[Federal Register Volume 62, Number 198 (Tuesday, October 14, 1997)]
[Proposed Rules]
[Pages 53253-53269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26720]


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SMALL BUSINESS ADMINISTRATION

13 CFR Part 107


Small Business Investment Companies

AGENCY: Small Business Administration.

ACTION: Proposed rule.

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SUMMARY: Title II of Public Law 104-208 (September 30, 1996), entitled 
the ``Small Business Programs Improvement Act of 1996'', made a number 
of changes to the Small Business Investment Act of 1958, as amended. 
For the Small Business Investment Company program, these changes 
include provisions affecting capital requirements, Leverage eligibility 
and fees, and the status of Section 301(d) Licensees. This proposed 
rule would implement the statutory provisions; in addition, it would 
make various technical corrections and clarifications, as well as 
changes intended to improve the fairness and flexibility of the 
regulations.

DATES: Comments must be submitted on or before November 13, 1997.

ADDRESSES: Written comments should be addressed to Don A. Christensen, 
Associate Administrator for Investment, U.S. Small Business 
Administration, 409 3rd Street, S.W., Suite 6300, Washington, D.C. 
20416.

FOR FURTHER INFORMATION CONTACT: Leonard W. Fagan, Investment Division, 
at (202) 205-7583.

SUPPLEMENTARY INFORMATION: This proposed rule would implement the 
provisions of Title II of Public Law 104-208 (September 30, 1996) which 
relate to small businesses investment companies (SBICs). This rule 
would also make certain other substantive changes, clarifications and 
technical corrections to the regulations governing SBICs, including 
those concerning portfolio diversification, Cost of Money, and the 
computation of distributions to be made by SBICs that have issued 
Participating Securities.

Section 301(d)  Licensees

    Prior to October 1, 1996, an SBIC program applicant could be 
licensed under either section 301(c) or section 301(d) of the Small 
Business Investment Act of 1958, as amended (Act). A Section 301(d) 
Licensee, also known as a ``specialized SBIC'' or ``SSBIC'', agreed to 
invest only in businesses owned and controlled by socially or 
economically disadvantaged individuals. In return, a Section 301(d) 
Licensee received certain benefits not available to other SBICs, such 
as eligibility for certain types of subsidized Leverage (as defined in 
Sec. 107.50).
    Effective October 1, 1996, section 208(b)(3) of Public Law 104-208 
repealed section 301(d) of the Act. However, the repeal provision was 
accompanied by the following language: ``The repeal * * * shall not be 
construed to require the Administrator to cancel, revoke, withdraw, or 
modify any license issued under section 301(d) of the Small Business 
Investment Act of 1958 before the date of enactment of this Act.''
    This proposed rule would revise several sections in part 107 to 
implement this statutory change. The revisions would eliminate 
provisions relating to the licensing of new SSBICs while retaining 
rules governing the operations of existing SSBICs.
    Thus, in Sec. 107.50, a ``Section 301(d) Licensee'' would be 
defined as ``a company licensed prior to October 1, 1996 under section 
301(d) of the Act as in effect on the date of licensing, that may 
provide Assistance only to Disadvantaged Businesses.'' Current 
Sec. 107.110, which deals with organization of a section 301(d) license 
applicant, would be removed. Similarly, Sec. 107.120 would be revised 
by

[[Page 53254]]

eliminating references to the licensing of an SSBIC to operate as the 
subsidiary of another Licensee or group of Licensees. Any existing 
SSBIC which was licensed as a subsidiary would be permitted to continue 
its operations under the same conditions as before; however, the 
proposed rule would not allow an existing SSBIC that is not already a 
subsidiary of another Licensee to become one. SBA has noted no demand 
on the part of existing Licensees to reorganize in this fashion.
    The proposed revision of Sec. 107.230(d)(4) would eliminate future 
use of the provision which allowed Section 301(d) Licensees to include 
in their Private Capital, without limitation, funds indirectly obtained 
from State or local government sources. Under the proposed rule, such 
funds would be included in Private Capital only if they were invested 
in or committed in writing to the Licensee prior to October 1, 1996. 
Otherwise, Section 301(d) Licensees would be limited to State and local 
government funds equal to 33 percent of their Regulatory Capital under 
current Sec. 107.230(d)(3), which applies to all Licensees. This change 
is necessary to bring the regulations into conformity with the Act as 
amended by Public Law 104-208.
    Other proposed changes reflect amendments to the Act which 
eliminated subsidized SBA Leverage. Such Leverage was previously 
available to SSBICs in the form of Debentures with an interest rate 
subsidy or Preferred Securities with a 4 percent dividend. Although 
subsidized Leverage can no longer be issued, the Act does not require 
SSBICs to prepay or redeem such Leverage prior to its scheduled 
maturity. In addition, an SSBIC may apply for any type of non-
subsidized Leverage (Debentures or Participating Securities) for which 
it is eligible.
    To implement these changes, current Secs. 107.1100 and 107.1110 
would be condensed into proposed Sec. 107.1100. The proposed section 
would eliminate the separate descriptions of the types of Leverage 
available to Section 301(c) and Section 301(d) Licensees and would 
eliminate all references to subsidized Leverage.
    SBA is also proposing revisions to Sec. 107.1160 in order to 
conform with the Act. The entire section, which sets forth conditions 
governing the issuance of Leverage by a Section 301(d) Licensee, would 
apply only to Leverage issued on or before September 30, 1996. After 
that date, a Section 301(d) Licensee would be eligible to apply for 
Leverage under Sec. 107.1150, subject to the same terms and conditions 
as other Licensees.
    Similarly, the proposed revisions to the definition of ``Preferred 
Securities'' in Sec. 107.50 and to Secs. 107.1400, 107.1420 and 
107.1430 reflect the fact that SBA's authority under the Act to 
purchase Preferred Securities ceased as of October 1, 1996. The 
appropriation of funds for such securities actually ended as of October 
1, 1995, but some Preferred Securities were issued in fiscal year 1996 
by Licensees drawing against SBA's commitments of fiscal year 1995 
funds.
    Finally, the provisions of current Sec. 107.1350 which allow a 
Section 301(d) Licensee to retire certain Debentures by issuing 
Preferred Securities would be eliminated. The remainder of the section, 
dealing with the retirement of Debentures through the issuance of 
Participating Securities, would be redesignated as Sec. 107.1585 and 
would apply to both SBICs and SSBICs.

Common Control

    ``Common Control'' as defined in Sec. 107.50 currently means ``a 
condition where two or more Licensees, either through ownership, 
management, contract, or otherwise, are under the Control of one group 
or Person.'' However, the defined term as used in paragraphs (4) and 
(5) of the definition of ``Associate'' is clearly intended to refer to 
Persons other than Licensees. To accommodate this usage, the proposed 
rule would revise the Common Control definition to refer to ``two or 
more Persons'' rather than ``two or more Licensees''. The portion of 
the definition under which certain circumstances establish a 
presumption of Common Control would continue to apply only to two or 
more Licensees.

Management and Ownership Diversity

    Section 208(c)(3) of Public Law 104-208 amended the Act to require 
that new SBICs have diversity between management and ownership. For any 
SBIC licensed on or after September 30, 1996, SBA must ensure that the 
management ``is sufficiently diversified from and unaffiliated with the 
ownership of the licensee in a manner that ensures independence and 
objectivity in the financial management and oversight of the 
investments and operations of the licensee.'' SBA has required 
diversity between management and ownership since 1994 for Participating 
Securities issuers and since 1996 for other new leveraged Licensees. 
Therefore, in response to the new statutory requirement, SBA is 
proposing only minor changes to improve the effectiveness of 
Sec. 107.150.
    Under current Sec. 107.150(a), a Licensee or license applicant can 
demonstrate diversity if at least 30 percent of its Regulatory Capital 
is held by at least three shareholders or limited partners (or one 
acceptable Institutional Investor) unrelated to management. 
Specifically, these investors cannot be Associates of the Licensee or 
applicant, or Affiliates of any of its Associates. The proposed rule 
would retain these concepts, but would eliminate the phrase ``Affiliate 
of an Associate''. Instead, proposed Sec. 107.150(a) would specify that 
to qualify for diversity purposes, an investor must not be an Associate 
of the Licensee or applicant and must not ``Control, be Controlled by, 
or be under Common Control with'' an Associate. SBA does not intend for 
this language to be substantively different from the current language, 
but believes that readers may find it easier to understand. In 
addition, the proposed rule would address certain other characteristics 
of ``diversity investors'' which are not covered in the current 
regulation, but which SBA considers important.
    Proposed Sec. 107.150(a) would specify that the investors relied 
upon to satisfy the diversity requirement cannot be Affiliates of one 
another. SBA believes that if such investors are related parties, the 
requirement that there be at least three of them is rendered 
essentially meaningless. The proposed rule also would give SBA 
discretion to reject for diversity purposes an investor whose ownership 
interest is not significant, either in terms of absolute dollars or 
percentage of ownership. This provision underscores the purpose of the 
diversity rules, which is to encourage the presence of investors who 
are likely to have a serious interest, similar to SBA's, in the fair 
and prudent management of the SBIC.
    The proposed changes reflect policies which SBA has been developing 
in its review of license applications. In particular, SBA has used 
informal internal guidelines to evaluate whether a proposed investor's 
interest is substantial enough to qualify for diversity purposes. SBA 
is continuing to refine these guidelines and expects to incorporate 
them into its standard operating procedures.

Capital Requirements

    Under the Act as amended by section 208(c) of Public Law 104-208, 
SBICs licensed on or after October 1, 1996 must meet increased minimum 
capital requirements. Previously, the statutory minimum capital 
requirement was $2.5 million. The new requirements would be implemented 
in proposed Sec. 107.210, which combines and revises elements of 
current Secs. 107.210 and 107.220. Proposed Sec. 107.210(a)(1) would 
require

[[Page 53255]]

a company that does not wish to be eligible to issue Participating 
Securities to have Regulatory Capital of at least $5,000,000. As an 
exception to this general rule, SBA would be able to license an 
applicant with Regulatory Capital of at least $3,000,000, but only if 
the applicant meets certain conditions set forth in the proposed 
regulation. As mandated by the Act, this exception is limited to those 
instances where ``special circumstances and good cause'' can be shown.
    Proposed Sec. 107.210(a)(2) contains essentially the same language 
as the current Sec. 107.220(a). It would require a company licensed on 
or after October 1, 1996, that wishes to be eligible to apply for 
Participating Securities to have Regulatory Capital of at least 
$10,000,000, with a permitted exception for an applicant which 
demonstrates to SBA's satisfaction that it can be financially viable 
over the long term with a lower amount (but under no circumstances less 
than $5,000,000). SBA regulations have required this level of 
Regulatory Capital for Participating Securities issuers since 1994.
    The proposed rule would not permit prospective Participating 
Securities issuers to be licensed pursuant to the exception available 
to other applicants, under which a license may be granted with 
Regulatory Capital as low as $3,000,000. For applicants planning to 
issue Participating Securities, SBA believes that the ability to meet 
the standard minimum capital requirement is an important indicator of 
the credibility of management. SBA also doubts that any such applicant 
can demonstrate financial viability with Regulatory Capital of only 
$3,000,000, even on a temporary basis.
    In addition to the Regulatory Capital requirements described above, 
proposed Sec. 107.210(a) would also require any company licensed on or 
after October 1, 1996, to have Leverageable Capital of at least 
$2,500,000. Leverageable Capital is a subset of Regulatory Capital; 
while both include capital actually contributed to a Licensee by its 
private investors, the major difference between them is that Regulatory 
Capital also includes the Licensee's unfunded binding commitments from 
Institutional Investors. The proposed rule, which is consistent with 
SBA's current licensing policy, reflects the Agency's belief that the 
presence of a certain minimum level of Leverageable Capital 
demonstrates an applicant's seriousness and readiness to operate 
actively as an SBIC.
    The proposed rule would not require SBICs licensed before October 
1, 1996 to increase their capital. Under proposed Sec. 107.210(b), such 
companies would have to meet the applicable minimum capital 
requirements under the regulations in effect on September 30, 1996 (see 
Secs. 107.210 and 107.220 as in effect on that date). These 
requirements vary depending upon the date a company was licensed and 
the type of SBA Leverage it has issued or wants to issue.
    See also the section of this preamble entitled ``Eligibility for 
Leverage and Leverage Commitments''.

Valuations

    Section 208(f)(2) of Public Law 104-208 included one provision 
related to the valuation of portfolio securities held by Licensees 
which was not already reflected in the regulations. Under this 
provision, as part of the annual audit of a Licensee's financial 
statements, the independent auditor must provide to SBA a statement 
that the Licensee's valuations were performed in accordance with its 
SBA-approved valuation policy, as required by section 310(d)(2) of the 
Act. SBA has included this requirement in proposed Sec. 107.503(e). SBA 
is also proposing various non-substantive wording changes in 
Sec. 107.503 to improve the clarity of the section.

