SBA LENDING UPDATE: EXPLORING THE NEW SOP (F) AND OTHER NEW SBA PROGRAM INITIATIVES

EXPLORING THE NEW

SOP 50 10 5(F) AND

OTHER NEW SBA

PROGRAM INITIATIVES

Central Texas Assoc. of Guaranteed Government Lenders

February 5 & 6, 2014

Agenda:

n SOP 50 10 5(F)

n Pending and recently enacted rule/policy changes affecting SBA lenders

n Definition of Good Standing

n Rewrite of Franchise Review Provisions

n Debarment Further Defined

n Changes to 912 clearance process

n ETran Submissions Only

n Refinance changes

n Credit Criteria different for two loan categories ($350,000 < >)

n Collateral policy: valuation methods and requirements for personally owned assets

n Life insurance

n 147 Note and 148 Guarantee forms

n Application – 1919 and 1920 (replacing 4 and 4i)

Part I

Good Standing

p

A lender must be in good standing with its state

regulator and Federal Financial Institution

Regulator (FFIR) as determined by SBA.

n satisfactory financial condition (e.g., capital and liquidity)

n satisfactory small business credit administration and servicing policies, procedures and practices.

Franchises

p Re-write of Review of Franchise/License/Dealer/Jobber or Similar Agreement provisions

p Rely on Certification of Franchisor

p SBA will assist PLP lenders determine if affiliation exists for those franchises not on Registry

n [email protected]

p Although affiliation determination may be made by SBA on loans not on Registry, lender must still determine whether financing meets all other eligibility rules

Get Executed Franchise Documents

p

If Lender disburses the proceeds without

obtaining the necessary executed franchise

documents, including any amendments and/or

addendums, SBA may deny liability of guaranty.

Gas Stations

p

Review Relevant

Documents: Title Report

(with copies of chain and

Exceptions), Supply

Agreements, Purchase Documents

p

Look for: Repurchase Options, Impairment of

Collateral Value, Alteration of Lender/SBA’s rights

(Subordination not sufficient)

Business with An Associate of Poor Character

p

Subject Individual:

n Owner, partner, officer, managing member, owner of 20% or more, Trustor and day-to-day Manager

n Form 1919 – Questions 1, 2 & 3

n If Yes to 1= Not Eligible

n If Yes to 2 or 3 = Find out more.

n Felony = Fingerprint

n Misdemeanor = Name Check or Fingerprint

Business with An Associate of Poor Character

p

You can clear it!?! Maybe…

p

PLP Lender or SBA Field Officer can clear the

following:

n Single minor misdemeanor offense or arrest; or

n Up to 3 minor offenses (arrests and/or convictions at one time or separately), concluded more than 10 years prior to date of the SBA application; or

n A prior offence cleared by D/FA on prior application – valid for 6 months

Refinancing Change of Ownership Debt

p NOW Reads:

g) Debt used to

finance a change of ownership;

p But comments says:

Additional Refi Provisions

p

Refinancing Same Institutions Debt – 36 month

look back - late beyond 29 days

p

Borrower or Lender can get evidence from prior

lender of SBA loan for refinance

p

7(a) to refinance 504 Loan –

Both TPL and 504 refinanced

or TPL paid in full, part of

Credit Criteria – Loan < $350,000

p New policy: Loans $350,000 and under must be processed under SLA

Credit Score prescreening prior to submission of ETran application

p If loan application does not receive an acceptable credit score, Lender may submit Standard processing or (if SBA Express Lender) an SBA Express Application via ETran for 50% guaranty.

p Eligibility for SLA will continue to be based on pre-screening credit score and specified

mandatory credit evaluation including that

applicant’s debt service and global cash flow ratio exceeds 1:1 on a historical or projected cash flow

Credit Criteria – Loan < $350,000

n History of business

n Management experience

n Debt Service Coverage Ration exceeds 1:1

n Projected Cash Flow Ratio exceeds 1:1

n Owner/Guarantor personal financial statements, consistent with similar non – SBA loans

n May use own credit scoring criteria

n Analyze strength of business – credit/ deposit behavior

n Verify tax returns

n Equity and pro forma debt to worth are acceptable based on Lender’s non-SBA loan policies

