[Federal Register Volume 61, Number 21 (Wednesday, January 31, 1996)]
[Rules and Regulations]
[Pages 3177-3189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X96-10131]
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SMALL BUSINESS ADMINISTRATION
13 CFR Part 107
Small Business Investment Companies
AGENCY: Small Business Administration.
ACTION: Final rule.
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SUMMARY: This final rule revises the regulations found at 13 CFR Part
107, governing the Small Business Investment Company (SBIC) Program. It
eliminates inconsistencies, clarifies procedures, accommodates program
experience and industry changes, and provides for more efficient
program operation. It also clarifies and shortens regulations where
appropriate, eliminates redundant provisions, consolidates and
reorganizes sections and clarifies ambiguous language.
EFFECTIVE DATE: This final rule is effective January 31, 1996.
FOR FURTHER INFORMATION CONTACT:
Leonard Fagan, Office of Investment; telephone no. (202) 205-6510.
SUPPLEMENTARY INFORMATION: In response to a Memorandum from President
Clinton for all federal agencies to simplify their regulations, SBA
published a proposed rule on November 28, 1995, to revise the
regulations governing the SBIC program. See 60 FR 58530 (November 28,
1995). The public was afforded a thirty-day period in which to submit
comments on the proposed rule to SBA. During that period, SBA received
over 30 letters containing over 200 comments. After giving careful
consideration to the comments and concerns raised in those letters, SBA
is today finalizing the proposed rule with certain modifications
discussed below. Only those sections which have changed, which were
commented on or which
[[Page 3178]]
need some clarification will be discussed.
In accordance with 5 U.S.C. 553(d)(3), SBA has determined that good
cause exists to make this rule effective upon publication. Ample notice
of material changes has been given the interested public through
proposed rules published in the Federal Register inviting public
comment and through distribution of draft rules before publication of
the proposed rules. All comments received from the interested public
have been carefully considered. Representatives of the entities
affected by this rule concur with an immediate effective date. Almost
all regulatory changes will relieve restrictions or merely reorganize
and simplify text. To the extent there are substantive changes
contained in these rules, SBA believes no prejudice will occur to
affected entities by making the rules immediately effective. The
affected entities will have had an adequate opportunity to take any
necessary steps to be in compliance with the rules by the effective
date, but to the extent that may not be the case, any instance of non-
compliance with a changed regulatory provision during the first 30 days
after publication will be treated with such liberality as may be needed
to avoid prejudice. New fees imposed through these rules will not be
enforced until at least 30 days after publication.
General Comments
Those comment letters which addressed the proposed renumbering,
reorganization and rewrite of Part 107 were overwhelmingly
complimentary. Some felt the proposed regulations were a vast
improvement over the old, while others commended SBA on its efforts to
simplify and streamline the regulations. Most agreed that the
reorganization and stylistic revisions will make Part 107 easier to
follow and understand. As one commenter stated, ``Practicality and
common sense really pervade these new proposals.''
Part I
1. Subpart A--Introduction to Part 107
SBA agrees with the comment received on proposed Sec. 107.20,
suggesting that it is unnecessary to specifically mention Section
301(d) Licensees when discussing the fact that all Licensees must
comply with all applicable regulations. The section has been revised
and finalized accordingly.
2. Subpart B--Definition of Terms Used in Part 107
a. ``Associate''
(1) Several commenters suggested that the proposed language
defining ``any person regularly serving a Licensee in the capacity of
attorney at law'' as an Associate was ambiguous and could be construed
too broadly. SBA agrees and will return to the language in the current
definition which states that an Associate includes ``any Person
regularly serving a Licensee on retainer in the capacity of attorney at
law''. The definition is finalized accordingly.
b. ``Control''
The proposed definition of ``Control'' has been adopted with a
change suggested by one commenter. In the proposed rule, Control could
be achieved through possession of the ``power to veto'' the direction
of the management and policies of a concern; in the final rule, the
reference to veto power is deleted. The commenter's concern was that
this phrase could be interpreted so broadly as to prohibit normal
covenants necessary to protect a Licensee's investments. This was not
SBA's intention; furthermore the Agency believes that its concerns
about negative Control of Small Businesses are sufficiently addressed
by the reference in the definition to ``indirect'' Control, as well as
by the ``presumption of Control'' provisions under Sec. 107.865(b).
c. ``Control Person''
Under the existing regulations, a Person with at least a 40 percent
limited partnership interest in a Licensee's general partner is a
Control Person. Paragraph (4) of the proposed definition would apply
the same criterion to a limited partner in the Licensee itself. One
commenter objected to the entire concept of classifying a limited
partner as a Control Person, suggesting that the provision contradicts
established partnership principles and could threaten a limited
partner's limited liability status. SBA does not believe that a
regulatory definition would have this effect; furthermore, the Agency
has stated previously that the definition of Control Person is intended
to cover persons in a position to exercise influence, but not
necessarily control, over a Licensee. Nevertheless, in response to the
concern expressed, SBA has increased the ownership percentage required
to classify a limited partner (of either a Licensee or its general
partner) as a Control Person from 40 percent to 50 percent.
d. ``Disadvantaged Businesses''
SBA received one comment objecting to the proposed language
requiring that a Disadvantaged Business be managed ``on a day to day
basis'' by persons who meet the criteria for social or economic
disadvantage. The commenter considered this phrase an unwarranted
expansion of the definition. SBA disagrees; the requirement that
disadvantaged owners be actively involved in the management of their
companies reflects long-standing SBA policy and is consistent with the
Agency's statutory mandate for all of its programs for Disadvantaged
Businesses. Accordingly, the definition is finalized as proposed.
e. ``Equity Capital Investment''
SBA received one comment suggesting that ``a preferred stock
investment with the liquidating dividend payable to the extent of
available assets'' should be considered an Equity Capital Investment.
SBA's interpretation of the Small Business Investment Act of 1958, as
amended (``Act'') is that dividends may be payable only to the extent
of retained earnings; this treatment is consistent with the statutory
language concerning subordinated debt instruments, which can qualify as
Equity Capital Investments if, among other things, they ``provide for
interest payments contingent upon and limited to the extent of
earnings.'' Accordingly, the definition is finalized without change.
f. ``Institutional Investor''
In the proposed rule, SBA added language to the definition of
``Institutional Investor'' to clarify that an entity cannot satisfy the
net worth test on the basis of unfunded commitments from its investors.
One commenter suggested that this language be dropped and that such
commitments be recognized. SBA disagrees with this suggestion because
it increases the government's financial risk. SBA has protections in
place which allow it to require Institutional Investors to fund their
commitments to a Licensee under certain circumstances; however, it is
unlikely that such requirements could be extended to investors who are
one or more levels removed from the Licensee. Therefore, the proposed
definition is adopted as final.
g. ``Start-Up Financing''
The proposed rule did not make any changes in this definition, but
used it in a new context--it was proposed that Licensees be permitted
to take temporary Control of Start-Up Financing under Sec. 107.865(d).
In this context,
[[Page 3179]]
several commenters felt that the definition was too narrow in terms of
the types of businesses covered, the length of time the business had
been in existence, and the exclusion of businesses formed to acquire
existing businesses. SBA agrees that a broader definition is
appropriate for purposes of Sec. 107.865 and is not objectionable for
purposes of determining Capital Impairment, the other context in which
it appears. Accordingly, the final rule largely eliminates these
restrictions. A business formed as an acquisition company can qualify
as long as the acquired company meets the criteria for a Start-Up
Financing.
The limitations on sales revenue and cash flow have also been
modified: Under paragraph (3) of the proposed definition, companies
could not have ``sales exceeding $5,000,000 or positive cash flow in
any fiscal year.'' The final rule prohibits ``sales exceeding
$3,000,000 or positive cash flow from operations in any of the past
three fiscal years.'' SBA believes the lower sales ceiling is more
appropriate to a true start-up company; the other changes respond to
comments received.
h. ``Unrealized Appreciation''
The proposed definition is adopted with one minor editorial change.
i. ``Unrealized Depreciation''
The proposed definition is adopted with one minor editorial change.
j. ``Qualified Non-Private Funds''
The proposed definition, which appears in Sec. 107.230(d), is
adopted without change. SBA received one comment objecting to the
language that permits government grants to nonprofit entities to be
Qualified Non-Private Funds ``if SBA determines that such funds have
taken on a private character and the nonprofit corporation or
institution is not a mere conduit.'' SBA believes the language is an
appropriate interpretation of the Act; in particular, the ``private
character'' standard is specifically cited in the legislative history.