Reports To Be Filed With SBA

    Current Sec. 107.660 requires an SBIC to provide SBA with copies of 
reports given to its investors or filed with the Securities and 
Exchange Commission, and to notify SBA when it becomes a party to 
litigation or other proceedings. Proposed Sec. 107.660(d) would add a 
requirement for a Licensee to notify SBA if an officer, director, 
general partner or other Control Person is charged with or convicted of 
any criminal offense other than a misdemeanor involving a minor motor 
vehicle violation. Key personnel associated with a license applicant 
currently must provide this type of information as part of the personal 
history statement included in the SBIC license application. The purpose 
of the proposed rule is to give SBA a mechanism for updating such 
information as needed to ensure the integrity of the SBIC program.

Financing of Smaller Enterprises

    Since April 1994, SBICs have been required to direct a certain 
percentage of their investment activity to businesses which fall 
significantly below the maximum size permitted for a Small Business. 
These businesses were originally referred to as ``Smaller Businesses'', 
a term which was changed to ``Smaller Enterprises'' in a final rule 
published in the Federal Register on March 13, 1997 (62 FR 11759).
    Under proposed Sec. 107.710, the basic requirement for a Licensee 
to invest at least 20 percent of the total dollar amount of its 
Financings in Smaller Enterprises would remain unchanged. However, 
proposed Sec. 107.710(c) would add a new requirement to implement 
section 208(c)(2) of Public Law 104-208. This provision applies to 
SBICs licensed on or before September 30, 1996, which issue Leverage 
after that date and which do not meet the current minimum capital 
requirement (Regulatory Capital of at least $5,000,000 for Debentures 
or at least $10,000,000 for Participating Securities). For such 
Licensees, at least 50 percent of the aggregate dollar amount of their 
Financings extended after September 30, 1996 must be invested in 
Smaller Enterprises. As a practical matter, SBA has found that 
Licensees to which this requirement applies typically invest almost 
exclusively in Smaller Enterprises.
    Like the current regulation, the proposed rule would measure 
compliance with the requirements to finance Smaller Enterprises as of 
the end of a Licensee's fiscal year. Under current Sec. 107.710(e), a 
Licensee which has not achieved the required percentage of investments 
in Smaller Enterprises is allowed one additional year to bring its 
portfolio into compliance. The proposed rule would retain this 
provision. However, such a Licensee would not be eligible for 
additional Leverage until it reaches the required percentage. See also 
the section of this preamble entitled ``Eligibility for Leverage and 
Leverage Commitments''.

Passive Businesses

    SBICs are generally prohibited from investing in passive 
businesses. However, an exception is provided for holding companies 
which pass through the financing proceeds to an active subsidiary. The 
precise nature of this exception has changed over time. Prior to 1996, 
the general prohibition did not apply ``to any Small Concern wholly 
owning another eligible Small Concern engaged in a regular and 
continuous business operation.'' Under current Sec. 107.720(b)(2), 
which became effective January 31, 1996, an SBIC may finance a passive 
business ``if, for all Financings extended, it passes substantially all 
the proceeds through to the same eligible Small Business that is not 
passive.''
    The goal of the 1996 revision was to eliminate the requirement for 
the passive business to be the 100 percent owner of the operating 
business, while still ensuring some substantial relationship between 
the two by

[[Page 53256]]

allowing funds to be passed through to only one active entity. SBA now 
believes that the latter provision may unnecessarily restrict some 
Small Businesses. For example, a holding company may be established 
with two operating subsidiaries, one engaged in manufacturing and the 
other in distribution of the manufactured product. Under the current 
regulation, if the holding company received financing from an SBIC, it 
could pass through the proceeds to only one subsidiary, even though 
both subsidiaries are essentially components of the same business.
    At the same time, SBA continues to believe that there must be a 
significant relationship between a financed passive business and the 
active business which ultimately receives the proceeds. To satisfy this 
goal, proposed Sec. 107.720(b)(2) would permit financing of a passive 
Small Business if it passes substantially all the proceeds through to 
one or more ``subsidiary companies'', defined as companies in which the 
financed passive business owns at least 50 percent of the voting 
securities. The current provision limiting the pass-through of proceeds 
to only one Small Business would be eliminated.

Co-Investment With Associates

    Licensees may co-invest with Associates, subject to the conditions 
in Sec. 107.730(d). This section sets forth certain circumstances under 
which the terms of a co-investment are presumed to be fair and 
equitable to the SBIC, so that no specific demonstration of equity is 
required. Under current Sec. 107.730(d)(3)(iv), this presumption 
applies to co-investments by two non-leveraged SBICs. The proposed rule 
would apply the same presumption to co-investments by a non-leveraged 
SBIC and its non-SBIC Associate. The rationale behind the presumption 
is the same in both cases: SBA has no financial exposure, and is 
therefore unconcerned that a Licensee may be disadvantaged relative to 
its Associate.

Portfolio Diversification Requirements

    Under current Sec. 107.740, a leveraged SBIC may not have more than 
20 percent of its Regulatory Capital invested in or committed to a 
single Small Business or group of related businesses, unless SBA gives 
its prior written approval (for SSBICs, the limit is 30 percent of 
Regulatory Capital). The purpose of this ``overline'' limit is to avoid 
excessive risk by ensuring a certain degree of portfolio 
diversification.
    Since the beginning of the Participating Securities program, SBA 
has been aware that the current regulation may have an unintended 
effect. Participating Securities issuers operate under detailed rules 
governing distributions to SBA as well as to their private investors. 
These regulations permit a Licensee to return capital to its non-SBA 
partners under certain conditions, thereby reducing its Regulatory 
Capital and overline limit. SBA is concerned that a Licensee in these 
circumstances may suddenly have multiple violations of the overline 
regulation, even though its portfolio was sufficiently diversified 
based on its original Regulatory Capital.
    To address this problem, proposed Sec. 107.740(a) would base a 
Licensee's maximum permitted investment in or commitment to a Small 
Business on its Regulatory Capital at the time the investment or 
commitment is made. The limit would apply to the total amount of 
Financings and Commitments extended to the Small Business by the 
Licensee. For example, if a Licensee had invested $1,000,000 in a Small 
Business and wanted to provide follow-on financing at a time when its 
Regulatory Capital was $8,000,000, the amount of the follow-on 
financing could not exceed $600,000 (20 percent of $8,000,000, minus 
the $1,000,000 already invested).
    It should be noted that the proposed rule would require a Licensee 
to be in compliance at the date of a Commitment and at the date of a 
Financing. Thus, a Licensee preparing to fund a Commitment it had made 
to a Small Business must ensure that it has sufficient Regulatory 
Capital as of the closing date to support the completed Financing.
    Proposed Sec. 107.740(a) would continue to permit overline 
investments with the prior written approval of SBA.

Cost of Money

    Current Sec. 107.855 sets forth limits on interest rates and other 
charges that SBICs may impose on Small Businesses. SBA is proposing 
three changes to these ``Cost of Money'' rules. The first change 
reflects section 208(d)(6) of Public Law 104-208, under which SBICs 
must pay to SBA an additional charge of 1 percent per year on any 
Leverage issued after September 30, 1996 (except for draws against 
commitments made by SBA in fiscal year 1996). The proposed rule would 
allow a Licensee to include this charge in its base rate when computing 
its Cost of Money ceiling. The base rate would be equal to either the 
current Debenture Rate plus the 1 percent charge (see Sec. 107.855(c)), 
or the Licensee's own Cost of Capital with the 1 percent charge treated 
as additional interest expense in the computation (see 
Sec. 107.855(d)). Although this change may increase the cost of 
borrowing for some Small Businesses, SBA believes that it is warranted 
because it reflects the increase in Licensees' cost of funds. There 
would be no change in the basic Cost of Money limitations of 19 percent 
for Loans and 14 percent for Debt Securities which Licensees may use 
regardless of the level of prevailing interest rates.
    For Section 301(d) Licensees which elect to compute a Cost of Money 
ceiling based on their own Cost of Capital, proposed Sec. 107.855(d)(4) 
would clarify that interest expense on a subsidized SBA-guaranteed 
debenture may be computed using the debenture's face (unsubsidized) 
interest rate. This provision was inadvertently deleted when the 
regulations were revised in January 1996, but has since remained in 
effect as a matter of SBA policy.
    Finally, SBA is proposing to clarify the treatment of warrants with 
respect to Cost of Money. The regulations governing Cost of Money apply 
to Loans (which have no provision for obtaining equity in a Small 
Business) and Debt Securities (which involve some type of equity 
feature). SBA generally interprets these rules to exclude from Cost of 
Money any returns realized on the equity portion of a Debt Security 
because such returns normally are neither assured nor predictable. 
However, SBA has become aware of certain situations under which the 
current regulations may effectively require inclusion of the value of 
warrants in Cost of Money.
    This may occur when a Licensee lends cash to a Small Business, and 
receives in return not only a note for the amount lent, but also 
detachable warrants to acquire equity in the Small Business. Generally 
accepted accounting principles require the Licensee to determine the 
fair value, if any, of the warrants received and to record the warrants 
at that value, while discounting the note by the same amount. The 
discount is then amortized to interest income over the life of the 
note. Under current Sec. 107.855(f), the income created through 
amortization of the discount is included in Cost of Money.
    SBA believes that this provision unduly disadvantages SBICs which 
allocate substantial value to the warrants acquired, relative to SBICs 
which assign zero or nominal value. Typically, SBICs invest in private 
companies which have no readily ascertainable market value. Thus, the 
value allocated to such companies' warrants is often determined through 
negotiation rather than the application of precise methods. Given the 
level of

[[Page 53257]]

uncertainty associated with such valuations, SBA prefers to create a 
level playing field in which all returns realized on detachable 
warrants are excluded from Cost of Money.
    Proposed Sec. 107.855(g)(1) would address this concern by allowing 
a specific exclusion from Cost of Money for a discount on the loan 
portion of a Debt Security, if the discount results solely from the 
allocation of fair value to detachable stock purchase warrants as 
required by generally acceptable accounting principles. Discounts in 
general would still be included in Cost of Money. For example, if a 
Licensee provided $1,000,000 to a Small Business and received a note 
for $1,100,000, the amortization of the $100,000 discount over the life 
of the note would be treated as additional interest income for Cost of 
Money purposes.

Control

    Proposed Sec. 107.865 contains two clarifications to the existing 
regulation concerning Control of a Small Business by an SBIC. Under 
current Sec. 107.865(c), a Licensee can rebut a presumption of Control 
if certain criteria concerning the ownership of the Small Business and 
the composition of its board of directors are satisfied. The proposed 
rule would eliminate references to the rounding of percentages in 
determining whether the board of directors meets the established 
criteria. The current language is confusing because it is unclear how 
the rounding is to be applied; SBA believes that removing it would 
permit a plain reading of the regulation.
    The second proposed clarification involves current Sec. 107.865(d), 
which sets forth the conditions under which a Licensee may take 
temporary Control of a portfolio company. The proposed rule would 
permit such Control where reasonably necessary for the protection of a 
Licensee's existing investment; the only revision is the addition of 
the word ``existing''. The proposed language is not a substantive 
change; it is intended simply to make explicit SBA's long-standing 
interpretation of this provision.

Eligibility for Leverage and Leverage Commitments

    Section 208 of Public Law 104-208 established certain requirements 
which an SBIC must satisfy in order to obtain SBA Leverage. Proposed 
Sec. 107.1120 (c) and (d) would implement these requirements. An SBIC 
licensed after September 30, 1996, with Regulatory Capital of less than 
$5,000,000 would be ineligible for Leverage until it reached the 
$5,000,000 level. An SBIC licensed on or before September 30, 1996, 
would not be required to increase its capital in order to obtain 
additional Leverage; however, if its Regulatory Capital was less than 
$5,000,000 ($10,000,000 for a company seeking to issue Participating 
Securities), it would have to certify in writing that at least 50 
percent of the aggregate dollar amount of its Financings extended after 
September 30, 1996 would be provided to Smaller Enterprises (see also 
proposed Sec. 107.710(c)). Finally, any Licensee seeking Leverage would 
be required to certify in writing that it is in compliance with the 
general requirement to provide 20 percent of its total Financings to 
Smaller Enterprises under Sec. 107.710(b).
    SBICs can obtain Leverage by applying directly for funding when it 
is needed or by obtaining a Leverage commitment from SBA which it can 
draw down over a period of time. SBA is proposing minor changes to the 
current rules governing the commitment process. The proposed rule would 
eliminate the minimum and maximum amounts for a Leverage commitment in 
current Sec. 107.1200(c). SBA believes that these limits are 
unnecessary. Under the proposed rule, commitment amounts would have to 
be in multiples of $5,000 to accommodate requirements of the Leverage 
funding process; in all other respects, the amount of a commitment 
would be at SBA's discretion. Similarly, the current limitations in 
Sec. 107.1230(b) on the amount that a Licensee can draw against its 
commitment would be eliminated. The proposed rule would require draws, 
like commitments, to be in multiples of $5,000; in addition, SBA would 
have discretion to determine a minimum draw amount, and would publish 
notice of any such determination in the Federal Register from time to 
time.

