capital investment needs primarily of smaller enterprises located in such areas. Under the RBIP, for-profit Rural Business Investment Companies (RBIC) will make venture capital investments in rural areas with the objectives of fostering economic development in such areas and returning maximum profits to the RBIC's investors. These regulations set forth the criteria which the USDA will use to select and license RBICs, guarantee its debentures, and make grants to RBICs.
Effective date: This rule is effective on June 8, 2004.
Comment date: We will consider comments on the new part 4290 if we receive them at the appropriate address, as provided below, no later than 4 p.m. on July 8, 2004. Late filed comments will be considered to the extent practicable.
You may submit comments on this rule by any of the following methods:
Agency Web site: http://rdinit.usda.gov/regs/; follow the instructions for submitting comments on the Web site.
E-mail: email@example.com; include the RIN number (RIN 0570-AA35) in the subject line of the email.
Federal e-Rulemaking portal: http://www.regulations.gov; follow the instructions for submitting comments.
Mail: Submit written comments via the U.S. Postal Service to Cheryl Thompson, Management Analyst, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, STOP 0742, 1400 Independence Avenue, SW., Washington, DC 20250-0742.
Hand-delivery/courier: Submit written comments via Federal Express Mail or other courier service requiring a street address to Cheryl Thompson, Management Analyst, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, 300 7th Street, SW., Washington, DC 20024.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Special Projects/Programs Oversight Division, U.S. Department of Agriculture, (202) 690-4100.End Further Info End Preamble Start Supplemental Information
Section 6029 of the Farm Security and Rural Investment Act of 2002, Pub. L. 107-171, amended the Consolidated Farm and Rural Development Act by adding Subtitle H—Rural Business Investment Program (7 U.S.C. 2009cc et seq.) (the “Act”). Section 6029 requires the Secretary of the USDA to establish the Rural Business Investment Program (RBIP). Section 384B of the Act, as amended, states that the purpose of the RBIP is—
(1) To promote economic development and the creation of wealth and job opportunities in rural areas and among individuals living in those areas by encouraging developmental venture capital investments in smaller enterprises primarily located in rural areas; and
(2) To establish a developmental venture capital program with the mission of addressing the unmet equity investment needs of small enterprises located in rural areas.
Section 384Q of the Act, as amended, requires the Secretary of Agriculture to enter into an interagency agreement under the Economy Act, 31 U.S.C. 1535, with “another Federal agency” that has “considerable expertise in operating a program under which capital is provided for equity investments in private sector companies.” The Joint Explanatory Statement of the Conference Committee of the Farm Security and Rural Investment Act of 2002 states on page 150 that, “Sec. 384 Q requires the Secretary to enter into an interagency agreement with the U.S. Small Business Administration (SBA) to carry out the day-to-day management and operation of the RBIP.” House Report 107-424. Responsibility for the RBIP on behalf of the USDA has been assigned to the Rural Business-Cooperative Service (RBS), which is one of the USDA agencies reporting to the Under Secretary for Rural Development.
The mission of the RBIP is to encourage economic growth, innovation, and entrepreneurship by encouraging privately owned and managed venture capital investment funds to achieve financial success by investing in America's rural enterprises, for the benefit of the businesses and the customers and communities they serve. USDA and SBA believe that the RBIP represents an opportunity to supplement the considerable impact on jobs and economic growth made in rural areas from venture capital financings of the Small Business Investment Company (SBIC) program administered by the SBA. With a rigorous business focus, this new program can contribute significantly to the Federal government's efforts to encourage private risk-taking and investment in rural America.
The RBIP will accomplish its mission by: (1) Licensing experienced venture capital fund managers with exceptional “deal flow” who are capable of raising equity capital from sophisticated private investors; (2) creating strong multiple lines of defense to manage risk to taxpayers; (3) communicating understandable ground rules to program participants; (4) offering applicants time to raise their required private equity capital; (5) allowing RBICs to develop results based on traditional cycles of venture investing; and (6) focusing on profit maximization as the key to success, while providing for a grant assistance component as provided in the Act.
As you read the section-by-section analysis of the regulations in section III of this preamble, you will note that many of the provisions of these regulations are modeled after regulations governing SBA's SBIC and New Markets Venture Capital (NMVC) programs. In addressing the challenge of implementing the RBIP, the USDA was able to draw upon the experience that SBA has gained in administering the SBIC program.
The Small Business Investment Act of 1958 created the SBIC program in response to a Federal Reserve study finding that small businesses were generally unable to obtain the long-term debt and equity funds that they needed to succeed. The basic objective of the SBIC program is to attract and supplement private capital, managed by private investment managers, to meet that need. SBA licenses such companies as SBICs, regulates their activities to ensure that they are financially sound and serve the program's public policy objectives, and supplements their private capital by guaranteeing debentures or other securities that they issue.
Congress created the NMVC program in December 2000, to address the unmet equity capital needs of small business Start Printed Page 32201concerns located in low-income geographic areas. SBA enters into a participation agreement with each NMVCC that details, among other things, the specific low-income areas that it will serve, how it will serve those areas, what results it expects to achieve, and how its success will be measured.
Because of the many similarities among the SBIC, NMVC, and RBIP programs, USDA will incorporate into the RBIP those SBIC and NMVC regulations that USDA believes are fundamental to the safety and soundness of the RBIP.
II. Justification for Publication of Interim Final Status Rule
USDA generally publishes a proposed rule and invites public comment before issuing a final rule pursuant to the Administrative Procedures Act (APA) (5 U.S.C. 553). However, the APA provides for exceptions to the general rule if the agency finds “good cause” to omit advance notice and public participation. The “good cause” requirement is satisfied when prior public procedure is “impractical, unnecessary, or contrary to the public interest” (5 U.S.C. 553(b)). For the following reasons, USDA has determined that it would be impractical, unnecessary and contrary to the public interest to delay the effectiveness of this rule in order to solicit prior public comments.
As intended by Congress and noted in the Conference Manager's Report, this program is modeled after two existing SBA programs: the SBIC and NMVC programs, except this program has a rural emphasis. Changes to already existing regulations were made when mandated by statutory differences. All other changes were minimized and were intended to assure technical compliance. While USDA has oversight of this program, SBA has day-to-day management and operation of the program using its staff, procedures, and forms, pursuant to an interagency agreement, as required by the Act.
Given the degree of similarity between this program and SBA's SBIC and NMVC programs, little was to be gained from a delay in implementing the program for public comment. USDA has attempted to minimize the administrative burden by adopting as much of the SBA's SBIC and NMVC programs as possible. Accordingly, the interim rule imposes a minimum number of unfamiliar requirements from the SBIC and NMVC programs and the rule should be very familiar to applicants currently participating in either of those programs.
We are not publishing this rule as a final rule. Instead, we are waiving notice of proposed rulemaking and publishing this rule as an interim final rule with comment period. As we develop this rule, we welcome comments from the public on all issues set forth in this rule to assist us in fully considering the issues and any associated regulatory impacts.
III. Section-by-Section Analysis
The following is a section by section analysis of USDA's regulations to add a new part 4290 to Title 7 of the Code of Federal Regulations to implement the Act.
Sections 4290.10 through 4290.50 briefly describe the RBIP, state the legal basis for the program, define terms, and provide guidance on how to read part 4290. Section 4290.45 states that pursuant to a delegation of authority, SBA will exercise on behalf of USDA all responsibilities and authorities assigned to the Secretary in the new part 4290, unless specifically stated otherwise in a particular section in part 4290.
Section 4290.50 contains the definitions applicable to the program. Most of the defined terms come directly from the Act and USDA did not supplement or modify them. USDA also establishes several new definitions specific to the RBIP. Several of the definitions are based on Title 13 of the Code of Federal Regulations which governs SBA's programs, including the SBIC (13 CFR part 107) and NMVC (13 CFR part 108) programs, and sets forth size standards for determining the size of a smaller enterprise.
“Enterprise” is a newly defined term that describes all potential recipients of RBIC financings. The term “primarily operating” has been adapted from section 384A(13) of the Act to help define rural business concerns. It will be defined as the place where the principal office of the enterprise is located; that term, in turn, is defined as the location where the greatest number of employees is located. The definitions also comprise several terms incorporating the concept of a rural area. They are unique to this program and specify an area located outside a standard metropolitan statistical area or a community with a population of 50,000 or fewer inhabitants. The definition of a “smaller enterprise” is different from the definition employed in the SBIC and NMVC programs. In those programs the application of the term was limited to for-profit business concerns as defined by SBA. In the RBIP, the term specifically includes rural business concerns which may include, among other things, non-profit entities. The definition of the phrase, “subordinated debt with equity features,” is also unique to this program because, pursuant to section 384A(4) of the Act, this is a type of equity capital that RBICs are permitted to invest in smaller enterprises. “Urban area” is also defined in this section in order to implement section 384(I)(c)(3)(C) of the Act, which limits a RBIC's ability to make financings to enterprises located in such areas.
Sections 4290.100 through 4290.165 describe the organizational basis for a RBIC. An applicant for a RBIC license must be a newly formed for-profit entity or, subject to § 4290.150, a newly formed for-profit subsidiary of an existing entity. It must be organized under the law of a State solely for the purpose of performing the functions and conducting the activities contemplated under the Act: to make venture capital investments in rural areas with the objectives of fostering economic development in such areas and returning maximum profits to the RBIC's investors and to provide operational assistance to eligible smaller enterprises. It must have qualified management and agree that it will (i) make such investments, (ii) have a plan to invest in rural areas, and (iii) identify particular rural areas in which it proposes to focus its investment activities. USDA models these regulations on similar regulations governing the SBIC and NMVC programs, including the requirements that RBICs must have management and ownership diversity and that USDA will require pre-approval of all management expenses of a RBIC.
Sections 4290.200 through 4290.240 address capitalization of a RBIC, including minimum capital requirements, allowable sources of private capital, and limitations on non-cash contributions to capital. These regulations are modeled on similar regulations in the SBIC and NMVC programs.
Sections 4290.300 through 4290.330 set forth policies and procedures for the application and approval process for obtaining a RBIC license. USDA will allow submission of applications for participation in the RBIP only during a specific application period to be set forth in a Notice of Funds Availability published in the Federal Register, as opposed to a “rolling admissions” process. USDA will use this method of selecting applicants for three reasons. First, the USDA believes this method will enable USDA to achieve the objective of ensuring, to the extent possible and given the applications received, nationwide geographic distribution of developmental venture capital. USDA will compare Start Printed Page 32202applications both for quality and other criteria described in the regulations, and for the geographic areas they intend to cover so as to choose the best applications for each geographic area and avoid duplication within specific geographic areas. Second, USDA has a limited amount of funds available with which to license RBICs, based on a one-time authorization of funds. A competitive process will allow USDA to utilize those funds expeditiously and efficiently. Third, USDA believes this procedure will allow it to orderly administer appropriated funds it may receive in subsequent fiscal years by allowing USDA to open up the RBIP to new rounds of applicants.
USDA will require applicants for participation in the RBIP to submit an application, similar to the applications for SBA's SBIC and NMVC programs. Key application requirements include management team experience, an indication of the amount of regulatory capital an applicant has raised or proposes to raise, and a comprehensive business plan. The application submission requirements are outlined in section 384D of the Act. Based in part on the experience of other Federal agencies with similar economic development programs, USDA believes these application requirements will allow USDA to ensure that applicants understand the objectives of the RBIP and have a sound plan for accomplishing those objectives and for creating and maintaining a viable investment fund. USDA also will assess a “grant issuance fee” for applications to the RBIP.
Sections 4290.340 through 4290.390 describe USDA's evaluation criteria and the selection and licensing process for participation in the RBIP. In considering applicants for licensing, USDA will review an applicant's application materials, conduct interviews or site visits (if applicable) with the applicant, and perform background investigations. Most of the specified criteria are set forth in the Act. The Secretary will not consider any application that is not complete or that is submitted by an applicant that does not meet the eligibility criteria in subpart C of this part. The Secretary will perform an initial review of an applicant's management team qualifications to determine whether the team meets the minimum requirements deemed by the Secretary in his or her sole discretion to be critical to successful venture capital investing. From among the applicants that have submitted eligible and complete applications and that have qualified management teams, the Secretary on behalf of USDA and the Administrator on behalf of SBA will select some, all, or none of such applicants to participate in the RBIP. Selection will entitle the applicant to proceed with obtaining a license as a RBIC, but only if and when the applicant meets the conditions set forth in § 4290.390.
Sections 4290.400 through 4290.480 describe USDA's requirements in the event of changes in ownership, control, or structure of a RBIC. These regulations are modeled after similar regulations for the SBIC and NMVC programs.
Sections 4290.500 through 4290.585 describe USDA's requirements for managing the operations of a RBIC. These regulations are modeled after similar regulations for the SBIC and NMVC programs.
Sections 4290.600 through 4290.680 describe USDA's recordkeeping, record retention, reporting, and examination requirements for RBICs. These regulations are modeled after similar regulations for the SBIC and NMVC programs. USDA will require each RBIC to provide reports concerning the economic development impact of each investment it makes, as well as reports on its administration and use of grant funds as required by Circular A-110 of the Office of Management and Budget (OMB), “Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and other Non-Profit Organizations.” USDA anticipates that to the extent not inconsistent with USDA's regulations for the RBIP, RBICs' administration and use of grant funds will be subject to OMB Circular A-110. OMB Circular A-110 is optional for use in connection with grants to commercial organizations. USDA will apply it to RBICs in order to take advantage of existing and well-known grant administrative procedures and policies to facilitate USDA's orderly administration of grants to RBICs.
Sections 4290.690 through 4290.692 describe USDA's requirements for examinations of RBICs for regulatory compliance. These regulations are modeled after similar regulations for the SBIC and NMVC programs, and require RBICs to submit to annual examinations.
Section 4290.700 is key to effectuating the Act's directive to promote rural development. This section requires RBICs to invest at least 75 percent of their financings in rural business concerns and to have more than 50 percent of its investments in smaller enterprises (and, of those, at least 50 percent must be in small business concerns). A separate section (§ 4290.740) addresses the need for portfolio diversification. No more than 10 percent of a RBIC's financings may be in urban areas.
RBICS are prohibited by § 4290.720 from investing in enterprises that do no more than re-lend or re-invest the RBIC's funds or are passive enterprises, subject to certain highly specific exceptions. Section 4290.730 contains a prohibition on financings which constitute conflicts of interest.
Sections § 4290.810 through § 4290.880 address a series of issues involved in structuring eligible RBIC financings. These sections govern various forms and durations of financings, applicable amortization and interest rates, allowable fees and expenses, and the subject of disposing of assets, among other issues. Although these regulations are largely modeled after similar regulations for the SBIC and NMVC programs in several aspects, in other aspects they are unique to the RBIP and highlight its emphasis on rural investment and economic development.
Sections 4290.1100 through 4290.1720 describe USDA's requirements and procedures for RBICs to obtain leverage from USDA, the procedures governing USDA's funding of that leverage, and the use of Trust Certificates. These regulations are modeled after similar regulations for the SBIC and NMVC programs.
Section 4290.1500 imposes certain constraints on a RBIC's powers to make distributions to its investors. At the same time a RBIC makes such a distribution, it also must make a prepayment to or for the benefit of the third-party holder of the debenture, ratably with the distribution to the RBIC's equity investors. Although this provision differs from existing repayment clauses in existing SBA Investment Division debenture programs, it is consistent with the creditor nature of the Government's exposure (no profit participation), and the cash flow nature of venture investing. This provision will reduce the Government's risk and thereby have a positive effect on the subsidy model and risk profile of the program.
Sections 4290.1810 through 4290.1840 describe events of default and capital impairment and USDA's remedies upon such defaults. These regulations are modeled after similar regulations for the SBIC and NMVC programs.
Section 4290.1900 concerns termination by a RBIC of its participation in the RBIP. This regulation is modeled after a similar regulation for the SBIC and NMVC programs. Start Printed Page 32203
Sections 4290.1910 through 4290.1930 address miscellaneous issues, including application for an exemption from regulatory requirements and the effect of regulatory changes on transactions previously consummated. These regulations are modeled after similar regulations for the SBIC and NMVC programs. Section 4290.1940 refers to other USDA regulations applicable to the RBIP.
Section 4290.2000 sets forth requirements and procedures for operational assistance grants to RBICs. USDA will award such grants only after receiving and evaluating applications in response to a Notice of Funds Availability published in the Federal Register. Each qualified RBIC will receive a grant. This rule does not cover grants to non-RBICs; USDA will do so at a later date.
USDA also will require RBICs to provide reports on its administration and use of grant funds as required by OMB Circular A-110. USDA anticipates that to the extent not inconsistent with these regulations, RBICs' administration and use of grant funds will be subject to OMB Circular A-110.
IV. Justification for Immediate Effective Date of Interim Final Rule
Interim rules published by USDA generally take effect 30 days after publication. However the APA provides that when the Agency finds good cause exists, the rule may take effect immediately (see 5 U.S.C. 553(d)(3)). For the reasons set forth in the Justification of Publication for Interim Final Status Rule and in this part, USDA finds that good cause exists for making this interim final rule effective immediately, instead of observing the 30-day period between publication and effective date.
Venture capital is needed in rural areas. This is the first authorization for this Department to provide venture capital funds to rural areas. While the SBIC and NMVC programs make a significant impact on non-metropolitan areas, SBA's programs are not exclusively targeted on rural areas. Historically most venture capital funds have not gone to rural areas. Rural areas have suffered significant economic declines over the past years and this program is needed to help offset those declines as soon as possible.
The purpose of the 30 day delay in a published rule taking effect is to provide interested and affected members of the public sufficient time to adjust their behavior before the rule takes effect. There is no reason to delay implementation in this case because the interested and affected members of the public that this rule affects are either already participating in SBA's existing SBIC and NMVC programs or are familiar with the provisions of these programs. This program is modeled after and virtually identical to these programs and for that reason will require minimal changes in applicant behavior.
Based on the long period of time before any investments can be made by RBICs, it is critical to initiate a fair and competitive application process as soon as possible. Applicants will need several months to assemble a qualified management team, develop their strategic investment objectives, prepare and submit their RBIC applications prior to October 1, 2004, the date which, under current congressional authority, the funding for licensed RBICs becomes available. The subsequent application review and evaluation process will require several more months time before selected applicants can confidently begin raising the requisite capital, which can take up to an additional year before being awarded a RBIC license. All of this has to be done before a licensed RBIC can make its first investment. Additionally, over two years has lapsed since Congress recognized the need for developmental venture capital in rural areas and the Act became law in May 2002. It would be a disservice to the public to unnecessarily delay the implementation of the RBIP any further given that the public already knows the detailed provisions of the authorizing statute and its similarity to the SBIC and NMVC programs and the need for developmental venture capital in rural America.
V. Regulatory Compliance Section—Compliance With Executive Orders 12866 (Regulatory Planning and Review), 12988 (Civil Justice Reform) and 13132 (Federalism); Paperwork Reduction Act; Government Paperwork Elimination Act; Intergovernmental Review; Environmental Impact Statement; and Unfunded Mandates Reform Act
Compliance With Executive Order 12866
The Office of Management and Budget (OMB) has determined that this rule does not constitute a “significant” regulatory action under Executive Order 12866. Therefore, a regulatory assessment is not required.