3. Subpart C--Qualifying for an SBIC License
a. Organizing a Licensee
Comments received on proposed Sec. 107.100 and Sec. 107.110
questioned why Section 301(c) and Section 301(d) Licensees could not be
formed as limited liability companies. Limited liability companies are
not a permitted form of organization recognized by the Act. Therefore,
the rule is adopted as proposed.
b. 1940 Act and 1980 Act Companies
SBA received several comments on proposed Sec. 107.115, all of
which objected to the restriction against licensing 1940 Act or 1980
Act companies that elect to be taxed as regulated investment companies
under section 851 of the Internal Revenue Code. SBA is persuaded that
Licensees would not be denied the ability to access capital by using
these structures. Therefore, the final rule allows Licensees to
organize as or convert to 1940 Act or 1980 Act Companies, and to elect
to be taxed as regulated investment companies. The regulation also
clarifies that when the tax code conflicts with SBA regulations or
guidelines governing distributions, the SBA requirements will apply
unless the Licensee requests and receives a waiver in accordance with
the regulations.
c. SBA Approval of Initial Management Expenses
Proposed Sec. 107.140, which requires all new SBIC license
applicants (not just applicants planning to issue Participating
Securities) to obtain SBA approval of their initial Management
Expenses, is adopted with one change: This section will not apply to
non-leveraged Licensees, which present no financial risk to the Agency.
d. Management and Ownership Diversity
Proposed Sec. 107.150, which requires all license applicants
planning to obtain Leverage to have diversity between management and
ownership, is adopted without change. SBA received one comment that
applicants should be permitted in all cases to satisfy the diversity
requirement on a ``look through basis'' (that is, at the parent level).
This option is available to Licensees if SBA approves; however, as
stated in the preamble to the proposed rule, the Agency believes it
must have discretion in this area in order to assure that a Licensee
has genuine diversity, as opposed to an ownership structure that
provides ``technical'' diversity but does not satisfy the intent of the
regulation.
e. Special Rules for Partnership Licensees
Proposed Sec. 107.160(b), allowing an Entity General Partner to be
organized for the sole purpose of serving as the general partner of one
or more licensees, is adopted without change. SBA considered the
comment suggesting that an Entity General Partner not be precluded from
other activities, but rejected the suggestion due to the complexity of
examining a general partner involved in both SBA and non-SBA related
activities. The Agency believes that this would result in an undue
burden both on its examiners and on the Entity General Partner.
f. Minimum Capital Requirements for Licensees
SBA received one comment on proposed Sec. 107.210(b) (which did not
contain any substantive changes) suggesting that the Regulatory Capital
requirement for Section 301(d) Licensees be inclusive, not exclusive
of, unfunded commitments. This comment is inconsistent with SBA's
interpretation of the minimum capital requirements of the Act;
therefore, the proposed rule has been adopted as final without change.
g. Special Minimum Capital Requirements for Licensees Issuing Leverage
A comment received on proposed Sec. 107.220(b) argued in favor of
omitting the ``special'' minimum capital requirements which require any
company licensed after the regulation is finalized to have Regulatory
Capital of at least $5,000,000 in order to apply for Debentures, unless
it demonstrates to SBA's satisfaction that it can be financially viable
over the long term with a lower amount. The same commenter also
suggested revising the ``grandfather'' provisions in Sec. 107220(c)(1),
which allow certain existing Licensees that do not meet the current
minimum capital requirements to receive additional Leverage if they are
profitable. The commenter wrote that other criteria besides
profitability should be considered.
SBA is finalizing both provisions as proposed. The Agency considers
these standards to be vital to the continuing success of the SBIC
program. As stated in the preamble to the proposed rule, a review of
the financial performance of Licensees supports the conclusion that
higher levels of Regulatory Capital significantly reduces the
likelihood of unprofitable operations over the long term. As to
Sec. 107.220(c), the profitability criterion has been used since 1990,
and SBA continues to believe that profitability is the best and most
objective indicator of future successful operations.
SBA has made two editorial changes to proposed Sec. 107.220(c)(2).
Proposed paragraph (c)(2)(i), which deals with Debentures maturing
before December 31, 1995, has been deleted because it is not longer
applicable. Proposed paragraph (c)(2)(ii) has been incorporated into
paragraph (c)(2) and revised by replacing ``a term of three years''
with ``a term to be determined by
[[Page 3180]]
SBA.'' This change has been made because three-year Leverage is not
routinely available at this time.
h. Limitations on Accepting Non-Cash Capital Contributions
The heading of proposed Sec. 107.240 has been revised to read
``Limitations on including non-cash capital contributions in Private
Capital'', which is more consistent with the substance of the section.
One commenter suggested that the section be revised to state that
Licensees may still accept non-cash assets that cannot be included in
Private Capital. SBA did not adopt this suggestion, primarily because
of its concerns about liabilities that may be associated with
unapproved non-cash assets. Therefore, except for the change in the
section heading, proposed Sec. 107.240 is finalized without change.
i. Issuance of Stock Options by Licensees
SBA agrees with the comment that proposed Sec. 107.250(a), which
states that a Licensee may issue stock options, is unnecessary and has
deleted it in the final rule. The deletion does not affect a Licensee's
ability to issue stock options.
j. License Application Form & Fee
A comment received on proposed Sec. 107.300 objected to the
increase in the license fee for partnerships that plan to issue
participating securities, particularly those using the standard
partnership agreement annex already approved by SBA. SBA proposed the
fee increase in order to reflect the Agency's costs of processing
applications. Pursuant to applicable statutory provisions, the
Administration has taken into consideration direct and indirect costs
to SBA of necessary services performed, value to the recipients, the
public policy interest served and other pertinent factors involved.
After due consideration, SBA believes the increase in fees to be
justified and is finalizing Sec. 107.300 as proposed.
4. Subpart D--Changes in Ownership, Control, or Structure of Licensee;
Transfer of License
a. Changes in Control/SBA Prior Approval
Section 107.410 requires SBA's prior approval for a change of
Control while Sec. 107.440 sets out the standards governing SBA's
approval. One commenter suggested that a grandfather clause be adopted
for these sections. The effect of such a clause would be to allow an
existing Licensee to undergo a change of Control without having to meet
the increased minimum capital requirements currently in effect. SBA
believes that a grandfather clause is not necessary because the Agency
will apply the capital adequacy and financial viability standards of
Secs. 107.200 and 107.220 in evaluating an application for a change of
Control. Therefore, both sections are finalized without change.
b. Restrictions on Common Control or Ownership of Two (or More)
Licensees
SBA agrees with the comment that Sec. 107.460, which requires SBA
approval of common Control or ownership of two or more Licensees,
should not be applicable to unleveraged Licensees, so long as none of
the Licensees involved has any Leverage. This change has been
incorporated in the final rule.
5. Subpart E--Managing the Operations of a Licensee
a. Identification as a Licensee
SBA received one comment which argued the difficulty of identifying
an SBIC as a Federal Licensee on each Financing document. SBA agrees,
and has decided to revise proposed Sec. 107.501 to state that before
extending Financing or collecting an application fee from a Small
Business, a Licensee must obtain a written statement from the concern
acknowledging its awareness that it is dealing with a Federally
licensed SBIC.
b. Licensee's Adoption of an Approved Valuation Policy
Many comments on proposed Sec. 107.503(c) objected to the language
which sated that ``SBA reserves the right to review or independently
establish valuations of your Loans and Investments''. All the
commenters agreed that SBA should only become involved in a specific
valuation if that valuation is in violation of the agreed upon
valuation policy. The proposed language was intended to address SBA's
continuing concerns regarding certain instances of egregious non-
compliance with agreed-upon valuation policies, and the difficulties it
has encountered in its attempts to take action regarding such non-
compliance. However, in recognition of the legitimate concerns of
Licensees, SBA is revising Sec. 107.503. In the final rule, the
language cited at the beginning of this paragraph has been replaced by
the following: ``If SBA reasonably believes that your valuations,
individually or in the aggregate, are materially misstated, it reserves
the right to require you to engage, at your expense, an independent
third party, acceptable to SBA, to substantiate the valuations.''
In addition, purposed Sec. 107.503(d)(4) has been revised by adding
the word ``adverse'' before the word ``change'', so that only material
adverse changes in valuations must be reported quarterly to SBA.
c. SBA Approval of Licensee's Investment Adviser/Manager
SBA agrees with the comment on proposed Sec. 107.510 that annual
approval of the management contract by the Licensee's board of
directors is unnecessary. The proposed rule has been revised and is
finalized accordingly.
d. Restrictions on Investments of Idle Funds by Leveraged Licensees
With one change, proposed Sec. 107.530 regarding idle funds is
adopted as proposed. The section has been amended to permit Licensees
to maintain a reasonable petty cash fund.
e. Limitations on Secured Third-Party Debt
As discussed in the preamble to the proposed rule, proposed
Sec. 107.550(a) was intended primarily as a restatement of the existing
regulation requiring leveraged Licensees to obtain SBA approval before
incurring secured third-party debt. The only change was the requirement
that Licensees also obtain SBA approval before expanding the scope of a
security interest or lien associated with existing debt. Based on some
of the comments received, SBA realized that paragraph (a) was being
misinterpreted. In particular, it was not SBA's intention to require
approval each time a Licensee wants to draw down an approved line of
credit. Nor did SBA intend to require Licensees to obtain approval to
substitute one asset or group of assets for another as the subject of a
security interest, as long as the values are comparable. In the final
rule, proposed Sec. 107.550(a) has been split into two paragraphs and
revised to clarify the intent.
