15 U.S.C. § 697 | Development company debentures

(a)

Guarantees; Administration authority; regulatory terms and conditions; full faith and credit; subordination of debentures

(1)

Except as provided in subsection (b), the Administration may guarantee the timely payment of all principal and interest as scheduled on any debenture issued by any qualified State or local development company.

(2)

ProvidedProvided further Such guarantees may be made on such terms and conditions as the Administration may be regulation determine to be appropriate: , That the Administration shall not decline to issue such guarantee when the ownership interests of the small business concern and the ownership interests of the property to be financed with the proceeds of a loan made pursuant to subsection (b)(1) are not identical because one or more of the following classes of relatives have an ownership interest in either the small business concern or the property: father, mother, son, daughter, wife, husband, brother, or sister: , That the Administrator or his designee has determined on a case-by-case basis that such ownership interest, such guarantee, and the proceeds of such loan, will substantially benefit the small business concern.

(3)

The full faith and credit of the United States in pledged to the payment of all amounts guaranteed under this subsection.

(4)

Any debenture issued by any State or local development company with respect to which a guarantee is made under this subsection, may be subordinated by the Administration to any other debenture, promissory note, or other debt or obligation of such company.

(b)

Statutory terms and conditions

No guarantee may be made with respect to any debenture under subsection (a) unless—

(1)

section 696 of this title such debenture is issued for the purpose of making one or more loans to small business concerns, the proceeds of which shall be used by such concern for the purposes set forth in ;

(2)

necessary funds for making such loans are not available to such company from private sources on reasonable terms;

(3)

section 683(b) of this title the interest rate on such debenture is not less than the rate of interest determined by the Secretary of the Treasury for purposes of ;

(4)

the aggregate amount of such debenture does not exceed the amount of loans to be made from the proceeds of such debenture (other than any excess attributable to the administrative costs of such loans);

(5)

the amount of any loan to be made from such proceeds does not exceed an amount equal to 50 percent of the cost of the project with respect to which such loan is made;

(6)

the Administration approves each loan to be made from such proceeds; and

(7)

with respect to each loan made from the proceeds of such debenture, the Administration—

(A)

assesses and collects a fee, which shall be payable by the borrower, in an amount established annually by the Administration, which amount shall not exceed—

(i)

the lesser of—

(I)

0.9375 percent per year of the outstanding balance of the loan; and

(II)

section 661a of title 2 the minimum amount necessary to reduce the cost (as defined in ) to the Administration of purchasing and guaranteeing debentures under this chapter to zero; and

(ii)

October 1, 2002 50 percent of the amount established under clause (i) in the case of a loan made during the 2-year period beginning on , for the life of the loan; and

(B)

section 661a of title 2 uses the proceeds of such fee to offset the cost (as such term is defined in ) to the Administration of making guarantees under subsection (a).

(c)

Commercial loan interest rate

(1)

The purpose of this subsection is to facilitate the orderly and necessary flow of long-term loans from certified development companies to small business concerns.

(2)

section 697a of this title Notwithstanding the provisions of the constitution or laws of any State limiting the rate or amount of interest which may be charged, taken, received, or reserved, the maximum legal rate of interest on any commercial loan which funds any portion of the cost of the project financed pursuant to this section or which is not funded by a debenture guaranteed under this section shall be a rate which is established by the Administrator of the Small Business Administration under the authority of this section.

(3)

section 697a of this title The Administrator is authorized and directed to establish and publish quarterly a maximum legal interest rate for any commercial loan which funds any portion of the cost of the project financed pursuant to this section or which is not funded by a debenture guaranteed under this section.

(d)

Charges for Administration expenses

(1)

Level of charges

The Administration may impose an additional charge for administrative expenses with respect to each debenture for which payment of principal and interest is guaranteed under subsection (a).

(2)

Participation fee

section 696(3)(B)(i) of this title section 661a of title 2The Administration shall collect a one-time fee in an amount equal to 50 basis points on the total participation in any project of any institution described in subclause (I), (II), or (III) of . Such fee shall be imposed only when the participation of the institution will occupy a senior credit position to that of the development company. All proceeds of the fee shall be used to offset the cost (as that term is defined in ) to the Administration of making guarantees under subsection (a).