Compliance With Executive Order 12988
USDA certifies that this rule is drafted, to the extent practicable, in accordance with the standards set forth in section 3 of Executive Order 12988. In accordance with this Executive Order: (1) All State and local laws and regulations that are in conflict with this rule will be preempted, (2) no retroactive effect will be given to this rule, and (3) administrative proceedings in accordance with RBS regulations at 7 CFR part 11 must be exhausted before bringing litigation challenging action taken under this rule unless those regulations specifically allow bringing suit at an earlier time.
Compliance With Executive Order 13132
For purposes of Executive Order 13132, USDA has determined that this rule has no federalism implications warranting preparation of a federalism assessment.
The Business and Industry loan programs are subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. RBS will conduct intergovernmental consultation in the manner delineated in 7 CFR part 3015, subpart V.
Environmental Impact Statement
This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” RBS has determined that this action does not constitute a major Federal action significantly affecting the quality of the human environment and, in accordance with the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq, an Environmental Impact Statement is not required.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, RBS must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. When such a statement is needed for a rule, section 205 of UMRA generally requires RBS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective, or least burdensome alternative that achieves the objectives of the rule. This rule contains no Start Printed Page 32204Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Thus, this rule does not trigger the requirements of sections 202 and 205 of the UMRA.
Compliance With Paperwork Reduction Act
USDA has determined that this rule imposes additional reporting or recordkeeping requirements for purposes of the Paperwork Reduction Act, 44 U.S.C. Ch. 35. The collection of information (“collection”) for the RBIP includes the RBIC application package and reporting and recordkeeping requirements. USDA previously requested from the Office of Management and Budget (“OMB”) an emergency clearance of this collection. OMB reviewed and approved the collection and assigned OMB control number 0570-0051.
Simultaneously with the publication of this rule in the Federal Register, USDA will make available to the public the collection on SBA's Web site at http://www.sba.gov/INV/RBIP or you may request a copy by calling Austin J. Belton, Director of New Markets Venture Capital, Investment Division, SBA, at (202) 205-6510.
The following is a list of sections of this regulation that describe generally the collection requirements for the RBIP and reasons why USDA believes it needs to collect such information.
A. Applying for a License as a RBIC
As referenced in § 4290.310 (Contents of application) and § 4290.320 (Contents of a comprehensive business plan), USDA will request information such as basic identifying data and core data, management and organization information, descriptions of past and present performance in developmental venture capital investments in smaller enterprises and in rural areas, technical qualifications of the applicant, descriptions of activities proposed using debentures issued by RBICs, and reporting capabilities.
USDA needs this information to evaluate applicants and to ensure that selections are made in furtherance of the RBIP's objectives. USDA understands that the respondents to these requests will be limited to those organizations meeting the requirements set forth in § 4290.100 (Business form); § 4290.110 (Qualified management); § 4290.120 (Plan to invest in rural areas); and § 4290.150 (Management and ownership diversity requirement). Based upon USDA's knowledge of the industry, USDA estimates that approximately 25 applicants will apply to participate in the RBIP. Respondents will need to submit the information referenced in §§ 4290.310 and 4290.320 only at the time of application to participate in the RBIP. USDA estimates that it will take respondents 291.75 hours to complete an application and to fulfill the reporting and record keeping requirements referenced below.
B. RBIC Reporting and Recordkeeping Requirements
As referenced in §§ 4290.600 to 4290.680, USDA will request financial information including, but not limited to, financial statements, economic impact and economic development information, and portfolio financing reports and valuations.
USDA needs this information to evaluate the performance and success of RBICs in fulfilling the objectives of their participation agreements and their actual venture capital investments in smaller enterprises located in rural areas.
C. Request for Comments
With regard to each collection of information discussed above and contained in the collection itself, USDA is seeking your comment on the following issues:
(a) Whether the information USDA will request on the application is necessary for USDA's proper implementation and measurement of the performance of the RBIP;
(b) The accuracy of the burden estimate (time estimated to complete each collection of information request);
(c) Ways to minimize the burden estimates, and
(d) Ways to enhance the quality of the information being collected.
Please send written comments on or before August 9, 2004, on the data collection requirements to Austin J. Belton, Director of New Markets Venture Capital, Investment Division, SBA, 409 Third Street, SW., Washington, DC 20416.
Government Paperwork Elimination Act
USDA is committed to compliance with the Government Paperwork Elimination Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.Start List of Subjects
List of Subjects in 7 CFR Part 4290End List of Subjects Start Amendment Part
For the reasons stated in the preamble, the Secretary is amending 7 CFR chapter XLII by adding part 4290 to read as follows:End Amendment Part Start Part
PART 4290—RURAL BUSINESS INVESTMENT COMPANY (“RBIC”) PROGRAM
- Description of the Rural Business Investment Company Program.
- Legal basis and applicability of this part 4290.
- Amendments to Act and regulations.
- How to read this part 4290.
- Responsibility for implementing this part 4290.
- Definition of terms.
- Business form.
- Qualified management.
- Plan to invest in Rural Areas.
- Identified Rural Areas.
- Approval of initial Management Expenses.
- Management and ownership diversity requirement.
- Special rules for Partnership RBICs and LLC RBICs.
- Obligations of Control Persons.
- Adequate capital for RBICs.
- Minimum capital requirements for RBICs.
- Private Capital for RBICs.
- Limitations on non-cash capital contributions in Private Capital.
- When and how to apply for a RBIC License.
- Contents of application.
- Contents of comprehensive business plan.
- Grant issuance fee.
- Evaluation and selection—general.
- Eligibility and completeness.
- Initial review of Applicant's management team's qualifications.
- Evaluation criteria.
- 4290 390
- Licensing as a RBIC.
- Changes in ownership of 10 percent or more of RBIC but no change of Control.Start Printed Page 32205
- Changes in Control of RBIC (through change in ownership or otherwise).
- Prohibition on exercise of ownership or Control rights in RBIC before approval.
- Notification of transactions that may change ownership or Control.
- Standards governing prior approval for a proposed transfer of Control.
- Notification of pledge of RBIC's shares.
- Restrictions on Common Control or ownership of two (or more) RBICs.
- Prior approval of merger, consolidation, or reorganization of RBIC.
- Prior approval of changes to RBIC's business plan.
- Lawful operations under the Act.
- Representations to the public.
- RBIC's adoption of an approved valuation policy.
- Equipment and office requirements.
- Safeguarding the RBIC's assets/Internal controls.
- Violations based on false filings and nonperformance of agreements with the Secretary or SBA.
- Compliance with non-discrimination laws and regulations applicable to federally-assisted programs.
- Employment of USDA or SBA officials.
- Approval of RBIC's Investment Adviser/Manager.
- Management Expenses of a RBIC.
- Restrictions on investments of idle funds by RBICs.
- Prior approval of secured third-party debt of RBICs.
- Voluntary decrease in RBIC's Regulatory Capital.
- General requirement for RBIC to maintain and preserve records.
- Required certifications for Loans and Investments.
- Requirement to obtain information from Portfolio Concerns.
- Requirements for RBICs to file financial statements and supplementary information with the Secretary (SBA Form 468).
- Requirement to file portfolio financing reports with the Secretary (SBA Form 1031).
- Requirement to report portfolio valuations to the Secretary.
- Other items required to be filed by RBIC with the Secretary.
- Reporting changes in RBIC not subject to prior approval.
- Responsibilities of RBIC during examination.
- Examination fees.
- Requirements concerning types of Enterprises to receive Financing.
- Enterprises that may be ineligible for Financing.
- Financings which constitute conflicts of interest.
- Portfolio diversification (“overline” limitation).
- How a change in size or activity of a Portfolio Concern affects the RBIC and the Portfolio Concern.
- Financings in the form of Equity Securities.
- Financings in the form of Loans.
- Financings in the form of Debt Securities.
- Financings in the form of guarantees.
- Purchasing securities from an underwriter or other third party.
- Minimum term of Financing.
- Exception to minimum term of Financing.
- Maximum term of Financing.
- Maximum rate of amortization on Loans and Debt Securities.
- Restrictions on redemption of Equity Securities.
- Financing fees and expense reimbursements a RBIC may receive from an Enterprise.
- Assets acquired in liquidation of Portfolio securities.
- Disposition of assets to RBIC's Associates or to competitors of Portfolio Concerns.
- Management fees for services provided to an Enterprise by RBIC or its Associate.
- Type of Leverage and application procedures.
- General eligibility requirements for Leverage.
- Leverage fees payable by RBIC.
- RBIC's acceptance of remedies under § 4290.1810.
- Maximum amount of Leverage for a RBIC.
- Leverage commitment to a RBIC—application procedure, amount, and term.
- Requirement for RBIC to file financial statements at the time of request for a draw.
- Draw-downs by RBIC under Leverage commitment.
- Funding of RBIC's draw request through sale to third party.
- Restrictions on distributions to RBIC investors while RBIC has outstanding Leverage.
- Secretary's authority to issue and guarantee Trust Certificates.
- Effect of prepayment or early redemption of Leverage on a Trust Certificate.
- Functions of agents, including Central Registration Agent, Selling Agent and Fiscal Agent.
- Regulation of Brokers and Dealers and disclosure to purchasers of Leverage or Trust Certificates.
- Secretary's access to records of the CRA, Brokers, Dealers and Pool or Trust assemblers.
- Secretary's transfer of interest in a RBIC's Leverage security.
- Secretary's authority to collect or compromise claims.
- Characteristics of Secretary's guarantee.
- Events of default and the Secretary's remedies for RBIC's noncompliance with terms of Debentures.
- RBIC's Capital Impairment definition and general requirements.
- Computation of RBIC's Capital Impairment Percentage.
- Termination of participation as a RBIC.
- Non-waiver of rights or terms of Leverage security.
- RBIC's application for exemption from a regulation in this part 4290.
- Effect of changes in this part 4290 on transactions previously consummated. Start Printed Page 32206
- Integration of this part with other regulations applicable to USDA's programs.
- Operational Assistance grants to RBICs.
Subpart A—Introduction to Part 4290
The Rural Business Investment Company (“RBIC”) Program is a Developmental Venture Capital program for the purpose of promoting economic development and the creation of wealth and job opportunities in Rural Areas and among individuals living in such Areas. To this end, the Secretary will select and license RBIC Applicants that will agree to address the unmet Equity Capital needs of Smaller Enterprises primarily located in Rural Areas.
The regulations in this part implement Subtitle H of the Consolidated Farm and Rural Development Act, as amended (7 U.S.C. 2009cc et seq.) (“Act”). All RBICs must comply with all applicable regulations, accounting guidelines and valuation guidelines for RBICs.
A RBIC is subject to all existing and future provisions of the Act and part 4290 of title 7 of the Code of Federal Regulations.
(a) Center Headings. Center headings are descriptive and are used for convenience only. They have no regulatory effect.
(b) Capitalizing defined terms. Terms defined in § 4290.50 have initial capitalization in this part 4290.
(c) “You.” The pronoun “you” as used in this part 4290 means a RBIC unless otherwise noted.
(d) Forms. All references in this part to forms, and instructions for their preparation, are to the current issue of such forms.
The Secretary has delegated to the U.S. Small Business Administration (SBA), pursuant to an agreement under the Economy Act (31 U.S.C. 1535), the authority to implement the RBIC program, including implementing and enforcing the regulations in this part 4290. Therefore, unless specifically stated otherwise, SBA will exercise on behalf of the Secretary all responsibilities and authorities assigned to the Secretary in this part 4290.
Subpart B—Definition of Terms Used in Part 4290
Act means Subtitle H of the Consolidated Farm and Rural Development Act, as amended (7 U.S.C. 2009cc et seq.).
Administrator means the Administrator of SBA.
Affiliate or Affiliates has the meaning set forth in title 13 CFR 121.103.
Applicant means any entity submitting an application to be licensed as a RBIC.
Articles mean articles of incorporation or charter and bylaws for a Corporate RBIC, the certificate and limited partnership agreement for a Partnership RBIC, and the operating agreement or other organizational documents for an LLC RBIC.
Assistance or Assisted means Financing of or management services rendered to a Portfolio Concern by or through a RBIC pursuant to the Act and this part.
Associate of a RBIC means any of the following:
(1)(i) An officer, director, employee or agent of a Corporate RBIC;
(ii) A Control Person, employee or agent of a Partnership RBIC;
(iii) A managing member of an LLC RBIC;
(iv) An Investment Adviser/Manager of any RBIC, including any Person who contracts with a Control Person of a RBIC to be the Investment Adviser/Manager of such RBIC; or
(v) Any Person regularly serving a RBIC on retainer in the capacity of attorney at law.
(2) Any Person who owns or controls, or who has entered into an agreement to own or control, directly or indirectly, at least 10 percent of any class of stock of a Corporate RBIC or 10 percent of the membership interests of an LLC RBIC, or a limited partner's interest of at least 10 percent of the partnership capital of a Partnership RBIC. However, neither a limited partner in a Partnership RBIC nor a non-managing member in an LLC RBIC is considered an Associate if such Person is an Entity Institutional Investor whose investment in the Partnership, including commitments, represents no more than 33 percent of the capital of the RBIC and no more than five percent of such Person's net worth.
(3) Any officer, director, partner (other than a limited partner), manager, agent, or employee of any Associate described in paragraph (1) or (2) of this definition.
(4) Any Person that directly or indirectly Controls, or is Controlled by, or is under Common Control with, a RBIC.
(5) Any Person that directly or indirectly Controls, or is Controlled by, or is under Common Control with, any Person described in paragraphs (1) and (2) of this definition.
(6) Any Close Relative of any Person described in paragraphs (1), (2), (4), and (5) of this definition.
(7) Any Secondary Relative of any Person described in paragraphs (1), (2), (4), and (5) of this definition.
(8) Any concern in which—
(i) Any person described in paragraphs (1) through (6) of this definition is an officer; general partner, or managing member; or
(ii) Any such Person(s) singly or collectively Control or own, directly or indirectly, an equity interest of at least 10 percent (excluding interests that such Person(s) own indirectly through ownership interests in the RBIC).
(9) Any concern in which any Person(s) described in paragraph (7) of this definition singly or collectively own (including beneficial ownership) a majority equity interest, or otherwise have Control. As used in this paragraph (9), “collectively” means together with any Person(s) described in paragraphs (1) though (7) of this definition.
(10) For the purposes of this definition, any Associate relationship described in paragraphs (1) through (7) of this definition that exists at any time within six months before or after the date that a RBIC provides Financing, will be considered to exist on the date of the Financing.
Capital Impairment has the meaning set forth in § 4290.1830(b).
Central Registration Agent or CRA means one or more agents appointed for the purpose of issuing Trust Certificates (TCs) and performing the functions enumerated in § 4290.1620 and performing similar functions for Debentures funded outside the pooling process.
Close Relative of an individual means:
(1) A current or former spouse;
(2) A father, mother, guardian, brother, sister, son, daughter; or
(3) A father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, or daughter-in-law.
Commitment means a written agreement between a RBIC and an Enterprise that obligates the RBIC to provide Financing (except a guarantee) to that Enterprise in a fixed or determinable sum, by a fixed or determinable future date. In this context Start Printed Page 32207the term “agreement” means that there has been agreement on the principal economic terms of the Financing. The agreement may include reasonable conditions precedent to the RBIC's obligation to fund the Commitment, but these conditions must be outside the RBIC's control.
Common Control means a condition such that two or more Persons, either through ownership, management, contract, or otherwise, are under the Control of one group or Person. Two or more RBICs are presumed to be under Common Control if they are Affiliates of each other by reason of common ownership or common officers, directors, or general partners; or if they are managed or their investments are significantly directed either by a common independent Investment Advisor/Manager or managerial contractor, or by two or more such advisors or contractors that are Affiliates of each other. This presumption may be rebutted by evidence satisfactory to the Secretary.
Community Development Finance means debt or equity-type investments in Rural Areas.
Control means the possession, direct or indirect, of the power to direct or cause, or the power to stop or hinder (also referred to as “negative Control”), the direction of the management and policies of a RBIC or other concern, whether through the ownership of voting securities, by contract, or otherwise.
Control Person means any Person that controls a RBIC, either directly or through an intervening entity. A Control Person includes:
(1) A general partner of a Partnership RBIC;
(2) Any Person serving as a general partner (in the case of a partnership), an officer or director (in the case of a corporation), or a manager (in the case of a limited liability company) of any entity that controls a RBIC, either directly or through an intervening entity;
(3) Any Person that—
(i) Controls or owns, directly or through an intervening entity, at least 10 percent of a Partnership RBIC, a LLC RBIC, or any entity described in paragraphs (1) or (2) of this definition; and
(ii) Participates in the investment decisions of a general partner of such Partnership RBIC or of a managing member of such LLC RBIC;
(4) Any Person that controls or owns, directly or through an intervening entity, at least 50 percent of a RBIC or any entity described in paragraphs (1) or (2) of this definition.
Corporate RBIC has the meaning set forth in the definition of RBIC in this section.
Debenture means a debt obligation issued by RBICs pursuant to section 384E of the Act and held or guaranteed by the Secretary.
Debt Securities means instruments evidencing a loan with an option or any other right to acquire Equity Securities in an Enterprise or its Affiliates, or a loan which by its terms is convertible into an equity position. Consideration must be paid for all options acquired.
Developmental Venture Capital means Equity Capital invested in Rural Business Concerns, with an objective of fostering economic development in Rural Areas.
Distribution means any transfer of cash or non-cash assets to the Secretary, the Secretary's agent or Trustee, or to partners in a Partnership RBIC, or to shareholders in a Corporate RBIC, or to members in an LLC RBIC. Capitalization of Retained Earnings Available for Distribution constitutes a Distribution to the RBIC's partners, shareholders, or members.
Enterprise means a Person engaged in a business or commercial activity which charges for the goods and services it provides, whether such Person is operating for profit or is subject to any legal restrictions on the distribution of profits to its owners, members, or suppliers of its equity or quasi-equity capital. An Enterprise includes:
(1) A public, private, or cooperative for-profit or non-profit organization;
(2) A for-profit or nonprofit business controlled by an Indian tribe on a Federal or State reservation or other federally recognized Indian tribal group; or
(3) Any other Person.
Entity General Partner has the meaning set forth in § 4290.160.
Entity Managing Member has the meaning set forth in § 4290.160.
Equity Capital means Equity Securities or Subordinated Debt With Equity Features.
Equity Securities means stock of any class in a corporation, stock options, warrants, limited partnership interests in a limited partnership, membership interests in a limited liability company, or joint venture interests.
Farm Credit System Institution means an institution defined in section 1.2(a) of the Farm Credit Act of 1971 (12 U.S.C. 2002(a)).
Financing or Financed means outstanding financial assistance provided to a Portfolio Concern by a RBIC, whether through:
(1) Loans, with or without a right to acquire Equity Securities;
(2) Debt Securities;
(3) Equity Securities;
(3) Subordinated Debt With Equity Features;
(4) Guarantees; or
(5) Purchases of securities of an Enterprise through or from an underwriter as permitted by § 4290.825.
Guaranty Agreement means the contract entered into by the Secretary which is a guarantee backed by the full faith and credit of the United States Government as to timely payment of principal and interest on Debentures and the Secretary's rights in connection with such guarantee.