Two comments were received on proposed Sec. 107.550(c), suggesting
that the limitation of the security interest to 125 percent of a
proposed borrowing against a Licensee's investor commitments is
impractical. SBA recognizes that some Licensees may not be able to
borrow under this provision. However, it is only with reluctance that
the Agency has permitted any third-party borrowing against investor
commitments, since these are the same commitments that SBA may look to
at some point to protect its own financial interests. Therefore, SBA is
finalizing this provision (renumbered as Sec. 107.550(d)) without
change.
[[Page 3181]]
Proposed Sec. 107.550(d) stated the conditions under which SBA will
provide a 30-day turnaround on applications for approval of secured
third-party debt. One of these conditions was that the security
interest be limited to the assets acquired with the borrowed funds, or
an asset coverage ratio of no more than 1.25:1. SBA agrees with the
commenters who suggested that the coverage ratio is unrealistically
low, and is revising the ratio to 2:1 in the final rule (with this
paragraph renumbered as Sec. 107.550(e)).
f. Subordination of SBA's Creditor Position
Proposed Sec. 107.560 is adopted without change. One commenter
argued that without a specific definition of subordination, expressed
in a formal subordination agreement, Licensees would find it impossible
to obtain third-party debt. SBA's experience with the subordination
regulation, which was first adopted in 1991, is that lenders have been
willing to work out the details of subordination agreements with SBA on
an individual basis. Nevertheless, SBA is sympathetic to Licensees'
desire to understand the Agency's specific concerns in this area, and
will attempt to develop guidelines for a subordination agreement that
would be generally acceptable to SBA.
g. Activity Requirement
SBA received several comments on proposed Sec. 107.590 suggesting
that the activity test is unnecessary, or should be revised, or should
not apply to non-leveraged Licensees.
SBA strongly believes that some form of activity test is necessary
for both leveraged and non-leveraged Licensees. Companies are licensed
with the understanding that they will help to fulfill the public
purpose of the program, which is to further the growth and development
of small businesses. Clearly, an inactive Licensee is not contributing
to this goal. Furthermore, an inactive Licensee, even if it is non-
leveraged, imposes some degree of administrative burden on SBA.
In response to the comments concerning the specific structure of
the activity requirements, SBA has made a number of changes intended to
make the test more practical and to modify provisions that were subject
to interpretation. In the proposed rule, the basic activity test (in
Sec. 107.590(a)) required a Licensee to satisfy two criteria dealing
with investment activity and percentage of assets maintained as idle
funds. In the final rule, a Licensee must satisfy only one of the
criteria to be considered active.
In paragraph (b)(1), the proposed rule stated that certain
``recent'' cash inflows would be disregarded in determining whether a
Licensee is active. In the final rule, ``recent'' has been replaced by
a specific time period (within nine months of the Licensee's fiscal
year end).
In paragraph (b)(3), under the proposed rule, one of the criteria
for an exception to the activity requirements was that a Licensee have
``no remaining unfunded commitments from investors''. SBA agrees with
the commenter who suggested that this standard was too narrow, and has
revised the provision to include Licensees with unfunded commitments
equal to no more than 20 percent of their Regulatory Capital.
Finally, in Sec. 107.590(d), SBA has added a phase-in period for
new Licensees, recognizing that the activity test is not relevant to
those companies that have been in operation for less than 18 months.
6. Subpart F--Recordkeeping, Reporting, and Examination Requirements
for Licensees
a. Information Required From Portfolio Concerns
With some minor changes, Sec. 107.620 is adopted as proposed. SBA
is not adopting the suggestion of one commenter that paragraphs (a) and
(b), which require Licensees to obtain certain information from Small
Businesses before extending Financing and on a periodic basis
thereafter, should not apply to non-leveraged Licensees. Although one
of the aims of these paragraphs is to mitigate SBA's financial risk,
they are also intended to insure that Licensees are operating in a
manner consistent with the goals of the Act. SBA agrees with the
comment that paragraph (b)(2), which requires that the information
submitted to the Licensee be certified by the chief financial officer,
general partner, or proprietor of the Portfolio Concern, should be
expanded to permit certification by the chief executive officer,
President, or Treasurer. The section is finalized accordingly.
b. Requirements for Licensees To File Annual Financial Statements
Except as hereafter noted, SBA adopts as final proposed
Sec. 107.630, which deals with the requirements for filing annual
financial statements with SBA. Based on comments received, SBA has
added language to Sec. 107.630(a) clarifying that the portion of SBA
Form 468 containing economic information on the Licensee's portfolio
companies may be filed up to two months later than the remainder of the
form; this reflects SBA's current policy. In Sec. 107.630(b), a cross
reference to Sec. 107.1220 has been added to clarify the reporting
requirements for Licensees with outstanding Leverage commitments.
One commenter suggested that the ``economic impact'' information
required by proposed Sec. 107.630(e) places an unfair burden on the
Licensee. SBA is finalizing this paragraph as proposed; the information
requirement is not new, having been in effect since April 25, 1994, and
Sec. 107.630(e) is actually worded more narrowly than the current
regulation that it replaces. While SBA considers the economic impact
information to be vitally important to the mission and future of the
SBIC program, the Agency recognizes that this information is not always
easy to obtain. SBA has generally accepted Licensees' good faith
efforts to provide the required data and will continue to do so to the
extent possible.
Proposed Sec. 107.630(a)(2) would have required a Licensee's
independent public accountant to carry errors and omissions insurance
in an amount acceptable to SBA, or be self-insured and have net worth
acceptable to SBA. This proposal elicited comment from representatives
of the accounting profession who objected to SBA's attempt to create a
``deep pocket'' for recovery of damages, as well as concern from a few
other commenters that the amount of insurance required be more clearly
defined. SBA is sensitive to concerns that this requirement may prevent
many smaller, but highly competent, practitioners from performing SBIC
audits; however, the Agency also must consider its need to control
financial risk. Furthermore, SBA feels that the ability of a firm to
obtain some amount of insurance can be, in itself, a useful indicator
of professional standing. After careful consideration of the issue, SBA
is finalizing Sec. 107.630(a)(2) to require the independent public
accountant to have errors and omissions insurance of at least
$1,000,000, or to be self-insured and have a net worth of at least
$1,000,000, unless SBA approves otherwise. This wording will give SBA
the flexibility to make exceptions for firms that do not meet the
insurance requirement but have strong track records as auditors of
SBICs or similar entities.
c. Changes Not Subject to SBA Prior Approval
Proposed Sec. 107.680 has been finalized with one change. A
commenter suggested that this section, which
[[Page 3182]]
requires SBA's post approval of certain changes in the Licensee's
operations, capitalization, and management, should not apply to non-
leveraged Licensees. SBA does not entirely agree, particularly with
regard to changes that cause Licensee to operate in a different way
than was contemplated at the time it was licensed. However, for
Licensees that have no outstanding Leverage or Earmarked Assets, SBA
believes safety and soundness considerations do not require post
approval of directors and officers (other than the Licensee's chief
operating officer), and that it is sufficient for such Licensees to
notify SBA of any changes.
d. Responsibilities of Licensee During Examination
Proposed Sec. 107.691 included a provision requiring a Licensee and
its independent public accountant to agree that the accountant's
working papers would be made available to SBA upon request for
examination purposes. One commenter stated that this requirement would
not be objectionable if SBA provided assurance that any workpapers
requested would be treated as confidential under the Freedom of
Information Act (FOIA) or similar laws. An accountant's working papers
relating to an individual Licensee are indeed protected from disclosure
under the exemptions available under FOIA. Since these exemptions are
statutory, SBA believes it is unnecessary to restate them in the
regulations, and Sec. 107.691 is finalized as proposed.
e. Examination Fees
SBA received more than ten comments on proposed Sec. 107.692. All
of the comments objected to the increase in the examination fees to be
charged to SBICs. Many stated that the cost of an SBA examination would
far exceed the cost of their annual audit, even though the procedures
involved are more limited. Further, some felt that unleveraged
licensees would bear an unfair portion of the overall fees due to the
fact that the fees are to be assessed on total assets of the Licensee.
Unleveraged (usually bank owned) SBICs tend to have the largest amount
of total assets yet have no federal funds at risk. Therefore, it was
argued that the cost of enforcement should weigh more heavily against
leveraged Licensees.
