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LENDER AGREEMENT for the USBCI CAPITAL ACCESS PROGRAM
This LENDER AGREEMENT for the USBCI CAPITAL ACCESS PROGRAM (the “Agreement” or “Master Agreement”) is entered into as of the date of final signature of the Agreement, by and between {{CONTRACT_COMPANY_NAME\*Upper}} (the “Lender”), and the GOVERNOR’S OFFICE of ECONOMIC OPPORTUNITY (“GOEO”), having its principal office at 60 East South Temple, Suite 300, Salt Lake City, UT 84111.
RECITALS
WHEREAS, GOEO has determined that in order to promote economic opportunity and job growth for the citizens of the State of Utah, there is a crucial need to assist in providing access to financing for Utah businesses that otherwise might not be able to obtain such financing; and
WHEREAS, GOEO controls and operates a revolving loan fund known as the Utah Small Business Credit Initiative (“USBCI”) Capital Access Program (“Program” or “USBCI CAP”), the purpose of which is to expand access to capital for Utah small businesses through a flexible loan loss reserve program that provides lenders with a way to fund projects considered too risky for conventional lending; and
WHEREAS, the Program was initially funded through a U.S. Department of Treasury grant administered through the federal State Small Business Credit Initiative (SSBCI) and signed by GOEO in October 2022; and
WHEREAS, GOEO was identified as the Program administrator under the federal grant and administers this Program in accordance with federal SSBCI rules and regulations, as established by the U.S. Department of Treasury; and
WHEREAS, GOEO has branded the Utah SSBCI as the “Utah State Small Business Credit Initiative (USBCI)”; and
WHEREAS, GOEO intends to partner with financial institutions across Utah in order to expand access to capital in Utah;
WHEREAS, The Lender and GOEO desire to set forth the terms and conditions of the loan loss reserve fund that will apply to loans enrolled under the Program as defined herein pursuant to this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
In addition to the words and terms defined elsewhere in the Agreement, each of the following words and terms as used in the Agreement shall have the following meaning unless the context or use indicates another or different meaning or intent, and such definition shall be equally applicable to both the singular and plural forms of the terms as the content may require:
“Affiliate” when describing a relationship with the Lender, shall mean the parent company of Lender, or any present or future company that controls, is controlled by, or is under common control with Lender, including any subsidiary of Lender as defined under 12 U.S.C. §1841(d).
“Borrower” means the recipient of an Eligible Loan filed or to be filed by the Lender for enrollment under the Program pursuant to this Agreement.
“Business Purpose” includes, but is not limited to, start-up costs, working capital, business procurement, franchise fees, equipment, inventory, as well as the purchase, construction, renovation or tenant improvements of a place of business that is not for passive real estate investment purposes.
“Program” means a capital access program created by GOEO under the authority of the Utah Small Business Credit Initiative (USBCI) created by the American Rescue Plan Act of 2021.
“Claim” means any claim filed by the Lender pursuant to Section 7.3 of this Agreement.
“Eligible Loan” means a loan made by the Lender to a Borrower for which the representations and warranties set forth in Section 3.2 are true and the amount does not exceed $5 million.
“Enrolled Loan” means an Eligible Loan enrolled by the State pursuant to the terms of Article IV of this Agreement.
“Principal” is defined (a) for a sole proprietorship, as the proprietor; (b) for a partnership, as each partner; and (c) for a corporation, limited liability company, association or a development company, as each director, each of the five most highly compensated executives, officers, or employees, and each direct or indirect holder of 20 percent or more of the ownership of stock or stock equivalent of the entity.
“Reserve Fund” means an interest-bearing administrative account insured by the Federal Deposit Insurance Corporation, established and maintained by the Lender to account for funds accumulated pursuant to this Agreement to cover losses sustained by the Lender on Enrolled Loans made by the Lender.
“Eligible Business” means a business entity which has fewer than 500 employees and is located in Utah; or is a 501 (c) 3 entity; and follows federal and state regulations and requirements regarding eligibility .
“Standard Terms and Conditions” shall mean those terms and conditions attached as Attachment 1, and incorporated herein.
“Tranche” refers to a federal round of SSBCI funding. In other words, SSBCI funding is deployed in three Tranches, each with approximately one third (⅓) of total SSBCI funding. Each tranche of funding will be deployed in no longer than three years after it is received by GOEO.
ARTICLE II. COVENANTS AND AGREEMENTS
Section 2.1
— Compliance with Laws.
The Lender shall, and shall cause any entities with which it designates or contracts to implement USBCI loan programs to, comply with the SSBCI statute (12 U.S.C. § 5701 et seq.), as amended or replaced from time to time, and either the Treasury’s SSBCI regulations, Utah laws and regulations, state or federal guidance, and other requirements, including but not limited to 2 C.F.R. Part 200, Utah Code § 51-2a and Utah Code Title 63J, and/or other applicable state or federal laws and regulations, as in effect from time to time.