Credit Criteria – Loans > $350,000.00

p

New policy: lender must—

n Determine if repayment ability from business cash flow exists AND

n Follow SBA-mandated credit evaluation criteria INCLUDING minimum debt service coverage ratio of 1.15:1 based on a historical

and/or projected basis

n SOP Equity Injection requirements apply

Credit Criteria – Loans > $350,000.00

p

OCF/DS must be greater than 1.15 to 1.0 on

a historical and/or projected basis

n Operating Cash Flow (OCF) as earnings before interest, taxes,

depreciation and amortization (EBITDA)

n Debt Service is defined as required P&I payments on all business

debt inclusive of SBA loan proceeds

Former Collateral Requirements

p

With some sub-program specific exceptions, SBA

generally required “all available assets”

New Collateral Requirements

p

For loans of $25,000 and less – no collateral

required

p

For loans over $25,000 –

Lien on all assets

financed by loan

Collateral Requirements

50 10 (5) (F)

p Lender may secure applicant’s trading assets (using a 10% current book value for the calculation) if it does so for

similarly sized non-SBA-guaranteed commercial loans.

Loans between

$25,000 to $350,000

Follow collateral policies and procedures that Lender has established and implemented for its similarly-sized non-SBA-guaranteed commercial loans

p Fully Secured means all available assets with a combined net book value up to the loan amount.

p Fixed Assets, then Trading Assets (10% of current book

value) and then

personal real estate (up to shortfall)

Loans between

$350,000 to $5,000,000

SBA requires that the lender collateralize the loan to the maximum extent possible up to the loan amount.

Collateral Requirements

50 10 (5) (F)

New Collateral Requirements (Cont.)

p Liens on residence may be limited to150% of equity - if tax implications from filing at higher amount

p Lien on personal residence still NOT required if equity less than 25%

p Lien on jointly held R/E still required even if one spouse has NO ownership interest in business – with limited guaranty required

p No lien required if R/E wholly owned by non-owner spouse

p Lien on other personally owned assets, e.g., stocks, bonds, CDs, etc., NOT required

Life Insurance

p New policy to allow lender to follow same policy that it

uses regarding life insurance for its unguaranteed commercial loans of similar size and type

p But, expectation by SBA that, on loans over $350,000 processed under the regular 7(a) program, sole

proprietors, sole member LLCs, etc. must obtain life insurance unless loan is fully secured

n If principal uninsurable, lender must obtain written documentation from a licensed insurer

Other SOP Changes

p 147 Note and 148 and 148L Full and Limited Guaranty forms no longer mandatory – be careful

n Lenders forms must contain SBA required clauses

p Applications – Forms 1919 (Borrower) and 1920SX (Lender)

n Elimination of 4 and 4i

n Must use E-Tran for processing ALL loans

Other SOP Changes

p

504 Loan program changes

n Does not require credit reports on non-guarantor affiliates

n SBA can participate in Projects financed by obligations exempt from local or state taxes

n Incorporates clarifications under 7(a) program (i.e. franchise reviews), permissible debt refinancing and change of ownership

n Eliminates wet signatures on personal financial

statements, balance sheets and income statements, fed tax returns and aging AR reports

Recent SBA Procedural Notices

p

FRANdata Unique Numbering System (FRUNS) –

Starting October 1, 2013

n Must submit a FUNS number for all franchise loans through ETran

n Control No. 2000-840

p

7(a) and 504 Fees – Starting October 1, 2013

n Guaranty and on-going fees to be waived for all loans under $150,000 beginning 10/1/2013

n For other loans, on-going fee going down from 55 to 52 basis points

OMB Circular A-129

p

Credit Reporting Requirements (SOP 50 57 p. 30)

p

Mandatory that lenders report SBA loans to a

commercial credit agency of Lender’s choice

(quarterly)

p

OCRM will likely be looking for compliance in

conducting its onsite reviews; and the position of

NGPC is unclear

p

31 U.S.C.§3711

Other Important Changes

p Affiliation and Personal Resources Rule policy revisions – still under review – may be finalized before 1/1/2014

n Affiliation if ownership of 51% or more

n No negative control permitted

p SBA One – part of requirements for fiscal and transfer agent contract (Colson)

p OCRM/OIG – Anticipated additional enforcement initiatives (which could lead to more lenders losing PLP status or being removed from program)

IPERA Audits

p OIG report on SBA’s failure to comply with the Improper Payments Elimination and Recovery Act (IPERA)

p SBA agreed to implement a payment recapture plan for approved loans, both before and after closing.

Thanks! Any Questions?

Ethan W. Smith, Esq.

[email protected] P: 267-470-1186 1300 Virginia Drive Suite 325 Ft. Washington, PA 19034 P: 215-542-7070 F: 215-534-9023 www.starfieldsmith.com

1100 Lake Destiny Road Suite 105

Maitland, FL 32751 P: 407-667-8811 F: 407-667-0020