As stated in the preamble to the proposed rule, the proposed fee
schedule was designed to produce total revenue sufficient to cover the
current direct costs to SBA of conducting examinations. SBA considers
examinations to be a key element in maintaining the integrity of the
SBIC program. However, based on the comments, SBA is persuaded that the
proposed fees were too high in general, and that the increases were
particularly excessive for the largest Licensees. In the final rule,
the examination fees have been lowered significantly, although they
still represent an increase over the current levels.
7. Subpart G--Financing of Small Business by Licensees
a. Ineligible Small Businesses
Under proposed Sec. 107.720 (a) through (i), SBA lists those Small
Businesses which are ineligible for SBIC Financing and certain
exceptions to those restrictions. Except for the revisions discussed
below, this section is finalized as proposed.
SBA received seventeen comments on this proposal. One comment
questioned whether Sec. 107.720 as a whole should be applicable to non-
leveraged Licensees. Another suggested deletion of the prohibition in
Sec. 107.720(a) against financing relenders or reinvestors as this type
of financing could result in jobs and the payment of taxes. Neither of
these comments were adopted because the provisions in question are
mandated by the Act.
b. Passive Businesses
One of the criteria defining a passive business in proposed
Sec. 107.720(b) is that the business ``is not engaged in a regular and
continuous business operation''. The proposed rule goes on to state
that the ``mere receipt of payments * * * such as * * * lease
payments'' would not be considered a regular and continuous business
operation. One commenter asked how this definition would apply with
respect to taxi medallion financing, an industry in which several SBICs
already have millions of dollars invested. It is common practice in
this industry for medallion owners to lease their medallions rather
than employ taxi drivers directly.
SBA's previously-stated position regarding taxi medallion lending
is that Licensees may finance medallion owners who lease the medallions
to others, but only if such owners are actively engaged in day to day
management activities. These include supervision of lessees and
responsibility for vehicle maintenance, insurance, and compliance with
local laws and regulations. Owners who lease their medallions and
receive payments without such active involvement will continue to be
considered passive businesses under the final rule.
Two comments objected to proposed Sec. 107.720(b)(1)(ii), which
would define as passive any companies whose employees are not carrying
on the majority of the day to day operations. The commenters argued
that many businesses use third parties, including independent
contractors and ``leased'' employees, to carry on day to day
operations. SBA recognizes that such arrangements are now common and
are not necessarily an indicator of a passive business. The final rule
has been revised to define a business as passive if ``its employees are
not carrying on the majority of day to day operation, and the company
does not provide effective control and supervision, on a day to day
basis, over persons employed under contract''.
Proposed Sec. 107.720(b)(2) was a restatement of the existing
``holding company'' exception to the passive business rule, under which
Licensees could finance a passive business if it passed through all the
proceeds to a wholly-owned active business. A number of comments
suggested that the provision could allow something less than 100
percent of the proceeds to be passed through without compromising the
intent of the regulations. SBA agrees and has changed the final rule to
require pass-through of ``substantially all'' the proceeds. The
commenters also suggested deletion of the requirement that the active
business be wholly-owned. SBA agrees that this restriction is not
necessary. Instead, the final rule allows the financing of a passive
business ``if, for all Financings extended, it passes substantially all
the proceeds through the same eligible Small Business that is not
passive'' (italic are added). This revision clarifies that a holding
company must pass the Financing proceeds to only one Small Business,
not to multiple businesses or to a series of different businesses if
Financing is extended on more than one occasion.
c. Real Estate Businesses
SBA agrees with a comment which suggested that proposed
Sec. 107.720(c)(2) is too restrictive, in that it prohibits financing
the acquisition of unimproved realty if the business does not intend to
build on the property, even if the business intends to use it for
another legitimate business purpose such as a parking lot for customers
and employees, SBA did not intend to prohibit financing for this
purpose and the final rule has been revised accordingly.
[[Page 3183]]
d. Project Financing
One comment objected to the prohibition against project financing
in proposed Sec. 107.720(d). As stated in the preamble to the proposed
rule, though this prohibition does not appear in the current
regulations, it has been in effect as a matter of policy for more than
ten years. SBA views project financing as essentially short term and
therefore, inconsistent with the Act. SBA considers this prohibition
important and is therefore finalizing the rule without change.
e. Foreign Investments
With one change, proposed Sec. 107.720(g) is adopted as final. The
proposed rule generally would have prohibited financing a Small
Business if more that 40 percent of its employees or tangible assets
were located outside the United States. In response to comments
suggesting that this percentage was too low, SBA has increased the
allowable percentage to 49 percent in the final rule.
f. Conflicts of Interest
SBA received seven comments on proposed Sec. 107.730. The proposed
rule is adopted with changes to meet some of the concerns in the
comment letters. One comment suggesting that the conflict of interest
prohibitions not be applicable to unleveraged Licensees was rejected by
SBA. Such an exception would be inconsistent with the purpose of the
Act.
Two commenters were concerned that proposed Sec. 107.730(a)(2),
which deals with providing Financing to an Associate of another
Licensee, would unduly restrict co-investing. In particular, the
concern was whether the regulation could be construed to mean that if a
Licensee brought an investor group involving another Licensee and its
Associates into one of its investments, it would be prohibited from any
future participation in investments initiated by that investor group.
This interpretation is contrary to SBA's intent, which was to prohibit
quid pro quo financing arrangements that would allow Licensees to
accomplish indirectly what they are not permitted to do directly--
provide Financing to an Associate. SBA does not consider it necessary
to revise paragraph (a)(2) to clarify the intent, since the language is
essentially unchanged from the previous regulations.
Proposed Sec. 107.730(d) set forth provisions governing investments
in the same Small Business by a Licensee and its Associates, either
simultaneously or at different times. In general, Licensees were
required to demonstrate that the terms and conditions of such
investments were fair and equitable to the Licensee. The proposed rule
identified certain categories of Financing with Associates requiring
SBA approval, and others that would be exempt from this requirement.
Two comments suggested that the exemption in paragraph (d)(3)(iv)
should be expended to include all situations where the Licensee is
nonleveraged, regardless of the status of the Associate. SBA believes
the exceptions provided are adequate and is not adopting this
suggestion.
Proposed Sec. 107.730(e)(1) would require a Licensee to obtain
SBA's written approval for an Associate to participate in the
management of a Portfolio Concern if the Associate has an actual or
potential equity interest in the Portfolio Concern that exceeds 3
percent. Comments received suggested that 5 percent is a more generally
accepted standard used by other federal regulatory agencies in similar
circumstances. SBA agrees and is revising the final rule accordingly.
One comment was received urging the elimination of the publication
requirement of proposed Sec. 107.730(g), which requires SBA to publish
notice of exemptions requested under Sec. 107.730. The concern was that
this requirement could slow down Financings, work a hardship on the
Small Business or potentially disclose confidential information to
competitors. Although SBA is sympathetic to these concerns, the
publication requirement is mandated by the Act and cannot be deleted.
g. Overline Limitation
Three comments were received on proposed Sec. 107.740. One
commenter suggested that the ``overline'' limits not be imposed on non-
leveraged Licensees. This exemption has been effective since April 1994
and was included in the proposed rule. The other comments dealt with
paragraph (c), which allows Licenses to compute an ``increased limit''
if they have unrealized gains on Publicly Traded and Marketable
securities. Both commenters advocated a more liberal cure period if a
Licensee has overline violations resulting from a drop in the value of
its securities. Because of the inherent volatility of publicly traded
securities, SBA does not consider it prudent to encourage the use of
the increased limit and is finalizing the proposed rule without change.
h. Change of Ownership
The comments received on proposed Sec. 107.750 addressed the
definitions of ``debt'' (paragraph (c)(2)) and ``equity'' (paragraph
(c)(3)) used in determining whether the Small Business has an
acceptable debt to equity ratio. It was suggested that the definition
of ``debt'' (which, in this section, generally means long-term debt)
specifically exclude any liabilities under a non-compete covenant with
the seller. SBA chose not to add this automatic exclusion because such
covenants are unique to the circumstances of each transaction. It was
also suggested that the definition of ``equity'' should include
subordinated notes payable to the seller. Such notes are specifically
excluded from the definition of debt; to also include them in equity
would further reduce the debt to equity ratio. SBA believes this result
is inconsistent with the intent of the regulation and is finalizing the
section as proposed.
i. Change in Size or Activity of a Portfolio Concern--Affect on
Licensee
SBA did not propose any change in the provisions governing
additional investment in a Portfolio Concern that no longer meets the
size standard. However, one commenter suggested that proposed
Sec. 107.760(a) should be revised to allow a Licensee to make
additional investments in such a concern either to honor a Commitment
it has made or to protect its investment. The proposed rule already
allows a Licensee to make follow-on investments without restriction in
any Portfolio Concern up to the time it makes a public offering, so the
commenter's suggestion would be relevant only after that time. SBA has
added language to the final rule permitting a Licensee to honor a
Commitment made before a public offering, since it would be legally
bound to do so in any case. However, the Agency believes the
``protection of investment'' standard is so broad as to be inconsistent
with the goals of the program and has not adopted this change.