Section 2.2
— Nondiscrimination.
If the Lender is not a Tribal government, the Lender agrees to comply with statutes and regulations prohibiting discrimination, which include ensuring that entities receiving federal financial assistance from Treasury do not deny benefits or services, or otherwise discriminate on the basis of race, color, national origin (including limited English proficiency), disability, age, or sex (including sexual orientation and gender identity), in accordance with, but not limited to, the following authorities:
a) Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) and Treasury’s implementing regulations at 31 C.F.R. Part 22;
b) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794);
c) The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and Treasury’s implementing regulations at 31 C.F.R. Part 23;
d) Title II of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 12101 et seq.); and
e) Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and Treasury’s implementing regulations, 31 C.F.R. Part 28.
Section 2.3 — Reported Data Usage.
The Lender acknowledges that GOEO may perform and publish, or authorize others to perform and publish, Program evaluation and other analyses based on the data reported to GOEO. The Lender consents to such use and publication of the reported data, subject to applicable laws and regulations.
Section 2.4 — Notices of Certain Material Events.
The Lender shall promptly notify GOEO in writing in reasonable detail:
a) If there has been any material adverse change in the condition, financial or otherwise, or operations of the Lender that may affect the Lender’s ability to participate in the USBCI CAP;
b) If the Lender believes that any representation, warranty, certification, assurance, or any other statement of fact contained in this Master Agreement, including the incorporated Approved Application, or any statement set forth in any document, report, certificate, financial statement or instrument now or hereafter delivered to GOEO in connection with
this Master Agreement and the USBCI CAP, was inaccurate, false, incomplete, or misleading when made, in any material respect;
c) If the Lender believes that it has materially failed to comply with any term or condition contained in this Master Agreement; and if there are facts, events, or circumstances, real or anticipated, that may materially affect the Lender’s ability to comply with the terms and conditions of this Master Agreement or to carry out the USBCI CAP; in this event, the Lender must describe actions taken or contemplated to be taken to address the issue.
Section
2.5 — Publication of Approved Program Contact Information
The Lender agrees that GOEO may publish any e-mail contact information provided from time to time by the Lender for the USBCI CAP.
ARTICLE III. REPRESENTATIONS
Section 3.1
— Representations by GOEO
GOEO makes the following representations and warranties as of the time of the enrollment:
a) GOEO is a public body corporate and political subdivision established and acting pursuant to the Act.
b) GOEO has the necessary authority under Utah Code 63N-3-801 and the American Rescue Plan Act of 2021 and has duly taken all action on its part required to authorize, execute and deliver this Agreement. This Agreement when executed will be valid, binding and enforceable in accordance with its terms. The execution and performance of this Agreement by GOEO will not violate or conflict with any instrument by which GOEO is bound.
c) GOEO is compliant and will comply with all applicable statutes, rules, and regulations, including, to the extent that GOEO falls within the scope thereof, the provisions of the American Rescue Plan Act of 2021.
Section
3.2 — Representations by the Lender
The Lender makes the following representations and warranties as of the time of the enrollment:
a) The Authorized Representative has all requisite power and authority to execute and deliver this Master Agreement.
b) The execution and delivery by the Lender hereof, the consummation by the Lender of all of the transactions contemplated hereby, and the performance by the Lender of its obligations hereunder have been duly authorized by all necessary action on the part of the Lender.
c) This Master Agreement has been duly executed and delivered by the Lender and constitutes a legal, valid, and binding obligation of the Lender enforceable against the Lender in accordance with its terms and conditions.
d) The execution and delivery by the Lender hereof, the consummation by the Lender of the transactions contemplated hereby, and the performance by the Lender of its obligations hereunder, do not and will not:
i) conflict with or violate any existing law, regulation, or administrative or judicial decree or order; or
ii) conflict with, result in a breach of, or constitute a default under any existing agreement or other instrument to which the Lender is subject or by which it is bound, other than any such conflict, breach, or default that could not reasonably
affect the Lender’s performance of its obligations under this Master Agreement or its use of USBCI Funds.
e) There is no lawsuit or judicial or administrative action, proceeding, or investigation pending or threatened against the Lender which is likely to have a material adverse effect on the ability of the Lender to perform its obligations under this Master Agreement or the transactions contemplated hereby.
f) Lender certifies that it is not presently nor has ever been debarred, suspended, or proposed for debarment by any governmental department or agency, whether international, national, state, or local. Lender must notify GOEO within thirty (30) days if debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any contract by any governmental entity during the term of this Master Agreement.