Leverage Fees

    SBA is proposing changes in Secs. 107.1130 and 107.1210 to 
implement provisions of section 208(d)(6) of Public Law 104-208 which 
affect the fees SBICs must pay in order to obtain SBA Leverage. These 
fee changes were effective October 1, 1996, and were implemented on an 
interim basis by SBA Policy Notice 1000-6.
    Under proposed Sec. 107.1130, a Licensee would pay a nonrefundable 
``leverage fee'' to SBA when Debentures or Participating Securities are 
issued. The fee is 3 percent of the face amount of the Leverage issued, 
replacing the 2 percent user fee and the 1 percent commitment fee 
previously in effect. If a Licensee receives a Leverage commitment from 
SBA, it must prepay the 3 percent fee at the time it receives the 
commitment (see proposed Sec. 107.1210(a)); otherwise, the fee is 
payable when the Leverage is issued.
    Proposed Sec. 107.1130(d) would require a Licensee to pay to SBA an 
additional ``Charge'' on Debentures and Participating Securities (see 
also Sec. 107.50 for the definition of this proposed new term). For 
both types of Leverage, the Charge is 1 percent per annum. The Charge 
is payable under the same terms and conditions as the interest on 
Debentures or the Prioritized Payments on Participating Securities, as 
applicable. Thus, a Debenture issuer would pay the Charge in two semi-
annual installments together with its interest payments. In contrast, a 
Participating Securities issuer would pay the Charge only when it had 
profits and was distributing Prioritized Payments under Sec. 107.1540. 
The Charge would not apply to Leverage drawn down against a commitment 
obtained from SBA on or before September 30, 1996.

Participating Securities--General

    SBICs began to issue Participating Securities in 1995. As Licensees 
and SBA have gained experience with the program, there have been a 
number of regulatory changes intended to correct errors and to 
eliminate inconsistencies and confusing language. The proposed rule 
continues this process of correction and clarification, and also 
includes certain substantive changes.
    Current Sec. 107.1500 sets forth general terms and conditions of 
the Participating Security. One of these conditions, set forth in 
Sec. 107.1500(b)(4), is that a Licensee must make Equity Capital 
Investments equal to the amount of Participating Securities it issues, 
and must maintain such investments in an amount equal to its 
outstanding balance of Participating Securities. The proposed rule 
would implement a provision of Public Law 104-208 by eliminating the 
maintenance requirement. Thus, a Licensee would be responsible only for 
investing the appropriate dollar amount in Equity Capital Investments, 
and would not have to be concerned with the timing of the liquidation 
of those investments. The same change would also be reflected in 
proposed Sec. 107.1820, which sets forth conditions that an SBIC must 
comply with in connection with its issuance of Participating 
Securities. In this section, under paragraph (e)(9), the failure to 
maintain a specified amount of Equity Capital Investments would be 
eliminated from the list of Restricted Operations Conditions.
    Proposed Sec. 107.1500(e), concerning amounts to be paid upon 
redemption of Participating Securities, includes the

[[Page 53258]]

new 1 percent annual Charge on Leverage issued on or after October 1, 
1996 (see the section entitled ``Leverage Fees'' in this preamble). 
Proposed Sec. 107.1500(f), concerning the priority of Participating 
Securities when a Licensee liquidates, reflects the same change. In 
addition, this paragraph would clarify that only Earned Prioritized 
Payments (that is, those Prioritized Payments which the Licensee has 
sufficient profits to pay) have priority in liquidation; the Licensee 
has no obligation to pay Accumulated Prioritized Payments (those not 
covered by available profits).

Liquidity Requirements for Participating Securities

    The proposed rule includes two minor changes to the liquidity 
requirements in Sec. 107.1505. Currently, a Licensee must perform the 
liquidity impairment computation at the end of its fiscal year, when it 
applies for Leverage, and when it intends to make a Distribution. Under 
proposed Sec. 107.1505(a)(2), SBA would be able to exempt a Licensee 
applying for Leverage from the computation requirement. SBA has found 
that many SBICs in the early stages of their existence are extremely 
liquid; in these cases, the Agency believes that the formal liquidity 
computation provides no additional useful information and need not be 
performed.
    The second proposed change involves the computation of the 
liquidity ratio in Sec. 107.1505(b). Various components of the ratio 
are assigned weights which reflect the ease and/or probability of their 
conversion to cash. One of the components of ``Total Current Funds 
Available'' (the numerator of the liquidity ratio) is Publicly Traded 
and Marketable Securities, as reported on SBA Form 468. Under the 
current regulation, a Licensee is given credit for 65 percent of the 
reported value of these securities in the liquidity computation. In 
contrast, the proposed rule would allow the Licensee to count 100 
percent of the reported value as a source of liquidity. SBA is 
proposing this change because Licensees are expected to take 
appropriate discounts (for restrictions, large holdings relative to 
trading volume, etc.) when valuing their securities, as required by 
SBA's valuation guidelines for SBICs. Since these discounts are already 
reflected in the portfolio valuations reported on Form 468, SBA 
considers it unnecessary to discount these values further in the 
liquidity computation.

Earmarked Profit (Loss)

    Under Sec. 107.1510, Participating Securities issuers are required 
to compute Earmarked Profit (Loss) as a preliminary step in determining 
the amounts of various Distributions. SBA is proposing two changes to 
this section. The first would affect only a Licensee holding assets not 
subject to SBA Profit Participation (``non-Earmarked Assets''). For a 
hypothetical SBIC in this situation (none are currently licensed), the 
proposed rule would simplify the computation of the ``Earmarked Asset 
Ratio''. This ratio is intended to measure the proportion of the total 
portfolio which consists of Earmarked Assets, but is currently 
complicated by the inclusion of a factor described as ``weighted 
average uninvested proceeds of Participating Securities''. SBA believes 
that this amount would be extremely difficult, if not impossible, to 
compute in practice; even if it could be determined, it would have 
little effect on the resulting ratio because it is included in both the 
numerator and denominator. Therefore, SBA is proposing to eliminate 
this factor entirely from the Earmarked Asset Ratio computation in 
Sec. 107.1510(c). The proposed rule would also simplify the Earmarked 
Asset Ratio formula by replacing ``weighted average'' Earmarked Assets 
and ``weighted average'' Loans and Investments with simple averages. 
The intent of this change is that the ``average'' amounts specified 
would represent average monthly balances, as computed by the 
Participating Securities software developed by SBA. The Agency believes 
this method provides reasonable precision without requiring detailed 
tracking of the number of days outstanding for each portfolio 
investment, as the weighted average method requires.
    The other proposed change affecting the Earmarked Profit (Loss) 
computation is in Sec. 107.1510(d)(1)(ii), which deals with the 
amortization of leverage fees paid to SBA and partnership syndication 
costs incurred by an SBIC. Currently, for the purpose of computing 
Earmarked Profit (Loss), such costs must be amortized over five years. 
The proposed rule would require amortization over not less than five 
years. This change would accommodate companies which amortize the fees 
over a longer period for financial statement purposes and would prefer 
not to make an additional adjustment when performing the required 
profit computations.

Prioritized Payments

    Section 107.1520 tells a Licensee how to compute Prioritized 
Payments and how to determine whether it has profits which will cause 
Prioritized Payments to become ``earned'' and therefore payable to SBA. 
Three changes to this section are proposed. First, the proposed rule 
would implement a provision of Public Law 104-208 by including 
``Charges'' (the 1 percent annual fee discussed in this preamble under 
the heading ``Leverage Fees'') on outstanding Participating Securities 
in the required computations. Although Charges are not part of 
Prioritized Payments, they are payable under the same terms and 
conditions, as set forth in the proposed section.
    Second, the computation of profit for the purposes of Sec. 107.1520 
would be revised under proposed Sec. 107.1520(d). Under the current 
regulations, a Licensee's ``profit'' equals its cumulative Earmarked 
Profit minus its cumulative Earned Prioritized Payments from prior 
periods. This computation ignores the fact that some or all of the 
profit computed in this manner may have already been distributed under 
other sections of the regulations, either to SBA as Profit 
Participation or to the Licensee's private investors. SBA received no 
comments addressing this concern when the regulations governing 
Participating Securities were originally proposed in April 1994 or 
revised in January 1996; nevertheless, the Agency is concerned that the 
current regulation may, in effect, place duplicate claims on the same 
income. The proposed rule would take prior profit distributions into 
account in determining whether a Licensee has profits which can be used 
to pay Prioritized Payments.
    Third, proposed Sec. 107.1520(f) would provide additional detail 
concerning the computation of Adjustments, a type of compounding of 
unpaid Prioritized Payments. The current regulation is written in 
general terms which do not explain exactly how certain amounts should 
be calculated. The proposed rule follows the method which is currently 
used in the software developed by SBA to perform the allocation and 
distribution computations required for Participating Securities.

Profit Participation

    An SBIC which has issued Participating Securities must allocate 
Profit Participation to SBA when it has earned profits over and above 
the amount necessary to pay its Prioritized Payments in full. Under 
current Sec. 107.1530, Profit Participation is determined by computing 
a ``Base'' and a ``Profit Participation Rate'', and multiplying the 
Base by the Rate. The proposed rule would modify both the Base and the 
Rate under certain circumstances.

[[Page 53259]]

    The Base for Profit Participation represents a cumulative measure 
of a Licensee's Earmarked Profit after Prioritized Payments, 
Adjustments and Charges. A Participating Securities issuer must compute 
its Base as of the end of each fiscal year, but may also compute the 
Base for a period of less than one year in order to make an interim 
distribution of profits. If an SBIC elects to make such a distribution, 
it faces the possibility that the Profit Participation it pays to SBA 
for the interim period will be greater than the Profit Participation it 
would have been obligated to pay had it waited until the end of the 
fiscal year. This can happen because the SBIC suffers losses during the 
remainder of the year, or simply because additional Prioritized 
Payments accumulate during that time; either or both of these factors 
would reduce the SBIC's year-end Base. Under current Sec. 107.1530(c), 
an SBIC which has paid ``excess'' Profit Participation under these 
conditions can treat the excess as ``Unused Loss'' at year end, thereby 
reducing the Base which it will use the next time it computes Profit 
Participation. However, this approach captures only a part of the 
SBIC's loss; the actual loss incurred between the interim distribution 
date and the fiscal year end is equal to the difference between the 
interim and year-end Bases, not just the Profit Participation computed 
on that difference. For this reason, SBA is concerned that the current 
regulation may impose a significant penalty on a Licensee which chooses 
to make an interim distribution, and may unduly distort an SBIC's 
decisions concerning the timing of distributions. Proposed 
Sec. 107.1530(c) would allow a Licensee in the circumstances described 
to treat the full amount of the difference between its interim and 
year-end Bases as Unused Loss.
    Most SBICs operate for a period of time before issuing 
Participating Securities; in some cases, companies are already 
investing actively even before they are licensed. In the computation of 
the Base, the current regulations do not address the question of 
whether net income or loss from fiscal years prior to the issuance of 
Participating Securities may be included. Under proposed 
Sec. 107.1530(c)(3), a Licensee would be permitted to include prior 
losses in its Base with SBA approval, which would be required only once 
when the Licensee computes the Base for the first time. SBA expects to 
approve inclusion of prior losses in most cases, but is proposing the 
approval requirement to cover unusual circumstances, such as a company 
with non-Earmarked Assets or one which has operated for an extended 
period of time before issuing Participating Securities. The proposed 
rule does not discuss net income realized in prior fiscal years because 
SBA has not seen this situation in practice; the Agency considers this 
an unlikely occurrence which would be handled on a case by case basis.
    The Profit Participation Rate is computed using a formula in which 
the key variable is the ratio of Participating Securities to 
Leverageable Capital (the ``PLC ratio''). Proposed Sec. 107.1530(e) 
would retain the basic definition of the PLC ratio as the highest ratio 
of outstanding Participating Securities to Leverageable Capital that an 
SBIC has ever attained, as well as the exception which allows the ratio 
to be reduced if Leverageable Capital increases above its highest 
previous level, subject to certain conditions. Proposed 
Sec. 107.1530(e)(2) (i) and (ii) would simplify the method for 
recomputing the PLC ratio following an increase in Leverageable 
Capital. The new PLC ratio would equal the highest dollar amount of 
Participating Securities the SBIC has ever had outstanding, divided by 
the SBIC's current Leverageable Capital. This computation would replace 
the present three-step method which is not only quite complex, but also 
can produce anomalous results when a Licensee's highest dollar amount 
of Participating Securities outstanding does not coincide with its 
highest ratio. SBA does not believe that any Licensee would be 
disadvantaged by this change.
    After computing the Base and the Profit Participation Rate, an SBIC 
computes Profit Participation under Sec. 107.1530(h). In the proposed 
rule, this paragraph has been reworded to improve its clarity. No 
substantive changes are proposed.

