(a) General. This section contains the procedures you must use to determine your Capital Impairment Percentage. You must compare your Capital Impairment Percentage to the maximum permitted under § 4290.1830(b) to determine whether you have a condition of Capital Impairment.
(b) Preliminary impairment test. If you satisfy the preliminary impairment test, your Capital Impairment Percentage is zero and you do not have to perform any more procedures in this § 4290.1840. Otherwise, you must continue with paragraph (c) of this section. You satisfy the test if each of the following amounts is zero or greater:
(1) The sum of Undistributed Net Realized Earnings, as reported on SBA Form 468 or other USDA-approved form(s) and Includible Non-Cash Gains.
(2) Unrealized Gain (Loss) on Securities Held.
(c) How to compute your Capital Impairment Percentage. (1) If you have an Unrealized Gain on Securities Held, compute your Adjusted Unrealized Gain using paragraph (d) of this section. If you have an Unrealized Loss on Securities Held, continue with paragraph (c)(2) of this section.
(2) Add together your Undistributed Net Realized Earnings, your Includible Non-cash Gains, and either your Unrealized Loss on Securities Held or your Adjusted Unrealized Gain.
(3) If the sum in paragraph (c)(2) of this section is zero or greater, your Capital Impairment Percentage is zero.
(4) If the sum in paragraph (c)(2) of this section is less than zero, drop the negative sign, divide by your Regulatory Capital (excluding Treasury Stock), and multiply by 100. The result is your Capital Impairment Percentage.
(d) How to compute your Adjusted Unrealized Gain. (1) Subtract Unrealized Depreciation from Unrealized Appreciation. This is your “Net Appreciation”.
(2) Determine your Unrealized Appreciation on Publicly Traded and Marketable securities. This is your ”Class I Appreciation”.
(3) Determine your Unrealized Appreciation on securities that are not Publicly Traded and Marketable and meet the following criteria, which must be substantiated to the Agency's satisfaction (this is your “Class 2 Appreciation”):
(i) The Portfolio Concern that issued the security received a significant subsequent equity financing by an investor whose objectives were not primarily strategic and at a price that conclusively supports the Unrealized Appreciation;
(ii) Such financing represents a substantial investment in the form of an arm's-length transaction by a sophisticated new investor in the issuer's securities; and
(iii) Such financing occurred within 24 months of the date of the Capital Impairment computation, or the Portfolio Concern's pre-tax cash flow from operations for its most recent fiscal year was at least 10 percent of its average contributed capital for such fiscal year.
(4) Perform the appropriate computation from the table in 13 CFR 107.1840(d)(4).
(5) Reduce the gain computed in paragraph (d)(4) of this section by your estimate of related future income tax expense. Subject to any adjustment required by paragraph (d)(6) of this section, the result is your Adjusted Unrealized Gain for use in paragraph (c)(2) of this section.
(6) If any securities that are the source of either Class 1 or Class 2 Appreciation are pledged or encumbered in any way, you must reduce the Adjusted Unrealized Gain computed in paragraph (d)(5) of this section by the amount of the related borrowing or other obligation, up to the amount of the Unrealized Appreciation on the securities.
[69 FR 32204, June 8, 2004, as amended at 76 FR 80225, Dec. 23, 2011]
(a) Applicability of this section. Upon acceptance of a license to operate as an RBIC, you automatically agree to the terms, conditions and remedies in this section, as in effect at the time of issuance of the license and as fully set forth in all documents relating to the license, including, without limitation, the Participation Agreement and Debentures.
(b) Automatic events of default. The occurrence of one or more of the events in this paragraph (b) causes the remedies in paragraph (c) of this section to take effect immediately.
(1) Insolvency. You become equitably or legally insolvent.
(2) Voluntary assignment. You make a voluntary assignment for the benefit of creditors without the Agency's prior written approval.
(3) Bankruptcy. You file a petition to begin any bankruptcy or reorganization proceeding, receivership, dissolution or other similar creditors' rights proceeding, or such action is initiated against you and is not dismissed within 60 days.
(c) Remedies for automatic events of default. Upon the occurrence of one or more of the events in paragraph (b) of this section:
(1) Without notice, presentation or demand, the entire indebtedness evidenced by your Debentures, including accrued interest, and any other amounts owed with respect to your Debentures, is immediately due and payable; and
(2) You automatically consent to the appointment of the Agency or its designee, as your receiver under section 384M of the Act.
(d) Events of default with notice. For any occurrence (as determined by the Agency) of one or more of the events in this paragraph (d), the Agency may avail itself of one or more of the remedies in paragraph (e) of this section.
(1) Fraud. You commit a fraudulent act that causes detriment to the Agency's position as a creditor or guarantor.
(2) Fraudulent transfers. You make any transfer or incur any obligation that is fraudulent under the terms of 11 U.S.C. 548.
(3) Willful conflicts of interest. You willfully violate § 4290.730.
(4) Willful non-compliance. You willfully violate one or more of the substantive provisions of the Act or any substantive regulation promulgated under the Act or any substantive provision of your Participation Agreement.
(5) Repeated Events of Default. At any time after being notified of the occurrence of an event of default under paragraph (f) of this section, you engage in similar behavior that results in another occurrence of the same event of default.
(6) Transfer of Control. You willfully violate § 4290.410, and as a result of such violation you undergo a transfer of Control.