g) Neither this Master Agreement, nor the incorporated Approved Application, nor any other document or instrument delivered to GOEO by the Lender related to this Master Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were made, not misleading. The Lender has disclosed, in writing, to GOEO all facts that might reasonably be expected to result in a material adverse effect upon the Lender’s ability either to conduct its business or to carry out this Master Agreement and the transactions contemplated hereby. The Lender has not knowingly and willfully made or used a document or writing containing any false, fictitious, or fraudulent statement or entry as part of its Approved Application or correspondence or communication with GOEO related to this Master Agreement.
h) With respect to any Eligible Loan that the Lender files for enrollment under this Agreement, the Lender make the following representations and warranties as of the time of each filing;
i) The Lender has followed policies outlined in the USBCI CAP Policy and Frequently Asked Questions regarding eligible uses for the USBCI CAP program.
ii) The Lender has obtained in writing from the Borrower all forms and certifications required by Treasury and GOEO, as detailed in the USBCI CAP Policy. The Lender has no substantial reason to believe that such representations and warranties represented in these forms are not true.
iii) The Lender has provided in writing from the Lender all forms and certifications required by Treasury and GOEO, as detailed in the USBCI CAP Policy.
The Lender agrees to notify GOEO if and when it becomes aware of an event which occurs that renders obsolete any of these representations, warranties or certifications. Such event could be, for example, but not limited to, a change in principals, or a conviction of an existing principal for a sex offense against a minor. GOEO, in its own discretion, may require a periodic resubmission of the certifications on an annual basis.
ARTICLE IV: TERMINATION FOR CAUSE AND OTHER REMEDIES
Section 4.1 — General Events of Default.
GOEO, in its sole discretion, may find the Lender to be in default in the event that either:
a) GOEO determines that any representation, warranty, certification, assurance, or any other statement of fact contained in this Master Agreement, including the incorporated Approved Application, or any information or statement set forth in any document, report,
certificate, financial statement or instrument now or hereafter delivered to GOEO in connection with this Master Agreement or the USBCI CAP, is inaccurate, false, incomplete, or misleading when made, in any material respect; or
b) GOEO determines that the Lender has materially failed to comply with any term or condition under this Master Agreement, including, but not limited to, the Lender’s failure to submit complete and timely quarterly reports or annual reports; the Lender’s failure to follow the USBCI CAP Policy; or the Lender’s failure to comply with loss restrictions under the USBCI CAP.
Section 4.2 — Discretionary Remedies.
If GOEO determines that the Lender is in default under Section 4.1 hereof, GOEO may, in its sole discretion, take any one or more of the following actions, subject to Section 4.5 hereof:
a) reduce, suspend, or terminate the commitment of GOEO to make payments to the Lender under this Master Agreement.
Section 4.3 — Specific Events of Default.
GOEO shall find the Lender to be in default in the event of a GOEO audit finding of either:
a) intentional or reckless misuse of loan loss reserve funds by the Lender; or
b) the Lender having intentionally made misstatements in any report issued to GOEO.
Section 4.4 — Mandatory Remedies.
If GOEO determines that the Lender is in default under Section 4.3 hereof, GOEO shall take the following actions:
a) in the case of an event of default under Section 4.3, recoup any misused USBCI CAP loan loss reserve funds that have been disbursed to the Lender; or
b) in the case of an event of default under Section 4.3, terminate the commitment of GOEO to make Disbursements to the Lender under this Master Agreement and find the Lender ineligible to receive any additional funds under this Master Agreement.
Section 4.5 — Prior Notice to Lender of Exercise of Remedies.
Prior to exercising or imposing any remedy under Section 4, GOEO will, to the extent practicable, provide the Lender with written notice of the determination under Section 4 and the proposed remedy. GOEO’s written notice will give the Lender ten (10) calendar days from the date of the notice to respond. GOEO may, in its sole discretion, also afford the Lender twenty (20) calendar days from the date of the notice to remedy the default. If the Lender fails to respond or remedy the default, as determined by GOEO in its sole discretion, within the applicable period, GOEO may, in its sole discretion, exercise the remedies set forth in its written notice. Nothing in this Master Agreement, however, provides the Lender with any right to any formal or informal hearing or other proceeding not otherwise required by law.
Section 4.6 — Un-enrollment and Replenishment.
The Lender may submit a request to GOEO that a specific loan or investment previously enrolled by the Lender in the USBCI CAP be unenrolled if (1) the Lender, Treasury or GOEO identifies a potentially noncompliant use of funds or (2) Treasury or GOEO identifies an instance of noncompliance or misuse not characterized as reckless or intentional. In this case, the Lender shall follow the applicable procedures and requirements in Treasury’s SSBCI regulations and guidance, including the Capital Program Policy Guidelines Section XII, and/or other applicable laws and regulations.