Tax Distributions

    Limited partnership SBICs which have paid their Prioritized 
Payments in full and still have remaining Retained Earnings Available 
for Distribution are permitted to make an annual ``tax distribution'' 
to their investors, with SBA also receiving a share. Both the Act and 
Sec. 107.1550 of the regulations use the term ``tax distribution'', 
based on the concept of allowing partnerships (or other flow-through 
entities) to distribute cash that investors can use to pay their taxes 
on the income allocated to them by the partnership. In practice, the 
permitted tax distribution may or may not correspond to a particular 
investor's actual tax liability, since the computation uses assumed 
rather than actual tax rates and does not distinguish between taxable 
and tax-exempt investors.
    SBA is proposing one substantive change in Sec. 107.1550(a)(1), 
which would be revised to include the 1 percent per annum Charge on 
Participating Securities issued on or after October 1, 1996 (except for 
those issued pursuant to a commitment obtained from SBA before that 
date). Under Public Law 104-208, Charges are payable as a preferred 
return to SBA under the same terms and conditions as Prioritized 
Payments; therefore, a Licensee must pay all its Prioritized Payments, 
Adjustments and Charges before it can make a distribution under 
Sec. 107.1550.
    The other proposed revisions in Sec. 107.1550 are clarifications 
rather than substantive changes. In the formula used to compute a 
Licensee's Maximum Tax Liability, proposed Sec. 107.1550(b)(1) would 
specify that Prioritized Payments allocated to SBA are to be excluded 
from the net ordinary income and capital gains allocated to partners. 
Proposed Sec. 107.1550(b)(2) would clarify that while a Licensee may 
use either individual or corporate tax rates to compute Maximum Tax 
Liability, it must apply the same type of rate, either individual or 
corporate, to both ordinary income and capital gains. Finally, proposed 
Sec. 107.1550(b)(3) would specify that in computing combined Federal 
and State tax rates to be used in the Maximum Tax Liability formula, a 
Licensee must assume that State income taxes are deductible for Federal 
income tax purposes. All of these changes are consistent with SBA's 
interpretation of the current regulations.

Distributions Based on ``Retained Earnings Available for 
Distribution''

    As of the end of each fiscal year, if a Participating Securities 
issuer has Retained Earnings Available for Distribution (``READ'') 
remaining after paying all of its Prioritized Payments and making a tax 
distribution (if applicable), it must distribute the balance of READ in 
accordance with Sec. 107.1560. SBA is proposing two clarifications to 
this section, as well as one minor substantive change.
    Proposed Sec. 107.1560 (a)(4) and (b)(1) would both be revised to 
clarify that the amount of READ to be distributed is determined after 
giving effect to any preceding distributions of Prioritized Payments 
under Sec. 107.1540 and tax distributions under Sec. 107.1550. The 
current regulation may not be clear on this point, although SBA has 
always interpreted it in a manner consistent with the proposed rule.
    Current Sec. 107.1560(e) contains a table which gives SBA's 
percentage share of

[[Page 53260]]

any distributions made under Secs. 107.1560 or 107.1570(a). The heading 
of the first column refers to the Licensee's ``ratio of Leverage to 
Leverageable Capital as of the fiscal year end''. This heading is 
appropriate for distributions under Sec. 107.1560, which are always 
computed as of the end of a fiscal year, but may be confusing for 
interim distributions under Sec. 107.1570(a). If a Licensee makes an 
interim distribution, the intent of the regulations is to measure the 
ratio of Leverage to Leverageable Capital as of the end of the interim 
period for which the distribution is made. The proposed rule would 
clarify this point by replacing ``fiscal year'' with ``fiscal period'' 
in the column heading.
    Proposed Sec. 107.1560(a)(1) would be revised to include the 1 
percent per annum Charge on Participating Securities issued on or after 
October 1, 1996. Under Public Law 104-208, Charges are payable as a 
preferred return to SBA under the same terms and conditions as 
Prioritized Payments; therefore, a Licensee must pay all its 
Prioritized Payments, Adjustments and Charges before it can make any 
other distribution under Sec. 107.1560.

Optional Distributions Not Based on READ

    A Licensee which has no READ may be able to make distributions to 
its private investors and SBA in accordance with Sec. 107.1570(b). 
Distributions under this section are at the option of the SBIC and 
essentially constitute returns of capital. The current regulation sets 
forth conditions for making a distribution of this type. Under the 
proposed rule, two of these conditions would be revised. First, 
Sec. 107.1570(b)(1)(i) would require an SBIC to pay any earned Charges, 
along with its Earned Prioritized Payments and earned Adjustments, 
before distributing under Sec. 107.1570(b). This change is in 
accordance with section 208(d)(6) of Public Law 104-208; similar 
changes proposed in Secs. 107.1550 and 107.1560 are discussed earlier 
in this preamble.
    Second, under current Sec. 107.1570(b)(1)(ii), a Licensee must have 
``distributed all Profit Participation computed under Sec. 107.1530'' 
before distributing under Sec. 107.1570(b). This language may present a 
problem for an SBIC because of the following circumstances: Profit 
Participation is computed only on the basis of realized income or loss; 
however, the ability to distribute Profit Participation depends on the 
availability of READ, which also takes into account unrealized losses 
in a Licensee's portfolio. Thus, it is possible that a Licensee may 
compute Profit Participation to be allocated to SBA, but may be unable 
to pay it until some later date. Under these conditions, the Licensee 
would be blocked from distributing under Sec. 107.1570(b). To remedy 
this situation, the proposed rule would require a Licensee to 
distribute Profit Participation only to the extent permitted based on 
its READ. SBA believes that the language in section 303(g)(10) of the 
Act, which requires payment of all Profit Participation ``due'' to SBA 
before a Licensee can return capital, provides sufficient flexibility 
to support this interpretation.

Notice of Participating Securities Distributions

    The current regulations do not require SBICs with Participating 
Securities to notify SBA before making distributions. In practice, 
Licensees generally have sought SBA's assistance with the distribution 
calculations and have given SBA sufficient opportunity to review the 
results. Because of the complexity of some of the required 
computations, and the difficulty of correcting errors after a 
distribution takes place, SBA is proposing to formalize this practice. 
The proposed rule would require an SBIC to notify SBA 10 business days 
before a planned distribution under Secs. 107.1540 through 107.1570, 
unless SBA permits otherwise. This language would give SBA the 
flexibility to allow distributions on shorter notice, if the 
circumstances warrant, without requiring Licensees to submit a formal 
request for a written exemption. SBA believes that this provision would 
not unreasonably constrain a Licensee's freedom of action and would 
provide important protection for Licensees as well as the Agency.

Timing of Participating Securities Distributions

    The current regulations permit Participating Securities issuers to 
make distributions only on quarterly ``Payment Dates'' (February 1, May 
1, August 1 and November 1 of each year). This structure was adopted to 
coincide with the terms of the public fundings of Participating 
Securities, under which investors receive interest payments and any 
returns of principal to which they are entitled on these dates. In the 
preamble to the final rule published on January 31, 1996 (61 FR 3177), 
SBA stated that it intended to seek a solution that would provide 
Licensees with greater flexibility in making distributions, 
particularly distributions in the form of securities.
    Proposed Sec. 107.1575 would allow an SBIC to make distributions 
(either in cash or in kind) on dates other than Payment Dates with 
SBA's prior written approval. SBA wishes to provide SBICs with as much 
flexibility as possible; however, for administrative and oversight 
purposes, the Agency feels strongly that it must have an opportunity to 
review planned distributions in advance.
    Distributions based on fiscal year end results, such as required 
annual distributions of Prioritized Payments, would have to be made no 
later than the second Payment Date following the Licensee's fiscal year 
end. This requirement is consistent with the current regulation, which 
requires such distributions to be made on either the first or second 
Payment Date.
    For any distribution made on other than a Payment Date, the 
distribution date would be used as the cutoff date for all the required 
computations (Earmarked Profits, Prioritized Payments, etc.). This 
approach may require a Licensee to perform a mid-month closing of its 
financial statements, which may not be as clean or convenient as a 
month-end closing. However, SBA believes it is the only approach which 
will accommodate all potential distributions, particularly 
distributions of securities on which realized gain cannot be recognized 
before the distribution date.
    If a distribution to SBA includes a redemption of Participating 
Securities, the proposed rule specifies that the effective date of the 
redemption will be the next Payment Date following the distribution 
date. This provision is necessary because Participating Securities are 
funded through the purchase by investors of Trust Certificates, under 
which principal can be returned only on Payment Dates. Because of this 
structure, a Licensee will also be responsible for Prioritized Payments 
through the next Payment Date on the amount of Participating Securities 
to be redeemed.

In-Kind Distributions by Licensees

    Participating Securities issuers are permitted to make 
distributions to SBA in the form of securities under the conditions set 
forth in Sec. 107.1580. The current regulation limits in-kind 
distributions to those distributions required or permitted by 
Secs. 107.1560 and 107.1570. Distributions of Prioritized Payments, 
which are governed by Sec. 107.1540, must be made in cash. Because 
Prioritized Payments precede any other distributions, this limitation 
can have a potentially significant effect on the timing and value of 
distributions in general. To alleviate this concern, proposed 
Sec. 107.1580(a) would allow distributions

[[Page 53261]]

under Secs. 107.1540, 107.1560 and 107.1570 to be made in the form of 
securities. Distributions under Sec. 107.1550 would continue to be 
permitted on a cash-only basis, since the stated purpose of such 
distributions is to provide investors in flow-through entities with 
sufficient cash to pay their anticipated tax liabilities.

Characteristics of SBA's Leverage Guarantee

    Section 303(b) of the Act authorizes SBA to guarantee the timely 
payment of all principal and interest as scheduled on Debentures or 
Participating Securities, pursuant to regulations issued by the Agency. 
In the final rule published January 31, 1996 (61 FR 3177), the section 
of the regulations which implemented this provision of the Act was 
dropped inadvertently. Proposed Sec. 107.1720 would restore the 
previous language setting forth the unconditional nature and other 
characteristics of SBA's guarantee.

Capital Impairment

    SBA is not proposing any substantive changes in the Capital 
Impairment computations set forth in Secs. 107.1830 through 107.1850, 
but is proposing one clarification. Current Sec. 107.1830(a) has caused 
some confusion by stating that the current Capital Impairment 
regulations apply to a Licensee if it has outstanding Leverage issued 
on or after April 25, 1994. While this statement is true, it is 
incomplete. This is because SBA Leverage is subject to the Capital 
Impairment regulations in effect on the date the Leverage is issued. 
Thus, a Licensee must comply with the current impairment rules if it 
has Leverage issued on or after April 25, 1994; however, if it has 
Leverage issued before that date as well, it must also comply with the 
impairment rules in effect when such Leverage was issued. Proposed 
Sec. 107.1830(a) would clarify this point by specifically linking the 
applicability of the Capital Impairment regulations to the Leverage 
issued. In the same paragraph, the proposed rule would also state that 
a Licensee must comply with any specific conditions to which it has 
agreed by contract with SBA. This is not a substantive change, but 
simply makes explicit a Licensee's obligation to abide by the terms of 
any agreement it has made with the Agency.

Miscellaneous Corrections and Editorial Changes

    The definition of ``Commitment'' in Sec. 107.50 would be reworded 
in the third person (i.e., to refer to ``a Licensee'' instead of 
``you'') to conform to the style in which the other definitions are 
written.
    In current Sec. 107.720(c), the SIC code for Operative Builders is 
incorrect. The proposed rule contains the correct 4-digit code (1531).
    Proposed Sec. 107.1590 sets forth special rules applicable to 
Participating Securities issuers licensed on or before March 31, 1993. 
The proposed rule would eliminate the current paragraph (c), which 
allows Licensees to repay outstanding Debentures with the proceeds of 
newly issued Participating Securities, subject to certain conditions. 
Since this paragraph properly applies to all Licensees, regardless of 
licensing date, its content would be transferred to the new proposed 
Sec. 107.1585. The substance of Sec. 107.1590 would remain unchanged.
    In Sec. 107.1600, references to section 321 of the Act would be 
changed to section 319, reflecting the amendment of the Act by Public 
Law 104-208.
    In the definition of Trust Certificate Rate and in Secs. 107.1240 
and 107.1520(a)(1), certain technical changes have been proposed to 
facilitate the interim Leverage funding mechanism currently under 
consideration by SBA.