In response to a comment, proposed Sec. 107.760(b) is being adopted
as final with one non-substantive change. Paragraphs (b)(2) and (b)(3),
which state that violations under paragraph (b) constitute default by
the Small Business and allow the Licensee to pursue certain remedies,
have been deleted. SBA agrees that these provisions cover matters that
should be left to the Licensee and that it is unnecessary to include
them in the regulations.
j. Definition of ``Equity Securities''
SBA received two comments on the definition of Equity Securities in
proposed Sec. 107.800. One suggested that the definition should include
warrants
[[Page 3184]]
and options. SBA agrees and has revised the section accordingly. The
other commenter sought clarification of the statement that the presence
of certain default or redemption provisions would cause a security,
even if it has the legal form of equity, to be considered a Debt
Security ``for all regulatory purposes''. SBA's intent was that such a
security would be treated as a Debt Security only for purposes of
Sec. 107.855, the Cost of Money regulations. The final rule is revised
accordingly.
k. Options Received From Small Businesses
Except for the following changes and revisions, proposed
Sec. 107.815(b) is adopted as final. This section restricts the ability
of a Licensee's employees, officers, directors, or general partners to
receive options in a Small Business Financed by the Licensee. Under the
proposed rule, such persons could receive options only if they
participated in the Financing on the same terms and conditions as the
Licensee (paragraph (b) (1)) or if approved by SBA (paragraph (b) (2)).
Three comments were received on this section. Two suggested that
paragraph (b) not be applicable to non-leverage SBICs and SBA agrees.
The provision is revised accordingly.
Two commenters suggested that the regulations should permit the
receipt of stock options as compensation of service as a board member,
as this is a common practice in the industry and is beneficial to the
Small Business. SBA agrees and has added Sec. 107.815(b)(3) to the
final rule to permit this practice, with the condition that the
compensation paid must not exceed that 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.
l. Guarantees of the Obligations of Small Businesses
SBA received one comment seeking to clarify that if a Licensee
invests in a Small Business and also guarantees its debt obligation,
the guaranty should count against the overline limitation only to the
extent of the Licensee's risk over and above its original investment.
The situation described by the commenter is covered by
Sec. 107.820(a)(2), which states that a guaranty consisting only of ``a
pledge of the Equity Securities of the issuer'' does not count towards
the overline limitation.
m. Commitments to Small Businesses
SBA received one comment suggesting that proposed Sec. 107.825 be
deleted, a second suggesting that it be moved back to the definitions
section, and a third seeking clarification as to whether ``reasonable
conditions precedent'' to a Licensee's obligation to fund its
commitment can include ``completion of due diligence which confirms the
accuracy of the initial business plan''.
SBA is not deleting the defined term ``Commitment'' from the
regulations because it is used in several important contexts (see, for
example, the new provision in Sec. 107.860(g) that allows a Licensee to
charge a ``breakup fee'' if a Small Business accepts its Commitment and
then fails to close because it has accepted funds from another source).
SBA agrees that proposed Sec. 107.825 properly belongs in the
definitions section and has revised the final rule accordingly.
SBA has addressed the meaning of ``reasonable conditions
precedent'' in an earlier preamble and will repeat that discussion
here: Although SBA is reluctant to provide a list of reasonable
conditions precedent in the regulation for fear that such list might be
regarded as an exclusive one, it is willing to describe ``reasonable
conditions precedent'' in general terms. A ``reasonable condition
precedent'' is one that does not lie within the Licensee's ability to
cause or prevent. ``Completion of due diligence with results
satisfactory to the Licensee'' is an example of a condition precedent
that lies within the Licensee's control. On the other hand,
requirements that a disinterested person verify the value of the Small
Businesses' assets or its net worth, or that there be no adverse change
in the Small Businesses' financial condition between the date of the
commitment and the scheduled disbursement date, or that the Small
Business do or achieve something that lies reasonably within its
capacity would all be considered a ``reasonable condition precedent.''
n. Purchasing Securites From an Underwriter
Comments received on proposed Sec. 107.828 requested relief for
non-leveraged Licensees, reduction or elimination of recordkeeping
requirements and reconsideration of fee limitations for Associate
underwriters. SBA believes certain constraints on purchasing securities
from underwriters are warranted in keeping with the purpose of the Act,
but has made some revisions in response to the comments. Non-leveraged
Licensees have been exempted from the recordkeeping requirements in
paragraph (b) and the fee restrictions in paragraph (c). For leveraged
Licensees, paragraph (c) has been revised to permit a Licensee to pay
``reasonable and customary'' commissions and expenses to an Associate
underwriter, provided the Licensee is purchasing no more than 25
percent of the total offering.
In the final rule, this section is renumbered as Sec. 107.825.
o. Minimum Term of Financing
The comments received on proposed Sec. 107.830 strongly supported
the changes made with regard to the minimum term of Financings for
Section 301(d) Licensees. One commenter suggested allowing Section
301(c) Licensees to have up to 25 percent of their investments with
less than a five year term as long the weighted average duration of the
portfolio is at least five years. SBA believes such a provision is not
in keeping with the intent of the Act and would impose a burdensome
recordkeeping requirement. Accordingly, SBA is finalizing the proposed
rule without change.
p. Exceptions to Minimum Term of Financing
One commenter requested a clarification of proposed Sec. 107.835,
which allows a Licensee to make Short-term Financings (with terms less
than five years) under certain circumstances. The commenter asked
whether the provision in paragraph (c), which limits the dollar amount
of Short-Term Financings to 20 percent of total Loans and Investment
applies only to that paragraph or to all of Sec. 107.835, as has been
the case in the past. It was SBA's intent to apply the 20 percent limit
only to paragraph (c), which deals with Short-Term Financing for the
purpose of financing a change in ownership under proposed Sec. 107.750.
Therefore, the section is finalized as proposed. However, as stated in
the preamble to the proposed rule, Licensees should bear in mind that
the purpose of the SBIC program, as stated in the Act, is to provide
equity capital and long-term loan funds to Small Businesses. Thus,
Licensees should not plan to have the bulk of their portfolios in
short-term investments; to do so would constitute engaging in
activities not contemplated by the Act.
q. Maximum Term of Financing
All of the comments received on proposed Sec. 107.840 suggested
that the general rule which requires a maximum term of not longer than
20 years for any
[[Page 3185]]
Financing should apply only to Loans and Debt Securities. SBA agrees
and has revised the final rule accordingly.
r. Redemption of Equity Securities
Two comments were received on proposed Sec. 107.850. One commenter
suggested that book value should be a permitted basis for determining
the redemption price of an Equity Security under
Sec. 107.850(b)(2)(ii). SBA agrees and has revised the final rule
accordingly.
The other commenter stated that Sec. 107.850(b)(1) should be
broadened to allow accumulated dividends to be included in the
redemption price of an Equity Security. SBA is not adopting this
change. A Licensee is already permitted to structure its investments in
this manner; the only consequence is that such investments are subject
to the Cost of Money rules. Furthermore, as long as the dividends are
payable only from earnings, such investments are not precluded from
qualifying as Equity Capital Investments.
s. Cost of Money
Under proposed Sec. 107.855, SBA sought to substantively revise
some of the Cost of Money rules and to clarify others. SBA received six
comments on this section, two of which advocated deleting the entire
section and letting the market control. While the proposed rule gave
Licensees considerable more flexibility than in the past, the Agency
believes that some Cost of Money rules are necessary to provide a
measure of protection for Small Businesses. The commenters generally
applauded the increase in the minimum ``Cost of Money ceiling'' for
Loans in Sec. 107.855(c); however, some argued that the ceiling for
Debt Securities should also be raised. SBA believes that the proposed
five percentage point difference between Loans and Debt Securities is
justified because Loans do not allow for the Licensee to obtain any
equity interest in the Small Business, and is finalizing this provision
without change.
One comment stated that it was very important for Licensees to be
able to establish the Cost of Money ceiling for a Financing as of the
date a Commitment is issued, not as of the date of the first closing as
proposed in Sec. 107.855(b). The commenter explained that if rates went
up between a Commitment date and a closing date, they would be able to
increase the rate quoted in the Commitment. However, if rates went
down, they would be forced by regulations to close at the lower rate.
SBA is persuaded that Licensees should have flexibility in this area
and has revised this paragraph to allow the ceiling to be set either at
the time the Commitment is issued or as of the date of the first
closing of the Financing.
A Licensee is permitted to compute its Cost of Money ceiling based
on either the current Debenture rate on its own ``Cost of Capital'' as
determined under proposed Sec. 107.855(d). SBA received one comment
suggesting that non-leveraged Licensees should be permitted to compute
a Cost of Capital based on their non-SBA borrowings. The proposed rule
would permit this practice and is therefore finalized without change.