Includible Non-Cash Gains means those non-cash gains (as reported on SBA Form 468) that are realized in the form of Publicly Traded and Marketable securities or investment grade debt instruments. For purposes of this definition, investment grade debt instruments means those instruments that are rated “BBB” or “Baa”, or better, by Standard & Poor's Corporation or Moody's Investors Service, respectively. Non-rated debt may be considered to be investment grade if a RBIC obtains a written opinion from an investment banking firm acceptable to the Secretary stating that the non-rated debt instrument is equivalent in risk to the issuer's investment grade debt.
Institutional Investor means Entity Institutional Investor or Individual Institutional Investor, each defined as follows:
(1) Entity Institutional Investors. Any of the following entities if the entity has a net worth (exclusive of unfunded commitments from investors) of at least $1 million, or such higher amount as is specified in this paragraph (1). (See also § 4290.230(c)(4) for limitations on the amount of an Entity Institutional Investor's commitment that may be included in Private Capital.)
(i) A State or National bank, Farm Credit System Institution, trust company, savings bank, or savings and loan association.
(ii) An insurance company.
(iii) A 1940 Act Investment Company or Business Development Company (each as defined in the Investment Company Act of 1940, as amended (15 U.S.C. 80a-1 et seq.).
(iv) A holding company of any entity described in paragraph (l)(i), (ii) or (iii) of this definition.
(v) An employee benefit or pension plan established for the benefit of employees of the Federal government, any State or political subdivision of a State, or any agency or instrumentality of such government unit.
(vi) An employee benefit or pension plan (as defined in the Employee Start Printed Page 32208Retirement Income Security Act of 1974, as amended (Public Law 93-406, 88 Stat. 829), excluding plans established under § 401(k) of the Internal Revenue Code of 1986 (26 U.S.C. 401(k)), as amended).
(vii) A trust, foundation or endowment exempt from Federal income taxation under the Internal Revenue Code of 1986, 26 U.S.C. 1, as amended.
(viii) A corporation, partnership or other entity with a net worth (exclusive of unfunded commitments from investors) of more than $10 million.
(ix) A State, a political subdivision of a State, or an agency or instrumentality of a State or its political subdivision.
(x) An entity whose primary purpose is to manage and invest non-Federal funds on behalf of at least three Institutional Investors described in paragraphs (l)(i) through (ix) of this definition, each of whom must have at least a 10 percent ownership interest in the entity.
(xi) Any other entity that the Secretary determines to be an Institutional Investor.
(2) Individual Institutional Investor. (i) Any of the following individuals if he/she is also a permanent resident of the United States:
(A) An individual who is an Accredited Investor (as defined in the Securities Act of 1933, as amended (15 U.S.C. 77a-77aa)) and whose commitment to the RBIC is backed by a letter of credit from a State or National bank acceptable to the Secretary.
(B) An individual whose personal net worth is at least $2 million and at least ten times the amount of his or her commitment to the RBIC. The individual's personal net worth must not include the value of any equity in his or her most valuable residence.
(C) An individual whose personal net worth, not including the value of any equity in his or her most valuable residence, is at least $10 million.
(ii) Any individual who is not a permanent resident of the United States but who otherwise satisfies paragraph (2)(i) of this definition provided such individual has irrevocably appointed an agent within the United States for the service of process.
Investment Adviser/Manager means any Person who furnishes advice or assistance with respect to operations of a RBIC under a written contract executed in accordance with the provisions of § 4290.510.
Lending Institution means a concern that is operating under regulations of a state or Federal licensing, supervising, or examining body, or whose shares are publicly traded and listed on a recognized stock exchange or is listed in the Automated Quotation System of the National Association of Securities Dealers (NASDAQ) and which has assets in excess of $500 million; and which, in either case, holds itself out to the public as engaged in the making of commercial and industrial loans and whose lending operations are not for the purpose of financing its own or an Associate's sales or business operations.
Leverage means financial assistance provided to a RBIC by the Secretary either through the purchase or guaranty of a RBIC's Debentures and any other SBA financial assistance evidenced by a security of the RBIC.
Leverageable Capital means Regulatory Capital, excluding unfunded commitments.
LLC RBIC has the meaning set forth in the definition of RBIC in this section.
Loan means a transaction evidenced by a debt instrument with no provision for you to acquire Equity Securities.
Loans and Investments means Portfolio securities, assets acquired in liquidation of Portfolio securities, operating Enterprises acquired, and notes and other securities received, as set forth in the Statement of Financial Position on SBA Form 468.
Management Expenses has the meaning set forth in § 4290.520.
NAICS Manual means the latest issue of the North American Industrial Classification System (NAICS) Manual, prepared by the Office of Management and Budget, and available from the U.S. Government Printing Office, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA, 15250-7954.
1940 Act Company means a RBIC which is registered under the Investment Company Act of 1940.
1980 Act Company means a RBIC which is registered under the Small Business Investment Incentive Act of 1980.
Operational Assistance means management, marketing, and other technical assistance that assists a Smaller Enterprise with its business development.
Original Issue Price means the price paid by the purchaser for securities at the time of issuance.
Participation Agreement means an agreement between the Secretary and an Applicant licensed as a RBIC pursuant to § 4290.390 of this part, that details the RBIC's operating plan and investment criteria and requires the RBIC to operate pursuant to the Act and this part.
Partnership RBIC has the meaning set forth in the definition of RBIC in this section.
Person means a natural person or legal entity.
Pool means an aggregation of guaranteed Debentures approved by the Secretary.
Portfolio means the securities representing a RBIC's total outstanding Financings of Enterprises. It does not include idle funds or assets acquired in liquidation of Portfolio securities.
Portfolio Concern means any Enterprise Assisted by a RBIC.
Principal Office means the location where the greatest number of the Enterprise's employees at any one location perform their work. However, for those Enterprises whose “primary industry” (see 13 CFR 121.107) is service or construction (see 13 CFR 121.201), the determination of principal office excludes the Enterprise's employees who perform the majority of their work at job-site locations to fulfill specific contract obligations.
Private Capital has the meaning set forth in § 4290.230.
Publicly Traded and Marketable means securities that are salable without restriction or that are salable within 12 months pursuant to Rule 144 (17 CFR 230.144) of the Securities Act of 1933, as amended, by the holder thereof, and are of a class which is traded on a regulated stock exchange, or is listed in NASDAQ, or has, at a minimum, at least two market makers as defined in the relevant sections of the Securities Exchange Act of 1934, as amended (15 U.S.C. 77b et seq.), and in all cases the quantity of which can be sold over a reasonable period of time without having an adverse impact upon the price of the stock.
Qualified Non-private Funds means:
(1) Funds directly or indirectly invested in any RBIC or Applicant on or after May 13, 2002 by any Federal agency other than USDA under a provision of law explicitly mandating the inclusion of those funds in the definition of “Private Capital;” and
(2) The aggregate amount of funds invested in any Applicant or RBIC by one or more States, or any political subdivisions, agencies or instrumentalities thereof, including any guarantee extended by such entities.
Regulatory Capital means Private Capital, excluding non-cash assets contributed to a RBIC or an Applicant unless such assets have been converted to cash or have been approved by the Secretary for inclusion in Regulatory Capital. For purposes of this definition, sales of contributed non-cash assets with recourse or borrowings against such assets shall not constitute a conversion to cash. Start Printed Page 32209
Relevant Venture Capital Finance means Equity Capital in Rural Business Concerns or benefiting Rural Areas.
Retained Earnings Available for Distribution means Undistributed Net Realized Earnings less any Unrealized Depreciation on Loans and Investments (as reported on SBA Form 468), and represents the amount that a RBIC may distribute to investors as a profit Distribution, or transfer to Private Capital.
Rural Area means an area that is located outside a standard metropolitan statistical area, or within a community that has a population of 50,000 or less inhabitants. As used in this definition, “community” means any area outside of a metropolitan statistical area (MSA) or any territory within an MSA that is not within an urbanized area, all as defined by the Bureau of the Census of the United States Department of Commerce (Census Bureau) at the last decennial census.
Rural Business Concern means an Enterprise whose Principal Office is located in a Rural Area.
Rural Business Concern Investment means a Financing in a Rural Business Concern whose Principal Office was located in a Rural Area at the time of the initial Financing.
Rural Business Investment Company or RBIC means a corporation organized as required by § 4290.100 (Corporate RBIC), a limited partnership organized as required by §§ 4290.100 and 4290.160 (Partnership RBIC), or a limited liability company organized as required by §§ 4290.100 and 4290.160 (LLC RBIC), that has been licensed as a RBIC pursuant to § 4290.390.
SBA means the U.S. Small Business Administration, an agency of the Federal Government headquartered at 409 Third Street, SW, Washington, DC 20416.
Secondary Relative of an individual means:
(1) A grandparent, grandchild, or any other ancestor or lineal descendent who is not a Close Relative;
(2) An uncle, aunt, nephew, niece, or first cousin; or
(3) A spouse of any person described in paragraph (1) or (2) of this definition.
Secretary means the Secretary of Agriculture.
Small Business Concern means a for-profit Smaller Enterprise that meets the definition of “business concern” in 13 CFR 121.105 and that, together with its Affiliates, meets the small business size standards set forth in 13 CFR 121.201 or 13 CFR 121.301(c) for the industry in which it is primarily engaged on the date the Financing is made (the term “primarily engaged” for purposes of this definition is defined in 13 CFR 121.107).
Small Business Concern Investments means a Financing in the form of Equity Capital in an Enterprise that qualified as both a Smaller Enterprise and a Small Business Concern at the time of the initial Financing.
Small Business Investment Company or SBIC means a Licensee, as that term is defined in 13 CFR 107.50.
Smaller Enterprise means any Rural Business Concern that, together with its Affiliates and by itself—
(1) Meets the size standard established by SBA in 13 CFR 121.201, corresponding to each type of economic activity or industry described in the NAICS Manual for the industry in which it is primarily engaged on the date on which the Financing is made (the term “primarily engaged” for purposes of this definition is defined in 13 CFR 121.107); or
(i) A net financial worth of not more than $6,000,000 as of the date on which the Financing is made; and
(ii) An average net income for the two year period preceding the date on which the Financing is made of not more than $2,000,000, after Federal income taxes (excluding any carryover losses), except that, for purposes of this clause, if the Rural Business Concern is not required by law to pay Federal income taxes at the enterprise level, but is required to pass income through to the shareholders, partners, beneficiaries, or other equitable owners of the Rural Business Concern, its net income is determined by allowing a deduction in an amount equal to the total of—
(A) If it is not required by law to pay State (and local, if any) income taxes at the enterprise level, the net income (determined without regard to this paragraph (2)(ii)(A)) multiplied by the marginal State income tax rate (or by the combined State and local income tax rates, as applicable) that would have applied if the Rural Business Concern were a corporation; and
(B) The net income (so determined) less any deduction for State (and local) income taxes calculated under paragraph (2)(ii)(A) of this definition multiplied by the marginal Federal income tax rate that would have applied if the Rural Business Concern were a corporation.
Smaller Enterprise Investment means a Financing in the form of Equity Capital in an Enterprise that qualified as a Smaller Enterprise at the time of the initial Financing.
State means each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands of the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, the Trust Territory of the Pacific Islands, and the Federated States of Micronesia.
Subordinated Debt means a debt of a debtor, common to more than one creditor, that is the subject of an agreement between two groups of creditors (whose claims would otherwise be in parity) setting forth the circumstances under which the claims of one group (senior creditors) shall be satisfied out of the resources of the common debtor that would otherwise be available for the payment of the claims of the other group (junior creditors).
Subordinated Debt With Equity Features means a Subordinated Debt obligation that gives to the junior creditor such additional compensation as warrants, conversion rights, any other interest in the debtor's equity, profits, increased future revenue, or a royalty interest.
Trust means a legal entity created for the purpose of holding guaranteed Debentures and the guaranty agreement related thereto, receiving, holding and making any related payments, and accounting for such payments.
Trust Certificate Rate means a fixed rate determined at the time Debentures are pooled.
Trust Certificates (TCs) means certificates issued by the Secretary, the Secretary's agent or Trustee and representing ownership of all or a fractional part of a Trust or Pool of Debentures.
Trustee means the trustee or trustees of a Trust.
Undistributed Net Realized Earnings means Undistributed Realized Earnings less Non-cash Gains/Income, each as reported on SBA Form 468.
Unrealized Appreciation means the amount by which a RBIC's valuation of each of its Loans and Investments, as determined by its board of directors, general partner(s), or managing member(s) in accordance with the RBIC's valuation policies, exceeds the cost basis thereof.
Unrealized Depreciation means the amount by which a RBIC's valuation of each of its Loans and Investments, as determined by its board of directors, general partner(s), or managing member(s) in accordance with the RBIC's valuation policies, is below the cost basis thereof.
Unrealized Gain (Loss) on Securities Held means the sum of the Unrealized Appreciation and Unrealized Depreciation on all of a RBIC's Loans and Investments, less estimated future income tax expense or estimated Start Printed Page 32210realizable future income tax benefit, as appropriate.
Urban Area means an area containing a city (or its equivalent), or any equivalent geographic area determined by the Census Bureau and adopted by the Secretary for purposes of this definition (about which the Secretary will publish a document in the Federal Register from time to time), which had a population of over 150,000 in the last decennial census and the urbanized areas containing or adjacent to that city, both as determined by the Census Bureau for the last decennial census.
Urban Area Investment means a Financing in an Enterprise whose Principal Office was located in an Urban Area at the time of the initial Financing.
USDA means the U.S. Department of Agriculture, a department of the Federal government headquartered at 1400 Independence Avenue, SW., Washington, DC 20250.
Subpart C—Qualifications for the RBIC Program
Organizing a RBIC
(a) Newly-formed for-profit. An Applicant for a RBIC license must be a newly formed for-profit entity or, subject to § 4290.150, a newly formed for-profit subsidiary of an existing entity. It must be organized under the law of a State. An Applicant may be organized as a corporation (“Corporate RBIC”), a limited partnership (“Partnership RBIC”), or a limited liability company (“LLC RBIC”).
(b) Purpose. An Applicant must be organized solely for the purpose of performing the functions and conducting the activities contemplated under the Act: making Developmental Venture Capital investments and providing Operational Assistance to eligible Smaller Enterprises.
(c) Articles. The RBIC's Articles—
(1) Must specify in general terms:
(i) The purposes for which the RBIC is formed;
(ii) The name of the RBIC;
(iii) The Rural Area or Areas in which it will operate;
(iv) The place where the RBIC's headquarters will be located; and
(v) The amount and classes of the RBIC's ownership interests.
(2) May contain any other provisions consistent with the Act that the RBIC may determine is appropriate to adopt to regulate its business and the conduct of its affairs.
(3) Are subject to the Secretary's approval.
(d) Duration. (1) Partnership RBICs. If you are a Partnership RBIC:
(i) You must have a minimum duration of 10 years, or two years following the maturity of your last-maturing Leverage security, whichever is longer. After 10 years, if all Leverage has been repaid or redeemed and all amounts due the Secretary, his or her agent, or Trustee have been paid, the Partnership RBIC may be terminated by a vote of your partners;
(ii) None of your general partner(s) may be removed or replaced by your limited partners without prior written approval of the Secretary;
(iii) Any transferee of, or successor in interest to, your general partner shall have only the rights and liabilities of a limited partner prior to the Secretary's written approval of such transfer or succession; and
(iv) You must incorporate all the provisions in this paragraph (d) in your limited partnership agreement.
(2) LLC RBICs. If you are a LLC RBIC, you must have a minimum duration of 10 years, or two years following the maturity of your last-maturing Leverage security, whichever is longer. After 10 years, if all Leverage has been repaid or redeemed and all amounts due the Secretary, his or her agent, or Trustee have been paid, the LLC RBIC may be terminated by a vote of your members.
(3) Corporate RBICs. If you are a Corporate RBIC, you must have a duration of not less than 30 years unless earlier dissolved by the shareholders, except that the Corporate RBIC must not dissolve until at least two years following the maturity of your last-maturing Leverage security.
An Applicant must show, to the satisfaction of the Secretary, that its current or proposed management team is qualified and has the knowledge, experience, and capability in Community Development Finance or Relevant Venture Capital Finance, necessary for investing in the types of Enterprises contemplated by the Act, regulations in this part, and its business plan. In determining whether an Applicant's current or proposed management team has sufficient qualifications, the Secretary will consider information provided by the Applicant and third parties concerning the background, capability, education, training and reputation of its general partners, managers, officers, key personnel, and investment committee and governing board members. The Applicant must designate at least one individual as the official responsible for contact with the Secretary.
An Applicant must agree that if licensed as a RBIC, it will make Developmental Venture Capital investments in Enterprises that will create wealth and job opportunities in Rural Areas and among individuals living in those areas.
A RBIC must identify the specific Rural Area or Areas in which it intends to make Developmental Venture Capital investments and provide Operational Assistance under the RBIC program. The scope of the identified areas must be consistent with Applicant's business plan, especially as the plan relates to the Applicant's ability to operate actively, soundly, and profitably in such areas.
A RBIC must have its Management Expenses approved by the Secretary at the time it is licensed. (See § 4290.520 for the definition of Management Expenses.)
(a) Diversity requirement. You must have diversity between management and ownership in order to be licensed as a RBIC and to maintain your license. To establish diversity, you must meet the requirements in paragraphs (b) and (c) of this section.
(b) Percentage ownership requirement. No Person or group of Persons who are Affiliates of one another may own or control, directly or indirectly, more than 70 percent of your Regulatory Capital or your Leverageable Capital.
(c) Non-affiliation requirement. At least 30 percent of your Regulatory Capital and Leverageable Capital must be owned and controlled by Persons unaffiliated with your management and unaffiliated with each other, and whose investments are significant in dollar and percentage terms as determined by the Secretary. Such Persons must not be your Associates (except for their status as your shareholders, limited partners or members) and must not Control, be Controlled by, or be under Common Control with any of your Associates. A single “acceptable” Institutional Investor may be substituted for two or three of the three investors who are otherwise required. The following Institutional Investors are “acceptable” for this purpose:
(1) Entities whose overall activities are regulated and periodically examined by State, Federal or other governmental authorities satisfactory to the Secretary; Start Printed Page 32211
(2) Entities listed on the New York Stock Exchange;
(3) Entities that are publicly-traded and that meet both the minimum numerical listing standards and the corporate governance listing standards of the New York Stock Exchange;
(4) Public or private employee pension funds;
(5) Trusts, foundations, or endowments, but only if exempt from Federal income taxation; and
(6) Other Institutional Investors satisfactory to the Secretary.
(d) Voting requirement. The investors relied upon to satisfy the diversity requirement may not delegate their voting rights to any Person who is your Associate, or who Controls, is Controlled by, or is under Common Control with any of your Associates, without prior approval by the Secretary.
(e) Requirement to maintain diversity. You must maintain management-ownership diversity while you are a RBIC. If, at any time, you no longer have the required management-ownership diversity, you must:
(1) Notify the Secretary within 10 days; and
(2) Re-establish diversity within six months after loss of diversity.
(a) Entity General Partner or Entity Managing Member. (1) A general partner of a Partnership RBIC which is a corporation, limited liability company or partnership (an “Entity General Partner”), or a managing member of an LLC RBIC which is a corporation, limited liability company, or partnership (an “Entity Managing Member”) shall be organized under State law solely for the purpose of serving as the general partner or managing member of one or more RBICs, and shall be organized for profit.