ARTICLE V: ESTABLISHMENT OF THE RESERVE FUND
Upon execution of this Agreement, the Lender shall establish the Reserve Fund in the name of the Lender for the purpose of receiving all required premium charges to be paid by the Lender and the Borrower, and transfers made by GOEO, pursuant to the USBCI CAP Policy. The Reserve Fund shall be titled “USBCI Capital Access Program Reserve Fund”. The Reserve Fund account shall be interest bearing in accordance with accounts of this type, and the Lender may not charge GOEO for any fees related to program loan transactions or for the maintenance of the Reserve Fund account. The Reserve Fund accounts are public deposits pursuant to the Security for Public Deposits Act and must be indicated as such on the Lender’s records. The Lender is subject to the collateralization and reporting requirements of the Act.
If the Lender has an existing reserve fund established under another capital access program in Utah, the Lender may not combine the Reserve Fund established under this agreement with the existing reserve fund.
ARTICLE VI: Enrollment of Loans in Program
Section 6.1 — In General
An Eligible Loan to be filed for enrollment under this Agreement may be made with the interest rate, fees, and other terms and conditions as the Lender and Borrower may agree. The Eligible Loan may be in the form of a term loan or a line of credit, and in the case of a line of credit, the amount of the Eligible Loan shall be considered to be the maximum amount that can be drawn down against the line of credit, unless Lender elects to enroll only a portion of the line of credit in the Program, in which case the amount of the Eligible Loan shall be considered to be the amount filed for enrollment.
Section 6.2 — Enrolling a Loan
Only Eligible Loans may be enrolled in the Program. In order to enroll an Eligible Loan under the Program, the Lender shall follow the USBCI CAP Policy.
Section 6.3 — GOEO Acknowledgement
Upon receipt by GOEO of the documentation identified in USBCI CAP Policy, GOEO shall enroll the Eligible Loan unless the information provided indicates that it is not an Eligible Loan, and shall mail or otherwise deliver to the Lender, within thirty (30) business days of such receipt, an acknowledgement of enrollment, including documentation of the amount being transferred by GOEO into the Reserve Fund. GOEO may assign a unique loan identification number to each Enrolled Loan.
In the event that GOEO no longer has funds to transfer to the Reserve Fund or does not have sufficient funds for a transfer matching the Borrower and Lender premium charges, GOEO will have no existing or continuing obligation to transfer funds to the Reserve Fund. GOEO will inform the Lender of the fund’s insufficiency, and the Lender may request that:
a) GOEO accept the deposit of the Borrower and Lender premium charges in the Reserve Fund, or
b) a refund of the Borrower and Lender premium charges be made if such charges have already been deposited in the Reserve Fund.
Section 6.4 — Amount Covered
When filing an Eligible Loan for enrollment, the Lender may specify an amount to be covered under the Program that is less than the total amount of the Eligible Loan. Unless the context clearly requires otherwise, when used in this Agreement in connection with an Eligible Loan, the words “amount” and “proceeds” shall refer only to the portion of the Eligible Loan covered under this Agreement.
Section 6.5 — Material Changes to Enrolled Loan / Extended Enrollment
In the event of a change to the terms of an Enrolled Loan which has the effect of (a) extending the maturity date, in the case of a term loan or line of credit, beyond the maturity date thereof, or (b) changing the loan type from a term loan to a line of credit or vice versa, Lender shall within 90 days of the effective date of such change, deliver to GOEO a Notice of Material Change / Extended Enrollment.
Section 6.6 — Termination as an Enrolled Loan
If the outstanding balance of an Enrolled Loan that is not a line of credit is reduced to zero (0) for a period exceeding sixty (60) consecutive calendar days, that Enrolled Loan shall no longer be considered an Enrolled Loan. A line of credit terminates at its maturity date or when the lender no longer reports the line commitment as active on the Quarterly or Annual report.
Section 6.7 — No Pledge of Faith, Credit, or Taxing Power
The enrollment of an Eligible Loan under the Program shall not pledge the faith, credit, or taxing power of GOEO or the Program. Any assurances, guarantees, or other credit enhancements provided under the Program do not pledge the faith, credit, or taxing power of GOEO or the Program, and such enhancements are payable only to the extent of the Reserve Fund.