Limited Liability Companies

    Section 208(b)(1) of Public Law 104-208 amended the Act to permit 
SBICs to organize as limited liability companies (LLCs). SBA is 
studying the legal and administrative issues which may arise in 
connection with LLCs, and will publish a proposed rule to implement 
this form of organization by SBICs at a later date.
    Although SBA regulations do not yet provide for LLC Licensees, SBA 
has the statutory authority to license such companies. SBA's current 
policy is to accept a license application from an LLC only if the LLC 
is organized under Delaware's Limited Liability Company Act and does 
not intend to issue Participating Securities, which SBA has not yet 
developed in a form suitable for use by an LLC. SBA may reconsider 
these limitations as SBA acquires greater familiarity with the LLC form 
of organization and as a body of case law is created under the various 
state LLC laws. The adoption of a Uniform LLC Act by a significant 
number of states also would induce SBA to reexamine its current 
preference for Delaware law.
    Until SBA regulations are revised to accommodate LLC Licensees, 
such Licensees should understand that SBA regards the members of the 
LLC to be equivalent to the general partners in a partnership Licensee 
unless the LLC's operating agreement clearly indicates otherwise. Thus, 
all members of an LLC Licensee will automatically be considered Control 
Persons and Associates of the Licensee unless the LLC's operating 
agreement vests management authority only in certain members of the 
company.

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 proposed rule would not be a significant 
regulatory action for purposes of Executive Order 12866 because it 
would not have an annual effect on the economy of more than $100 
million, and that it would 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 purpose of the 
proposed rule is to implement provisions of Public Law 104-208 which 
relate to small business investment companies, and to make certain 
other changes, primarily technical corrections and clarifications, to 
the regulations governing SBICs.
    For purposes of the Paperwork Reduction Act, 44 U.S.C. Ch. 35, SBA 
certifies that this proposed rule, if adopted in final form, would 
contain no new reporting or recordkeeping requirements that have not 
already been approved by the Office of Management and Budget.
    For purposes of Executive Order 12612, SBA certifies that this rule 
would 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 proposes to amend Part 
107 of Title 13 of the Code of Federal Regulations as follows:

PART 107--SMALL BUSINESS INVESTMENT COMPANIES

    1. The authority citation for part 107 continues to read as 
follows:

    Authority: 15 U.S.C. 681 et seq., 683, 687(c), 687b, 687d, 687g 
and 687m, Pub. L. 104-208.

    2. Section 107.50 is proposed to be amended by revising the 
definitions for

[[Page 53262]]

Commitment, Common Control, Preferred Securities, Section 301(d) 
Licensee, and Trust Certificate Rate, and adding a definition of 
Charge, to read as follows:


Sec. 107.50  Definitions of terms.

* * * * *
    Charge means an annual fee on Leverage issued on or after October 
1, 1996 (except for Leverage issued pursuant to a commitment made by 
SBA before October 1, 1996), which is payable to SBA by Licensees, 
subject to the terms and conditions set forth in 107.1130(d).
* * * * *
    Commitment means a written agreement between a Licensee and an 
eligible Small Business that obligates the Licensee to provide 
Financing (except a guarantee) to that Small Business in a fixed or 
determinable sum, by a fixed or determinable future date. In this 
context the term ``agreement'' means that there has been agreement on 
the principal economic terms of the Financing. The agreement may 
include reasonable conditions precedent to the Licensee's obligation to 
fund the commitment, but these conditions must be outside the 
Licensee's control.
    Common Control means a condition where two or more Persons, either 
through ownership, management, contract, or otherwise, are under the 
Control of one group or Person. Two or more Licensees are presumed to 
be under Common Control if they are Affiliates of each other by reason 
of common ownership or common officers, directors, or general partners; 
or if they are managed or their investments are significantly directed 
either by a common independent investment advisor or managerial 
contractor, or by two or more such advisors or contractors that are 
Affiliates of each other. This presumption may be rebutted by evidence 
satisfactory to SBA.
* * * * *
    Preferred Securities means nonvoting preferred stock or nonvoting 
limited partnership interests issued to SBA prior to October 1, 1996, 
by a Section 301(d) Licensee. Such securities were issued at par value 
in the case of preferred stock, or at face value in the case of 
preferred limited partnership interests.
* * * * *
    Section 301(d) Licensee means a company licensed prior to October 
1, 1996 under section 301(d) of the Act as in effect on the date of 
licensing, that may provide Assistance only to Disadvantaged 
Businesses. A Section 301(d) Licensee may be organized as a for-profit 
corporation, as a non-profit corporation, or as a limited partnership.
* * * * *
    Trust Certificate Rate means a fixed rate determined by the 
Secretary of the Treasury at the time Participating Securities or 
Debentures are pooled, taking into consideration the current average 
market yield on outstanding marketable obligations of the United States 
with maturities comparable to the maturities of the Trust Certificates 
being guaranteed by SBA, adjusted to the nearest one-eighth of one 
percent.
* * * * *


Sec. 107.110  [Removed]

    3. Section 107.110 is proposed to be removed.
    4. Section 107.120 is proposed to be revised to read as follows:


Sec. 107.120  Special rules for a Section 301(d) Licensee owned by 
another Licensee.

    A Section 301(d) Licensee which was licensed to operate as the 
subsidiary of one or more Licensees (participant Licensees) may 
continue to do so, subject to the following:
    (a) Each participant Licensee must continue to own at least 20 
percent of the voting securities of the Section 301(d) Licensee.
    (b) A participant Licensee must continue to treat its entire 
capital contribution to the subsidiary as a reduction of its 
Leverageable Capital. The participant Licensee's remaining Leverageable 
Capital must be sufficient to support its outstanding Leverage.
    (c) A participant Licensee may not transfer its Leverage to a 
subsidiary Section 301(d) Licensee.
    5. In Sec. 107.150, the introductory text of paragraph (a)(1) is 
proposed to be revised to read as follows:


Sec. 107.150  Management and ownership diversity requirement.

* * * * *
    (a) Requirement one. * * *
    (1) At least 30 percent of your Regulatory Capital and Leverageable 
Capital must be owned by Persons unrelated to management. To satisfy 
this requirement, such Persons must not be your Associates (except for 
their status as your shareholders or limited partners) and must not 
Control, be Controlled by, or be under Common Control with any of your 
Associates. You must have as investors at least three such Persons who 
are not Affiliates of one another and whose investments are significant 
in both dollar and percentage terms, as determined by SBA. As an 
alternative, you may substitute one investor who is an acceptable 
Institutional Investor for the three investors who are otherwise 
required. For purposes of this paragraph (a)(1), the following 
Institutional Investors are acceptable:
* * * * *
    6. Section 107.210 is proposed to be revised to read as follows:


Sec. 107.210  Minimum capital requirements for Licensees.

    (a) Companies licensed on or after October 1, 1996. A company 
licensed on or after October 1, 1996 must have Leverageable Capital of 
at least $2,500,000 and must meet the applicable minimum Regulatory 
Capital requirement:
    (1) Licensees other than Participating Securities issuers. A 
Licensee that does not wish to be eligible to apply for Participating 
Securities must have Regulatory Capital of at least $5,000,000. As an 
exception to this general rule, SBA in its sole discretion and based on 
a showing of special circumstances and good cause may license an 
applicant with Regulatory Capital of at least $3,000,000, but only if 
the applicant:
    (i) Has satisfied all licensing standards and requirements except 
the minimum capital requirement, as determined solely by SBA;
    (ii) Has a viable business plan reasonably projecting profitable 
operations; and
    (iii) Has a reasonable timetable for achieving Regulatory Capital 
of at least $5,000,000.
    (2) Participating Securities issuers. A Licensee that wishes to be 
eligible to apply for Participating Securities must have Regulatory 
Capital of at least $10,000,000, unless it demonstrates to SBA's 
satisfaction that it can be financially viable over the long term with 
a lower amount. Under no circumstances can the Licensee have Regulatory 
Capital of less than $5,000,000.
    (b) Companies licensed before October 1, 1996. A company licensed 
before October 1, 1996 must meet the minimum capital requirements 
applicable to such company, as required by the regulations in effect on 
September 30, 1996. See Sec. 107.1120(c)(2) for Leverage eligibility 
requirements.


Sec. 107.220  [Removed]

    7. Section 107.220 is proposed to be removed.
    8. Section 107.230 is proposed to be amended by revising the 
introductory

[[Page 53263]]

text of paragraph (d)(4) to read as follows:


Sec. 107.230  Permitted sources of Private Capital for Licensees.

* * * * *
    (d) Qualified Non-private Funds. * * *
    (4) Funds invested in or committed in writing to any Section 301(d) 
Licensee prior to October 1, 1996, from the following sources: * * *
* * * * *
    9. In Sec. 107.503, paragraphs (a), (b) and (e), and the heading 
and first sentence of paragraph (c), are proposed to be revised to read 
as follows:


Sec. 107.503  Licensee's adoption of an approved valuation policy.

    (a) Valuation guidelines. You must prepare, document and report the 
valuations of your Loans and Investments in accordance with the 
Valuation Guidelines for SBICs issued by SBA. These guidelines may be 
obtained from SBA's Investment Division.
    (b) SBA approval of valuation policy. You must have a written 
valuation policy approved by SBA for use in determining the value of 
your Loans and Investments. You must either:
    (1) Adopt without change the model valuation policy set forth in 
section III of the Valuation Guidelines for SBICs; or
    (2) Obtain SBA's prior written approval of an alternative valuation 
policy.
    (c) Responsibility for valuations. Your board of directors or 
general partner(s) will be solely responsible for adopting your 
valuation policy and for using it to prepare valuations of your Loans 
and Investments for submission to SBA. * * *
* * * * *
    (e) Review of valuations by independent public accountant. (1) For 
valuations performed as of the end of your fiscal year, your 
independent public accountant must review your valuation procedures and 
the implementation of such procedures, including adequacy of 
documentation.
    (2) The independent public accountant's report on your audited 
annual financial statements (SBA Form 468) must include a statement 
that your valuations were prepared in accordance with your approved 
valuation policy established in accordance with section 310(d)(2) of 
the Act.
    10. Section 107.660 is proposed to be amended by redesignating 
paragraph (d) as paragraph (e) and by adding a new paragraph (d) to 
read as follows:


Sec. 107.660  Other items required to be filed by Licensee with SBA.

* * * * *
    (d) Notification of criminal charges. If any officer, director, 
general partner or other Control Person is charged with or convicted of 
any criminal offense other than a misdemeanor involving a minor motor 
vehicle violation, you must report the incident to SBA within 5 
calendar days. Such report must fully describe the facts which pertain 
to the incident.
* * * * *
    11. Section 107.710 is proposed to be amended by adding a sentence 
at the end of paragraph (e) and by revising paragraphs (b) and (c) to 
read as follows:


Sec. 107.710  Requirement to finance Smaller Enterprises.

* * * * *
    (b) Smaller Enterprise Financings. (1) General rule. At the close 
of each of your fiscal years, at least 20 percent of the total dollar 
amount of the Financings you extended since April 25, 1994 must have 
been invested in Smaller Enterprises. If you were licensed after April 
25, 1994, the 20 percent requirement applies to the total dollar amount 
of the Financings you extended since you were licensed plus any pre-
licensing investments approved by SBA for inclusion in your Regulatory 
Capital.
    (2) Phase-in for new Licensees. At the close of your first full 
fiscal year after licensing, at least 10 percent of the total dollar 
amount of the Financings you extended, including any pre-licensing 
investments approved by SBA for inclusion in your Regulatory Capital, 
must have been invested in Smaller Enterprises. At the close of each 
fiscal year thereafter, you must meet the requirement in paragraph 
(b)(1) of this section.
    (c) Special requirement for certain leveraged Licensees. (1) This 
paragraph (c) applies if you were licensed on or before September 30, 
1996, and you issued Leverage after that date, and you have Regulatory 
Capital of:
    (i) Less than $10,000,000 if such Leverage was Participating 
Securities; or
    (ii) Less than $5,000,000 if such Leverage was Debentures.
    (2) At the close of each of your fiscal years, at least 50 percent 
of the total dollar amount of the Financings you extended after 
September 30, 1996 must have been invested in Smaller Enterprises.
* * * * *
    (e) Non-compliance with this section. * * * However, you will not 
be eligible for additional Leverage until you reach the required 
percentage (see Sec. 107.1120 (c) and (d)).
    12. In Sec. 107.720, paragraph (b)(2) and the introductory text of 
paragraph (c)(1) are proposed to be revised to read as follows:


Sec. 107.720  Small Businesses that may be ineligible for Financing.