Proposed Sec. 107.855(g)(10) would allow a Licensee to charge a
higher interest rate when a Small Business is in default. For this
purpose, ``default'' is defined to include failure to provide
information required under SBA regulations. One commenter pointed out
that this appears to require Small Businesses to have knowledge of SBA
regulations, and that it is the responsibility of Licensees to put all
necessary default provisions in the Financing documents. SBA agrees and
has deleted the reference to SBA regulations from the final rule.
Proposed Sec. 107.855(i)(3) would allow Licensees to charge a one-
time ``bonus'' at the end of a loan instead of taking equity in the
Small Business. One commenter suggested that the bonus not be limited
to one time only, and that the bonus be computable on the earlier of
five years or when the debt was originally due.
SBA proposed the bonus to allow Licensees to obtain an adequate
return on Financings of companies that do not want to give up equity.
The Agency believes the proposed rule provides Licensees with
sufficient flexibility and is not adopting the suggested changes.
However, SBA is clarifying Sec. 107.855(i)(1) in the final rule to
state that the bonus is computable ``on or after the date that the
Financing is repaid in full or was originally scheduled to be repaid in
full, whichever is earlier''.
SBA has also made an editorial change in Sec. 107.855(i)(3), which
states that a bonus must be contingent upon factors that reflect the
performance of the Small Business. As an example, the proposed rule
stated that net income and operating cash flow were generally
acceptable factors, while gross revenue and gross profit were generally
unacceptable. One commenter interpreted ``gross profit'' as pretax
profit and suggested that this should be acceptable. SBA's
interpretation of ``gross profit'' was the difference between sales and
cost of goods sold, also known as ``gross margin''; to avoid confusion,
the latter term is used in the final rule.
s. Financing Fees Charged to Small Businesses
Two comments received on proposed Sec. 107.860 dealt with problems
faced by Licensees in their dealings with Small Businesses that apply
for Financing. According to the comments received, it is not unusual
for a Small Business to use a Licensee's Commitment to solicit
competing offers. Also, there are a number of frivolous ``shoppers''
who will use a Licensee's time and resources with no genuine intent of
closing a transaction. One such commenter suggested that Licensees be
permitted to address these problems by charging a ``break-up'' fee if a
Small Business fails to close a Financing because it has accepted funds
from another source. SBA is persuaded that the break-up fee represents
a reasonable protection for Licensees and has finalized Sec. 107.860
with a new paragraph (g) containing this provision. The permitted fee
is the same as the closing fee the Licensee would have been permitted
to charge under Sec. 107.860 (c) or (d).
Another comment questioned whether the ``application fee'' and the
``closing fee'' had to be two distinct fees separately identified, or
whether they could both be collected together at closing. To clarify
SBA's intent, language has been added to paragraph (a) of the final
rule stating that the application fee may be collected at closing or at
any time before closing.
t. Control of a Small Business
Twelve comments were received on proposed Sec. 107.865. One comment
objected to paragraph (b) which establishes a ``presumption of
Control'' based on a Licensee's percentage of ownership, stating that
this paragraph represented a ``poor and onerous change'', and further
noting that investor groups typically own 75 percent of a business by
the second or third round of Financing. In response, SBA, wishes to
point out that the proposed provisions concerning the presumption of
Control are exactly the same as those in the previous regulations.
However, proposed paragraph (c) was added to identify specific
conditions that would permit the presumption of Control to be rebutted.
By defining such conditions, the provision was actually intended to
make it easier for a Licensee to co-invest.
With respect to proposed Sec. 107.865(c), two commenters argued
that the ``presumption of Control'' should be
[[Page 3186]]
rebutted if management can elect 25 percent of the board seats. SBA
believes 40 percent is an appropriate standard for an automatic
rebuttal; Licensee can still seek to rebut the presumption based on
other evidence if this test is not met. Accordingly, proposed
paragraphs (b) and (c) are finalized without change.
u. Temporary Control
Proposed Sec. 107.865(d) set out those circumstances under which a
Licensee may take temporary Control of a Small Business, and includes
the provision: ``(1) Where reasonably necessary for the protection of
your investment under circumstances where a Small Business is
threatened with insolvency or closure.'' Several commenters suggested
that by the time insolvency or closure occurs, it is often too late to
``protect their investment''. SBA agrees and has revised the final rule
to delete all of the language after the word ``investment'' in
Sec. 107.865(d)(1). However, SBA advises Licensees that mere
disagreement with the management of a Small Business does not provide
grounds for taking temporary Control under this provision; rather, the
Licensee must be facing a clearly identifiable risk of financial loss.
In response to another comment, proposed Sec. 107.865(d)(3) has
been revised by deleting the world ``original'', which SBA agrees is
unnecessary. Another comment requested that temporary Control be
permitted if a Licensee satisfies either of the criteria in paragraph
(d)(3) instead of both. SBA considers the language in the proposed rule
to be appropriate and has not adopted the comment.
Proposed paragraph (d)(4) would allow a Licensee to take temporary
Control if the Financing is a Start-up Financing and the Licensee (or
investor group including the Licensee) is the concern's major source of
capital. It was suggested by one commenter that this paragraph should
also allow temporary Control if the Financing is a ``change of Control
of a Small Business pursuant to proposed Sec. 107.750.'' SBA believes
that the proposed temporary Control provisions give Licensees
sufficient protection and flexibility, and is finalizing
Sec. 107.865(d) without change.
SBA received three comments on proposed Sec. 197.865(e)(3)
questioning the reduction from seven years to five years of the time
limit for maintaining temporary Control (subject to an extension
granted by SBA in extraordinary circumstances). One comment suggested
going back to seven years, one questioned the necessity of any time
limit (due to the fact that it is inherent in the venture business to
want to exit investments as soon as possible), and one suggested
language stating that SBA would grant an extension if a Licensee can
establish ``that the relinquishment of Control will materially impair
the value'' of its investment.'' SBA rejects all three of these
suggestions and is finalizing Sec. 107.865(e)(3) as proposed. Control
is prohibited under the Act and SBA believes that exceptions to this
prohibition must be narrowly tailored. The Agency considers the five
year period sufficient in most cases and can grant exceptions if
circumstances warrant.
v. Management Fees for Services Provided to Small Businesses
Three comment letters were received regarding proposed
Sec. 107.900. While one commenter approved the liberalization of the
rules governing management services provided to Small Businesses, it
was suggested that greater liberalization is still needed. The other
two commenters argued in favor of expanding the criteria under which a
Licensee could provide management services to a Financed Small Business
without SBA approval. Specifically, they focused on the requirement
that the Services be provided only on an hourly fee basis. They
explained that the current trend is moving away from hourly billing
toward ``project fees'' and that hourly billing has been perceived as
being both inefficient and unfair. They further noted that while this
issue can be resolved by acquiring SBA's prior written approval
pursuant to proposed Sec. 107.900(c), this process is both time
consuming and burdensome. SBA has reexamined this issue in light of the
comments received and recognizes the reasonableness of this suggestion.
Therefore, proposed Sec. 107.900 is revised to allow a Licensee to
charge on a project fee or other reasonable basis. However, the burden
of proof will be on the licensee to demonstrate, upon request, that
fees charged to not exceed prevailing rates charged for comparable
services by other organizations in the geographic area of this Small
Business.
Paragraph (b), concerning fees for service as a board member, is
revised in the final rule in accordance with comments received, to
allow for fees to be paid in the form of cash, warrants or other
consideration. In addition, the following language is added at the end
of the last sentence of paragraph (b): ``* * * or, in the absence of
outside board members, amounts reasonable when compared to similar
companies with outside board members.''
Proposed Sec. 107.900(e)(2) discusses transaction fees which may be
charged a Small Business by a Licensee's Associate for services
performed in connection with a public or private offering made by the
Small Business or the sale of all or part of the business. The comment
received on this paragraph suggested that the 95 percent unrelated
revenue test was too restrictive and would force Small Businesses to
hire outside investment bankers who would be unfamiliar with the
company, which could result in higher fees. SBA is persuaded by this
argument and has deleted this provision from paragraph (e)(2).
Except for the revisions discussed above, Sec. 107.900 has been
finalized as proposed.
8. Subpart H--Non-Leveraged Licensees--Exceptions to Regulations
Two comments were received on proposed Sec. 107.1000. One
specifically praised the flexibility embodied in the proposal, which
provides a consolidated listing of those regulatory provisions from
which a non-leveraged Licensee would be exempt. The other comment
listed a number of sections from which non-leveraged Licensees should
be exempt, but these largely involved statutory requirements. As
discussed throughout this preamble, some additional provisions have
been added to this section. In addition to the exemptions in the
proposed rule, the final rule exempts non-leveraged Licensees from:
(1) The recordkeeping requirements and fee limitations in
Sec. 107.825(b) and (c) for securities purchased through or from an
underwriter;
(2) The requirement to obtain SBA's prior approval of initial
Management expenses under Sec. 107.140 and increases in Management
Expenses under Sec. 107.520;
(3) The prior approval requirement in Sec. 107.815(b) for options
obtained from a Small Business by the Licensee's management or
employees; and
(4) The requirement to obtain post approval for new directors and
new officers, other than the Licensee's chief operating officer. A
notification requirement has been substituted.