ARTICLE VII: USE OF THE RESERVE FUND
Section 7.1 — Payments and Transfers to the Reserve Fund
The Lender shall set the premium charges payable to the Reserve Fund by the Lender and the Borrower in connection with an Eligible Loan being filed for enrollment with GOEO. The amount paid by the Borrower and Lender shall not be less than 2.0% of the amount of the Enrolled Loan and shall not be greater than 7.0% of the amount of the Enrolled Loan. The amount paid by the Lender shall be equal to the amount paid by the Borrower. When enrolling an Eligible Loan, GOEO shall transfer into the Reserve Fund an amount determined as follows:
a) An amount that is not less than the combined amounts paid into the Reserve Fund by the Borrower and the Lender for each Enrolled Loan.
b) GOEO may limit the maximum loan size of an Enrolled Loan or the maximum amount GOEO will transfer to the Reserve Fund with respect to any one Borrower.
Section 7.2 — Ownership, Control, and Investments of Reserve Fund
All funds credited to the Reserve Fund shall be administered by the Lender, but shall be the exclusive property and control of GOEO for the duration of the Program. The Lender and GOEO may not withdraw funds from the Reserve Fund except as provided for in this Agreement. Interest or income earned on the funds credited to the Reserve Fund shall be deemed to be part of the Reserve Fund. GOEO is authorized to withdraw at any time from the Reserve Fund up to fifty (50%) percent of the total interest or income that has been credited to the Reserve Fund since the date of the first Enrolled Loan. Withdrawals authorized under this section need not be returned to the Reserve Fund.
The Lender shall periodically provide to GOEO transaction reports indicating the balance in the Reserve Fund, payments and transfers into the Reserve Fund, withdrawals from the Reserve Fund, and interest or income earned on funds credited to the Reserve Fund. These reports must be provided to GOEO quarterly and annually, as dictated by the USBCI CAP Policy. In addition, the foregoing transaction reports shall be available to GOEO for inspection at the offices of GOEO during normal business hours.
Section 7.3 — Claims by Lender to Reserve Fund
If the Lender charges off all or part of an Enrolled Loan, the Lender may file a Claim with GOEO by following the claims process as outlined in the USBCI CAP Policy.
Any Claim that is filed under this Agreement shall be filed within one hundred twenty (120) days of the action of the Lender to charge off all or part of the Enrolled Loan. The Lender shall determine when and how much to charge off from an Enrolled Loan in a manner consistent with its normal method for making such determinations on business loans which are not Enrolled Loans.
The Lender’s Claim may include the amount of principal charged off, plus up to ninety (90) days’ accrued interest, and an amount which represents Lender’s customary and reasonable out-ofpocket expenses incurred in pursuing its collection efforts, including preservation of any collateral. Late fees charged by the Lender shall not be eligible for reimbursement and may not be included in the Lender’s claim amount.
In the event that only a portion of the amount of the Enrolled Loan is enrolled in the Program, reimbursement of interest and out-of-pocket expenses will be limited to the ratio of the enrolled portion of the Enrolled Loan to the total amount of the Enrolled Loan. The Lender shall retain documentation in its files evidencing all expenses for which a Claim is filed. The total amount of principal, accrued interest, and out-of-pocket expenses included in the Claim shall not exceed the principal amount covered under the Program upon enrollment.
Section
Only if there is no violation of any other provision of this Agreement by the Lender, then upon receipt by GOEO of a Claim filed by the Lender in accordance with Section 7.3, GOEO shall promptly pay, from funds in the Reserve Fund, the Claim as submitted, except that GOEO may reject a Claim when the representations and warranties provided by the Lender were known by the Lender to be false when the Eligible Loan became an Enrolled Loan.
If there are insufficient funds in the Reserve Fund to cover the entire amount of the Lender’s Claim, GOEO shall pay to the Lender an amount equal to the current balance in the Reserve Fund, net of interest to which GOEO is entitled to under this Agreement. That payment shall be deemed to satisfy the Claim made with GOEO and the Lender shall have no other or further right to receive any amount from the Reserve Fund with respect to that Claim, provided that during the two (2) years following the date of such payment, Lender shall be entitled to claim and receive funds subsequently deposited into the Reserve Fund (the “Follow-up Claim”) on account of such claim so long as the amount of the Follow-up Claim does not exceed 75% of the amount then on deposit in the Reserve Fund.
Notwithstanding anything to the contrary herein, nothing in this provision shall limit or constitute a waiver or subrogation of any rights Lender may have against a Borrower, any other obligor or any collateral pursuant to the terms of the loan documents between the Borrower and the Lender relating to the portion of the Claim not paid from the Reserve Fund as a result of the Reserve Fund having insufficient funds available to fully satisfy the Claim.