(3)

Development company fee

September 30, 1996section 661a of title 2The Administration shall collect annually from each development company a fee of 0.125 percent of the outstanding principal balance of any guaranteed debenture authorized by the Administration after . Such fee shall be derived from the servicing fees collected by the development company pursuant to regulation, and shall not be derived from any additional fees imposed on small business concerns. All proceeds of the fee shall be used to offset the cost (as that term is defined in ) to the Administration of making guarantees under subsection (a).

(e)

“Qualified State or local development company” defined; exception for rural company; authority

(1)

For purposes of this section, the term “qualified State or local development company” means any State or local development company which, as determined by the Administration, has—

(A)

a full-time professional staff;

(B)

professional management ability (including adequate accounting, legal, and business-servicing abilities); and

(C)

a board of directors, or membership, which meets on a regular basis to make management decisions for such company, including decisions relating to the making and servicing of loans by such company.

(2)

A company in a rural area shall be deemed to have satisfied the requirements of a full-time professional staff and professional management ability if it contracts with another certified development company which has such staff and management ability and which is located in the same general area to provide such services.

(3)

section 636(a) of this title Notwithstanding any other provision of law, qualified State or local development companies shall be authorized to prepare applications for deferred participation loans under , to service such loans and to charge a reasonable fee for servicing such loans.

(f)

Effective date

October 1, 1996The fees authorized by subsections (b) and (d) shall apply to financings approved by the Administration on or after .

(g)

Calculation of subsidy rate

section 661a of title 2All fees, interest, and profits received and retained by the Administration under this section shall be included in the calculations made by the Director of the Office of Management and Budget to offset the cost (as that term is defined in ) to the Administration of purchasing and guaranteeing debentures under this chapter.

(h)

Required actions upon default

(1)

Initial actions

Not later than the 45th day after the date on which a payment on a loan funded through a debenture guaranteed under this section is due and not received, the Administration shall—

(A)

take all necessary steps to bring such a loan current; or

(B)

implement a formal written deferral agreement.

(2)

Purchase or acceleration of debenture

1 So in original. Probably should be capitalized.

Not later than the 65th day after the date on which a payment on a loan described in paragraph (1) is due and not received, and absent a formal written deferral agreement, the administration  shall take all necessary steps to purchase or accelerate the debenture.

(3)

Prepayment penalties

section 696(3) of this titleWith respect to the portion of any project derived from funds set forth in , the Administration—

(A)

September 30, 1996 shall negotiate the elimination of any prepayment penalties or late fees on defaulted loans made prior to ;

(B)

September 30, 1996 shall not pay any prepayment penalty or late fee on the default based purchase of loans issued after ; and

(C)

September 30, 1996 for any project financed after , shall not pay any default interest rate higher than the interest rate on the note prior to the date of default.

(i)

Two-year waiver of fees

October 1, 2002The Administration may not assess or collect any up front guarantee fee with respect to loans made under this subchapter during the 2-year period beginning on .

Pub. L. 85–699, title V, § 503 Pub. L. 96–302, title I, § 113(a)July 2, 198094 Stat. 837 Pub. L. 100–590, title INov. 3, 1988102 Stat. 2996–2998 Pub. L. 101–515, title V, § 8Nov. 5, 1990104 Stat. 2144 Pub. L. 103–403, title II, § 213(1)Oct. 22, 1994108 Stat. 4184 Pub. L. 104–36, § 6Oct. 12, 1995109 Stat. 297 Pub. L. 104–208, div. D, title IISept. 30, 1996110 Stat. 3009–735 Pub. L. 105–135, title II, § 222Dec. 2, 1997111 Stat. 2604 Pub. L. 106–554, § 1(a)(9) [title III, § 304]Dec. 21, 2000114 Stat. 2763 Pub. L. 107–100, § 6(b)Dec. 21, 2001115 Stat. 971 Pub. L. 108–199, div. B, title VI, § 631Jan. 23, 2004118 Stat. 100 Pub. L. 108–205, § 2Mar. 15, 2004118 Stat. 553 Pub. L. 108–217, § 2Apr. 5, 2004118 Stat. 591 Pub. L. 108–306, § 2Sept. 24, 2004118 Stat. 1131 Pub. L. 108–447, div. B, title V, div. K, title II, § 204Dec. 8, 2004118 Stat. 2911(, as added , , ; amended , §§ 112(c), 114, 117(a), , ; , , ; , , ; , , ; , §§ 202(b)–(e), 203, , , 3009–736; , , ; , , , 2763A–684; , , ; , , ; , , ; , , ; , , ; , , , 3466.)