* * * * *
    (b) Passive businesses. * * *
    (2) Exception for pass-through of proceeds to subsidiary. You may 
finance a passive business if it is a Small Business and it passes 
substantially all the proceeds through to one or more subsidiary 
companies, each of which is an eligible Small Business that is not 
passive. For the purpose of this paragraph (b)(2), ``subsidiary 
company'' means a company in which at least 50 percent of the 
outstanding voting securities are owned by the Financed passive 
business.
    (c) Real estate businesses. (1) You are not permitted to finance 
any business classified under Major Group 65 (Real Estate) or Industry 
No. 1531 (Operative Builders) of the SIC Manual, with the following 
exceptions: * * *
* * * * *
    13. In Sec. 107.730, paragraph (d)(3)(iv) is proposed to be revised 
to read as follows:


Sec. 107.730  Financings which constitute conflicts of interest.

* * * * *
    (d) Financings with Associates. * * *
    (3) Exceptions to paragraphs (d)(1) and (d)(2) of this section. * * 
*
    (iv) Both you and your Associate are non-leveraged Licensees, or 
you are a non-leveraged Licensee and your Associate is not a Licensee.
* * * * *
    14. In Sec. 107.740, paragraph (a) is proposed to be revised to 
read as follows:


Sec. 107.740  Portfolio diversification (``overline'' limitation).

    (a) General rule. This Sec. 107.740 applies if you have outstanding 
Leverage or want to be eligible for Leverage. Without SBA's prior 
written approval, you may provide Financing or a Commitment to a Small 
Business only if the resulting amount of your aggregate outstanding 
Financings and Commitments to such Small Business and its Affiliates 
does not exceed:
    (1) 20 percent of your Regulatory Capital as of the date of the 
Financing or Commitment if you are a Section 301(c) Licensee; or
    (2) 30 percent of your Regulatory Capital as of the date of the 
Financing or Commitment if you are a Section 301(d) Licensee.
* * * * *

[[Page 53264]]

    15. Section 107.855 is proposed to be amended by revising 
paragraphs (c)(1), (c)(4)(i) and (d)(4), redesignating paragraphs 
(g)(1) through (g)(10) as paragraphs (g)(2) through (g)(11), and adding 
a new paragraph (g)(1) to read as follows:


Sec. 107.855  Interest rate ceiling and limitations on fees charged to 
Small Businesses (``Cost of Money'')

* * * * *
    (c) How to determine the Cost of Money ceiling for a Financing. * * 
*
    (1) Choose a base rate for your Cost of Money computation. The base 
rate may be either the Debenture Rate currently in effect plus the 
applicable Charge determined under Sec. 107.1130(d)(1), or your own 
``Cost of Capital'' as determined under paragraph (d) of this section.
* * * * *
    (4) * * *
    (i) The current Debenture Rate plus the applicable Charge 
determined under Sec. 107.1130(d)(1);
* * * * *
    (d) How to determine your Cost of Capital. * * *
    (4) For all qualified borrowings outstanding at your last fiscal 
year or fiscal quarter end, determine the aggregate interest expense 
for the past four fiscal quarters, excluding amortization of loan fees. 
For the purposes of this paragraph (d)(4):
    (i) Interest expense on Debentures includes the 1 percent Charge 
paid by a Licensee under Sec. 107.1130(d)(1); and
    (ii) Section 301(d) Licensees with outstanding subsidized 
Debentures are presumed to have paid interest at the rate stated on the 
face of such Debentures, without regard to any subsidy paid by SBA.
* * * * *
    (g) Charges excluded from the Cost of Money. * * *
    (1) Discount on the loan portion of a Debt Security, if such 
discount exists solely as the result of the allocation of value to 
detachable stock purchase warrants in accordance with generally 
accepted accounting principles.
* * * * *
    16. In Sec. 107.865, the first sentence of paragraph (c)(2) and 
paragraph (d)(1) are proposed to be revised to read as follows:


Sec. 107.865  Restrictions on Control of a Small Business by a 
Licensee.

* * * * *
    (c) Rebuttals to presumption of Control. * * *
    (2) The management of the Small Business can elect at least 40 
percent of the board members of a corporation, general partners of a 
limited partnership, or managers of a limited liability company, as 
appropriate, and the Investor Group can elect no more than 40 percent. 
* * *
* * * * *
    (d) Temporary Control permitted. * * *
    (1) Where reasonably necessary for the protection of your existing 
investment;
* * * * *
    17. Section 107.1100 is proposed to be revised to read as follows:


Sec. 107.1100  Types of Leverage and application forms.

    (a) Types of Leverageable available. You may apply for Leverage 
from SBA in one or both of the following forms:
    (1) The purchase or guarantee of your Debentures.
    (2) The purchase or guarantee of your Participating Securities.
    (b) Application forms. Use SBA Form 1022 to apply for Debentures 
and SBA Form 1022B to apply for Participating Securities.
    (c) Where to send your application. Send all Leverage applications 
to SBA, Investment Division, 409 Third Street, S.W., Washington, DC 
20416.


Sec. 107.1110  [Removed]

    18. Section 107.1110 is proposed to be removed.
    19. Section 107.1120 is proposed to be amended by revising 
paragraph (c), redesignating paragraphs (d) through (f) as paragraphs 
(e) through (g), and adding a new paragraph (d) to read as follows:


Sec. 107.1120  General eligibility requirements for Leverage.

* * * * *
    (c) Meet the minimum capital requirements of Sec. 107.210, subject 
to the following additional conditions:
    (1) If you were licensed after September 30, 1996 under the 
exception in Sec. 107.210(a)(1), you will not be eligible for Leverage 
until you have Regulatory Capital of at least $5,000,000.
    (2) If you were licensed on or before September 30, 1996, and have 
Regulatory Capital of less than $5,000,000 (less than $10,000,000 if 
you wish to issue Participating Securities):
    (i) You must certify in writing that at least 50 percent of the 
aggregate dollar amount of your Financings extended after September 30, 
1996 will be provided to Smaller Enterprises (as defined in 
Sec. 107.710(a)); and
    (ii) You must demonstrate to SBA's satisfaction that the approval 
of Leverage will not create or contribute to an unreasonable risk of 
default or loss to the United States government, based on such 
measurements of profitability and financial viability as SBA deems 
appropriate.
    (d) Certify in writing that you are in compliance with the 
requirement to finance Smaller Enterprises in Sec. 107.710(b).
* * * * *
    20. Section 107.1130 is proposed to be amended by revising the 
heading and paragraphs (a) through (c), redesignating paragraph (d) as 
paragraph (e), and adding a new paragraph (d) to read as follows:


Sec. 107.1130  Leverage fees and additional charges payable by 
Licensee.

    (a) Leverage fee. You must pay a leverage fee to SBA for each 
issuance of a Debenture or Participating Security. The fee is 3 percent 
of the face amount of the Leverage issued.
    (b) Payment of leverage fee. (1) If you issue a Debenture or 
Participating Security to repay or redeem existing Leverage, you must 
pay the leverage fee before SBA will guarantee or purchase the new 
Leverage security.
    (2) If you issue a Debenture or Participating Security that is not 
used to repay or redeem existing Leverage, SBA will deduct the leverage 
fee from the proceeds remitted to you, unless you prepaid the fee under 
Sec. 107.1210.
    (c) Refundability. The leverage fee is not refundable under any 
circumstances.
    (d) Additional charge for Leverage.--(1) Debentures. You must pay 
to SBA a Charge of 1 percent per annum on the outstanding amount of 
your Debentures issued on or after October 1, 1996, payable under the 
same terms and conditions as the interest on the Debentures. This 
Charge does not apply to Debentures issued pursuant to a Leverage 
commitment obtained from SBA on or before September 30, 1996.
    (2) Participating Securities. You must pay to SBA a Charge of 1 
percent per annum on the outstanding amount of your Participating 
Securities issued on or after October 1, 1996, payable under the same 
terms and conditions as the Prioritized Payments on the Participating 
Securities. This Charge does not apply to Participating Securities 
issued pursuant to a Leverage commitment obtained from SBA on or before 
September 30, 1996.
* * * * *
    21. Section 107.1160 is proposed to be amended by adding 
introductory text to read as follows:

[[Page 53265]]

Sec. 107.1160  Maximum amount of Leverage for a Section 301(d) 
Licensee.

    This section applies to Leverage issued by a Section 301(d) 
Licensee on or before September 30, 1996. Effective October 1, 1996, a 
Section 301(d) Licensee may apply to issue new Leverage, or refinance 
existing Leverage, only on the same terms permitted under 
Sec. 107.1150.
* * * * *
    22. Section 107.1200 is proposed to be amended by revising 
paragraphs (c) and (d) to read as follows:


Sec. 107.1200  SBA's Leverage commitment to a Licensee--application 
procedure, amount, and term.

* * * * *
    (c) Limitations on the amount of a Leverage commitment. The amount 
of a Leverage commitment must be a multiple of $5,000.
    (d) Term of Leverage commitment. SBA's Leverage commitment will 
automatically lapse on the expiration date stated in the commitment 
letter issued to you by SBA.
    23. Section 107.1210 is proposed to be revised to read as follows:


Sec. 107.1210  Payment of leverage fee upon receipt of commitment.

    (a) Prepayment of leverage fee. As a condition of SBA's Leverage 
commitment, and before you draw any Leverage, you must prepay the 
leverage fee established under Sec. 107.1130(a). The fee is equal to 3 
percent of the face amount of the Debentures or Participating 
Securities reserved under the commitment.
    (b) Automatic cancellation of commitment. Unless you pay the full 
amount of the leverage fee by 5 P.M. Eastern Time on the 30th calendar 
day following the issuance of SBA's Leverage commitment, the commitment 
will be automatically canceled.
    24. In Sec. 107.1230, paragraphs (a) and (b) are proposed to be 
revised to read as follows:


Sec. 107.1230  Draw-downs by Licensee under SBA's Leverage commitment.

    (a) Licensee's authorization of SBA to purchase or guarantee 
securities. By submitting a request for a draw against SBA's Leverage 
commitment, you authorize SBA, or any agent or trustee SBA designates, 
to guarantee your Debenture or Participating Security and to sell it 
with SBA's guarantee.
    (b) Limitations on amount of draw. The amount of a draw must be a 
multiple of $5,000. SBA, in its discretion, may determine a minimum 
dollar amount for draws against SBA's Leverage commitments. Any such 
minimum amounts will be published in Notices in the Federal Register 
from time to time.
* * * * *
    25. Section 107.1240 is proposed to be amended by revising 
paragraphs (a)(1), (b), (c) and (d) to read as follows:


Sec. 107.1240  Funding of Licensee's draw request through sale to 
short-term investor.

    (a) Licensee's authorization of SBA to arrange sale of securities 
to short-term investor. * * *
    (1) The sale of your Debenture or Participating Security to a 
short-term investor at a rate that may be different from the Trust 
Certificate Rate which will be established at the time of the pooling 
of your security;
* * * * *
    (b) Sale of Debentures to a short-term investor. If SBA sells your 
Debenture to a short-term investor:
    (1) The sale price will be the face amount.
    (2) At the next scheduled date for the sale of Debenture Trust 
Certificates, whether or not the sale actually occurs, you must pay 
interest to the short-term investor for the short-term period. If the 
actual sale of Trust Certificates takes place after the scheduled date, 
you must pay the short-term investor interest from the scheduled sale 
date to the actual sale date. This additional interest is due on the 
actual sale date.
    (3) Failure to pay the interest constitutes noncompliance with the 
terms of your Leverage (see Sec. 107.1810).
    (c) Sale of Participating Securities to a short-term investor. If 
SBA sells your Participating Security to a short-term investor, the 
sale price will be the face amount.
    (d) Licensee's right to repurchase its Debentures before pooling. 
You may repurchase your Debentures from the short-term investor before 
they are pooled. To do so, you must:
    (1) Give SBA written notice at least 10 days before the cut-off 
date for the pool in which your Debenture is to be included; and
    (2) Pay the face amount of the Debenture, plus interest, to the 
short-term investor.
    26. Subpart I of Part 107 is proposed to be amended by removing the 
undesignated center heading ``Exchange of Outstanding Debentures for 
Participating or Preferred Securities--Section 301(d) Licensees'', by 
redesignating Sec. 107.1350 as Sec. 107.1585, and by revising 
redesignated Sec. 107.1585 to read as follows:


Sec. 107.1585  Exchange of Debentures for Participating Securities.

    You may, in SBA's discretion, retire a Debenture through the 
issuance of Participating Securities. To do so, you must:
    (a) Obtain SBA's approval to issue Participating Securities;
    (b) Pay all unpaid accrued interest on the Debenture, plus any 
applicable prepayment penalties, fees, and other charges;
    (c) Have outstanding Equity Capital Investments (at cost) equal to 
the amount of the Debenture being refinanced; and
    (d) Classify all your existing Loans and Investments as Earmarked 
Assets.
    27. In Sec. 107.1400, the heading and introductory text are 
proposed to be revised to read as follows:


Sec. 107.1400  Dividends or partnership distributions on 4 percent 
Preferred Securities.

    If you issued Preferred Securities to SBA on or after November 21, 
1989, you must pay SBA a dividend or partnership distribution of 4 
percent per year, from the date you issued Preferred Securities to the 
date you repay them, both inclusive. The dividend or partnership 
distribution is:
* * * * *
    28. Section 107.1420 is proposed to be revised to read as follows:


Sec. 107.1420  Articles requirements for 4 percent Preferred 
Securities.

    If you have outstanding 4 percent Preferred Securities, your 
Articles must contain all the provisions in Secs. 107.1400 and 
107.1410.


Sec. 107.1430  [Amended]

    29. Section 107.1430 is proposed to be revised by removing the last 
sentence.
    30. In Sec. 107.1500, paragraphs (b)(1) and (b)(4), the last 
sentence of paragraph (e), and paragraph (f)(2) are proposed to be 
revised to read as follows:


Sec. 107.1500  General description of Participating Securities.

* * * * *
    (b) Special eligibility requirements for Participating Securities. 
* * *
    (1) Minimum capital (see Sec. 107.210).
* * * * *
    (4) Equity investing, as set forth in this paragraph (b)(4). If you 
issue Participating Securities, you must invest an amount equal to the 
Original Issue Price of such securities solely in Equity Capital 
Investments, as defined in Sec. 107.50.
* * * * *
    (e) Mandatory redemption of Participating Securities. *  *  * You 
must pay the Redemption Price plus any unpaid Earned Prioritized 
Payments and any earned Adjustments and earned Charges (see 
Sec. 107.1520).

[[Page 53266]]

    (f) Priority of Participating Securities in liquidation of 
Licensee. * *  *
    (2) Any Earned Prioritized Payments and any earned Adjustments and 
earned Charges (see Sec. 107.1520); and
* * * * *
    31. In Sec. 107.1505, the last sentence of paragraph (a) and 
paragraph (b) are proposed to be revised to read as follows:


Sec. 107.1505  Liquidity requirements for licensees issuing 
Participating Securities.

    (a) Definition of Liquidity Impairment. * * * You are responsible 
for calculating whether you have a condition of Liquidity Impairment:
    (1) As of the close of your fiscal year;
    (2) At the time you apply for Leverage, unless SBA permits 
otherwise; and
    (3) At such time as you contemplate making any Distribution.
    (b) Computation of Liquidity Ratio. Your Liquidity Ratio equals 
your Total Current Funds Available (A) divided by your Total Current 
Funds Required (B), as determined in the following table:

                                         Calculation of Liquidity Ratio                                         
----------------------------------------------------------------------------------------------------------------
                                              Amount reported                                                   
              Financial account               on SBA Form 468              Weight               Weighted amount 
----------------------------------------------------------------------------------------------------------------
(1) Cash and invested idle funds............  ...............   x  100                         .................
(2) Commitments from investors..............  ...............   x  1.00                        .................
(3) Current maturities......................  ...............   x  0.50                        .................
(4) Other current assets....................  ...............   x  1.00                        .................
(5) Publicly Traded and Marketable            ...............   x  1.00                        .................
 Securities.                                                                                                    
(6) Anticipated operating revenue for next    ...............   x  1.00                        .................
 12 months (\1\).                                                                                               
(7) Total Current Funds Available...........  ...............  ..............................                  A
----------------------------------------------------------------------------------------------------------------
(8) Current liabilities.....................  ...............   x  1.00                        .................
(9) Commitments to Small Businesses.........  ...............   x  0.75                        .................
(10) Anticipated operating expense for next             (\1\)   x  1.00                        .................
 12 months.                                                                                                     
(11) Anticipated interest expense for next              (\1\)   x  1.00                        .................
 12 months.                                                                                                     
(12) Contingent liabilities (guarantees)....  ...............   x  0.25                        .................
(13) Total Current Funds Required...........  ...............  ..............................                 B 
----------------------------------------------------------------------------------------------------------------
\1\ As determined by Licensee's management under its business plan.                                             

* * * * *
    32. In Sec. 107.1510, the introductory text, the last sentence of 
paragraph (c) and paragraph (d)(1)(ii) are proposed to be revised to 
read as follows:


Sec. 107.1510  How a Licensee computes Earmarked Profit (Loss).

    Computing your Earmarked Profit (Loss) is the first step in 
determining your obligations to pay Prioritized Payments, Adjustments 
and Charges under Sec. 107.1520 and Profit Participation under 
Sec. 107.1530.
* * * * *
    (c) How to compute your Earmarked Asset Ratio. * * * Otherwise, 
compute your Earmarked Asset Ratio using the following formula:

EAR = (EA)(LI)  x  100

where:
    EAR=Earmarked Asset Ratio
    EA=Average Earmarked Assets (at cost) for the fiscal year or 
interim period
    LI=Average Loans and Investments (at cost) for the fiscal year or 
interim period

    (d) How to compute your Earmarked Profit (Loss) if Earmarked Asset 
Ratio is 100 percent. * * *
    (1) *  *  *
    (ii) For the purpose of determining Net Income (Loss), leverage 
fees paid to SBA and partnership syndication costs that you incur must 
be capitalized and amortized on a straight-line basis over not less 
than five years.
* * * * *
    33. Section 107.1520 is proposed to be revised to read as follows:


Sec. 107.1520  How a Licensee computes and allocates Prioritized 
Payments to SBA.

    This section tells you how to compute Prioritized Payments, 
Adjustments and Charges on Participating Securities and determine the 
amounts you must pay. To distribute these amounts, see Sec. 107.1540.
    (a) How to compute Prioritized Payments and Adjustments--(1) 
Prioritized Payments. For a full fiscal year, the Prioritized Payment 
on an outstanding Participating Security equals the Redemption Price 
times the related Trust Certificate Rate. For an interim period, you 
must prorate the annual Prioritized Payment. If your Participating 
Security was sold to a short-term investor in accordance with 
Sec. 107.1240, the Prioritized Payment for the short-term period equals 
the Redemption Price times the short-term rate.
    (2) Adjustments. Compute Adjustments using paragraph (f) of this 
section.
    (3) Charges. Compute Charges in accordance with 
Sec. 107.1130(d)(2).
    (b) Licensee's obligation to pay Prioritized Payments, Adjustments 
and Charges. You are obligated to pay Prioritized Payments, Adjustments 
and Charges only if you have profit as determined in paragraph (d) of 
this section.
    (1) Prioritized Payments that you must pay (or have already paid) 
because you have sufficient profit are ``Earned Prioritized Payments''.
    (2) Prioritized Payments that have not become payable because you 
lack sufficient profit are ``Accumulated Prioritized Payments''. Treat 
all Prioritized Payments as ``Accumulated'' until they become 
``Earned'' under this section.
    (3) Adjustments (computed under paragraph (f) of this section) and 
Charges (computed under Sec. 107.1130(d)(2)) are ``earned'' according 
to the same criteria applied to Prioritized Payments.
    (c) How to keep track of Prioritized Payments. You must establish 
three accounts to record your Accumulated and Earned Prioritized 
Payments:
    (1) Accumulation Account. The Accumulation Account is a memorandum 
account. Its balance represents your Accumulated Prioritized Payments, 
unearned Adjustments and unearned Charges.
    (2) Distribution Account. The Distribution Account is a liability 
account. Its balance represents your unpaid Earned Prioritized 
Payments, earned Adjustments and earned Charges.

[[Page 53267]]

    (3) Earned Payments Account. The Earned Payments Account is a 
memorandum account. Each time you add to the Distribution Account 
balance, add the same amount to the Earned Payments Account. Its 
balance represents your total (paid and unpaid) Earned Prioritized 
Payments, earned Adjustments and earned Charges.
    (d) How to determine your profit for Prioritized Payment purposes. 
As of the end of each fiscal year and any interim period for which you 
want to make a Distribution:
    (1) Bring the Accumulation Account up to date by adding to it all 
Prioritized Payments and Charges through the end of the appropriate 
fiscal period.
    (2) Determine whether you have profit for the purposes of this 
section by doing the following computation:
    (i) Cumulative Earmarked Profit (Loss) under Sec. 107.1510(f); 
minus
    (ii) The Earned Payments Account balance; minus
    (iii) All Distributions previously made under Secs. 107.1550, 
107.1560 and 107.1570(a); minus
    (iv) Any Profit Participation previously allocated to SBA under 
Sec. 107.1530, but not yet distributed.
    (3) The amount computed in paragraph (d)(2) of this section, if 
greater than zero, is your profit. If the amount is zero or less, you 
have no profit.
    (4) If you have a profit, continue with paragraph (e) of this 
section. Otherwise, continue with paragraph (f) of this section.
    (e) Allocating Prioritized Payments to the Distribution Account. 
(1) If you have a profit under paragraph (d) of this section, determine 
the lesser of:
    (i) Your profit; or
    (ii) The balance in your Accumulation Account.
    (2) Subtract the result in paragraph (e)(1) of this section from 
the Accumulation Account and add it to the Distribution Account and the 
Earned Payments Account.
    (f) How to compute Adjustments. You must compute Adjustments as of 
the end of each fiscal year if you have a balance greater than zero in 
either your Accumulation Account or your Distribution Account, after 
giving effect to any Distribution that will be made no later than the 
second Payment Date following the fiscal year end.
    (1) Determine the combined average Accumulation Account and 
Distribution Account balances for the fiscal year, assuming that 
Prioritized Payments accumulate on a daily basis without compounding.
    (2) Multiply the average balance computed in paragraph (f)(1) of 
this section by the average of the Trust Certificate Rates for all the 
Participating Securities poolings during the fiscal year.
    (3) Add the amounts computed in this paragraph (f) to your 
Accumulation Account.
    (g) Licensee's obligation to pay Prioritized Payments after 
redeeming Participating Securities. This paragraph (g) applies if you 
have redeemed all your Participating Securities, but you still hold 
Earmarked Assets and still have a balance in your Accumulation Account.
    (1) You must continue to perform all the procedures in this 
Sec. 107.1520 as of the end of each fiscal quarter and prior to making 
any Distribution. You must distribute any Earned Prioritized Payments, 
earned Adjustments and earned Charges in accordance with Sec. 107.1540.
    (2) After you dispose of all your Earmarked Assets and make any 
required Distributions in accordance with Sec. 107.1540, your 
obligation to pay any remaining Accumulated Prioritized Payments, 
unearned Adjustments and unearned Charges will be extinguished.
    34. Section 107.1530 is proposed to be amended by removing 
paragraphs (e)(3) and (e)(4) and revising paragraphs (c), (e)(2) and 
(h) to read as follows:


Sec. 107.1530  How a Licensee computes SBA's Profit Participation.

* * * * *
    (c) How to compute the Base. As of the end of each fiscal year and 
any year-to-date interim period for which you want to make a 
Distribution, compute your Base using the following formula:

B = EP-PPA-UL

where:
    B=Base
    EP=Earmarked Profit (Loss) for the period from Sec. 107.1510
    PPA=Prioritized Payments for the period from Sec. 107.1520(a)(1), 
Adjustments (if applicable) from Sec. 107.1520(f), and Charges (if 
applicable) from Sec. 107.1130(d)(2)
    UL=``Unused Loss'' from prior periods as determined in this 
paragraph (c).