9. Subpart I--SBA Financial Assistance for Licensees (Leverage)
a. Types of Leverage Available
Only one comment was received on proposed Sec. 107.1100 which
strongly supported the language clarifying that a Section 301(d)
Licensee may apply for both Debenture and Participating Security
Leverage. The section is therefore finalized without change.
[[Page 3187]]
b. General Eligibility Requirements for Leverage
One comment was received on proposed Sec. 107.1120, objecting to
the presumption that only Licensees with $5 million or more of
Regulatory Capital are financially viable. The commenter stated that
this represents a 300 percent increase for Section 301(d) Licensees, is
not warranted and threatens the financial viability of Section 301(d)
Licensees. As stated previously in this preamble, SBA considers the
minimum capital requirements to be vital to the sound operation of the
SBIC program.
c. Requirement To File Quarterly Financial Statements
Proposed Sec. 107.1220 requires that Licensees file quarterly,
unaudited financial statements on SBA Form 468 (short form) within 30
days of the end of the quarter, so long as any part of SBA's Leverage
commitment is outstanding to the Licensee. A commenter suggested, and
SBA agrees, that this section should be revised to clarify that the
quarterly filing requirement does not apply at the Licensee's fiscal
year end, which is covered by the annual filing of Form 468 under
Sec. 107.630. The section is revised and finalized accordingly.
d. Draw-downs by Licensee Under SBA's Leverage Commitment
All three of the comment letters received on proposed Sec. 107.1230
objected to one of the requirements listed under the ``procedures for
funding draws'' in paragraph (d). As proposed, paragraph (d)(3) would
require a Licensee, when requesting a ``draw'' pursuant to SBA's
Leverage commitment, to furnish a statement to SBA ``that the proceeds
are needed to fund one or more particular Small Business, including the
name and address of each Small Business, and the amount and anticipated
closing date of each proposed financing.'' One commenter labeled this
paragraph an ``unnecessary burden requiring an act of prophecy.'' All
agreed that as investors, they are not motivated to draw capital and
not invest it, but that they may be looking at many investments at the
time of the request, expecting to make one or more investments based
upon proposals outstanding or being negotiated, and not all close. It
was further pointed out that some negotiations may delay closing or
alter amounts actually invested.
SBA considered this issue at length. As participants in the SBIC
program are aware, there is insufficient Leverage currently available
to meet demand, and no change is expected in the near future. This
places SBA in the position of having to allocate the limited Leverage
available among all the eligible applicants. Under these conditions,
SBA finds it useful to be able to review each Licensee's track record
in closing its anticipated investments as part of its evaluation of the
Licensee's need for Leverage in comparison with others. Thus, SBA is
not willing to delete the requirement for information on specific
planned Financings at this time.
Nevertheless, SBA is sympathetic to the commenters' concerns and is
open to future changes in this area, particularly if Leverage ceases to
be in short supply. In the final rule, the information requirements in
paragraph (d)(3) are preceded by the phrase ``if required by SBA''.
This language gives the Agency the flexibility to drop these
requirements in the future if conditions warrant, without having to
revise the regulations.
e. Participating Securities--Requirement To Make Equity Capital
Investments
Under proposed Sec. 107.1500(b)(4), which was unchanged from the
existing regulations, Licensees issuing Participating Securities would
have been required to make Equity Capital Investments equal to the
total amount of Participating Securities issued, and also to maintain
Equity Capital Investments in an amount equal to their outstanding
Participating Securities. SBA received a comment arguing strongly that
the requirement to maintain a certain level of Equity Capital
Investments should be deleted. The commenter's concern was that it is
impossible to predict when investments will be liquidated and that a
Licensee might fall into violation due to circumstances largely beyond
its control.
SBA appreciates the commenter's concern. However, section 303(g)(4)
of the Act specifically requires Licensees to ``maintain an amount
equal to the outstanding face value'' of Participating Securities in
Equity Capital Investments. Therefore, this requirement cannot be
abandoned, and the section is finalized as proposed. However, in
considering waiver requests, the Agency will give weight to
circumstances which suggest that noncompliance is the result of factors
not readily controllable by the Licensee.
f. Participating Securities--Liquidity Requirement
Proposed Sec. 107.1505(a) contained language giving SBA the right
to make the final determination of a Licensee's liquidity impairment.
SBA received a comment suggesting that this language be deleted. SBA is
persuaded that Licensees are unlikely to be motivated to manipulate the
liquidity computation in order to make distributions that would leave
them without sufficient liquidity to continue their operations;
therefore, this language has been deleted from the final rule.
g. Participating Securities--Computation of Earmarked Profit (Loss)
In proposed Sec. 107.1510(d), SBA attempted to provide a simplified
formula for the computation of Earmarked Profit (Loss) without changing
the substance of the calculation. One comment pointed out that the
revised language, which referred to ``Net Income (Loss) as reported on
SBA Form 468'', created ambiguity with respect to the treatment of user
fees paid to SBA and partnership syndication costs incurred by
Licensees. Licensees have presented these items on Form 468 using a
variety of accounting treatments, and in some cases have not made them
a component of Net Income (Loss).
SBA believes that Licensees should be permitted to treat both user
fees and syndication costs as expenses for the purpose of determining
Earmarked Profit (Loss). Accordingly, the final rule states that for
the purpose of determining Net Income (Loss) in the Earmarked Profit
formula, user fees and commitment fees paid to SBA, as well as
partnership syndication costs, must be capitalized and amortized on a
straight-line basis over five year. In all other respects, Net Income
(Loss) must be as reported on SBA Form 468.
h. Participating Securities--Base for Profit Participation
Proposed Sec. 107.1530(c) presented the formula for the Base on
which a Licensee computes SBA Profit Participation. There was no change
proposed in the formula; however, SBA received one comment pointing out
a situation in which the formula produces an unintended result. If a
Licensee were to compute and distribute Profit Participation for an
interim period, and then experience losses during the remainder of its
fiscal year which partially offset the interim profit, the later losses
could not be included in Unused Losses for the purpose of determining
the Base going forward. SBA agrees with the need for a technical
correction of the Unused Loss definition, and is finalizing
Sec. 107.1530(c) with the necessary revision.
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i. Participating Securities--``PLC Ratio'' Used in Profit Participation
Rate Formula
Proposed Sec. 107.1530(e)(2) set forth the conditions under which a
Licensee can reduce its PLC Ratio by increasing its Leverageable
Capital. A reduction of the PLC Ratio has the effect of reducing the
Licensee's Profit Participation Rate. One commenter suggested that a
Licensee should be permitted to include a Leverageable Capital increase
in the ratio without express SBA approval, provided the increase was
the result of the takedown of commitments or the conversion to cash of
non-cash assets included in Private Capital. Language to this effect
was previously included in the regulations and was inadvertently
dropped from the proposed rule. It has been restored in the final
version of Sec. 107.1530(e)(2).
j. Participating Securities--Adjustment of Interim Profit Participation
Calculations for Changes in the Year-End Profit Participation Rate
SBA received a comment suggesting that proposed Sec. 107.1530(h)(3)
be deleted. This provision, which was unchanged from the existing
regulations, stated that if a Licensee computing Profit Participation
had previously made an interim computation during the same fiscal year,
it would be required to adjust the interim amount to account for any
subsequent increases in the Profit Participation Rate. The commenter
pointed out that the provision was inconsistent with the mechanics of
Sec. 107.1530(h) (1) and (2), which resulted in automatic adjustment of
interim computations for subsequent increases or decreases in the
Licensee's Profit Participation Rate.
SBA agrees that the provisions are inconsistent; however, the
preamble to the April 8, 1994 final rule concerning the Participating
Securities program (59 FR 16898) makes the following statement: ``Any
computation of Profit Participation made as of the close of an interim
fiscal quarter is subject to adjustment whenever any subsequent interim
distributions are contemplated, and at the end of the fiscal year, in
order to account for any increase in the Profit Participation Rate. If
the Profit Participation Rate decreases as a result of an approved
increase in Leverageable Capital, Profit Participations already
computed for any interim periods shall not be adjusted.''