(2) The Secretary must approve any person who will serve as an officer, director, manager, or general partner of the Entity General Partner or Entity Managing Member and of an entity that Controls the Entity General Partner or Entity Managing Member. This provision must be stated in an Entity General Partner's or Entity Managing Member's articles of incorporation or charter and bylaws if a corporation, operating agreement if a limited liability company, or partnership agreement if a partnership.
(3) An Entity General Partner or Entity Managing Member is subject to the same examination and reporting requirements as a RBIC under sections 384K and 384L of the Act. The restrictions and obligations imposed upon a RBIC by §§ 4290.1810, 4290.30, 4290.410 through 4290.450, 4290.470, 4290.500, 4290.510, 4290.585, 4290.600, 4290.680, 4290.690 through 4290.692, and 4290.1910 apply also to an Entity General Partner or Entity Managing Member of a RBIC.
(4) The general partner(s) of your Entity General Partner(s) or Entity Managing Member(s) will be considered your general partner.
(5) If your Entity General Partner or Entity Managing Member is a limited partnership, its limited partners may be considered your Control Person(s) if they meet the definition for Control Person in § 4290.50.
(b) Liability of general partner of Partnership RBIC. Subject to section 384O(b) of the Act, your general partner(s) is not liable solely by reason of its status as a general partner for repayment of any Leverage or debts you owe to the Secretary unless the Secretary, in the exercise of reasonable investment prudence, and with regard to your financial soundness, determines otherwise prior to the purchase or guaranty of your Leverage. The conditions specified in § 4290.1810 and § 4290.1910 apply to all general partners.
(c) Special Leverage requirement for Partnership RBICs and LLC RBICs. Before your first issuance of Leverage, you must furnish the Secretary with evidence that you qualify as a partnership for tax purposes, either by a ruling from the Internal Revenue Service or by an opinion of counsel.
All Control Persons are bound by the provisions of sections 384O and 384P of the Act and by the conflict-of-interest rules under § 4290.730. The term RBIC, as used in §§ 4290.30, 4290.460, and 4290.680, includes all of the RBIC's Control Persons.
Capitalizing a RBIC
You must meet the requirements of §§ 4290.200 through 4290.230 in order to qualify as a RBIC and to receive Leverage.
(a) General Rule. You must have Regulatory Capital of at least $10,000,000, or such lesser amount (but not less than $5,000,000) as the Secretary may prescribe by notice published from time to time in the Federal Register, and Leverageable Capital of at least $500,000, to become a RBIC.
(b) Exception. (1) The Secretary in his or her sole discretion and based on a showing of special circumstances and good cause may license an Applicant with Regulatory Capital of at least $2,500,000, but only if the Applicant:
(i) Has satisfied all eligibility criteria for licensing as a RBIC as described in § 4290.390(a) of this part, except the capital requirement specified in paragraph (a)(1) of that section, as determined solely by the Secretary;
(ii) Has a viable business plan reasonably projecting profitable operations; and
(iii) Has a reasonable timetable for achieving Regulatory Capital of at least $10,000,000.
(2) A RBIC licensed under this exception is not eligible to receive Leverage until it has complied with paragraph (a) of this section.
(a) General. Private Capital means the contributed capital of a RBIC, plus unfunded binding commitments by Institutional Investors (including commitments evidenced by a promissory note) to contribute capital to a RBIC.
(b) Contributed capital. For purposes of this section, contributed capital means the paid-in capital and paid-in surplus of a Corporate RBIC, the members' contributed capital of a LLC RBIC, or the partners' contributed capital of a Partnership RBIC, in each case subject to the limitations in paragraph (c) of this section.
(c) Exclusions from Private Capital. Private Capital does not include:
(1) Funds borrowed by an Applicant or a RBIC from any source.
(2) Funds obtained through the issuance of Leverage.
(3) Funds obtained directly or indirectly from the Federal government or any State (including by a political subdivision, agency or instrumentality of the Federal government or a State), except that the following categories of such funds are not excluded from Private Capital—
(i) Funds obtained directly or indirectly from the business revenues (excluding any governmental appropriation) of any federally-chartered or government-sponsored enterprise established prior to May 13, 2002;
(ii) Funds invested by an employee welfare benefit plan or pension plan; and
(iii) Qualified Non-private Funds in an amount not to exceed 33 percent of the total Private Capital of any Applicant or RBIC, provided, however, that in no event may any investor or Start Printed Page 32212investors of Qualified Non-private Funds have the power to Control, directly or indirectly, the management, board of directors, general partners, or members of the RBIC.
(4) Any portion of an unfunded commitment from an Institutional Investor with a net worth of less than $10 million that exceeds 10 percent of such Institutional Investor's net worth.
(5) An unfunded commitment from an investor if the Secretary determines that the collectibility of the commitment is questionable.
(d) Non-cash capital contributions. Capital contributions in a form other than cash are subject to the limitations in § 4290.240 of this part.
(e) Contributions with borrowed funds. You may not accept any capital contribution made with funds borrowed by a Person seeking to own an equity interest (whether direct or indirect, beneficial or of record) of at least 10 percent of your Private Capital. This exclusion does not apply if:
(1) Such Person's net worth is at least twice the amount borrowed; or
(2) The Secretary gives his or her prior written approval of the capital contribution.
Non-cash capital contributions to a RBIC or Applicant are included in Private Capital only if they are approved by the Secretary and they fall into one of the following categories:
(a) Direct obligations of, or obligations guaranteed as to principal and interest by, the United States having a term of no more than one year.
(b) Services rendered or to be rendered to you, priced at no more than their fair market value.
(c) Other non-cash assets approved by the Secretary.
Subpart D—Application and Approval Process for RBIC Licensing
(a) Notice of Funds Availability (“NOFA”). The Secretary will publish a NOFA in the Federal Register advising potential applicants of the availability of funds for the RBIC program and inviting the submission of applications. The NOFA may specify limitations, special rules, procedures, and restrictions for a particular funding round. When submitting its application, an Applicant must comply with both this part 4290 and any requirements specified in the NOFA, including the opening and closing dates for submission of an application.
(b) Application form. An Applicant must apply for a RBIC license using the application packet provided by the Secretary. Upon receipt of a completed application packet, the Secretary may request clarifying or technical information on the materials submitted as part of the application.
Each Applicant must submit a complete application, including the following:
(a) Management team experience. The Applicant must provide information generally as to the background, capability, education, reputation and training of its management team, including general partners, managers, officers, key personnel, and investment committee and governing board members. The Applicant also must provide information specifically on these individuals' qualifications and reputation in the areas of Community Development Finance and/or Relevant Venture Capital Finance, including the impact of these individuals' activities in these areas.
(b) Amount of Regulatory Capital. The Applicant must indicate the amount of Regulatory Capital it has raised or proposes to raise, which amount must satisfy the requirements of § 4290.210(a) of this part, unless the Applicant indicates that it has raised or proposes to raise at least $2,500,000 and is applying for an exception pursuant to § 4290.210(b) of this part and includes in its application—
(1) A showing of special circumstances and good cause for the exception:
(2) Will satisfy all eligibility criteria for licensing as a RBIC as set forth in § 4290.390(a) of this part, except the capital requirement specified in paragraph (a)(1) of that section, as determined solely by the Secretary;
(3) Has a viable business plan reasonably projecting profitable operations; and
(4) Has a reasonable timetable for achieving Regulatory Capital in an amount that satisfies the requirements of § 4290.210(a) of this part.
(c) Comprehensive business plan. The Applicant must submit a comprehensive business plan covering at least a five-year period, addressing the specific items described in § 4290.320, and which demonstrates that the Applicant has the capacity to operate successfully as a RBIC.
(a) Plan for Developmental Venture Capital investing. The Applicant must describe its plans and strategies for how it proposes to make successful Developmental Venture Capital investments in identified Rural Areas.
(b) Working with Rural Area community-based organizations. The Applicant must describe how it intends to work with community-based organizations and local entities (including local economic development companies, local lenders, and local investors) in order to facilitate its Developmental Venture Capital investments.
(c) Market analysis. The Applicant must provide an analysis of the Rural Areas in which it intends to focus its Developmental Venture Capital investments and Operational Assistance to Smaller Enterprises, demonstrating that the Applicant understands the market and the unmet Equity Capital needs in such areas and how its activities will meet these unmet needs and will have a positive economic impact on those areas. The Applicant also must analyze the extent of the demand in such areas for Developmental Venture Capital investments and any factors or trends that may affect the Applicant's ability to make effective Developmental Venture Capital investments.
(d) Operational capacity and investment strategies. The Applicant must submit information concerning its policies and procedures for underwriting and approving its Developmental Venture Capital investments, monitoring its portfolio, and maintaining internal controls and operations.
(e) Plan to raise Regulatory Capital. The Applicant must include a detailed description of how it plans to raise its Regulatory Capital if it has not yet done so at the time of application. The Applicant must discuss its potential sources of Regulatory Capital, the estimated timing for raising such funds, and the extent of the expressions of interest to commit such funds to the Applicant.
(f) Plan for providing Operational Assistance. The Applicant must describe how it plans to use its grant funds to provide Operational Assistance to Smaller Enterprises in which it makes or expects to make Developmental Venture Capital investments. Its plan must address the types of Operational Assistance it proposes to provide, and how it plans to provide the Operational Assistance through the use of licensed professionals, when necessary, either from its own staff or from outside entities.
(g) Projected amount of investment in Rural Areas. The Applicant must Start Printed Page 32213describe how it proposes to meet the requirements set forth in § 4290.700. An Applicant must project the amount of its total Regulatory Capital and Leverage that it proposes to invest in Smaller Enterprises and in Rural Business Concerns that are not Smaller Enterprises. The Applicant also must describe the amount of its total Regulatory Capital and Leverage that it proposes to invest in Urban Area Investments.
(h) Projected impact. The Applicant must describe the criteria and economic measurements to be used to evaluate whether and to what extent it has met the objectives of the RBIC program. It must include:
(1) A description of the extent to which it will concentrate its Developmental Venture Capital investments and Operational Assistance activities in identified Rural Areas;
(2) An estimate of the economic development benefits to be created within identified Rural Areas over the next five years or more as a result of its activities;
(3) A description of the criteria to be used to measure the benefits created as a result of its activities;
(4) A discussion about the amount of such benefits created that it will consider to constitute successfully meeting the objectives of the RBIC program.
(i) Affiliates and business relationships. The Applicant must submit information describing the management and financial strength of any parent or holding entity, affiliated firm or entity, or any other firm or entity essential to the success of the Applicant's business plan.
The Applicant must pay to the Secretary a grant issuance fee of $5,000. An Applicant must submit this fee in advance, at the time of application submission.
Subpart E—Evaluation and Selection of RBICs
The Secretary on behalf of USDA and the Administrator on behalf of SBA, in their sole discretion, will evaluate and select an Applicant to participate in the RBIC program based on a review of the Applicant's application materials, interviews or site visits with the Applicant (if any), and background investigations conducted by the Secretary and other Federal agencies. The Secretary's evaluation and selection process is intended to—
(a) Ensure that Applicants are evaluated on a competitive basis and in a fair and consistent manner;
(b) Take into consideration the unique proposals presented by Applicants;
(c) Ensure that each Applicant licensed as a RBIC can fulfill successfully the goals of its comprehensive business plan; and
(d) Ensure that the Secretary selects Applicants in such a way as to promote nationwide geographic distribution of Developmental Venture Capital investments.
The Secretary will not consider any application that is not complete or that is submitted by an Applicant that does not meet the eligibility criteria described in subpart C of this part. The Secretary at his or her sole discretion, may request from an Applicant additional information concerning eligibility criteria or easily completed portions of the application in order to facilitate consideration of its application.
The Secretary will review the information submitted by the Applicant concerning the qualifications of the Applicant's management team to determine in his or her sole discretion whether the team meets the minimum requirements deemed by the Secretary to be critical to successful venture capital investing. In making this determination, the Secretary will consider, among other things, the general business reputation of the owners and managers of the Applicant. Only those Applicants considered to have a management team qualified for venture capital investing will be further considered for selection as a RBIC.
Of those Applicants whose management team is considered qualified for venture capital investing and who have submitted an eligible and complete application, the Secretary on behalf of USDA and the Administrator on behalf of SBA, in their sole discretion, will evaluate and select an Applicant for participation in the RBIC program by considering the following criteria—
(a) Whether the Applicant's management team has the knowledge, experience, and capability necessary to manage a sound, economically viable RBIC and to comply with the Act;
(b) The quality of the Applicant's comprehensive business plan in terms of meeting the objectives of the RBIC program;
(c) The likelihood that the Applicant will achieve the goals described in its comprehensive business plan;
(d) The strength and likelihood for success of the Applicant's operations and investment strategies, including whether the Applicant has projected adequate profitability and financial soundness;
(e) Whether the Applicant will be able to operate soundly and profitably over the long term;
(f) Whether the Applicant will be able to operate actively in its identified Rural Areas in accordance with its business plan;
(g) The need for Developmental Venture Capital investments in the Rural Areas in which the Applicant intends to invest;
(h) The extent to which the Applicant will concentrate its activities on serving Smaller Enterprises and Small Business Concerns located in the Rural Areas in which it intends to invest, including the ratio of resources that it proposes to invest in such Enterprises as compared to other Enterprises;
(i) The Applicant's demonstrated understanding of the markets in the Rural Areas in which it intends to focus its activities;
(j) The likelihood that and the time frame within which the Applicant will be able to raise the Regulatory Capital it proposes to raise for its investments;
(k) The strength of the Applicant's proposal to provide Operational Assistance to Smaller Enterprises in which it plans to invest;
(l) The extent to which the activities proposed by the Applicant will promote economic development and the creation of wealth and job opportunities in the Rural Areas in which it intends to invest and among individuals living in such Areas; and
(m) The strength of the Applicant's application compared to applications submitted by other Applicants intending to invest in the same or proximate Rural Areas.
From among the Applicants that have submitted eligible and complete applications, the Secretary on behalf of USDA and the Administrator on behalf of SBA, in their sole discretion, will select some, all, or none of such Applicants to participate in the RBIC program. Selection will entitle the Applicant to proceed with obtaining a license as a RBIC but only if the Applicant also meets the conditions set forth in § 4290.390.
(a) Eligibility criteria for licensing as a RBIC. Each selected Applicant must Start Printed Page 32214meet the following conditions before it is eligible to be licensed as a RBIC:
(1) Raise, within a time period specified by the Secretary but not to exceed 12 months after selection under § 4290.380 the specific amount of Regulatory Capital that the Applicant had projected in its application that it would raise (see § 4290.210 for additional information);
(2) Raise $500,000 in Leverageable Capital as required by § 4290.210;
(3) Complete and submit to the Secretary all legal and other documentation concerning the RBIC, including but not limited to its Articles and updated financial information concerning the RBIC in order to qualify for a Leverage commitment; and
(4) Enter into a Participation Agreement with the Secretary.
(b) Licensing as a RBIC. If the selected Applicant has satisfactorily met all the conditions specified in paragraph (a) of this section, as determined within the sole discretion of the Secretary, then the Secretary on behalf of USDA and the Administrator on behalf of SBA will license the Applicant as a RBIC.
(c) Failure to meet eligibility criteria for licensing. Each selected Applicant that does not meet the eligibility criteria for licensing described in paragraph (a) of this section, within a time period specified by the Secretary, will not be licensed as a RBIC. Failure to meet any of those conditions, including but not limited to failure to raise the projected Regulatory Capital within the required time period, will cause the Applicant's selection to lapse. The Secretary will not restore the selection of such an Applicant after the expiration of that time period. After the expiration of that time period, an Applicant that is not licensed as a RBIC must cease to represent itself as a participant or potential participant in the RBIC program.
(d) Effect of a RBIC license. The Participation Agreement executed by the Secretary with each Applicant licensed as a RBIC will include the following:
(1) Approval to operate as a RBIC under the Act;
(2) A commitment of Leverage; and
(3) An Operational Assistance grant award.
Subpart F—Changes in Ownership, Structure, or Control
Changes in Control or Ownership of RBIC
You must obtain the Secretary's prior written approval for any proposed transfer or issuance of ownership interests that results in the ownership (beneficial or of record) by any Person, or group of Persons acting in concert, of at least 10 percent of any class of your stock, partnership capital or membership interests.
You must obtain the Secretary's prior written approval for any proposed transaction or event that results in Control by any Person(s) not previously approved by the Secretary.
Without the Secretary's prior written approval, no change of ownership or Control may take effect and no officer, director, employee or other Person acting on your behalf shall:
(a) Register on your books any transfer of ownership interest to the proposed new owner(s);
(b) Permit the proposed new owner(s) to exercise voting rights with respect to such ownership interest (including directly or indirectly procuring or voting any proxy, consent or authorization as to such voting rights at any meeting of shareholders, partners or members);
(c) Permit the proposed new owner(s) to participate in any manner in the conduct of your affairs (including exercising control over your books, records, funds or other assets; participating directly or indirectly in any disposition thereof; or serving as an officer, director, partner, manager, employee or agent); or
(d) Allow ownership or Control to pass to another Person.
You must promptly notify the Secretary as soon as you have knowledge of transactions or events that may result in a transfer of Control or ownership of at least 10 percent of your Regulatory Capital. If the effect of a particular transaction or event is unclear, you must report all pertinent facts to the Secretary.
The Secretary's approval of a proposed transfer of Control is contingent upon full disclosure of the real parties in interest, the source of funds for the new owners' interest, and other data requested by the Secretary. As a condition of approving a proposed transfer of control, the Secretary may:
(a) Require an increase in your Regulatory Capital;
(b) Require the new owners or the transferee's Control Person(s) to assume, in writing, personal liability for your Leverage, effective only in the event of their direct or indirect participation in any transfer of Control not approved by the Secretary; or
(c) Require compliance with any other conditions set by the Secretary, including compliance with the requirements for minimum capital and management-ownership diversity in effect at such time for new RBICs.
(a) You must notify the Secretary in writing, within 30 calendar days, of the terms of any transaction in which:
(1) Any Person, or group of Persons acting in concert, pledges shares of your stock (or equivalent ownership interests) as collateral for indebtedness; and
(2) The shares pledged constitute at least 10 percent of your Regulatory Capital.
(b) If the transaction creates a change of ownership or Control, you must comply with § 4290.400 or § 4290.410, as appropriate.
Restrictions on Common Control or Ownership of Two or More RBICs
Without the Secretary's prior written approval, you must not have an officer, director, manager, Control Person, or owner (with a direct or indirect ownership interest of at least 10 percent) who is also:
(a) An officer, director, manager, Control Person, or owner (with a direct or indirect ownership interest of at least 10 percent) of another RBIC; or
(b) An officer or director of any Person that directly or indirectly controls, or is controlled by, or is under Common Control with, another RBIC.
Change in Structure of RBIC
You may not merge, consolidate, change form of organization Start Printed Page 32215(corporation, limited liability company, or limited partnership) or reorganize without the Secretary's prior written approval. Any such merger, consolidation, or change of form is subject to § 4290.440.
Without the Secretary's prior written approval, no change in your business plan, upon which you were selected and licensed as a RBIC, may take effect.
Subpart G—Managing the Operations of a RBIC
You must engage only in the activities permitted by the Act and in no other activities.