Section 7.5 — Recovery by Lender Subsequent to Claim
a) If after payment of a Claim by GOEO, the Lender recovers from a Borrower any amount for which payment of the Claim was made, the Lender shall promptly pay to GOEO for deposit in the Reserve Fund an amount recovered equal to the payment received from GOEO for the Claim, less the Lender’s customary and reasonable out-of-pocket expenses. The Lender shall retain documentation in its files evidencing those expenses. Notwithstanding anything to the contrary herein, Lender shall be required to make the foregoing payment solely to the extent that the amount recovered by Lender from the Borrower for an Enrolled Loan for which Lender made a Claim, when added to the payments received by Lender under such Claim, exceeds Lender’s loss on such Enrolled Loan.
b) For the purposes of this Section and Section 7.4, the Lender’s loss on an Enrolled Loan may include loss of principal up to the enrolled amount and up to 90 days accrued but unpaid interest on the enrolled principal balance, plus an amount which represents Lender’s documented customary and reasonable out-of-pocket expenses incurred in pursuing its collection efforts with respect to the enrolled portion of any loan, including preservation of any collateral.
c) The Lender’s recovery of any amount written-off in connection with any loan that is not an Enrolled Loan made to a borrower, whether or not such borrower is participating in the Program, shall not be paid to GOEO for deposit in the Reserve Fund.
In the event that a Lender has outstanding (a) an Enrolled Loan with a Borrower and (b) other credit, including the unenrolled portion of an Enrolled loan, not covered by the Program with the same Borrower, the Enrolled Loan shall be deemed to be subordinate to the other credit not covered by the Program.
ARTICLE VIII: REPORTING
Section
8.1
— Quarterly and Annual Reports
The Lender must comply with the USBCI CAP Policy regarding reporting, including quarterly and annual reports and other reporting GOEO deems necessary to comply with federal and state law. All reporting requirements will be outlined in USBCI CAP Policy.
Section
8.2
— Late Reporting
If a report required by the USBCI CAP Policy is not filed within thirty (30) calendar days beyond the required due date therefore, GOEO may conduct an inspection of the Lender’s files, with the reasonable costs thereof to be borne by the Lender.
Section
8.3
— Forms
Reports required under this Article shall be substantiated in the form(s) on the USBCI CAP Policy and webpage, or as required by the US Treasury.
ARTICLE IX: WITHDRAWAL OF EXCESS RESERVE FUNDS
Section — 9.1
If reports filed pursuant to Article VIII indicate that for the immediately preceding twenty-four (24) month period the balance in the Reserve Fund continually exceeded the aggregate outstanding balance of all Enrolled Loans, GOEO may withdraw from the Reserve Fund an amount not greater than the amount by which the Reserve Fund balance exceeded the aggregate outstanding balance of all Enrolled Loans as of the most recent report, unless the Lender has provided to GOEO adequate documentation that at some time during such twenty-four (24) month period the aggregate outstanding balance of all Enrolled Loans exceeded the balance then in the Reserve Fund.
ARTICLE X: TERMINATION
Section 10.1 —
Termination
GOEO may, in its sole discretion, terminate its obligations under this Agreement to enroll Eligible Loans under the Program. The termination shall be applicable on the effective date
specified in the notice of termination, except that the termination shall not apply to any Eligible Loan which is made on or before the date on which the notice of termination is received by the Lender.
However, if GOEO is terminating the enrollment of Eligible Loans not merely for the Lender but instead for all participating lenders under the Program, GOEO shall provide notice of at least ninety (90) days to the Lender. Any terminations under this Section shall be prospective only and shall not apply to any Enrolled Loans existing prior to the date of any such termination by GOEO.
Section 10.2 — Reserve Fund
If GOEO has terminated its obligations under this Agreement in accordance with Section 9.1, GOEO may withdraw the balance of the Reserve Fund once there are no Enrolled Loans remaining under the Program.
Section 10.3 — Reporting
Notwithstanding GOEO’s termination of its obligation to enroll Eligible Loans under the Program, the Lender’s obligation to submit reports pursuant to Article VIII shall continue as long as the Lender is pursuing recovery efforts with respect to Enrolled Loans.
Section 10.4 – Program Close
At the close of the federal SSBCI, GOEO may withdraw the balance of the Reserve Fund that equals the USBCI CAP state contribution plus interest minus eligible claims to the fund. Likewise, the Lender may withdraw the balance of the Reserve Fund that equals the lender and borrower contribution to the fund plus interest minus eligible claims to the fund.
ARTICLE XI: PLEDGE OF THE RESERVE FUND
GOEO pledges the funds in the Reserve Fund to be available to pay Claims pursuant to the Program. GOEO further pledges that the Lender shall have a first security interest in the funds in the Reserve Fund to pay Claims and GOEO will not encumber or pledge the funds to any other party. This pledge does not, however, diminish the ownership or control of the Reserve Fund granted to GOEO in Section 7.2, and it shall not affect GOEO’s right to withdraw funds from the Reserve Fund pursuant to Article IX or any other right of GOEO outlined in this agreement.