(7) Non-cooperation under § 4290.1810(h). You fail to take appropriate steps, satisfactory to the Agency, to accomplish any action the Agency may have required under paragraph (h) of this section.
(8) Non-notification of Events of Default. You fail to notify the Agency as soon as you know or reasonably should have known that any event of default exists under this section.
(9) Non-notification of defaults to others. You fail to notify the Agency in writing within ten days from the date of a declaration of an event of default or nonperformance under any note, debenture or indebtedness of yours, issued to or held by anyone other than the Agency.
(e) Remedies for events of default with notice. Upon written notice to you of the occurrence (as determined by the Agency) of one or more of the events in paragraph (d) of this section:
(1) The Agency may declare the entire indebtedness evidenced by your Debentures, including accrued interest and/or any other amounts owed the Agency with respect to your Debentures, immediately due and payable: and
(2) The Agency may avail itself of any remedy available under the Act, specifically including institution of proceedings for its, or its designee's appointment as your receiver under section 384M(c) of the Act.
(f) Events of default with opportunity to cure. For any occurrence (as determined by the Agency) of one or more of the events in this paragraph (f), the Agency may avail itself of one or more of the remedies in paragraph (g) of this section.
(1) Excessive Management Expenses. Without the Agency's prior written consent, you incur Management Expenses in excess of those permitted under §§ 4290.510 and 4290.520.
(2) Improper Distributions. You make any Distribution to your shareholders or partners, except with the Agency's prior written consent, other than:
(i) Distributions permitted under § 4290.585; and
(ii) Payments from Retained Earnings Available for Distribution based on either the shareholders' or members' pro-rata interests or the provisions for profit distributions in your partnership agreement, as appropriate.
(3) Failure to make payment. Unless otherwise approved by the Agency, you fail to make timely payment of any amount due under any security or obligation of yours that is issued to, held or guaranteed by the Agency.
(4) Failure to maintain Regulatory Capital. You fail to maintain the minimum Regulatory Capital required under these regulations or, without the Agency's prior written consent, you reduce your Regulatory Capital except as permitted by § 4290.585.
(5) Capital Impairment. You have a condition of Capital Impairment as determined under § 4290.1830.
(6) Cross-default. An obligation of yours that is greater than $100,000 becomes due or payable (with or without notice) before its stated maturity date, for any reason including your failure to pay any amount when due. This provision does not apply if you pay the amount due within any applicable grace period or contest the payment of the obligation in good faith by appropriate proceedings.
(7) Nonperformance. You violate or fail to perform one or more of the terms and conditions of any security or obligation of yours that is issued to, held or guaranteed by the Agency, or of any agreement (including your Participation Agreement) with or conditions imposed by the Agency in the administration of the Act and the regulations promulgated under the Act.
(8) Noncompliance. Except as otherwise provided in paragraph (d)(5) of this section, the Agency determines that you have violated one or more of the substantive provisions of the Act or any substantive regulation promulgated under the Act.
(9) Failure to maintain diversity. You fail to maintain diversity between management and ownership as required by § 4290.150.
(g) Remedies for events of default with opportunity to cure. (1) Upon written notice to you of the occurrence (as determined by the Agency) of one or more of the events of default in paragraph (f) of this section, and subject to the conditions in paragraph (g)(2) of this section:
(i) The Agency may declare the entire indebtedness evidenced by your Debentures, including accrued interest, and/or any other amounts owed the Agency with respect to your Debentures, immediately due and payable; and
(ii) The Agency may avail itself of any remedy available under the Act, specifically including institution of proceedings for the appointment of the Agency or a designee as your receiver under § 348M of the Act.
(2) The Agency may invoke the remedies in paragraph (g)(1) of this section only if:
(i) You have been given at least 15 days to cure the default(s); and
(ii) You fail to cure the default(s) to the Agency's satisfaction within the allotted time.
(h) Repeated non-substantive violations. If you repeatedly fail to comply with one or more of the non-substantive provisions of the Act or any non-substantive regulation promulgated under the Act, the Agency, after written notification to you and until you cure such condition to the Agency's satisfaction, may deny you additional Leverage and/or require you to take such actions as the Agency may determine to be appropriate under the circumstances.
(i) Consent to removal of officers, directors, or general partners and/or appointment of receiver. The Articles of each RBIC must include the following provisions as a condition to the purchase or guarantee of Leverage. Upon the occurrence of any of the events specified in paragraphs (d)(1) through (d)(6) or (f)(l) through (f)(3) of this section as determined by the Agency, the Agency shall have the right, and you consent to the Agency's exercise of such right:
(1) With respect to a Corporate RBIC, upon written notice, to require you to replace, with individuals approved by the Agency, one or more of your officers and/or such number of directors of your board of directors as is sufficient to constitute a majority of such board; or
(2) With respect to a Partnership RBIC or an LLC RBIC, upon written notice, to require you to remove the person(s) responsible for such occurrence and/or to remove the general partner or manager of the RBIC, which general partner or manager shall then be replaced in accordance with the RBIC's Articles by a new general partner or manager approved by the Agency; and/or
(3) With respect to a Corporate RBIC, Partnership RBIC, or LLC RBIC, to obtain the appointment of the Agency or its designee as your receiver under section 384M of the Act for the purpose of continuing your operations. The appointment of a receiver to liquidate an RBIC is not within such consent, but is governed instead by the relevant provisions of the Act.
[69 FR 32204, June 8, 2004, as amended at 76 FR 80224, Dec. 23, 2011]