You may not represent or imply to anyone that the Secretary, the U.S. Government, or any of its agencies or officers has approved any ownership interests you have issued, obligations you have incurred, or Financings you have made. You must include a statement to this effect in any solicitation provided to investors. Example: You may not represent or imply that “USDA stands behind the RBIC” or that “Your capital is safe because the Secretary's experts review proposed investments to make sure they are safe for the RBIC.”
(a) Valuation guidelines. You must prepare, document and report the valuations of your Loans and Investments in accordance with the Valuation Guidelines for SBICs issued by SBA. These guidelines may be obtained from SBA's Investment Division or at http://www.sba.gov/INV/valuation.pdf.
(b) The Secretary's approval of valuation policy. You must have a written valuation policy approved by the Secretary for use in determining the value of your Loans and Investments. You must either:
(1) Adopt without change the model valuation policy set forth in section III of the Valuation Guidelines for SBICs; or
(2) Obtain the Secretary's prior written approval of an alternative valuation policy.
(c) Responsibility for valuations. Your board of directors, managing member(s), or general partner(s) will be solely responsible for adopting your valuation policy and for using it to prepare valuations of your Loans and Investments for submission to the Secretary. If the Secretary reasonably believes that your valuations, individually or in the aggregate, are materially misstated, he or she reserves the right to require you to engage, at your expense, an independent third party acceptable to the Secretary to substantiate the valuations.
(d) Frequency of valuations. (1) You must value your Loans and Investments at the end of the second quarter of your fiscal year, and again at the end of your fiscal year.
(2) On a case-by-case basis, the Secretary may require you to perform valuations more frequently.
(3) You must report material adverse changes in valuations at least quarterly, within 30 days following the close of the quarter.
(e) Review of valuations by independent public accountant. (1) For valuations performed as of the end of your fiscal year, your independent public accountant must review your valuation procedures and the implementation of such procedures, including adequacy of documentation.
(2) The independent public accountant's report on your audited annual financial statements (SBA Form 468) must include a statement that your valuations were prepared in accordance with your approved valuation policy.
(a) Computer capability. You must have a personal computer with access to the Internet and be able to use this equipment to prepare reports, for which you will receive the necessary software, and transmit such reports to the Secretary. In addition, you must have the capability to send and receive electronic mail.
(b) Facsimile capability. You must be able to receive facsimile messages 24 hours per day at your primary office.
(c) Accessible office. You must maintain an office that is convenient to the public and is open for business during normal working hours.
You must adopt a plan to safeguard your assets and monitor the reliability of your financial data, personnel, Portfolio, funds and equipment. You must provide your bank and custodian with a certified copy of your resolution or other formal document describing your control procedures.
The following shall constitute a violation of this part:
(a) Nonperformance. Failure to perform any of the requirements of any Debenture or of any written agreement with the Secretary or SBA.
(b) False statement. In any document submitted to the Secretary or SBA:
(1) Any false statement knowingly made; or
(2) Any misrepresentation of a material fact; or
(3) Any failure to state a material fact.
(4) A material fact is any fact that is necessary to make a statement not misleading in light of the circumstances under which the statement was made.
In conducting your operations and providing Assistance to your Portfolio Concerns, you must comply with Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-1 et seq.), the Age Discrimination Act of 1975 (Pub. L. 94-135, Title III), and Title V of the Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.) and the following regulations promulgated by USDA to implement and enforce such laws: 7 CFR part 15.
(a) Without the Secretary's prior written approval, for a period of two years after the date of your most recent issuance of Leverage or after the receipt of any assistance as defined in paragraph (b) of this section, you are not permitted to employ, offer employment to, or retain for professional services, any person who:
(1) Served as an officer, attorney, agent, or employee of SBA or USDA within one year before such date; and
(2) In that capacity, occupied a position or engaged in activities which, in SBA's or the Secretary's determination, involved discretion with respect to the issuing of Leverage or the granting of such assistance.
(b) For purposes of this section, “assistance” means financial, contractual, grant, managerial, or other aid, including licensing, certifications, and other eligibility determinations made by USDA or SBA, and any express decision to compromise or defer possible litigation or other adverse action. Start Printed Page 32216
Management and Compensation
(a) General. You may employ an Investment Adviser/Manager who will be subject to the supervision of your board of directors, managing member(s), or general partner(s). If you have Leverage or plan to seek Leverage, you must obtain the Secretary's prior written approval of the management contract. Approval of an Investment Adviser/Manager for one RBIC does not indicate approval of that manager for any other RBIC.
(b) Management contract. The contract must:
(1) Specify the services the Investment Adviser/Manager will render to you and to your Portfolio Concerns; and
(2) Indicate the basis for computing Management Expenses.
(c) Material change to approved management contract. Any proposed material change must be approved by both you and the Secretary in advance. If you are uncertain whether the change is material, submit the proposed revision to the Secretary.
The Secretary must approve your initial Management Expenses and any increases in your Management Expenses.
(a) Definition of Management Expenses. Management Expenses include:
(2) Office expenses;
(4) Business development, including finders' fees;
(5) Office and equipment rental;
(6) Bookkeeping; and
(7) Expenses related to developing, investigating and monitoring investments.
(b) Management Expenses do not include services provided by specialized outside consultants, outside lawyers and independent public accountants, if they perform services not generally performed by a venture capital company.
Cash Management by a RBIC
(a) Permitted investments of idle funds. Funds not invested in Portfolio Concerns must be maintained in:
(1) Direct obligations of, or obligations guaranteed as to principal and interest by, the United States, which mature within 15 months from the date of the investment; or
(2) Repurchase agreements with federally insured institutions, with a maturity of seven days or less. The securities underlying the repurchase agreements must be direct obligations of, or obligations guaranteed as to principal and interest by, the United States. The securities must be maintained in a custodial account at a federally insured institution; or
(3) Certificates of deposit with a maturity of one year or less, issued by a federally insured institution; or
(4) A deposit account in a federally insured institution, subject to a withdrawal restriction of one year or less; or
(5) A checking account in a federally insured institution; or
(6) A reasonable petty cash fund.
(b) Deposit of funds in excess of the insured amount. (1) General rule. You are permitted to deposit in a federally insured institution funds in excess of the institution's insured amount, but only if the institution is “well capitalized” in accordance with the definition set forth in regulations of the Federal Deposit Insurance Corporation (12 CFR 325.103).
(2) Exception. You may make a temporary deposit (not to exceed 30 days) in excess of the insured amount, in a transfer account established to facilitate the receipt and disbursement of funds or to hold funds necessary to honor Commitments issued.
(c) Deposit of funds in Associate institution. A deposit in, or a repurchase agreement with, a federally insured institution that is your Associate is not considered a Financing of such Associate under § 4290.730, provided the terms of such deposit or repurchase agreement are no less favorable than those available to the general public.
Secured Borrowing by RBICs
(a) Definition. In this § 4290.550, “secured third-party debt” means any debt that is secured by any of your assets and not guaranteed by the Secretary, including secured guarantees and other contingent obligations that you voluntarily assume and secured lines of credit.
(b) General rule. You must get the Secretary's written approval before you incur any secured third-party debt or refinance any debt with secured third-party debt, including any renewal of a secured line of credit, increase in the maximum amount available under a secured line of credit, or expansion of the scope of a security interest or lien. For purposes of this paragraph (b), “expansion of the scope of a security interest or lien” does not include the substitution of one asset or group of assets for another, provided the asset values (as reported on your most recent annual SBA Form 468) are comparable.
(c) Conditions for approval. As a condition of granting its approval under this § 4290.550, the Secretary may impose such restrictions or limitations as he or she deems appropriate, taking into account your historical performance, current financial position, proposed terms of the secured debt and amount of aggregate debt you will have outstanding (including Leverage). The Secretary will not favorably consider any requests for approval which include a blanket lien on all your assets, or a security interest in your investor commitments in excess of 125 percent of the proposed borrowing.
(d) Thirty-day approval. Unless the Secretary notifies you otherwise within 30 days after he or she receives your request, you may consider your request automatically approved if:
(1) You are in regulatory compliance;
(2) The security interest in your assets is limited to either those assets being acquired with the borrowed funds or an asset coverage ratio of no more than 2:1;
(3) Your request is for approval of a secured line of credit that would not cause your total outstanding borrowings (not including Leverage) to exceed 50 percent of your Leverageable Capital.
Voluntary Decrease in Regulatory Capital
You must obtain the Secretary's prior written approval to reduce your Regulatory Capital by more than two percent in any fiscal year. At all times, you must retain sufficient Regulatory Capital to meet the minimum capital requirements in the Act and § 4290.210, and sufficient Leverageable Capital to avoid having excess Leverage in violation of section 384E(d) of the Act.
Subpart H—Recordkeeping, Reporting, and Examination Requirements for RBICs
Recordkeeping Requirements for RBICs
(a) Maintaining your accounting records. You must establish and maintain your accounting records using SBA's standard chart of accounts for SBICs, unless the Secretary approves otherwise. You may obtain this chart of accounts from SBA or at http://www.sba.gov/INV/chartof.pdf. Start Printed Page 32217
(b) Location of records. You must keep the following records at your principal place of business or, in the case of paragraph (b)(3) of this section, at the branch office that is primarily responsible for the transaction:
(1) All your accounting and other financial records;
(2) All minutes of meetings of directors, stockholders, executive committees, partners, members, or other officials; and
(3) All documents and supporting materials related to your business transactions, except for any items held by a custodian under a written agreement between you and a Portfolio Concern or lender, or any securities held in a safe deposit box, or by a licensed securities broker in an amount not exceeding the broker's per-account insurance coverage.
(c) Preservation of records. You must retain all the records that are the basis for your financial reports. Such records must be preserved for the periods specified in this paragraph (c) and must remain readily accessible for the first two years of the preservation period.
(1) You must preserve for at least 15 years or, in the case of a Partnership RBIC or LLC RBIC, at least two years beyond the date of liquidation:
(i) All your accounting ledgers and journals, and any other records of assets, asset valuations, liabilities, equity, income, and expenses;
(ii) Your Articles, bylaws, minute books, and RBIC application; and
(iii) All documents evidencing ownership of the RBIC including ownership ledgers and ownership transfer registers.
(2) You must preserve for at least six years all supporting documentation (such as vouchers, bank statements, or canceled checks) for the records listed in paragraph (b)(l) of this section.
(3) After final disposition of any item in your Portfolio, you must preserve for at least six years:
(i) Financing applications and Financing instruments;
(ii) All loan, participation, and escrow agreements;
(iii) All certifications listed in § 4290.610 of this part;
(iv) Any capital stock certificates and warrants of the Portfolio Concern that you did not surrender or exercise; and
(v) All other documents and supporting material relating to the Portfolio Concern, including correspondence.
(4) You may substitute a microfilm or computer-scanned or generated copy for the original of any record covered by this paragraph (c).
(d) Additional requirement. You must comply with the recordkeeping and record retention requirements set forth in Circular A-110 of the Office of Management and Budget. (OMB Circulars are available from the addresses listed in 5 CFR 1310.3 and at http://www.whitehouse.gov/omb/circulars/index.html.)
For each of your Loans and Investments, you must have the documents listed in this section. You must keep these documents in your files and make them available to the Secretary upon request.
(a) For each Financing made to a Rural Business Concern or Smaller Enterprise, a certification by the Portfolio Concern stating the basis for its qualification as a Rural Business Concern or Smaller Enterprise.
(b) For each Financing made to a Small Business Concern, Size Status Declaration (SBA Form 480), executed both by you and by the Portfolio Concern certifying that the concern is a Small Business Concern. For securities purchased from an underwriter in a public offering, you may substitute a prospectus showing that the concern is a Small Business Concern.
(c) A certification by the Portfolio Concern that it will not discriminate in violation of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, and Title V of the Equal Credit Opportunity Act.
(d) A certification by the Portfolio Concern of the intended use of the proceeds. For securities purchased from an underwriter in a public offering, you may substitute a prospectus indicating the intended use of proceeds.
All the information required by this section is subject to the requirements of § 4290.600 and must be in English.
(a) Information for initial Financing decision. Before extending any Financing, you must require the Enterprise to submit such financial statements, plans of operation (including intended use of financing proceeds), cash flow analyses, projections, and such economic development information about the Enterprise, as are necessary to support your investment decision. The information submitted must be consistent with the size and type of the Enterprise and the amount of the proposed Financing.
(b) Updated financial and economic development information. (1) The terms of each Financing must require the Portfolio Concern to provide, at least annually, sufficient financial and economic development information to enable you to perform the following required procedures:
(i) Evaluate the financial condition of the Portfolio Concern for the purpose of valuing your investment;
(ii) Determine the continued eligibility of the Portfolio Concern;
(iii) Verify the use of Financing proceeds;
(iv) Evaluate the economic development impact of the Financing; and
(v) In the case of any Portfolio Concern that is not a Rural Business Concern, the number and percentage of its employees residing in Rural Areas.
(2) The president, chief executive officer, treasurer, chief financial officer, general partner, or proprietor of the Portfolio Concern must certify the information submitted to you.
(3) For financial and valuation purposes, you may accept a complete copy of the Federal income tax return filed by the Portfolio Concern (or its proprietor) in lieu of financial statements, but only if appropriate for the size and type of the Enterprise involved.
(4) The requirements in this paragraph (b) do not apply when you acquire securities from an underwriter in a public offering (see § 4290.825). In that case, you must keep copies of all reports furnished by the Portfolio Concern to the holders of its securities.
(c) Information required for examination purposes. You must obtain any information requested by the Secretary's examiners for the purpose of verifying the certifications made by a Portfolio Concern under § 4290.610. In this regard, your Financing documents must contain provisions requiring the Portfolio Concern to give you and/or the Secretary's examiners access to its books and records for such purpose.
Reporting Requirements for RBICs
(a) Annual filing of SBA Form 468. For each fiscal year, you must submit financial statements and supplementary information prepared on SBA Form 468. You must file Form 468 on or before the last day of the third month following the end of your fiscal year, except for the information required under paragraphs (e) and (f) of this section, which must be filed on or before the last day of the fifth month following the end of your fiscal year.
(1) Audit of Form 468. An independent public accountant Start Printed Page 32218acceptable to the Secretary must audit the annual Form 468.
(2) Insurance requirement for public accountant. Unless the Secretary approves otherwise, your independent public accountant must carry at least $1,000,000 of Errors and Omissions insurance, or be self-insured and have a net worth of at least $1,000,000.
(b) Interim filings of Form 468. When requested by the Secretary, you must file interim reports on Form 468. The Secretary may require you to file the entire form or only certain statements and schedules. You must file such reports on or before the last day of the month following the end of the reporting period. When you submit a request for a draw under a Leverage commitment, you must also comply with any applicable filing requirements set forth in § 4290.1220.
(c) Standards for preparation of Form 468. You must prepare SBA Form 468 in accordance with SBA's Accounting Standards and Financial Reporting Requirements for SBICs, which you may obtain from SBA or at http://www.sba.gov/INV/standards.pdf.
(d) Where to file Form 468. Submit all filings of Form 468 to the Investment Division of SBA.
(e) Reporting of economic development impact information for each Financing on Form 468. Your annual filing of SBA Form 468 must include an assessment of the economic development impact of each Financing. This assessment must specify the fulltime equivalent jobs created, the impact of the Financing on the revenues and profits of the business and on taxes paid by the business and its employees, and a listing of the number and percentage of employees who reside in Rural Areas.
(f) Reporting of economic development information for certain Financings. For each Rural Business Concern Investment and each Smaller Enterprise Investment, your Form 468 must include an assessment of each such Financing with respect to:
(1) The economic development benefits achieved as a result of the Financing;
(2) How and to what extent such benefits fulfilled the goals of your comprehensive business plan and Participation Agreement; and
(3) Whether you consider the Financing or the results of the Financing to have fulfilled the objectives of the RBIC program.
For each Financing you make (excluding guarantees), you must submit a Portfolio Financing Report on SBA Form 1031 within 30 days of the closing date.
You must determine the value of your Loans and Investments in accordance with § 4290.503. You must report such valuations to the Secretary within 90 days of the end of the fiscal year in the case of annual valuations, and within 30 days following the close of other reporting periods. You must report material adverse changes in valuations at least quarterly, within 30 days following the close of the quarter.
(a) Reports to owners. You must give the Secretary a copy of any report you furnish to your investors, including any prospectus, letter, or other publication concerning your financial operations or those of any Portfolio Concern.
(b) Documents filed with SEC. You must give the Secretary a copy of any report, application or document you file with the Securities and Exchange Commission.
(c) Litigation reports. When you become a party to litigation or other proceedings, you must give the Secretary a report within 30 days that describes the proceedings and identifies the other parties involved and your relationship to them.
(1) The proceedings covered by this paragraph (c) include any action by you, or by your security holder(s) in a personal or derivative capacity, against an officer, director, Investment Adviser/Manager or other Associate of yours for alleged breach of official duty.
(2) The Secretary may require you to submit copies of the pleadings and other documents he or she may specify.
(3) Where proceedings have been terminated by settlement or final judgment, you must promptly advise the Secretary of the terms.
(4) This paragraph (c) does not apply to collection actions or proceedings to enforce your ordinary creditors' rights.
(d) Notification of criminal charges. If any officer, director, general partner, or managing member of the RBIC, or any other person who was required by the Secretary to complete a personal history statement, is charged with or convicted of any criminal offense other than a misdemeanor involving a minor motor vehicle violation, you must report the incident to the Secretary within 5 calendar days. Such report must fully describe the facts that pertain to the incident.
(e) Reports concerning Operational Assistance grant funds. You must comply with all reporting requirements set forth in Circular A-110 of the Office of Management and Budget and any grant award document executed between you and the Secretary.
(f) Other reports. You must file any other reports the Secretary may require in writing.
(a) Changes to be reported for post-approval. This section applies to any changes in your Articles, ownership, capitalization, management, operating area, or investment policies that do not require the Secretary's prior approval. You must report such changes to the Secretary within 30 days after the change, for post approval.
(b) Approval by the Secretary. You may consider any change submitted under this § 4290.680 to be approved unless the Secretary notifies you to the contrary within 90 days after receiving it. Approval is contingent upon your full disclosure of all relevant facts and is subject to any conditions the Secretary may prescribe.
Examinations of RBICs by the Secretary for Regulatory Compliance
All RBICs must submit to annual examinations by or at the direction of the Secretary for the purpose of evaluating regulatory compliance.
You must make all books, records and other pertinent documents and materials available for the examination, including any information required by the examiner under § 4290.620(c). In addition, the agreement between you and the independent public accountant performing your audit must provide that any information in the accountant's working papers be made available to the examiners upon request.
(a) General. The Secretary will assess fees for examinations in accordance with this § 4290.692. Unless the Secretary determines otherwise on a case by case basis, he or she will not assess fees for special examinations to obtain specific information.
(b) Base fee. A base fee of $9,200 + 0.015 percent of your assets will be assessed, subject to adjustment in Start Printed Page 32219accordance with paragraph (c) of this section.
(c) Adjustments to base fee. The base fee will be decreased based on the following criteria:
(1) If you have no outstanding regulatory violations at the time of the commencement of the examination or the Secretary did not identify any violations as a result of the most recent prior examination, you will receive a 15% discount on your base fee; and
(2) If you were fully responsive to the letter of notification of examination (that is, you provided all requested documents and information within the time period stipulated in the notification letter in a complete and accurate manner, and you prepared and had available all information requested by the examiner for on-site review), you will receive a 10% discount on your base fee.