ARTICLE XII: GENERAL
Section 12.1 — Amendments to Agreement
This Master Agreement may be amended, modified, waived, supplemented, or terminated only by an instrument in writing duly executed by GOEO and the Lender, except that GOEO may unilaterally amend this Master Agreement if required in order to comply with applicable federal law or regulation.
Section 12.2 — Assignment.
The Lender shall not assign or transfer its rights under this Master Agreement without GOEO’s prior written consent.
Section 12.3 — Successors.
This Master Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
Section 12.4 — Cumulative Rights.
Each and every right, power, and authority under this Master Agreement shall be cumulative and in addition to every other right, power, and authority herein conferred, or now or hereafter existing at law or in equity, by statute or otherwise.
Section 12.5 — No Election.
Each and every right, power, and authority, whether conferred in this Master Agreement or otherwise existing, may be exercised from time to time and as often and in such order as may be determined by GOEO, and the exercise or the beginning of the exercise of any right, power, or authority shall not be construed to be an election or a waiver of the right to exercise at the same time or thereafter any other right, power, or authority.
Section 12.6 — Rights Confined to Parties.
Nothing expressed or implied herein is intended or shall be construed to confer upon, or to give, any person other than the Lender or GOEO, and their respective successors and permitted assigns, any right, remedy, or claim under or by reason hereof, and all of the terms and conditions herein shall be for the sole and exclusive benefit of the Lender, GOEO, and their respective successors and permitted assigns.
Section 12.7 — No Waiver.
No delay or failure by GOEO in the exercise of any right, power, or authority under this Master Agreement shall impair any such right, power, or authority, or be construed to be a waiver of or acquiescence in such event, nor shall any abandonment or discontinuance of steps taken to exercise any right, power, or authority preclude any further exercise thereof.
Section 12.8 — No Partnership.
Neither this Master Agreement, nor any part or provision hereof, nor the exercise by GOEO of any of its rights or authorities hereunder, shall evidence or establish, or be construed as evidencing or establishing, any partnership, joint venture, or similar relationship of GOEO with the Lender.
Section 12.9 — Severability.
Any provision of this Master Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 12.10 — Headings.
The descriptive headings of the various articles and sections contained in this Master Agreement are for convenience only and shall not be deemed to affect the meaning or construction of the provisions herein.
Section 12.11 — Counterparts.
This Master Agreement may be executed in any number of separate counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same agreement. In addition, this Master Agreement may be executed by electronic signature in accordance with the E-SIGN Act of 2000. Executed signature pages to this Master Agreement may be delivered by electronic mail (including pdf) to the addresses specified in Schedule A, and such electronic copies will be deemed as sufficient as if actual signature pages had been delivered.
Section 12.12 —
Information
The Lender shall provide GOEO with the information regarding its participation in the Program as GOEO may reasonably require.
Section 12.13
— Inspection of Files
Upon notice to the Lender, GOEO may inspect the files of the Lender relating to any loans enrolled under the Program, during normal business hours of the Lender. GOEO will not copy or extract any information from such files unless (a) the information is eligible for protection from disclosure pursuant to applicable federal or state statutes, in which case GOEO agrees to invoke the confidentiality provisions of the statute or (b) if such information cannot be protected, the consent of the Borrower has been obtained.
Section 12.14
— U.S. Treasury Inspector General
The Lender agrees to make available to the Utah State Auditor, the Inspector General for the United States Department of the Treasury, and the Government Accountability Office all books and records related to the use of the SSBCI funds, subject to applicable privacy laws, including but not limited to the Right to Financial Privacy Act (12 U.S.C. § 3401 et seq.) including detailed loan records, as applicable.
Section 12.15 — External Audit
GOEO may select an outside auditor to audit not more often than annually the Lender’s files for loans and other documents under the Program. GOEO shall be responsible for the expenses and costs of the outside auditor under this section. GOEO shall use its best efforts to coordinate its audit of the Lender’s files with other states’ capital access programs in which the Lender participates, and, upon GOEO’s request therefore, the Lender shall provide a listing of the other State Capital Access Programs in which the Lender participates.
Section 12.16 — Compliance with Applicable Law
The Lender shall comply with all applicable state and federal laws, rules and regulations. Additionally, the Lender shall comply with the requirements of 31 C.F.R. § 1020.220, regarding customer identification programs.
Section 12.17 — Limitation of Rights
This Agreement shall be for the exclusive benefit of the Lender and GOEO and shall not be construed to give any other person any legal or equitable right, remedy or claim with respect to the Agreement.