Thus, with respect to the original intent of the regulations, the
error in the proposed rule is found not in paragraph (h)(3), but in
paragraphs (h)(1) and (h)(2), which incorrectly adjust interim Profit
Participation computations for decreases in the Rate as well as
increases. Accordingly, in the final rule, SBA has revised paragraph
(h) so that an adjustment takes place only when the Profit
Participation Rate increases.
k. Participating Securities--Basis for Distribution of Prioritized
Payments and Adjustments
Proposed Sec. 107.1540(a), which is essentially the same as the
existing regulation, would require a Licensee to distribute the balance
in its Distribution Account (consisting of Earned Prioritized Payments
and earned Adjustments) annually, based on its profits as determined
under Sec. 107.1520. One commenter pointed out that ``no distinction is
made in Sec. 107.1520 between cash and non-cash earnings. Consequently,
this provision effectively requires that a Licensee make an annual
distribution of cumulative profits to pay Prioritized Payments even if
the Licensee did not receive cash for all or a portion of these
profits.'' The commenter suggested that distributions should be
required only for profits earned by the Licensee in cash.
SBA appreciates the concern expressed, but has decided to finalize
this section as proposed. The Agency believes that Licensees are
sufficiently protected by the provision in Sec. 107.1540(a) that makes
all distributions under Sec. 107.1540 conditional upon the satisfaction
of the liquidity requirement in Sec. 107.1505. Thus, a Licensee that
had received only non-cash income likely would be precluded from making
a distribution.
l. Payment of Prioritized Payments on Participating Securities in Order
of Issue Date
Under proposed Sec. 107.1540(c), Licensees would be required to pay
Prioritized Payments on their Participating Securities in order of the
securities' issue dates. One commenter pointed out that this would
impose a substantial burden by requiring Licensees to maintain detailed
sub-accounts to track the Accumulated Prioritized Payments associated
with each individual Participating Security, and would not provide any
benefit to the Agency. SBA agrees that this provision is unnecessary
and has deleted it in the final rule.
m. Participating Securities--Computation of ``Maximum Tax Liability''
Proposed Sec. 107.1550(b) set forth the formula used to compute a
Licensee's Maximum Tax Liability, from which the Licensee calculates
its permitted tax distribution. One element in the formula is ``total
ordinary income'' allocated to Licensee's investors for Federal income
tax purposes. One commenter sought clarification as to whether this
phrase was intended to represent ordinary income less ordinary
deductions. That is the interpretation intended by SBA, and the
paragraph has been revised in the final rule to clarify the meaning.
With respect to the same paragraph, the commenter also suggested
that ``total ordinary income'' be defined to exclude expenses that
partners may not be able to deduct fully under the tax law. SBA
believes this suggestion is inconsistent with the Act, which refers to
``income allocated to each partner or shareholder * * * for Federal
income tax purposes'' and does not provide for any adjustment for
nondeductible expenses. Furthermore, the Agency finds no compelling
reason to provide all investors with an additional benefit based on the
possibility that some may face limitations on their deductions.
n. Participating Securities--Payment Dates
SBA received several comments concerning the Participating Security
distribution regulations (Secs. 107.1540 through 107.1570) which would
require Licensees to make distributions only on quarterly Payment
Dates. All the commenters objected to the inflexibility of these
provisions. As stated in the preamble to the proposed rule, the Payment
Dates represent the dates on which Trust Certificate holders receive
interest payments and any returns of principal to which they are
entitled. Because Participating Securities can be redeemed only on
Payment Dates, the proposed rule limited Licensees' distributions to
these dates to avoid certain problems, such as the question of who is
responsible for Prioritized Payments on a Participating Security during
the interval between the making of a distribution and the actual
redemption of the Participating Security with the proceeds of the
distribution.
However, SBA recognizes that the loss of flexibility under the
Payment Date structure can have a significant negative impact on both
the Licensee and the Agency, particularly in the case of distributions
to be made in the form of securities. In this instance, the
restrictions may force the Licensee to hold securities for a
substantial period of time, during which the Licensee and its investors
(including SBA) would be subject to a high degree of market risk.
Because of time constraints, SBA is unable to modify the Payment
Date restrictions in this final rule. However,
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the Agency intends to seek a solution that will provide Licensees with
greater flexibility in making distributions of securities, and to
publish a proposed rule dealing with this problem as soon as possible.
One change concerning the timing of distributions is being
incorporated in the final rule. In the preamble to the proposed rule,
SBA indicated that it was willing to consider allowing tax
distributions under Sec. 107.1550 to be made during some window period
between the February 1 and May 1 Payment Dates, in order to allow
investors to receive cash before their Federal tax filing deadlines.
Based on the comments received, SBA is finalizing Sec. 107.1550(d) with
revised language permitting a tax Distribution to be made between March
1 and April 15 by a Licensee with a December 31 year end. Licensees
still must pay all Prioritized Payments before being eligible to make a
tax distribution.
o. Trust Certificates
During the comment period, SBA reviewed proposed Secs. 107.1600
through 107.1680 pertaining to Trust Certificates guaranteed by SBA to
fund Leverage. Section 321 of the Act and the documentation of the
Trust Certificates are very specific with respect to the terms and
conditions. SBA has chosen to shorten these sections by eliminating
language contained in the statute or detailed in the Trust
Certificates. None of the changes made to the proposed Secs. 107.1600
through 107.1680 are substantive. In the final rule, Trust Certificates
are covered in renumbered Secs. 107.1600 through 107.1640.
p. Miscellaneous Leverage Provisions
In the final rule, SBA has eliminated proposed Sec. 107.1700(a) and
(c) as redundant and unnecessary language. Section 321(a) of the Act is
specific with respect to SBA's unconditional guarantee and the
requirement for a bond. SBA will continue to provide for an
unconditional guarantee. The bonding requirement has been eliminated in
this section as well as in the Trust Certificate sections because the
bond is required by statute.
10. Subpart J--Licensee's Noncompliance With Terms of Leverage
a. Capital Impairment
SBA received one comment on proposed Sec. 107.1840(d)(6), which
would have required a Licensee, in computing its Capital Impairment
Percentage, to reduce its ``Adjusted Unrealized Gain'' by the amount of
any borrowing or other obligation associated with portfolio securities
that were the source of the Unrealized Appreciation used as the basis
for determining the Adjusted Unrealized Gain. The commenter correctly
pointed out that the reduction should be limited to the extent of the
Unrealized Appreciation. SBA agrees and has finalized the provision
accordingly.
11. Appendices to Part 107
The existing regulations include two appendices: Appendix I,
Accounting Standards and Financial Reporting Requirements for Small
Business Investment Companies, and appendix II, Valuation Guidelines
for SBICs. SBA has decided to delete the appendices from Part 107, and
will publish them in a different format at a later date. Although they
are no longer part of the regulations themselves, both the accounting
standards and the valuation guidelines remain applicable to all
Licensees.
Compliance With Executive Orders 12612, 12778, and 12866, the
Regulatory Flexibility Act (5 U.S.C. 601, et seq.), and the
Paperwork Reduction Act (44 U.S.C. Ch. 35)
SBA certifies that this final rule will not be a significant
regulatory action for purposes of Executive Order 12866 because it will
not have an annual effect on the economy of more than $100 million, and
that it will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.
The primary purpose of the rule is to streamline the regulations
governing the SBIC program by eliminating obsolete regulations and
reorganizing the remainder in a more logical and readable format.
Two areas of the regulations will have some economic effect,
including possible effects on small entities. First, license
application fees and examination fees will be raised. An SBIC license
applicant will pay a fee of $10,000 to $20,000, compared with the
current $5,000. This increase is not significant relative to the
private capital of an average Licensee, which exceeds $10 million. Exam
fees will continue to be based on the total assets of a Licensee, but
at higher rates. The largest Licensees, generally those with several
hundred million dollars of assets, could experience fee increases of
$20,000 or more; however, the number of such Licensees is currently
very small.
Second, the changes in the regulations governing ``Cost of Money''
(the maximum amount a Licensee can charge on loans and debt securities)
will potentially affect the borrowing costs of small entities. Although
the interest rate on loans is determined primarily by market forces,
the final rule will raise the interest rate ceiling on loans extended
by Licensees from 15 percent to 19 percent. The total amount of loans
provided to small businesses by Licensees is approximately $240 million
per year. Even if the additional four percentage points were charged on
the entire balance of such loans, the annual economic impact would be
less than $10 million.
For purposes of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA
certifies that this final rule contains no new reporting or record
keeping requirements that have not already been approved by the Office
of Management and Budget. The ``Financing Eligibility Statement'' (SBA
Form 1941) which is required under Sec. 107.610 has already been
approved by OMB under Control Number 3245-0301.
For purposes of Executive Order 12612, SBA certifies that this rule
does not have any federalism implications warranting the preparation of
a Federalism Assessment.
For purposes of Executive Order 12778, SBA certifies that this rule
is drafted, to the extent practicable, in accordance with the standards
set forth in Section 2 of that Order.
List of Subjects in 13 CFR Part 107
Investment companies, Loan programs-business, Reporting and
recordkeeping requirements, Small businesses.
For the reasons set forth above, SBA hereby revises Part 107 of
Title 13 of the Code of Federal Regulations to read as follows:
BILLING CODE 8025-01-M