(d) Delay fee. If, in the sole discretion of the Secretary, the time required to complete your examination is delayed due to your lack of cooperation or the condition of your records, the Secretary may assess an additional fee of up to $500 per day.
Subpart I—Financing of Enterprises by RBICs
Determining Eligibility of an Enterprise for RBIC Financing
(a) Rural Business Concern Investments. At the close of each of your fiscal years—
(1) At least 75 percent of your Portfolio Concerns must have received a Rural Business Concern Investment; and
(2) For all Financings you have extended, you must have invested at least 75 percent (in total dollars) in Rural Business Concern Investments.
(b) Smaller Enterprise Investments. At the close of each of your fiscal years—
(1) More than 50 percent of your Portfolio Concerns must be Smaller Enterprises that, at the time of the initial Financing to such Enterprise, meet either the net worth/net income test or the size standard set forth in the “Smaller Enterprise” definition in § 4290.50 of this part; and
(2) For all Financings that you have extended, you must have invested more than 50 percent (in total dollars) in Financings in the form of Equity Capital in such Enterprises.
(c) Small Business Concern Investments. At the close of each of your fiscal years—
(1) At least 50 percent of the Portfolio Concerns referenced in paragraph (b)(1) of this section must be Small Business Concerns; and
(2) For all Financings referenced in paragraph (b)(2) of this section, you must have invested at least 50 percent (in total dollars) in Small Business Concerns.
(d) Urban Area Investments. At the close of each of your fiscal years—
(1) No more than 10 percent of your Portfolio Concerns must have received Urban Area Investments; and
(2) For all Financings you have extended, you must not have invested more than 10 percent (in total dollars) in Urban Area Investments.
(e) Non-compliance with this section. If you have not met the percentages required in paragraphs (a), (b), (c), or (d) of this section at the end of any fiscal year, then you must be in compliance by the end of the following fiscal year. However, you will not be eligible for additional Leverage until such time as you meet the required percentages (see § 4290.1120).
(a) Re-lenders or re-investors. You are not permitted to finance any Enterprise that is a re-lender or re-investor. The primary business activity of re-lenders or re-investors involves, directly or indirectly, providing funds to others, purchasing debt obligations, factoring, or long-term leasing of equipment with no provision for maintenance or repair.
(b) Passive Enterprises. You are not permitted to finance a passive Enterprise.
(1) Definition. An Enterprise is passive if:
(i) It is not engaged in a regular and continuous business operation (for purposes of this paragraph (b), the mere receipt of payments such as dividends, rents, lease payments, or royalties is not considered a regular and continuous business operation); or
(ii) Its employees are not carrying on the majority of day to day operations, and the Enterprise does not provide effective control and supervision, on a day to day basis, over persons employed under contract; or
(iii) It passes through substantially all of the proceeds of the Financing to another entity.
(2) Exception for pass-through of proceeds to subsidiary. With the prior written approval of the Secretary, you may finance a passive Enterprise if it passes substantially all of the proceeds through to one or more subsidiary companies, each of which is an eligible Enterprise that is not passive. For the purpose of this paragraph (b)(2), “subsidiary company” means a company in which at least 50 percent of the outstanding voting securities are owned by the Financed passive Enterprise.
(3) Exception for certain Partnership RBICs or LLC RBICs. With the prior written approval of the Secretary, if you are a Partnership RBIC or LLC RBIC, you may form one or more wholly owned corporations in accordance with this paragraph (b)(3). The sole purpose of such corporation(s) must be to provide Financing to one or more eligible, unincorporated Enterprise. You may form such corporation(s) only if a direct Financing to such Enterprise would cause any of your investors to incur unrelated business taxable income under section 511 of the Internal Revenue Code of 1986, as amended (26 U.S.C. 511). Your investment of funds in such corporation(s) will not constitute a violation of § 4290.730(a).
(c) Real Estate Enterprises. (1) You are not permitted to finance:
(i) Any Enterprise classified under sector 233 (Building, Developing, and General Contracting) of the NAICS Manual, or
(ii) Any Enterprise listed under sector 531 (Real Estate) unless at least 80 percent of its revenue is derived from non-Affiliate sources.
(2) You are not permitted to finance an Enterprise, regardless of NAICS classification, if the Financing is to be used to acquire or refinance real property, unless the Enterprise:
(i) Is acquiring an existing property and will use at least 51 percent of the usable square footage for an eligible business or commercial purpose; or
(ii) Is constructing or renovating a building and will use at least 67 percent of the usable square footage for an eligible business or commercial purpose; or
(iii) Occupies the subject property and uses at least 67 percent of the usable square footage for an eligible business or commercial purpose.
(d) Project Financing. You are not permitted to finance an Enterprise if:
(1) The assets of the Enterprise are to be reduced or consumed, generally without replacement, as the life of the Enterprise progresses, and the nature of the Enterprise requires that a stream of cash payments be made to the Enterprise's financing sources, on a basis associated with the continuing sale of assets. Examples include real estate development projects, oil and gas wells, wind farms, or power facilities (including solar, geothermal, hydroelectric, or biomass power facilities); or
(2) The primary purpose of the Financing is to fund production of a Start Printed Page 32220single item or defined limited number of items, generally over a defined production period, and such production will constitute the majority of the activities of the Enterprise. Examples include motion pictures.
(e) Farm land purchases. You are not permitted to finance the acquisition of farmland. Farmland means land which is or is intended to be used for agricultural or forestry purposes such as the production of food, fiber, or wood, or is so taxed or zoned.
(f) Public interest. You are not permitted to finance any business if the proceeds are to be used for purposes contrary to the public interest, including but not limited to or activities which are in violation of law, or inconsistent with free competitive enterprise.
(g) Foreign investment. (1) General rule. You are not permitted to finance an Enterprise if:
(i) The funds will be used substantially for a foreign operation; or
(ii) At the time of the Financing or within one year thereafter, more than 49 percent of the employees or tangible assets of the Enterprise are located outside the United States (unless you can show, to the Secretary's satisfaction, that the Financing was used for a specific domestic purpose).
(2) Exception. This paragraph (g) does not prohibit a Financing used to acquire foreign materials and equipment or foreign property rights for use or sale in the United States.
(h) Financing RBICs, SBICs, or New Markets Venture Capital Companies (NMVC Companies). (1) You are not permitted to provide funds, directly or indirectly, that will be used:
(i) To purchase stock in or otherwise provide capital to a RBIC, SBIC or NMVC Company; or
(ii) To repay an indebtedness incurred for the purpose of investing in a RBIC, SBIC, or NMVC Company.
(2) “NMVC Company” is defined in 13 CFR 108.50.
(i) Entities ineligible for Farm Credit System Assistance. If one or more Farm Credit System Institutions or their Affiliates owns 15 percent or more of your Regulatory Capital, you may not provide Financing to any entity that is not otherwise eligible to receive Financing from the Farm Credit System under the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.).
(j) Gaming establishments. You are not permitted to Finance an Enterprise that derives, or is expected to derive, more than one-third of its gross annual revenue from legal gaming activities.
(k) Change of ownership of an Enterprise. You are not permitted to Finance a change of ownership of an Enterprise unless otherwise approved by the Secretary.
(a) General rule. You must not self-deal to the prejudice of an Enterprise, the RBIC, its shareholders, partners or, members, or the Secretary. Unless you obtain a prior written exemption from the Secretary for special instances in which a Financing may further the purposes of the Act despite presenting a conflict of interest, you must not directly or indirectly:
(1) Provide Financing to any of your Associates, except for an Enterprise that satisfies all of the following conditions:
(i) Your Associate relationship with the Enterprise is described by paragraph (8) or (9) of the definition of Associate in § 4290.50,
(ii) No Person triggering the Associate relationship identified in paragraph (a)(1)(i) of the definition of Associate in § 4290.50 is a Close Relative or Secondary Relative of any Person described in paragraphs (1), (2), (4), or (5) of the definition of Associate in § 4290.50, and
(iii) No single Associate of yours has either a voting interest or an economic interest in the Enterprise exceeding 20 percent, and no two or more of your Associates have either a voting interest or an economic interest exceeding 33 percent. Economic interests shall be computed on a fully diluted basis, and both voting and economic interests shall exclude any interest owned through the RBIC.
(2) Provide Financing to an Associate of another RBIC if one of your Associates has received or will receive any direct or indirect Financing or a Commitment from that RBIC or any other RBIC (including Financing or Commitments received under any understanding, agreement, or cross dealing, reciprocal or circular arrangement).
(3) Borrow money from:
(i) An Enterprise Financed by you;
(ii) An officer, director, or owner of at least a 10 percent equity interest in such Enterprise; or
(iii) A Close Relative of any such officer, director, or equity owner.
(4) Provide Financing to an Enterprise to discharge an obligation to your Associate or free other funds to pay such obligation. This paragraph (a)(4) does not apply if the obligation is to an Associate Lending Institution and is a line of credit or other obligation incurred in the normal course of business.
(b) Rules applicable to Associates. Without the Secretary's prior written approval, your Associates must not, directly or indirectly:
(1) Borrow money from any Person described in paragraph (a)(3) of this section.
(2) Receive from an Enterprise any compensation or anything of value in connection with Assistance you provide (except as permitted under § 4290.825(c)), or anything of value for procuring, attempting to procure, or influencing your action with respect to such Assistance.
(c) Applicability of other laws. You are also bound by Federal or State laws applicable to you that govern conflicts of interest and fiduciary obligations.
(d) Financings with Associates. (1) Financings with Associates requiring prior approval. Without the Secretary's prior written approval, you may not Finance any Enterprise in which your Associate has either a voting equity interest or total equity interests (including potential interests) of at least five percent, or effective control, except as otherwise permitted under paragraph (a)(1) of this section.
(2) Other Financings with Associates. If you and an Associate provide Financing to the same Enterprise, either at the same time or at different times, you must be able to demonstrate to the Secretary's satisfaction that the terms and conditions are (or were) fair and equitable to you, taking into account any differences in the timing of each party's financing transactions.
(3) Exceptions to paragraphs (d)(1) and (d)(2) of this section. A Financing that falls into one of the following categories is exempt from the prior approval requirement in paragraph (d)(1) of this section or is presumed to be fair and equitable to you for the purposes of paragraph (d)(2) of this section, as appropriate:
(i) Your Associate is a Lending Institution that is providing financing under a credit facility in order to meet the operational needs of the Enterprise and the terms of such financing are usual and customary.
(ii) Your Associate invests in the Enterprise on the same terms and conditions and at the same time as you.
(iii) Both you and your Associate are RBICs.
(e) Use of Associates to manage Portfolio Concerns. To protect your investment, you may designate an Associate to serve as an officer, director, or other participant in the management of a Portfolio Concern. You must identify any such Associate in your records available for the Secretary's review under § 4290.600. Without the Secretary's prior written approval, such Associate must not: Start Printed Page 32221
(1) Have any other direct or indirect financial interest in the Portfolio Concern that exceeds, or has the potential to exceed, the percentages of the Portfolio Concern's equity set forth in paragraph (a)(1) of this section.
(2) Receive any income or anything of value from the Portfolio Concern unless it is for your benefit, with the exception of director's fees, expenses, and distributions based upon the Associate's ownership interest in the Concern.
(f) 1940 and 1980 Act Companies: SEC exemptions. If you are a 1940 or 1980 Act Company and you receive an exemption from the Securities and Exchange Commission for a transaction described in this § 4290.730, you need not obtain the Secretary's approval of the transaction. However, you must promptly notify the Secretary of the transaction.
(g) Restriction on options obtained by RBIC's management and employees. Your employees, officers, directors, managing members or general partners, or the general partners or managing members of the Investment Adviser/Manager that is providing services to you or to your general partner or managing member, may obtain options in a Portfolio Concern only if:
(1) They participate in the Financing on a pari passu basis with you; or
(2) The Secretary gives prior written approval; or
(3) The options received are compensation for service as a member of the board of directors of the Portfolio Concern, and such compensation does not exceed that paid to other outside directors. In the absence of such directors, fees must be reasonable when compared with amounts paid to outside directors of similar companies.
(a) Without the Secretary's prior written approval, you may provide Financing or a Commitment to an Enterprise only if the resulting amount of your aggregate outstanding Financings and Commitments to that Enterprise and its Affiliates does not exceed 20 percent of the sum of:
(1) Your Regulatory Capital as of the date of the Financing or Commitment; plus
(2) Any permitted Distribution(s) you made during the five years preceding the date of the Financing or Commitment which reduced your Regulatory Capital.
(b) For the purposes of paragraph (a) of this section, you must measure each outstanding Financing at its current cost plus any amount of the Financing that was previously written off.
(a) Effect on RBIC of a change in size of a Portfolio Concern. If a Portfolio Concern was a Smaller Enterprise or Small Business Concern at the time of the initial Financing but no longer qualifies as such under the size standard applicable to such entity, you may keep your investment in the Portfolio Concern and:
(1) Subject to the overline limitations of § 4290.740, you may provide additional Financing to the Portfolio Concern up to the time it makes a public offering of its securities.
(2) Even after the Portfolio Concern makes a public offering, you may exercise any stock options, warrants, or other rights to purchase Equity Securities which you acquired before the public offering, or fund Commitments you made before the public offering.
(b) Effect of a change in business activity occurring within one year of RBIC's initial Financing. (1) Retention of Financing. Unless you receive the Secretary's written approval, you may not keep your Financing in a Portfolio Concern which becomes ineligible for financing by a RBIC by reason of a change in its business or commercial activity or for any other reason within one year of your initial Financing in the Portfolio Concern.
(2) Request for approval to retain Financing. If you request that the Secretary approve the retention of your investment, your request must include sufficient evidence to demonstrate that the change in business or commercial activity was caused by an unforeseen change in circumstances and was not contemplated at the time the Financing was made.
(3) Additional Financing. If the Secretary approves your request to retain a Financing under paragraph (b)(2) of this section, you may provide additional Financing to the Portfolio Concern to the extent necessary to protect against the loss of the amount of your original investment, subject to the overline limitations of § 4290.740.
(c) Effect of a change in business activity occurring more than one year after the initial Financing. If a Portfolio Concern becomes ineligible because of a change in business activity more than one year after your initial Financing you may:
(1) Retain your investment; and
(2) Provide additional Financing to the Portfolio Concern to the extent necessary to protect against the loss of the amount of your original investment, subject to the overline limitations of § 4290.740.
Structuring RBIC Financing of Eligible Enterprises—Types of Financings
You may purchase the Equity Securities of an Enterprise. You may not, inadvertently or otherwise:
(a) Become a general partner in any unincorporated business; or
(b) Become jointly or severally liable for any obligations of an unincorporated business.
You are permitted to make Loans to an Enterprise only if:
(a) The maturity or term of the Loan is five years or less; and
(b) You determine that making the Loan is necessary to preserve an existing Financing (other than a Loan) in that same Enterprise.
(a) General rule. You may purchase Debt Securities from an Enterprise.
(b) Restriction of options obtained by RBIC's management and employees. If you have outstanding Leverage or plan to obtain Leverage, your employees, officers, directors, general partners, or managing members, or the general partners or managing members of your Investment Advisor/Manager, may obtain options in a Portfolio Concern only if:
(1) They participate in the Financing on a pari passu basis with you; or
(2) The Secretary gives its prior written approval; or
(3) The options received are compensation for services as a member of the board of directors of the Enterprise, and such compensation does not exceed that paid to other outside directors. In the absence of such directors, fees must be reasonable when compared with amounts paid to outside directors of similar Enterprises.
(a) General rule. At the request of an Enterprise or where necessary to protect your existing Financing in a Portfolio Concern, you may guarantee the monetary obligation of an Enterprise to any non-Associate creditor.
(b) Exception. You may not issue a guaranty if:
(1) You would become subject to State regulation as an insurance, guaranty or surety business; or
(2) The amount of the guaranty plus any direct Financings to the Enterprise Start Printed Page 32222exceed the overline limitations of § 4290.740, except that a pledge of the Equity Securities of the issuer or a subordination of your lien or creditor position does not count toward your overline.
(c) Pledge of RBIC's assets as guaranty. For purposes of this section, a guaranty with recourse only to specific asset(s) you have pledged is equal to the fair market value of such asset(s) or the amount of the debt guaranteed, whichever is less.
(a) Securities purchased through or from an underwriter. You may purchase the securities of an Enterprise through or from an underwriter if:
(1) You purchase such securities within 90 days of the date the public offering is first made;
(2) Your purchase price is no more than the original public offering price; and
(3) The amount paid by you for the securities (less ordinary and reasonable underwriting charges and commissions) has been, or will be, paid to the issuer, and the underwriter certifies in writing that this requirement has been met.
(b) Recordkeeping requirements. You must keep records available for the Secretary's inspection which show the relevant details of the transaction, including but not limited to, date, price, commissions, and the underwriter's certifications required under paragraphs (a)(3) and (c) of this section.
(c) Underwriter's requirements. The underwriter must certify whether it is your Associate. You may pay reasonable and customary commissions and expenses to an Associate underwriter for the portion of an offering that you purchase.
(d) Securities purchased from another RBIC. You may purchase from, or exchange with, another RBIC, Portfolio securities (or any interest therein). Such purchase or exchange may only be made on a non-recourse basis. You may not have more than one-third of your total assets (valued at cost) invested in such securities. If you have previously sold Portfolio securities (or any interest therein) on a recourse basis, you must include the amount for which you may be contingently liable in your overline computation.
(e) Purchases of securities from other non-issuers. You may purchase securities of an Enterprise from a non-issuer not previously described in this § 4290.825 if such acquisition is a reasonably necessary part of the overall sound Financing of the Enterprise.
(a) General rule. The minimum term of each of your Financings is one year.
(b) Restrictions on mandatory redemption of Equity Securities. If you have acquired Equity Securities, options, or warrants on terms that include redemption by the Portfolio Concern, you must not require redemption by the Portfolio Concern within the first year of your acquisition except as permitted in § 4290.850.
(c) Special rules for Loans and Debt Securities. (1) Term. The minimum term for Loans and Debt Securities starts with the first disbursement of the Financing.
(2) Prepayment. You must permit voluntary prepayment of Loans and Debt Securities by the Portfolio Concern. You must obtain the Secretary's prior written approval of any restrictions on the ability of the Portfolio Concern to prepay other than the imposition of a reasonable prepayment penalty under paragraph (c)(3) of this section.
(3) Prepayment penalties. You may charge a reasonable prepayment penalty which must be agreed upon at the time of the Financing. If the Secretary determines that a prepayment is unreasonable, you must refund the entire penalty to the Portfolio Concern. A prepayment penalty equal to five percent of the outstanding balance during the first year of any Financing, declining by one percentage point per year through the fifth year, is considered the maximum reasonable amount.
You may make a Financing with a term of less than one year but only if such Financing is in contemplation of another Financing, with a term of one year or more, to the same Enterprise.
The maximum term of any Debt Security must be no longer than 20 years.
The principal of any Loan, or the loan portion of any Debt Security, with a term of one year or less, cannot be amortized faster than straight line. If the term is greater than one year, the principal cannot be amortized faster than straight line for the first year.
(a) Restriction on redemption. A Portfolio Concern cannot be required to redeem Equity Securities earlier than one year from the date of the first closing unless:
(1) The Portfolio Concern makes a public offering, or has a change of management or control, or files for protection under the provisions of the Bankruptcy Code, or materially breaches your Financing agreement; or
(2) You make a follow-on Financing, in which case the new securities may be redeemed in less than one year, but no earlier than the redemption date associated with your earliest Financing of the Portfolio Concern.
(b) Redemption price. The redemption price must be either:
(1) A fixed amount that is no higher than the price you paid for the securities; or
(2) An amount that cannot be fixed or determined before the time of the redemption. In this case, the redemption price must be based on:
(i) A reasonable formula that reflects the performance of the Portfolio Concern (such as one based on earnings or book value); or
(ii) The fair market value of the Portfolio Concern at the time of redemption, as determined by a professional appraisal performed under an agreement acceptable to both parties.
(c) Method. Any method for determining the redemption price must be agreed upon no later than the date of the first (or only) closing of the Financing.
(a) General rule. You may collect Financing fees and receive expense reimbursements from an Enterprise only as permitted under this § 4290.860.
(b) Application fee. You may collect a nonrefundable application fee from an Enterprise to review its Financing application. The application fee may be collected at the same time as the closing fee under paragraph (d) or (e) of this section, or earlier. The fee must be:
(1) No more than one percent of the amount of Financing requested (or, if two or more RBICs participate in the Financing, their combined application fees are no more than one percent of the total Financing requested); and
(2) Agreed to in writing by the Financing applicant.
(c) The Secretary's review of application fees. For any fiscal year, if the number of application fees you collect is more than twice the number of Financings closed, the Secretary in its sole discretion may determine that you are engaged in activities not contemplated by the Act, in violation of § 4290.500.
(d) Closing fee—Loans. You may charge a closing fee on a Loan if: Start Printed Page 32223
(1) The fee is no more than two percent of the Financing amount (or, if two or more RBICs participate in the Financing, their combined closing fees are no more than two percent of the total Financing amount); and
(2) You charge the fee no earlier than the date of the first disbursement.
(e) Closing fee—Debt or Equity Financings. You may charge a Closing Fee on a Debt Security or Equity Security Financing if:
(1) The fee is no more than four percent of the Financing amount (or, if two or more RBICs participate in the Financing, their combined closing fees are no more than four percent of the total Financing amount); and
(2) You charge the fee no earlier than the date of the first disbursement.
(f) Limitation on dual fees. If another RBIC or an Associate of yours collects a transaction fee under § 4290.900(e) in connection with your Financing of an Enterprise, the sum of the transaction fee and your application and closing fees cannot exceed the maximum application and closing fees permitted under this § 4290.860.
(g) Expense reimbursements. You may charge an Enterprise for the reasonable out-of-pocket expenses, other than Management Expenses, that you incur to process its Financing application. If the Secretary determines that any of your reimbursed expenses are unreasonable or are Management Expenses, the Secretary will require you to refund them to the Enterprise.
(h) Breakup fee. If an Enterprise accepts your Commitment and then fails to close the Financing because it has accepted funds from another source, you may charge a “breakup fee” equal to the closing fee that you would have been permitted to charge under paragraph (d) or (e) of this section.
(a) General rule. You may acquire assets in full or partial liquidation of a Portfolio Concern's obligation to you under the conditions permitted by this § 4290.880. The assets may be acquired from the Portfolio Concern, a guarantor of its obligation, or another party.
(b) Timely disposition of assets. You must dispose of assets acquired in liquidation of a Portfolio security within a reasonable period of time.
(c) Permitted expenditures to preserve assets. (1) You may incur reasonably necessary expenditures to maintain and preserve assets acquired.
(2) You may incur reasonably necessary expenditures for improvements to render such assets saleable.
(3) You may make payments of mortgage principal and interest (including amounts in arrears when you acquired the asset), pay taxes when due, and pay for necessary insurance coverage.
(d) The Secretary approval of expenditures. This paragraph (d) applies if you have outstanding Leverage or are applying for Leverage. Any application for the Secretary's approval under this paragraph must specify all expenses estimated to be necessary pending disposal of the assets. Without the Secretary's prior written approval:
(1) Your total expenditures under paragraphs (c)(1) and (c)(2) of this section plus your total Financing(s) to the Portfolio Concern must not exceed your overline limit under § 4290.740; and
(2) Your total expenditures under paragraph (b) of this section plus your total Financing(s) to the Portfolio Concern must not exceed 35 percent of your Regulatory Capital.
Limitations on Disposition of Assets
Except with the Secretary's prior written approval, you are not permitted to dispose of assets (including assets acquired in liquidation) to any Associate or to competitors of Portfolio Concerns if you have outstanding Leverage. As a prerequisite to such approval, you must demonstrate that the proposed terms of disposal are at least as favorable to you as the terms obtainable elsewhere.
(a) General. This § 4290.900 applies to management services that you or your Associate provide to a Portfolio Concern during the term of a Financing or prior to Financing. It does not apply to management services that you or your Associate provide to an Enterprise that you do not finance.
(b) The Secretary's approval. You must obtain the Secretary's prior written approval of any management services fees and other fees described in this section that you or your Associate charge.
(c) Permitted management fees. You or your Associate may provide management services to a Portfolio Concern financed by you if:
(1) You or your Associate have entered into a written contract with the Portfolio Concern;
(2) The fees charged are for services actually performed;
(3) Services are provided on an hourly fee, project fee, or other reasonable basis;
(4) You can demonstrate to the Secretary, upon request, that the rate does not exceed the prevailing rate charged for comparable services by other organizations in the geographic area of the Portfolio Concern; and
(5) All of the management services fees paid to your Associate by a Portfolio Concern for management services provided by the Associate are allocated back to you for your benefit.
(d) Fees for service as a board member. You or your Associate may receive fees in the form of cash, warrants, or other payments, for services provided as members of the board of directors of a Portfolio Concern Financed by you. The fees must not exceed those paid to other outside board members. In the absence of such board members, fees must be reasonable when compared with amounts paid to outside directors of similar companies. At least 50 percent of any board member services fees paid to your Associate by a Portfolio Concern for board member services provided by the Associate must be allocated back to you for your benefit.
(e) Approval required. You must obtain the Secretary's prior written approval of any management contract that does not satisfy paragraphs (c) or (d) of this section.
(f) Transaction fees. (1) You or your Associate may charge reasonable transaction fees for work performed preparing an Enterprise for a public offering, private offering, or sale of all or part of the business, and for assisting with the transaction. Compensation may be in the form of cash, notes, stock, and/or options. All of the transaction services fees paid to your Associate by a Portfolio Concern for transaction services provided by the Associate must be allocated back to you for your benefit.
(2) Your Associate may charge market rate investment banking fees to a Portfolio Concern on that portion of a Financing that you do not provide.
(g) Recordkeeping Requirements. You must keep a record of hours spent and amounts charged to the Portfolio Concern, including expenses charged.
Subpart J—Financial Assistance for RBICs (Leverage)
General Information About Obtaining Leverage
(a) Type of Leverage available. You may apply for Leverage from the Start Printed Page 32224Secretary in the form of a guarantee of your Debentures.
(b) Applying for Leverage. The Leverage application process has two parts. You must first apply for the Secretary's conditional commitment to reserve a specific amount of Leverage for your future use. You may then apply to draw down Leverage against the commitment. See §§ 4290.1200 through 4290.1240.
(c) Where to send your application. Send all Leverage draw-down applications to Funding Control Officer, Investment Division, U.S. Small Business Administration, 409 Third Street, SW., Suite 6300, Mail Code 7050, Washington, DC 20416.
To be eligible for Leverage, you must be in compliance with the Act, the regulations in this part, and your Participation Agreement.
(a) Leverage fee. You must pay the Secretary a non-refundable leverage fee for each issuance of a Debenture. The fee is 3 percent of the face amount of the Debenture issued, and will be deducted from the proceeds remitted to you.
(b) Additional charge. You must pay the Secretary an additional annual charge of 1 percent of the outstanding amount of your Debenture.
(c) Other Leverage fees. The Secretary may establish a fee structure for services performed by the Central Registration Agent (CRA). The Secretary will not collect any fee for its guarantee of TCs.
If you issue Leverage, you automatically agree to the terms and conditions in § 4290.1810 as it exists at the time of issuance. The effect of these terms and conditions is the same as if they were fully incorporated in the terms of your Leverage.
Maximum Amount of Leverage for Which a RBIC Is Eligible
The face amount of a RBIC's outstanding Debentures may not exceed the lesser of 200 percent of its Leverageable Capital or $105,000,000.
Conditional Commitments To Reserve Leverage for a RBIC
(a) General. Under the provisions in §§ 4290.1200 through 4290.1240, you may apply for the Secretary's conditional commitment to reserve a specific amount of Leverage and type of Debenture (standard or discounted) for your future use. You may then apply to draw down Leverage against the commitment.
(b) Applying for a Leverage commitment. The Secretary will notify you when requests for Leverage commitments are being accepted, and upon receipt of your request, will send you a complete application package.
(c) Limitations on the amount of a Leverage commitment. The amount of a Leverage commitment must be a multiple of $5,000. The Secretary in his or her discretion may determine a minimum dollar amount for Leverage commitments. Any such minimum amounts will be published in Notices in the Federal Register from time to time.
(d) Term of Leverage commitment. Your Leverage commitment will automatically lapse on the expiration date stated in the commitment letter issued to you by the Secretary. The Secretary's Leverage commitment will be included in the Participation Agreement at the time of your licensing as a RBIC, under § 4290.390.
(a) If you submit a request for a draw against your Leverage commitment more than 90 days following your submission of an annual SBA Form 468 or a SBA Form 468 (Short Form), you must:
(1) Give the Secretary a financial statement on Form 468 (Short Form), and
(2) File a statement of no material adverse change in your financial condition since your last filing of SBA Form 468.
(b) You will not be eligible for a draw if you are not in compliance with this § 4290.1220.
(a) RBIC's authorization of the Secretary to guarantee securities. By submitting a request for a draw against the Leverage commitment, you authorize the Secretary, or the Secretary's designated agent or trustee, to guarantee your Debenture and to sell it with the Secretary's guarantee.
(b) Limitations on amount of draw. The amount of a draw must be a multiple of $5,000. The Secretary, in his or her discretion, may determine a minimum dollar amount for draws against Leverage commitments. Any such minimum amounts will be published in Notices in the Federal Register from time to time.
(c) Effect of regulatory violations on RBIC's eligibility for draws. (1) General rule. You are eligible to make a draw against your Leverage commitment only if you are in compliance with all applicable provisions of the Act and this part (i.e., no unresolved statutory or regulatory violations) and your Participation Agreement.
(2) Exception to general rule. If you are not in compliance, you may still be eligible for draws if:
(i) The Secretary determines that your outstanding violations are of non-substantive provisions of the Act or this part or your Participation Agreement and that you have not repeatedly violated any non-substantive provisions; or
(ii) You have agreed with the Secretary in writing on a course of action to resolve your violations and such agreement does not prevent you from issuing Leverage.
(d) Procedures for funding draws. You may request a draw at any time during the term of the commitment. With each request, submit the following documentation:
(1) A statement certifying that there has been no material adverse change in your financial condition since your last filing of SBA Form 468 (see also § 4290.1220 for SBA Form 468 filing requirements).
(2) If your request is submitted more than 30 days following the end of your fiscal year, but before you have submitted your annual filing of SBA Form 468 in accordance with § 4290.630(a), a preliminary unaudited annual financial statement on SBA Form 468 (Short Form).
(3) A statement certifying that to the best of your knowledge and belief, you are in compliance with all provisions of the Act and this part (i.e., no unresolved regulatory or statutory violations) and your Participation Agreement, or a statement listing any specific violations you are aware of. Either statement must be executed by one of the following:
(i) An officer of the RBIC;
(ii) An officer of a corporate general partner or managing member of the RBIC;
(iii) An individual who is authorized to act as or for a general partner of the RBIC; or
(iv) An individual who is authorized to act as or for a managing member of the RBIC.
(4) A statement that the proceeds are needed to fund one or more particular Enterprises or to provide liquidity for your operations. If required by the Secretary, the statement must include the name and address of each Enterprise, and the amount and Start Printed Page 32225anticipated closing date of each proposed Financing.
(e) Reporting requirements after drawing funds. (1) Within 30 calendar days after the actual closing date of each Financing funded with the proceeds of your draw, you must file an SBA Form 1031 confirming the closing of the transaction.
(2) If the Secretary required you to provide information concerning a specific planned Financing under paragraph (d)(4) of this section, and such Financing has not closed within 60 calendar days after the anticipated closing date, you must provide a written explanation of the failure to close.
(3) If you do not comply with this paragraph (e), you will not be eligible for additional draws. The Secretary may also determine that you are not in compliance with the terms of your Leverage under § 4290.1810.
(a) RBIC's authorization of the Secretary to arrange sale of Debentures to third-party. By submitting a request for a draw of Debenture Leverage, you authorize the Secretary, or any agent or trustee the Secretary designates, to enter into any agreements (and to bind you to such agreements) necessary to accomplish:
(1) The sale of your Debenture to a third-party at a price approved by the Secretary; and
(2) The purchase of your Debenture from the third-party and the pooling of your Debenture with other Debentures with the same maturity date.
(b) Sale of Debentures to a third-party. If the Secretary arranges for the sale of your Debenture to a third-party, the sale price may be an amount discounted from the face amount of the Debenture.
Distributions by RBICs With Outstanding Leverage
(a) Restriction on distribution. If you have outstanding Leverage, whenever you make a distribution to your investors you must make, at the same time, a prepayment to or for the benefit of the third-party holder of the Debenture sold pursuant to § 4290.1240 of this part, accrued unpaid interest and the principal, in whole or in part, of one or more of your Debentures outstanding as of the date of the distribution (subject to the terms of such Debentures).
(b) Amount of prepayment. You must calculate the amount due the third-party holder by multiplying the total amount you intend to distribute by a fraction whose numerator is the outstanding principal of your Debenture(s) immediately preceding your distribution, and whose denominator is the sum of your Leverageable Capital as of that time plus the outstanding principal amount of your Debentures. For purposes of the preceding sentence “principal” means both the net proceeds and interest accrued to date of a discounted Debenture. The amount of any payment received under this section will be credited first against unpaid interest accrued to the date of distribution and then to the principal in whole or in part of the first Debenture you select to prepay and then to the interest and principal in whole or in part of such other Debenture(s) as you select to prepay. You may elect to prepay in whole any discounted Debenture under this section only within five years of its maturity date. Payments under this section must be made on the next occurring March 1 or September 1.
(c) Effect of prepayment. Subject to the terms of the Debenture(s), you may voluntarily prepay additional principal, but neither mandatory nor voluntary prepayment will increase your future Leverage eligibility.
Funding Leverage by Use of Guaranteed Trust Certificates (“TCs”)
(a) Authorization. Section 384F of the Act authorizes the Secretary to issue TCs and to guarantee the timely payment of the principal and interest thereon. Any such guarantee of such TC is limited to the principal and interest due on the Debentures in any Trust or Pool backing such TC. The full faith and credit of the United States is pledged to the payment of all amounts due under the guarantee of any TC.
(b) Authority to arrange public or private fundings of Leverage. The Secretary in his or her discretion may arrange for public or private financing under his or her guarantee authority. Such financing may be accomplished by the sale of individual Debentures, aggregations of Debentures, or Pools or Trusts of Debentures.
(c) Pass-through provisions. TCs shall provide for a pass-through to their holders of all amounts of principal and interest paid on the Debentures in the Pool or Trust against which they are issued.
(d) Formation of a Pool or Trust holding Leverage Securities. The Secretary shall approve the formation of each Pool or Trust. The Secretary may, in his or her discretion, establish the size of the Pools and their composition, the interest rate on the TCs issued against Trusts or Pools, fees, discounts, premiums and other charges made in connection with the Pools, Trusts, and TCs, and any other characteristics of a Pool or Trust he or she deems appropriate.
(a) The rights, if any, of a RBIC to prepay any Debenture is established by the terms of such security, and no such right is created or denied by the regulations in this part.
(b) The Secretary's rights to purchase or prepay any Debenture without premium are established by the terms of the Guaranty Agreement relating to the Debenture.
(c) Any prepayment of a Debenture pursuant to the terms of the Guaranty Agreement relating to such security shall reduce the Secretary's guarantee of timely payment of principal and interest on a TC in proportion to the amount of principal that such prepaid Debenture represents in the Trust or Pool backing such TC.
(d) The Secretary shall be discharged from his or her guarantee obligation to the holder or holders of any TC, or any successor or transferee of such holder, to the extent of any such prepayment, whether or not such successor or transferee shall have notice of any such prepayment.
(e) Interest on prepaid Debentures shall accrue only through the date of prepayment.
(f) In the event that all Debentures constituting a Trust or Pool are prepaid, the TCs backed by such Trust or Pool shall be redeemed by payment of the unpaid principal and interest on the TCs; provided, however, that in the case of the prepayment of a Debenture pursuant to the provisions of the Guaranty Agreement relating to the Debenture, the Central Registration Agent (CRA) shall pass through pro rata to the holders of the TCs any such prepayments including any prepayment penalty paid by the obligor RBIC pursuant to the terms of the Debenture.
(a) Agents. The Secretary may appoint or cause to be appointed agent(s) to perform functions necessary to market and service Debentures or TCs pursuant to this part.
(1) Selling Agent. As a condition of guaranteeing a Debenture, the Secretary may cause each RBIC to appoint a Start Printed Page 32226Selling Agent to perform functions that include, but are not limited to:
(i) Selecting qualified entities to become pool or Trust assemblers (“Poolers”).
(ii) Receiving guaranteed Debentures as well as negotiating the terms and conditions of sales or periodic offerings of Debentures and/or TCs on behalf of RBICs.
(iii) Directing and coordinating periodic sales of Debentures and/or TCs.
(iv) Arranging for the production of Offering Circulars, certificates, and such other documents as may be required from time to time.
(2) Fiscal Agent. The Secretary shall appoint a Fiscal Agent to:
(i) Establish performance criteria for Poolers.
(ii) Monitor and evaluate the financial markets to determine those factors that will minimize or reduce the cost of funding Debentures.
(iii) Monitor the performance of the Selling Agent, Poolers, CRA, and the Trustee.
(iv) Perform such other functions as the Secretary, from time to time, may prescribe.
(3) Central Registration Agent. Pursuant to a contract entered into with the Secretary, the CRA, as the Secretary's agent, will do the following with respect to the Pools or Trust Certificates for the Debentures:
(i) Form an approved Pool or Trust;
(ii) Issue the TCs in the prescribed form;
(iii) Transfer the TCs upon the sale of original issue TCs in any secondary market transaction;
(iv) Receive payments from RBICs;
(v) Make periodic payments as scheduled or required by the terms of the TCs, and pay all amounts required to be paid upon prepayment of Debentures;
(vi) Hold, safeguard, and release all Debentures constituting Trusts or Pools upon instructions from the Secretary;
(vii) Remain custodian of such other documentation as the Secretary shall direct by written instructions;
(viii) Provide for the registration of all pooled Debentures, all Pools and Trusts, and all TCs; and
(ix) Perform such other functions as the Secretary may deem necessary to implement the provisions of this section.
(b) Functions. Either the Secretary or an agent appointed by the Secretary may perform the function of locating purchasers, and negotiating and closing the sale of Debentures and TCs. Nothing in the regulations in this part shall be interpreted to prevent the CRA from acting as the Secretary's agent for this purpose.
(a) Brokers and Dealers. Each broker, dealer, and Pool or Trust assembler approved by the Secretary pursuant to these regulations shall either be regulated by a Federal financial regulatory agency, or be a member of the National Association of Securities Dealers (NASD), and shall be in good standing in respect to compliance with the financial, ethical, and reporting requirements of such body. It also shall be in good standing with the Secretary as determined by the SBA official with delegated authority to made this determination (see paragraph (c) of this section) and shall provide a fidelity bond or insurance in such amount as the Secretary may require.
(b) Suspension and/or termination of Broker or Dealer. The Secretary shall exclude from the sale and all other dealings in Debentures or TCs any broker or dealer:
(1) If such broker's or dealer's authority to engage in the securities business has been revoked or suspended by a supervisory agency. When such authority has been suspended, the Secretary will suspend such broker or dealer for the duration of such suspension by the supervisory agency.
(2) If such broker or dealer has been indicted or otherwise formally charged with a misdemeanor or felony bearing on its fitness, such broker or dealer may be suspended while the charge is pending. Upon conviction, participation may be terminated.
(3) If such broker or dealer has suffered an adverse final civil judgment holding that such broker or dealer has committed a breach of trust or violation of law or regulation protecting the integrity of business transactions or relationships, participation in the market for Debentures or TCs may be terminated.
(c) Termination/suspension proceedings. A broker's or dealer's participation in the market for Debentures or TCs will be conducted in accordance with 7 CFR part 11. The Secretary may, for any of the reasons stated in paragraphs (b)(1) through (3) of this section, suspend the privilege of any broker or dealer to participate in this market. The Secretary shall give written notice at least ten business days prior to the effective date of such suspension. Such notice shall inform the broker or dealer of the opportunity for a hearing pursuant to 7 CFR part 11.
The CRA and any broker, dealer and Pool or Trust assembler operating under the regulations in this part shall make all books, records and related materials associated with Debentures and TCs available to the Secretary for review and copying purposes. Such access shall be at such party's primary place of business during normal business hours.
Upon such conditions and for such consideration as he or she deems reasonable, the Secretary may sell, assign, transfer, or otherwise dispose of any Debenture held by or on behalf of the Secretary. Upon notice by the Secretary, a RBIC will make all payments of principal and interest as shall be directed by the Secretary. A RBIC will be liable for all damage or loss which the Secretary may sustain by reason of the RBIC's failure to follow such payment instructions, up to the amount of the RBIC's liability under such security, plus court costs and reasonable attorney's fees incurred by the Secretary.
The Secretary may, upon such conditions and for such consideration as he or she deems reasonable, collect or compromise all claims relating to obligations he or she holds or has guaranteed, and all legal or equitable rights accruing to him or her.
If the Secretary agrees to guarantee a RBIC's Debentures, such guarantee will be unconditional, irrespective of the validity, regularity or enforceability of the Debentures or any other circumstances that might constitute a legal or equitable discharge or defense of a guarantor. Pursuant to its guarantee, the Secretary will make timely payments of principal and interest on the Debentures.
Subpart K—RBIC's Noncompliance With Terms of Leverage
(a) Applicability of this section. By issuing Debentures, you automatically agree to the terms, conditions and remedies in this section, as in effect at the time of issuance and as if fully set forth in the Debentures. Start Printed Page 32227
(b) Automatic events of default. The occurrence of one or more of the events in this paragraph (b) causes the remedies in paragraph (c) of this section to take effect immediately.
(1) Insolvency. You become equitably or legally insolvent.
(2) Voluntary assignment. You make a voluntary assignment for the benefit of creditors without the Secretary's prior written approval.
(3) Bankruptcy. You file a petition to begin any bankruptcy or reorganization proceeding, receivership, dissolution or other similar creditors' rights proceeding, or such action is initiated against you and is not dismissed within 60 days.
(c) Remedies for automatic events of default. Upon the occurrence of one or more of the events in paragraph (b) of this section:
(1) Without notice, presentation or demand, the entire indebtedness evidenced by your Debentures, including accrued interest, and any other amounts owed with respect to your Debentures, is immediately due and payable; and
(2) You automatically consent to the appointment of the Secretary or his or her designee, as your receiver under section 384M of the Act.
(d) Events of default with notice. For any occurrence (as determined by the Secretary) of one or more of the events in this paragraph (d), the Secretary may avail him or herself of one or more of the remedies in paragraph (e) of this section.
(1) Fraud. You commit a fraudulent act that causes detriment to the Secretary's position as a creditor or guarantor.
(2) Fraudulent transfers. You make any transfer or incur any obligation that is fraudulent under the terms of 11 U.S.C. 548.
(3) Willful conflicts of interest. You willfully violate § 4290.730.
(4) Willful non-compliance. You willfully violate one or more of the substantive provisions of the Act or any substantive regulation promulgated under the Act or any substantive provision of your Participation Agreement.
(5) Repeated Events of Default. At any time after being notified of the occurrence of an event of default under paragraph (f) of this section, you engage in similar behavior that results in another occurrence of the same event of default.
(6) Transfer of Control. You willfully violate § 4290.410, and as a result of such violation you undergo a transfer of Control.
(7) Non-cooperation under § 4290.1810(h). You fail to take appropriate steps, satisfactory to the Secretary, to accomplish any action the Secretary may have required under paragraph (h) of this section.
(8) Non-notification of Events of Default. You fail to notify the Secretary as soon as you know or reasonably should have known that any event of default exists under this section.
(9) Non-notification of defaults to others. You fail to notify the Secretary in writing within ten days from the date of a declaration of an event of default or nonperformance under any note, debenture or indebtedness of yours, issued to or held by anyone other than the Secretary.
(e) Remedies for events of default with notice. Upon written notice to you of the occurrence (as determined by the Secretary) of one or more of the events in paragraph (d) of this section:
(1) The Secretary may declare the entire indebtedness evidenced by your Debentures, including accrued interest and/or any other amounts owed the Secretary with respect to your Debentures, immediately due and payable: and
(2) The Secretary may avail himself or herself of any remedy available under the Act, specifically including institution of proceedings for his or her, or his or her designee's appointment as your receiver under section 384M(c) of the Act.
(f) Events of default with opportunity to cure. For any occurrence (as determined by the Secretary) of one or more of the events in this paragraph (f), the Secretary may avail him or herself of one or more of the remedies in paragraph (g) of this section.
(1) Excessive Management Expenses. Without the Secretary's prior written consent, you incur Management Expenses in excess of those permitted under §§ 4290.510 and 4290.520.
(2) Improper Distributions. You make any Distribution to your shareholders or partners, except with the Secretary's prior written consent, other than:
(i) Distributions permitted under § 4290.585; and
(ii) Payments from Retained Earnings Available for Distribution based on either the shareholders' or members' pro-rata interests or the provisions for profit distributions in your partnership agreement, as appropriate.
(3) Failure to make payment. Unless otherwise approved by the Secretary, you fail to make timely payment of any amount due under any security or obligation of yours that is issued to, held or guaranteed by the Secretary.
(4) Failure to maintain Regulatory Capital. You fail to maintain the minimum Regulatory Capital required under these regulations or, without the Secretary's prior written consent, you reduce your Regulatory Capital except as permitted by § 4290.585.
(5) Capital Impairment. You have a condition of Capital Impairment as determined under § 4290.1830.
(6) Cross-default. An obligation of yours that is greater than $100,000 becomes due or payable (with or without notice) before its stated maturity date, for any reason including your failure to pay any amount when due. This provision does not apply if you pay the amount due within any applicable grace period or contest the payment of the obligation in good faith by appropriate proceedings.
(7) Nonperformance. You violate or fail to perform one or more of the terms and conditions of any security or obligation of yours that is issued to, held or guaranteed by the Secretary, or of any agreement (including your Participation Agreement) with or conditions imposed by the Secretary in the administration of the Act and the regulations promulgated under the Act.
(8) Noncompliance. Except as otherwise provided in paragraph (d)(5) of this section, the Secretary determines that you have violated one or more of the substantive provisions of the Act or any substantive regulation promulgated under the Act.
(9) Failure to maintain diversity. You fail to maintain diversity between management and ownership as required by § 4290.150.
(g) Remedies for events of default with opportunity to cure. (1) Upon written notice to you of the occurrence (as determined by the Secretary) of one or more of the events of default in paragraph (f) of this section, and subject to the conditions in paragraph (g)(2) of this section:
(i) The Secretary may declare the entire indebtedness evidenced by your Debentures, including accrued interest, and/or any other amounts owed the Secretary with respect to your Debentures, immediately due and payable; and
(ii) The Secretary may avail himself or herself of any remedy available under the Act, specifically including institution of proceedings for the appointment of the Secretary or a designee as your receiver under § 348M of the Act.
(2) The Secretary may invoke the remedies in paragraph (g)(1) of this section only if:
(i) You have been given at least 15 days to cure the default(s); and Start Printed Page 32228
(ii) You fail to cure the default(s) to the Secretary's satisfaction within the allotted time.
(h) Repeated non-substantive violations. If you repeatedly fail to comply with one or more of the non-substantive provisions of the Act or any non-substantive regulation promulgated under the Act, the Secretary, after written notification to you and until you cure such condition to the Secretary's satisfaction, may deny you additional Leverage and/or require you to take such actions as the Secretary may determine to be appropriate under the circumstances.
(i) Consent to removal of officers, directors, or general partners and/or appointment of receiver. The Articles of each RBIC must include the following provisions as a condition to the purchase or guarantee of Leverage. Upon the occurrence of any of the events specified in paragraphs (d)(1) through (d)(6) or (f)(l) through (f)(3) of this section as determined by the Secretary, the Secretary shall have the right, and you consent to the Secretary's exercise of such right:
(1) With respect to a Corporate RBIC, upon written notice, to require you to replace, with individuals approved by the Secretary, one or more of your officers and/or such number of directors of your board of directors as is sufficient to constitute a majority of such board; or
(2) With respect to a Partnership RBIC or an LLC RBIC, upon written notice, to require you to remove the person(s) responsible for such occurrence and/or to remove the general partner or manager of the RBIC, which general partner or manager shall then be replaced in accordance with the RBIC's Articles by a new general partner or manager approved by the Secretary; and/or
(3) With respect to a Corporate RBIC, Partnership RBIC, or LLC RBIC, to obtain the appointment of the Secretary or his or her designee as your receiver under section 384M of the Act for the purpose of continuing your operations. The appointment of a receiver to liquidate an RBIC is not within such consent, but is governed instead by the relevant provisions of the Act.
Computation of RBIC'S Capital Impairment
(a) Significance of Capital Impairment condition. If you have a condition of Capital Impairment, you are not in compliance with the terms of your Leverage. As a result, the Secretary has the right to impose the applicable remedies for noncompliance in § 4290.1810(g).
(b) Definition of Capital Impairment condition. You have a condition of Capital Impairment if your Capital Impairment Percentage, as computed pursuant to the procedures set forth in § 4290.1840, exceeds 70 percent.
(c) Quarterly computation requirement and procedure. You must determine whether you have a condition of Capital Impairment as of the end of each fiscal quarter. You must notify the Secretary promptly if you are Capitally Impaired.
(d) The Secretary's right to determine RBIC's Capital Impairment condition. The Secretary may make his or her own determination of your Capital Impairment condition at any time.
(a) General. This section contains the procedures you must use to determine your Capital Impairment Percentage. You must compare your Capital Impairment Percentage to the maximum permitted under § 4290.1830(b) to determine whether you have a condition of Capital Impairment.
(b) Preliminary impairment test. If you satisfy the preliminary impairment test, your Capital Impairment Percentage is zero and you do not have to perform any more procedures in this § 4290.1840. Otherwise, you must continue with paragraph (c) of this section. You satisfy the test if each of the following amounts is zero or greater:
(1) The sum of Undistributed Net Realized Earnings, as reported on SBA Form 468, and Includible Non-Cash Gains.
(2) Unrealized Gain (Loss) on Securities Held.
(c) How to compute your Capital Impairment Percentage. (1) If you have an Unrealized Gain on Securities Held, compute your Adjusted Unrealized Gain using paragraph (d) of this section. If you have an Unrealized Loss on Securities Held, continue with paragraph (c)(2) of this section.
(2) Add together your Undistributed Net Realized Earnings, your Includible Non-cash Gains, and either your Unrealized Loss on Securities Held or your Adjusted Unrealized Gain.
(3) If the sum in paragraph (c)(2) of this section is zero or greater, your Capital Impairment Percentage is zero.
(4) If the sum in paragraph (c)(2) of this section is less than zero, drop the negative sign, divide by your Regulatory Capital (excluding Treasury Stock), and multiply by 100. The result is your Capital Impairment Percentage.
(d) How to compute your Adjusted Unrealized Gain.
(1) Subtract Unrealized Depreciation from Unrealized Appreciation. This is your “Net Appreciation”.
(2) Determine your Unrealized Appreciation on Publicly Traded and Marketable securities. This is your ”Class I Appreciation”.
(3) Determine your Unrealized Appreciation on securities that are not Publicly Traded and Marketable and meet the following criteria, which must be substantiated to the Secretary's satisfaction (this is your “Class 2 Appreciation”):
(i) The Portfolio Concern that issued the security received a significant subsequent equity financing by an investor whose objectives were not primarily strategic and at a price that conclusively supports the Unrealized Appreciation;
(ii) Such financing represents a substantial investment in the form of an arm's-length transaction by a sophisticated new investor in the issuer's securities; and
(iii) Such financing occurred within 24 months of the date of the Capital Impairment computation, or the Portfolio Concern's pre-tax cash flow from operations for its most recent fiscal year was at least 10 percent of its average contributed capital for such fiscal year.
(4) Perform the appropriate computation from the table in 13 CFR 107.1840(d)(4).
(5) Reduce the gain computed in paragraph (d)(4) of this section by your estimate of related future income tax expense. Subject to any adjustment required by paragraph (d)(6) of this section, the result is your Adjusted Unrealized Gain for use in paragraph (c)(2) of this section.
(6) If any securities that are the source of either Class 1 or Class 2 Appreciation are pledged or encumbered in any way, you must reduce the Adjusted Unrealized Gain computed in paragraph (d)(5) of this section by the amount of the related borrowing or other obligation, up to the amount of the Unrealized Appreciation on the securities.
Subpart L—Ending Operations as a RBIC
You may not terminate your participation as a RBIC without the Secretary's prior written approval. Your request for approval must be accompanied by an offer of immediate repayment of all of your outstanding Start Printed Page 32229Leverage (including any prepayment penalties thereon), or by a plan satisfactory to the Secretary for the orderly liquidation of the RBIC.
The Secretary's failure to exercise or delay in exercising any right or remedy under the Act or the regulations in this part does not constitute a waiver of such right or remedy. The Secretary's failure to require you to perform any term or provision of your Leverage does not affect the Secretary's right to enforce such term or provision. Similarly, the Secretary's waiver of, or failure to enforce, any term or provision of your Leverage or of any event or condition set forth in § 4290.1810 does not constitute a waiver of any succeeding breach of such term or provision or condition.
(a) General. You may file an application in writing with the Secretary to have a proposed action exempted from any procedural or substantive requirement, restriction, or prohibition to which it is subject under this part, unless the provision is mandated by the Act. The Secretary may grant an exemption for such applicant, conditionally or unconditionally, provided the exemption would not be contrary to the purposes of the Act.
(b) Contents of application. Your application must be accompanied by supporting evidence that demonstrates to the Secretary's satisfaction that:
(1) The proposed action is fair and equitable; and
(2) The exemption requested is reasonably calculated to advance the best interests of the RBIC program in a manner consistent with the policy objectives of the Act and the regulations in this part.
The legality of a transaction covered by the regulations in this part is governed by the regulations in this part in effect at the time the transaction was consummated, regardless of later changes. Nothing in this part bars enforcement action with respect to any transaction consummated in violation of provisions applicable at the time, but no longer in effect.
(a) Intergovernmental review. To the extent applicable to this part, the Secretary will comply with subpart V of 7 CFR part 3015, “Intergovernmental Review of Department of Agriculture Programs and Activities.” The Secretary has not delegated this responsibility to SBA pursuant to § 4290.45 of this part.
(b) National flood insurance. To the extent applicable to this part, the Secretary will comply with subpart B of 7 CFR part 1806. The Secretary has not delegated this responsibility to SBA pursuant to § 4290.45 of this part.
(c) Clean Air Act and Water Pollution Control Act requirements. To the extent applicable to this part, the Secretary will comply with the requirements of the Clean Air Act, section 306; the Clean Water Act, section 508; Executive Order 11738; and 40 CFR part 32. The Secretary has not delegated this responsibility to SBA pursuant to § 4290.45 of this part.
(d) Historic preservation requirements. To the extent applicable to this part, the Secretary will comply with subpart F of 7 CFR part 1901. The Secretary has not delegated this responsibility to SBA pursuant to § 4290.45 of this part.
(e) Lead-based paint requirements. To the extent applicable to this part, the Secretary will comply with subpart A of 7 CFR part 1924. The Secretary has not delegated this responsibility to SBA pursuant to § 4290.45 of this part.
(f) Conflict of interest. To the extent applicable to this part, the Secretary will comply with subpart D of 7 CFR part 1900 and RD Instruction 2045-BB. The Secretary has not delegated this responsibility to SBA pursuant to § 4290.45 of this part.
(g) Civil rights impact analysis. To the extent applicable to this part, the Secretary will comply with RD Instruction 2006-P, “Civil Rights Impact Analysis.” The Secretary has not delegated this responsibility to SBA pursuant to § 4290.45 of this part.
(h) Environmental requirements. To the extent applicable to this part, the Secretary will comply with subpart G of 7 CFR part 1940. The Secretary has not delegated this responsibility to SBA pursuant to § 4290.45 of this part.
(i) Appeals to the National Appeals Division for review of adverse decisions. Applicants and RBICs have the right to request review by the National Appeals Division within the USDA of adverse decisions, as defined in 7 CFR 11.1, pursuant to 7 CFR part 11.
Subpart N—Requirements for Operational Assistance Grants to RBICs
(a) Regulations governing. Regulations governing Operational Assistance grants to RBICs may be found in subparts D and E of this part 4290 and in this § 4290.2000.
(b) Restrictions on use. A RBIC must use Operational Assistance grant funds only to provide Operational Assistance to Smaller Enterprises to which it either has made, or expects to make, a Financing.
(c) Amount of grant. Each RBIC will receive an Operational Assistance grant award equal to the lesser of 10 percent of the Regulatory Capital raised by the RBIC at the time of licensing or $1,000,000.
(d) Term. Operational Assistance grants made under this part will be made for a multiyear period (not to exceed 10 years) under such terms as the Secretary may require.
(e) Reporting and recordkeeping requirements. Policies governing reporting, record retention, and recordkeeping requirements applicable to RBICs may be found in subpart H of this part 4290.
Dated: June 1, 2004.
Acting Under Secretary for Rural Development.
[FR Doc. 04-12731 Filed 6-3-04; 3:09 pm]
BILLING CODE 3410-XY-P