Editorial Notes

References in Text

section 661 of this titleFor definition of “this chapter”, referred to in subsecs. (b)(7)(A)(ii) and (g), see References in Text note set out under .

Amendments

Pub. L. 108–447, § 204October 1, 20052004—Subsec. (f). , struck out “, but shall not apply to financings approved by the Administration on or after ” before period at end.

Pub. L. 108–447, title VOctober 1, 2005October 1, 2004, substituted “” for “”.

Pub. L. 108–217October 1, 2004May 21, 2004 substituted “” for “”.

Pub. L. 108–205 Pub. L. 108–306May 21, 2004March 15, 2004, as amended by , substituted “” for “”.

Pub. L. 108–199March 15, 2004October 1, 2003 substituted “” for “” before period at end.

Pub. L. 107–100, § 6(b)(1)2001—Subsec. (b)(7)(A). , designated existing provisions following “not exceed” as cl. (i), redesignated former cls. (i) and (ii) as subcls. (I) and (II), respectively, of cl. (i), realigned margins, and added cl. (ii).

Pub. L. 107–100, § 6(b)(2)Subsec. (i). , added subsec. (i).

Pub. L. 106–554October 1, 1996October 1, 20002000—Subsec. (f). amended heading and text of subsec. (f) generally. Prior to amendment, text read as follows: “The fees authorized by subsections (b) and (c) of this section shall apply to financings approved by the Administration on or after , but shall not apply to financings approved by the Administration on or after .”

Pub. L. 105–135, § 222(1)1997—Subsec. (b)(7)(A). , added subpar. (A) and struck out former subpar. (A) which read as follows: “assesses and collects a fee, which shall be payable by the borrower, in an amount equal to the lesser of—

“(i) 0.9375 percent per year of the outstanding balance of the loan; or

section 661a of title 2“(ii) such percentage per year of the outstanding balance of the loan as the Administrator may determine to be necessary to reduce the cost (as that term is defined in ) to the Administration of purchasing and guaranteeing debentures under this chapter to an amount that, taking into consideration any available appropriated funds, would permit the Administration to purchase or guarantee $2,000,000,000 of debentures in fiscal year 1997; and”.

Pub. L. 105–135, § 222(2)Subsec. (f). , substituted “2000” for “1997”.

Pub. L. 104–208, § 202(b)1996—Subsec. (b)(7)(A). , substituted “equal to the lesser of—” for “equal to 0.125 percent per year of the outstanding balance of the loan” and added cls. (i) and (ii).

Pub. L. 104–208, § 202(c)Subsec. (d). , inserted heading and amended text of subsec. (d) generally. Prior to amendment, text read as follows: “The Administration may impose an additional charge for administrative expenses with respect to each debenture for which payment of principal and interest is guaranteed under subsection (a) of this section.”

Pub. L. 104–208, § 202(d)Subsec. (f). , added subsec. (f).

Pub. L. 104–208, § 202(e)Subsec. (g). , added subsec. (g).

Pub. L. 104–208, § 203Subsec. (h). , added subsec. (h).

Pub. L. 104–361995—Subsec. (b)(7). added par. (7).

Pub. L. 101–5151990—Subsec. (e)(3). added par. (3).

Pub. L. 100–590, § 1141988—Subsec. (a)(2). , inserted two provisos that Administration not decline to issue such guarantee when ownership interests of small business concern and of property to be financed with loan are not identical, and that Administrator has determined on case-by-case basis that such ownership interest, guarantee, and loan, will substantially benefit small business concern.

Pub. L. 100–590, § 112(c)(B)Pub. L. 103–403Subsec. (c). , formerly § 112(c)(1)(B), as amended by , added subsec. (c). Former subsec. (c) redesignated (d).

Pub. L. 100–590, § 112(c)(A)Pub. L. 103–403Subsec. (d). , formerly § 112(c)(1)(A), as amended by , redesignated subsec. (c) as (d). Former subsec. (d) redesignated (e).

Pub. L. 100–590, § 117 Pub. L. 100–590, § 112(c)(1)Subsec. (e). , which directed substitution of “(1) For purposes of” for “For purposes of”, redesignated former pars. (1) to (3) as subpars. (A) to (C), respectively, and added par. (2), was executed to subsec. (e) to reflect the probable intent of Congress and the intervening redesignation of subsec. (d) as (e) by .