Section 12.18 — Severability
If any clause, provision, or section of this Agreement is held illegal or invalid by any court, the invalidity shall not affect any of the remaining clauses, provisions or sections of this Agreement and this Agreement shall be construed and enforced as if the illegal or invalid clause, provision or section had not been in the Agreement.
Section 12.19 — Updates and Renewal
The U.S. Department of Treasury divides program funding into three tranches. The duration of each tranche shall be no more than three years from the time when GOEO receives the respective tranche of funding.
This Agreement is binding for the duration of one tranche of funding. In order to participate in future Tranches of funding, both parties must renew this agreement prior to enrolling in the next tranche. GOEO reserves the right to update this agreement as needed prior to contract renewal for Tranches 2 and 3. If the Lender does not renew this agreement prior to Tranches 2 and 3, this Contract shall be cancelled.
Section 12.20 — Notices
All notices, requests, demands, consents, waivers, and other communications given under this Master Agreement shall be in writing and shall be mailed by postage-prepaid first-class mail, delivered by overnight courier service, or transmitted electronically via e-mail transmission to the addresses set forth in the Approved Application. Either party may change its contact information set forth in the Approved Application upon written notice given to the other party.
Section 12.21 — Binding Effect
This Agreement shall inure to the benefit of and shall be binding upon the parties and their respective successors and assigns.
Section 12.22 — Reports of Regulatory Agencies, Authorization To Disclose
The Lender hereby provides its authorization for disclosure by federal or state government regulatory agencies, to share records with GOEO. The Lender consents to the transmittal to GOEO, by any financial institutions regulatory agency of the federal or state governments, any information directly relating to the Lender’s participation in the Program. To the extent permitted by law, GOEO shall hold any information acquired pursuant to this Section confidential.
Section 12.23 — No Personal Liability
No member, officer, or employee of GOEO, including any person executing this Agreement, shall be liable personally under this Agreement or subject to any personal liability for any reason relating to the execution of this Agreement or the Program.
Section 12.24 — Collateral
GOEO shall have no legal or equitable interest in any collateral, security, or other right of recovery in connection with any loan enrolled in the Program and, thus, GOEO’s consent is not necessary for any amendment to the Lender’s loan documents. Moreover, no provision in this Agreement shall be construed to prohibit or restrict the Lender’s authority, in its sole discretion, to modify the terms or conditions of an Enrolled Loan in a manner that does not conflict with this Agreement.
This Section shall not, however, permit Lender to modify its obligation to make payments to the Reserve Fund pursuant to the USBCI CAP Policy.
Section 12.25 — Due Diligence
Within the context of the objectives of the Program, the Lender agrees to exercise the same degree of care and diligence in the making and collection of the Enrolled Loans as it does in the making and collection of other business loans in the ordinary course of Lender’s business.
Section 12.26
Authorization to Enroll Loans in the USBCI CAP
The Lender shall designate an individual by name and title and identify to GOEO that the authorized individual shall represent the Lender in communications with the Office, and who (whether it is that same individual or someone else) shall have signing authority to bind the Lender. Individuals must be authorized before submitting loan applications to the USBCI CAP on behalf of the Lender. The Lender agrees to authorize individuals before participation in the USBCI CAP through the process outlined in USBCI CAP Lender training. The Lender takes full responsibility for all lender applications submitted by authorized individuals.
Section 12.27 —
Authorization to Deploy Funds
This contract authorizes the Lender to receive up to $3,195,899.54 in USBCI CAP loan loss reserve funds. All funding received by the Lender is subject to the terms and conditions listed herein. Funding is processed and transferred on a loan-by-loan basis. Funding is competitive between all USBCI CAP Enrolled Lenders. Total available funding will deplete as Lenders utilize the program. USBCI CAP Enrolled Lenders will no longer have access to USBCI CAP loan loss reserve funds when program funding is depleted.
Section 12.28 —
Interpretation
This Agreement shall be governed by and interpreted in accordance with the laws of Utah.
Section 12.29 — Entire Agreement
This Agreement and its exhibits and any documents referred to herein constitute the complete understanding of the parties and merge and supersede any and all other discussions, agreements and understandings, either oral or written, between the parties with respect to the subject matter hereof.
Section 12.30 — Effective Date. This Master Agreement shall be effective as of the date of its execution by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date signed below:
STATE OF UTAH
Governor’s Office of Economic Opportunity
\s2\ \s1\
Name: \n2\
Title: Managing Director of Business Services
Date: \d2\
\s3\
Name: \n3\
Title: Director of Finance
Date: \d3\
\s4\
Name: \n4\
Title: Managing Director of Operations
Date: \d4\ \s5\
Name: \n5\
Title: Division of Finance
Name: \n1\
Title: \t1\
Date: \d1\
Date: \d5\ business.utah.gov/usbci