    (1) If the Base computed as of the end of your previous fiscal year 
(your ``Previous Base'') was less than zero, your Unused Loss equals 
your Previous Base.
    (2) If your Previous Base was zero or greater, your Unused Loss 
equals zero, with the following exception: If you made an interim 
Distribution of Profit Participation during your previous fiscal year, 
and your Previous Base was lower than the interim Base on which your 
Distribution was computed, then your Unused Loss equals the difference 
between the interim Base and the Previous Base. For example, assume you 
are computing your Base as of December 31, 1997, your fiscal year end. 
Your Previous Base, computed as of December 31, 1996, was $3,000,000. 
During 1996, you made an interim Distribution which was computed on a 
Base of $3,500,000 as of June 30, 1996. The $500,000 difference between 
the 1996 interim and year-end Bases would be carried forward as Unused 
Loss in the computation of your Base as of December 31, 1997.
    (3) If you had no Participating Securities outstanding as of the 
end of your last fiscal year, you may request SBA's approval to treat 
your Undistributed Net Realized Loss, as reported on SBA Form 468 for 
that year, as Unused Loss. If you did not file SBA Form 468 because you 
were not yet licensed as of the end of your last fiscal year, you may 
request SBA's approval to treat pre-licensing losses as Unused Loss.
* * * * *
    (e) Compute the ``PLC ratio''. * * *
    (2) Exception. You may reduce the ratio computed under paragraph 
(e)(1) of this section if you have increased your Leverageable Capital 
above its highest previous level. The increase must have taken place at 
least 120 days before the date as of which your Base is computed. In 
addition, the increase must have been expressly provided for in a plan 
of operations submitted to and approved by SBA in writing, or must be 
the result of the takedown of commitments or the conversion of non-cash 
assets that were included in your Private Capital. If these conditions 
are satisfied, compute your reduced PLC ratio as follows:
    (i) Divide the highest dollar amount of Participating Securities 
you have ever had outstanding by your increased Leverageable Capital.
    (ii) If the result in paragraph (e)(2)(i) is lower than your PLC 
ratio currently in effect, such result will become your new PLC ratio.
* * * * *
    (h) Computing SBA's Profit Participation. If the Base from 
paragraph (c) of this section is greater than zero, you must compute 
SBA's Profit Participation as follows:
    (1) Multiply the Base from paragraph (c) by the Profit 
Participation Rate from paragraph (g).
    (2) If your last Profit Participation computation was for an 
interim period during the same fiscal year and used a higher Profit 
Participation Rate than the

[[Page 53268]]

Rate you just used in paragraph (h)(1) of this section, you must adjust 
the amount computed in paragraph (h)(1) as follows:
    (i) Determine the difference between the Profit Participation Rate 
you just used in paragraph (h)(1) and the Rate used in your previous 
computation;
    (ii) Multiply the difference by the Base from your last Profit 
Participation computation; and
    (iii) Add the result to the amount you computed in paragraph 
(h)(1).
    (3) Reduce the Profit Participation computed in paragraphs (h)(1) 
and (h)(2) by any amounts of Profit Participation that you distributed 
or reserved for distribution to SBA, or its designated agent or 
Trustee, for any previous interim period(s) during the fiscal year. The 
result is SBA's Profit Participation (unless it is less than zero, in 
which case SBA's Profit Participation is zero).
* * * * *
    35. Section 107.1540 is proposed to be amended by adding a sentence 
at the end of the introductory text to read as follows:


Sec. 107.1540  Distributions by Licensee--Prioritized Payment and 
Adjustments.

    * * * You must notify SBA of any planned distribution under this 
section 10 business days before the distribution date, unless SBA 
permits otherwise.
* * * * *
    36. Section 107.1550 is proposed to be amended by adding a sentence 
at the end of the introductory text and by revising paragraphs (a)(1) 
and (b) to read as follows:


Sec. 107.1550  Distributions by Licensee--permitted ``tax 
Distributions'' to private investors and SBA.

    * * * You must notify SBA of any planned distribution under this 
section 10 business days before the distribution date, unless SBA 
permits otherwise.
    (a) Conditions for making a tax Distribution. * * *
    (1) You have paid all your Prioritized Payments, Adjustments, and 
Charges, so that the balance in both your Distribution Account and your 
Accumulation Account is zero (see Sec. 107.1520).
* * * * *
    (b) How to compute the Maximum Tax Liability. (1) Compute your 
Maximum Tax Liability for a full fiscal year only. Use the following 
formula:

    M=(TOI  x  HRO) + (TCG x HRC)

where:
    M=Maximum Tax Liability
    TOI=Net ordinary income allocated to your partners or other owners 
for Federal income tax purposes for the fiscal year immediately 
preceding the Distribution, excluding Prioritized Payments allocated to 
SBA
    HRO=The highest combined marginal Federal and State income tax rate 
for corporations or individuals on ordinary income, determined in 
accordance with paragraphs (b)(2) through (b)(4) of this section
    TCG=Net capital gains allocated to your partners or other owners 
for Federal income tax purposes for the fiscal year immediately 
preceding the Distribution, excluding Prioritized Payments allocated to 
SBA
    HRC=The highest combined marginal Federal and State income tax rate 
for corporations or individuals on capital gains, determined in 
accordance with paragraphs (b)(2) through (b)(4) of this section.

    (2) You may compute the highest combined marginal Federal and State 
income tax rate on ordinary income and capital gains using either 
individual or corporate rates. However, you must apply the same type of 
rate, either individual or corporate, to both ordinary income and 
capital gains.
    (3) In determining the combined Federal and State income tax rate, 
you must assume that State income taxes are deductible from Federal 
income taxes. For example, if the Federal tax rate was 35 percent and 
the State tax rate was 5 percent, the combined tax rate would be [35% 
x  (1-.05)]+5% = 38.25%.
    (4) For purposes of this paragraph (b), the ``State income tax'' is 
that of the State where your principal place of business is located, 
and does not include any local income taxes.
* * * * *
    37. In Sec. 107.1560, in the first column of the table in paragraph 
(e), the column heading is proposed to be revised to read ``If your 
ratio of Leverage to Leverageable Capital as of the fiscal period end 
is:'', a sentence is proposed to be added at the end of the 
introductory text, and paragraphs (a)(1), (a)(4) and (b) are proposed 
to be revised to read as follows:


Sec. 107.1560  Distributions by Licensee--required Distributions to 
private investors and SBA.

    * * * You must notify SBA of any planned distribution under this 
section 10 business days before the distribution date, unless SBA 
permits otherwise.
    (a) Conditions for making distributions. * * *
    (1) You must have paid all Prioritized Payments, Adjustments and 
Charges, so that the balance in both your Distribution Account and your 
Accumulation Account is zero (see Secs. 107.1520 and 107.1540).
* * * * *
    (4) The amount you distribute under this section must not exceed 
your remaining Retained Earnings Available for Distribution.
    (b) Total amount you must distribute. Unless SBA permits otherwise, 
the total amount you must distribute equals the result (if greater than 
zero) of the following computation:
    (1) Your Retained Earnings Available for Distribution as of the end 
of your fiscal year, after giving effect to any Distribution under 
Secs. 107.1540 and 107.1550; minus
    (2) All previous Distributions under this Sec. 107.1560 and 
Sec. 107.1570(a) that were applied as redemptions or repayments of 
Leverage; plus
    (3) All previous Distributions under Sec. 107.1570(b) that reduced 
your Retained Earnings Available for Distribution.
* * * * *
    38. Section 107.1570 is proposed to be amended by adding a sentence 
at the end of the introductory text and by revising the heading and 
paragraphs (b)(1)(i) and (b)(1)(ii) to read as follows:


Sec. 107.1570  Distributions by Licensee--optional Distributions to 
private investors and SBA.

    * * * You must notify SBA of any planned distribution under this 
section 10 business days before the distribution date, unless SBA 
permits otherwise.
* * * * *
    (b) Other optional Distributions. * * * 
    (1) Conditions for making a Distribution. * * * 
    (i) You have distributed all Earned Prioritized Payments, earned 
Adjustments, and earned Charges, so that the balance in your 
Distribution Account is zero (see Sec. 107.1520).
    (ii) You have distributed all Profit Participation computed under 
Sec. 107.1530 which you are required to distribute under Sec. 107.1560 
or permitted to distribute under Sec. 107.1570(a), as appropriate, and 
you have made all required Distributions under Sec. 107.1560.
* * * * *
    39. Section 107.1575 is proposed to be added to subpart I to read 
as follows:


Sec. 107.1575  Distributions on other than Payment Dates.

    (a) Permitted distributions on other than payment dates. 
Notwithstanding any provisions to the contrary in Secs. 107.1540 
through 107.1570, you may make Distributions on dates other than 
Payment Dates as follows:

[[Page 53269]]

    (1) Required annual Distributions under Secs. 107.1540(a)(1), and 
any Distributions under Secs. 107.1550 and 107.1560, must be made no 
later than the second Payment Date following the end of your fiscal 
year;
    (2) Required Distributions under Sec. 107.1540(b) must be made no 
later than the first Payment Date following the end of the applicable 
fiscal quarter;
    (3) Optional Distributions under Sec. 107.1540(a)(2) and 
Sec. 107.1570 may be made on any date.
    (b) Conditions for making distribution. All Distributions under 
this Sec. 107.1575 are subject to the following conditions:
    (1) You must obtain SBA's written approval before the distribution 
date;
    (2) You must use the distribution date as the ending date of the 
period for which you compute your Earmarked Profits, Prioritized 
Payments, Adjustments, Charges, Profit Participation, Retained Earnings 
Available for Distributions, liquidity ratio, Capital Impairment, and 
any other applicable computations required under Secs. 107.1500 through 
107.1570;
    (3) If your Distribution includes an amount which SBA will apply as 
a redemption of Participating Securities, the effective date of such 
redemption, for all purposes including future computations of 
Prioritized Payments, will be the next Payment Date following the 
distribution date.
    40. In Sec. 107.1580, the introductory text of paragraph (a) is 
proposed to be revised to read as follows:


Sec. 107.1580  Special rules for In-Kind Distributions by Licensees.

    (a) In-Kind distributions. A Distribution under Secs. 107.1540, 
107.1560 or 107.1570 may consist of securities (an ``In-Kind 
Distribution''). Such a Distribution must satisfy the conditions in 
this paragraph (a).
* * * * *
    41. Section 107.1590 is proposed to be amended by removing 
paragraph (c), redesignating paragraph (d) as paragraph (c), and 
revising paragraph (a)(1) to read as follows:


Sec. 107.1590  Special rules for companies licensed on or before March 
31, 1993.

* * * * *
    (a) Election to exclude pre-existing portfolio. * * * 
    (1) The proceeds of your first issuance of Participating Securities 
are not used to refinance outstanding Debentures (see 
Sec. 107.1585(a)). SBA will consider payment or prepayment of any 
outstanding Debenture to be a refinancing unless you demonstrate to 
SBA's satisfaction that you can pay the Debenture principal without 
relying on the proceeds of the Participating Securities.
* * * * *
    42. In Sec. 107.1600, the first sentence of paragraph (a) and 
paragraph (b) are proposed to be revised to read as follows:


Sec. 107.1600  SBA authority to issue and guarantee Trust Certificates.

    (a) Authorization. Sections 319 (a) and (b) of the Act authorize 
SBA or its CRA to issue TCs, and SBA to guarantee the timely payment of 
the principal and interest thereon. * * * 
    (b) Periodic exercise of authority. SBA will issue guarantees of 
Debentures and Participating Securities under section 303 and of TCs 
under section 319 of the Act at three month intervals, or at shorter 
intervals, taking into account the amount and number of such guarantees 
or TCs.
* * * * *
    43. Section 107.1720 is proposed to be added to subpart I to read 
as follows:


Sec. 107.1720  Characteristics of SBA's guarantee.

    If SBA agrees to guarantee a Licensee's Debentures or Participating 
Securities, such guarantee will be unconditional, irrespective of the 
validity, regularity or enforceability of the Debentures or 
Participating Securities or any other circumstances which might 
constitute a legal or equitable discharge or defense of a guarantor. 
Pursuant to its guarantee, SBA will make timely payments of principal 
and interest on the Debentures or the Redemption Price of and 
Prioritized Payments on the Participating Securities.
    44. In Sec. 107.1820, paragraph (e)(9) is proposed to be revised to 
read as follows:


Sec. 107.1820  Conditions affecting issuers of Preferred Securities 
and/or Participating Securities.

* * * * *
    (e) Restricted Operations Conditions. * * * 
    (9) Failure to meet investment requirements. You fail to make the 
amount of Equity Capital Investments required for Participating 
Securities (Sec. 107.1500(b)(4)), if applicable to you; or you fail to 
maintain as of the end of each fiscal year the investment ratios or 
amounts required for Leverage in excess of 300 percent of Leverageable 
Capital (Sec. 107.1160 (c)) or Preferred Securities in excess of 100 
percent of Leverageable Capital (Sec. 107.1160(d)), if applicable to 
you. In determining whether you have met the maintenance requirements 
in Sec. 107.1160(c) or (d), SBA will disregard any prepayment, sale, or 
disposition of Venture Capital Financings, any increase in Leverageable 
Capital, and any receipt of additional Leverage, within 120 days prior 
to the end of your fiscal year.
* * * * *
    45. In Sec. 107.1830, paragraph (a) is revised to read as follows:


Sec. 107.1830  Licensee's Capital Impairment--definition and general 
requirements.

    (a) Applicability of this section. This Sec. 107.1830 applies to 
Leverage issued on or after April 25, 1994. For Leverage issued before 
April 25, 1994, you must comply with paragraphs (e) and (f) of this 
section and the Capital Impairment regulations in this part in effect 
when you issued your Leverage. For all Leverage issued, you must also 
comply with any contractual provisions to which you have agreed.
* * * * *

    Dated: September 25, 1997.
Aida Alvarez,
Administrator.
[FR Doc. 97-26720 Filed 10-10-97; 8:45 am]
BILLING CODE 8025-01-P