Pub. L. 100–590, § 112(c)(A)Pub. L. 103–403, formerly § 112(c)(1)(A), as amended by , redesignated former subsec. (d) as (e).

Statutory Notes and Related Subsidiaries

Effective Date of 2004 Amendment

Pub. L. 108–306, § 2Sept. 24, 2004118 Stat. 1131

section 2 of Pub. L. 108–205“The amendment made by the preceding sentence [amending , which amended this section] shall take effect as if included in the enactment of the section to which it relates.”

, , , provided in part that:

Effective Date of 2001 Amendment; Use of Funds

Pub. L. 107–100, § 6(d)Dec. 21, 2001115 Stat. 972

“(d)

Use of Funds .—

15 U.S.C. 697 2 U.S.C. 661aThe amendments made by this section to section 503 of the Small Business Investment Act of 1958 [], shall be effective only to the extent that funds are made available under appropriations Acts, which funds shall be utilized by the Administrator to offset the cost (as such term is defined in section 502 of the Federal Credit Reform Act of 1990 []) of such amendments.

“(e)

Effective Date .—

section 636 of this titleOctober 1, 2002The amendments made by this section [amending this section and ] shall become effective on .”

, (e), , , provided that:

Effective Date of 1997 Amendment

Pub. L. 105–135Oct. 1, 1997section 3 of Pub. L. 105–135 section 631 of this titleAmendment by effective , see , set out as a note under .

Effective Date of 1996 Amendment

Pub. L. 104–208Oct. 1, 1996section 3 of Pub. L. 104–208 section 633 of this titleAmendment by effective , see , set out as a note under .

Effective Date of 1995 Amendment

Pub. L. 104–36Oct. 12, 1995Oct. 12, 1995section 8 of Pub. L. 104–36 section 634 of this titleAmendment by inapplicable to loans made or guaranteed under Small Business Act or Small Business Investment Act of 1958 before , unless such loans are refinanced, extended, restructured, or renewed on or after , see , set out as a note under .

Termination Date of 1988 Amendment

Pub. L. 100–590, title I, § 112(c)Nov. 3, 1988102 Stat. 2996 Pub. L. 101–515, title V, § 3Nov. 5, 1990104 Stat. 2140 Pub. L. 103–317, title IVAug. 26, 1994108 Stat. 1755Oct. 1, 1997Pub. L. 103–403, title II, § 213(2)Oct. 22, 1994108 Stat. 4184, , , as amended by , , ; , , , which provided that the amendment made by paragraph (1), amending this section, was to be repealed on , was repealed by , , .

Effective Date

Oct. 1, 1980section 507 of Pub. L. 96–302 section 631 of this titleSection effective , see , set out as an Effective Date of 1980 Amendment note under .

Temporary Fee Elimination for the 504 Loan Program

Pub. L. 116–260, div. N, title III, § 327(b)Dec. 27, 2020134 Stat. 2037

“(1)

In general .—

Dec. 27, 2020September 30, 202115 U.S.C. 695During the period beginning on the date of enactment of this Act [] and ending on , and to the extent the cost of such elimination in fees is offset by appropriations, with respect to each project or loan guaranteed by the Administrator [of the Small Business Administration] pursuant to title V of the Small Business Investment Act of 1958 ( et seq.) for which an application is approved or pending approval on or after the date of enactment of this Act—

“(A)

15 U.S.C. 697(d)(2) the Administrator shall, in lieu of the fee otherwise applicable under section 503(d)(2) of the Small Business Investment Act of 1958 (), collect no fee; and

“(B)

a development company shall, in lieu of the processing fee under section 120.971(a)(1) of title 13, Code of Federal Regulations (relating to fees paid by borrowers), or any successor regulation, collect no fee.

“(2)

Reimbursement for waived fees.—

“(A)

In general .—

To the extent that the cost of such payments is offset by appropriations, the Administrator shall reimburse each development company that does not collect a processing fee pursuant to paragraph (1)(B).

“(B)

Amount .—

The payment to a development company under clause (i) shall be in an amount equal to 1.5 percent of the net debenture proceeds for which the development company does not collect a processing fee pursuant to paragraph (1)(B).”

, , , provided that: