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OREGON BUSINESS DEVELOPMENT DEPARTMENT

 










DIVISION 19
OPERATION OF OREGON ENTREPRENEURIAL DEVELOPMENT LOAN FUND









123-019-0000
Purpose
The purpose of these rules is to provide procedures, standards and criteria for the making of loans from the Oregon Entrepreneurial Development Loan Fund for applications received by the Business Development Department.
Stat. Auth.: ORS 285A.075, 285B.740-285B.758, Ch. 765, OL 1993

Stats. Implemented: ORS 285B.740 - 285B.758, Ch. 765, OL 1993

Hist.: EDD 16-1991(Temp), f. & cert. ef. 11-8-91; EDD 12-1992, f. & cert. ef. 8-26-92; EDD 7-1993(Temp), f. & cert. ef. 9-17-93; EDD 3-1994, f. 2-4-94, cert. ef. 2-7-94; OBDD 10-2010(Temp), f. & cert. ef. 4-12-10 thru 10-9-10; OBDD 34-2010, f. & cert. ef. 10-1-10
123-019-0010
Definitions
For the purposes of these rules additional
definitions may be found in Procedural Rules, OAR 123-001. For purposes of this
division of administrative rules, unless the context demands otherwise:
(1) "Applicant" means any
individual, association of individuals, joint venture, partnership or corporation,
person or any combination of persons applying for a loan from the Oregon Entrepreneurial
Development Fund.
(2) "Certified Entity" means
any entity certified by the Director of the Business Development Department under
OAR 123-019-0100.
(3) "Equity" means cash,
real and personal property owned or controlled by an Applicant and committed to
use in the project for which a loan from the Fund is being sought. Property other
than cash will be conservatively valued by the Department.
(4) "Fund" or "EDLF" means
the Oregon Entrepreneurial Development Fund as defined and set forth in Section
13, Chapter 688, Oregon Laws 1991.
(5) "Loan Committee" means
any loan committee selected by the Director from the Finance Committee or otherwise
appointed by the Director. The Loan Committee shall consist of at least three members,
and the Director shall select one of its members to be chair. The Loan Committee
shall meet at the call of the chair. Two members of the Loan Committee shall constitute
a quorum to transact the business of the Loan Committee.
(6) "Project" means the acquisition,
improvement, rehabilitation, construction, operation or maintenance of any property,
real or personal, that is or will be used or is suitable for use by an economic
enterprise, but not including:
(a) A loan for the purchase
or construction of residential housing;
(b) A loan for the purchase
of property that will not be used for the business operation of the Applicant or
is a passive real property investment not used to house the operations of a related
company;
(c) A loan for the refinancing
of an existing loan; the loan request may be considered for approval if such existing
loan was for a business purpose and the refinance is necessary to secure collateral
for or improve the collateral coverage and is a minor part of the new loan.
(7) "Severely Disabled Individuals"
means individuals certified as severely disabled by the Vocational Rehabilitation
Division of the Department of Human Resources or the Commission for the Blind.
(8) "Small Business Development
Center" or "SBDC" means any small business development center described in the Small
Business Training Assistance Act of 1983.
(9) "Small Business Management
Program" means any of the following:
(a) A going into business
class;
(b) A Small Business Management
Program offered by an Oregon SBDC;
(c) Any series of classes/seminars/workshops/counseling
sessions that meet the approval of a Small Business Development Center or Certified
Entity.
Stat. Auth.: ORS 285A.075
Stats. Implemented: ORS 285B.740-285B.758,
Ch. 688, OL 1991, Ch. 765, OL 1993
Hist.: EDD 16-1991(Temp),
f. & cert. ef. 11-8-91; EDD 12-1992, f. & cert. ef. 8-26-92; EDD 7-1993(Temp),
f. & cert. ef. 9-17-93; EDD 3-1994, f. 2-4-94, cert. ef. 2-7-94; EDD 8-1995,
f. & cert. ef. 10-26-95; EDD 23-2008, f. 7-31-08, cert. ef. 8-1-08; OBDD 10-2010(Temp),
f. & cert. ef. 4-12-10 thru 10-9-10; OBDD 34-2010, f. & cert. ef. 10-1-10;
OBDD 35-2010, f. 10-14-10, cert. ef. 10-15-10; OBDD 12-2014, f. 6-30-14, cert. ef.
7-1-14
123-019-0020
Eligibility
(1) To be eligible for a loan from the
Fund, each Applicant must meet at least one of the criteria in this section:
(a) The Applicant must have
had total revenues of $500,000 or less in the 12 calendar months immediately preceding
the date application is made to the Fund;
(b) At least 50 percent of
the Applicant business or proposed business must be owned by an individual or individuals
classified as Severely Disabled.
(2) The Applicant may not
be effectively owned or controlled by another business entity or other person or
own or control another business entity that, either by itself or when combined with
the Applicant, is not eligible for a loan under this rule. Ownership of 50 percent
or more of the Applicant would constitute, or a subsidiary which sells a majority
of its goods or services to the parent may constitute, effective ownership or control.
The Director may, however, make this determination based on the facts of an individual
case.
Stat. Auth.: ORS 285A.075
Stats. Implemented: ORS 285B.740
– 285B.758
Hist.: EDD 16-1991(Temp),
f. & cert. ef. 11-8-91; EDD 12-1992, f. & cert. ef. 8-26-92; EDD 7-1993(Temp),
f. & cert. ef. 9-17-93; EDD 3-1994, f. 2-4-94, cert. ef. 2-7-94; EDD 11-1997(Temp),
f. & cert. ef. 10-7-97; EDD 10-1998, f. & cert. ef. 5-22-98; EDD 5-2007(Temp),
f & cert. ef. 8-28-07 thru 2-22-08; EDD 4-2008(Temp), f. & cert. ef. 2-26-08
thru 8-1-08; EDD 23-2008, f. 7-31-08, cert. ef. 8-1-08; OBDD 10-2010(Temp), f. &
cert. ef. 4-12-10 thru 10-9-10; OBDD 34-2010, f. & cert. ef. 10-1-10; OBDD 12-2014,
f. 6-30-14, cert. ef. 7-1-14
123-019-0030
Application Procedure
(1) Each Applicant shall certify to
SBDC or other Certified Entity and the Department that it is an eligible Applicant
for the Fund under OAR 123-019-0020(1) and shall specify which of the criteria outlined
in 123-019-0020(1) it meets.
(2) The SBDC or Certified
Entity may enroll the Applicant in an appropriate Small Business Management Program.
Each Applicant shall have completed a Small Business Management Program or shall
be enrolled in a Small Business Management Program prior to Department action on
such Applicant's loan request. Each Applicant shall certify to the Department they
are enrolled in or have completed a Small Business Management Program.
(3) Each Applicant must complete
a business plan prior to applying for a loan from the Fund. Such business plan shall
use the standard format set forth in Your Business Plan by Dennis J. Sargent or
other such format as may be acceptable to the SBDC or Certified Entity and the Department.
(4) The business plan must
be reviewed by the Director or counseling staff of the SBDC or Certified Entity
where the Applicant is enrolled in a Small Business Management Program or where
the Applicant is receiving assistance with the preparation of the business plan.
Review of the business plan by the SBDC or Certified Entity does not imply any judgment
by the SBDC or Certified Entity as to the accuracy or validity of the plan.
(5) Upon completion and review
of the business plan as provided in sections (3) and (4) of this rule, the business
plan, together with a credit application on the form provided by the Department,
shall be forwarded to the Department for consideration. The credit application shall
contain a detailed list of the proposed uses of the proceeds of the loan being sought
from the Fund.
(6) The Department may require
such additional information from an Applicant as the Department determines is necessary
for a thorough review and analysis of the application.
(7) Upon completion of its
review the Department shall forward the application to the Director, with a recommendation
for action. The Department may submit the application to the Loan Committee for
its recommendation. The Director may:
(a) Approve the application;
or
(b) Deny the application;
or
(c) Return the application
to the Applicant for further information.
(8) If a loan request is
approved, the Department shall prepare such documents as are necessary to close
the loan transaction. Such documents shall reflect all terms and conditions upon
which the Director may have conditioned his or her approval of the loan.
(9) A Borrower may apply
for and the Director may approve subsequent loans from the Fund. No borrower may
receive more than an aggregate amount of $100,000 in loan proceeds from the Fund.
Applicants for subsequent loans must meet the eligibility requirements outlined
in 123-019-0020.
(10) The Department may notify
the SBDC or Certified Entity if any Borrower with which the SBDC or Certified Entity
has worked becomes delinquent in its payment or otherwise acts in such a manner
as to jeopardize the repayment of the loan.
[Publications: Publications referenced
are available from the agency.]
Stat. Auth.: ORS 285A.075
Stats. Implemented: ORS 285B.240
-285B.758, Ch. 688, OL 1991, Ch. 765, OL 1993
Hist.: EDD 16-1991(Temp),
f. & cert. ef. 11-8-91; EDD 12-1992, f. & cert. ef. 8-26-92; EDD 7-1993(Temp),
f. & cert. ef. 9-17-93; EDD 3-1994, f. 2-4-94, cert. ef. 2-7-94; EDD 8-1995,
f. & cert. ef. 10-26-95; EDD 11-1997(Temp), f. & cert. ef. 10-7-97; EDD
10-1998, f. & cert. ef. 5-22-98; OBDD 10-2010(Temp), f. & cert. ef. 4-12-10
thru 10-9-10; OBDD 34-2010, f. & cert. ef. 10-1-10; OBDD 35-2010, f. 10-14-10,
cert. ef. 10-15-10; OBDD 12-2014, f. 6-30-14, cert. ef. 7-1-14
123-019-0040
Loan Conditions
The Director may approve a loan request
if the Director finds that:
(1) The Applicant and the
project are eligible for a loan from the Fund according to the criteria set forth
in OAR 123-019-0020 and 123-019-0030.
(2) The Applicant has available,
and has irrevocably committed to the project, Equity funds in the form of cash or
property in an amount equal to or greater than 20 percent of the amount of the loan
from the Fund.
(3) The proposed project
is feasible and a reasonable risk from practical and economic standpoints, and the
loan has a reasonable prospect of repayment from cash flow and collateral.
(4) The Applicant will provide
good and sufficient collateral for the loan. The collateral coverage ratio for the
loan should be at least 1:1 ratio applying the following advance rates:
(a) Real property will generally
be valued for collateral purposes at 80 percent of the tax assessed value or 90
percent of appraised value;
(b) New construction will
generally be valued for collateral purposes at no more than 90 percent of cost;
(c) Existing machinery will
generally be valued for collateral purposes at 70 percent of depreciated book value;
(d) Newly acquired machinery
will generally be valued for collateral purposes at 60 percent of acquisition cost
for new equipment and 75% of acquisition cost for used equipment.
(5) The Department may, in
its sole discretion, assign a value of more or less than the above percentages.
Applicants should be aware that the collateral value of out-of-state real property
will be significantly discounted from nominal assessed or appraised value.
(6) Monies in the Fund are
or will be available for the proposed project.
(7) The Applicant's financial
resources and management capability appear adequate to assure success of the project.
(8) The amount borrowed from
the Fund by any borrower at any one time does not exceed $75,000 and the total amount
borrowed does not exceed $100,000.
(9) The Director may, in
his or her sole discretion, permit the assumption of an outstanding EDLF loan, if
the assuming obligor satisfies the Director as to its willingness and ability to
service the loan, and if the State's collateral position is not diminished. The
Director may require the obligor to meet all eligibility requirements set out in
OAR 123-019-0020 and 123-019-0030. EDLF loans are not necessarily or automatically
assumable.
(10) The Applicant agrees
to abide by all laws and regulations applicable to the Applicant's project and will
receive all applicable federal, state and local permits and licenses before the
disbursement of any proceeds from the Fund.
Stat. Auth.: ORS 285A.075
Stats. Implemented: ORS 285B.740
- 285B.758
Hist.: EDD 16-1991(Temp),
f. & cert. ef. 11-8-91; EDD 12-1992, f. & cert. ef. 8-26-92; EDD 11-1997(Temp),
f. & cert. ef. 10-7-97; EDD 10-1998, f. & cert. ef. 5-22-98; EDD 5-2007(Temp),
f & cert. ef. 8-28-07 thru 2-22-08; EDD 4-2008(Temp), f. & cert. ef. 2-26-08
thru 8-1-08; EDD 23-2008, f. 7-31-08, cert. ef. 8-1-08; OBDD 10-2010(Temp), f. &
cert. ef. 4-12-10 thru 10-9-10; OBDD 34-2010, f. & cert. ef. 10-1-10; OBDD 35-2010,
f. 10-14-10, cert. ef. 10-15-10; OBDD 12-2014, f. 6-30-14, cert. ef. 7-1-14
123-019-0050
Loan Agreement
If the Director approves the loan, the
Director, on behalf of the state, and the borrower may enter into a loan contract
of not more than $75,000, secured by Collateral, which shall set forth, among other
matters:
(1) A plan for repayment
by the Borrower to the Fund of monies borrowed from the Fund used for the Project
with interest charged on those monies at a fixed rate of at least two percentage
points (2%) more than the prevailing bank prime interest rate. For the purposes
of this section, the prevailing bank prime interest rate shall be the rate set forth
in the most recent Federal Reserve Statistical Release H.15(519) which the Department
has received at the time the loan is approved. Notwithstanding the foregoing, the
interest shall not exceed 18 percent per annum. The repayment plan, among other
matters:
(a) Shall provide for commencement
of repayment by the Applicant of monies used for the Project and interest thereon
no later than six months after the date of the loan contract or at such other time
as the Director may provide;
(b) May provide for reasonable
extension of the time for making any repayment, not to exceed six months, in emergency
or hardship circumstances if approved by the Director.
(c) Shall provide for such
evidence of debt, assurance of and security for, repayment of the loan as is considered
necessary by the Director;
(d) Shall set forth a schedule
of payments and the period of the loan which shall not exceed the usable life of
the assets financed or ten years from the date of the contract, whichever is less.
The payment schedule shall include payment of interest which accrues during any
period of delay in repayment authorized by subsection (b) of this section, and the
payment schedule may require payments of varying amounts for collection of accrued
interest;
(e) Shall set forth a procedure
for formal declaration of delinquency or default of payment by the Department. Loans
shall be declared delinquent when any payment is more than ten days late. Borrower
shall be notified in writing of declaration of delinquency, and shall have 31 days
from the original payment date to bring the loan current. If the loan is not brought
current, or arrangements satisfactory to the Department for bringing the loan current
have not been made, the Department may declare the loan in default, may declare
the entire outstanding indebtedness to be forthwith due and payable and may assign
the loan to the Attorney General for collection. The Department shall inform the
borrower of each default and action taken in connection therewith. The Director
may in his or her sole discretion waive or delay such assignment.
(2) Provisions satisfactory
to the Department for field engineering and inspection, the Department to be the
final judge of completion of the Project;
(3) That the liability of
the state under the contract is contingent upon the availability of monies in the
Fund for use in the Project;
(4) Such further provisions
as the Director considers necessary to insure expenditure of the funds for the purposes
set forth in the approved application;
(5) That the Department may
institute appropriate action or suit to prevent use of the facilities of a Project
financed by the Fund if the Borrower is delinquent in the repayment of any monies
due the Fund;
(6) That the Borrower is
responsible for payment of:
(a) All of the expenses of
the operation and maintenance of the Project, including adequate insurance;
(b) All taxes and special
assessments levied with respect to the business or the Project;
(c) Insurance premiums and
providing insurance in amount and coverage acceptable to the Department. Such insurance
shall include but shall not be limited to: Fire and hazard insurance, liability
insurance, and flood insurance if applicable at the sole discretion of the Department;
and
(d) All out-of-pocket costs
associated with the loan closing including but not limited to filing recording fees,
title insurance and appraisals.
(7) That the Borrower will
provide to the Department on an annual basis, within 120 days of the end of each
fiscal year, financial statements prepared in accordance with generally accepted
accounting principles. In addition, copies of federal tax returns may be required
to be submitted annually. The Department may require additional financial information
or more frequent financial statements;
(8) In the case of a loan
made to an association, corporation or partnership, each partner and each owner
of 20 percent or more of the corporation or association will provide a personal
guaranty for the payment of all interest and repayment of principal amount of the
loan unless the Director in his or her sole discretion, expressly waives such requirement;
(9) The Department may, in
its sole discretion, disburse the proceeds of an approved loan in such amounts and
at such times as the Department feels necessary to ensure that loan proceeds are
used for the stated purposes and to preserve the integrity of the Fund. If the Department
in its sole discretion determines that the financial condition of the Borrower has
deteriorated since the eligibility and application process was commenced, the Department
shall be under no obligation to disburse any loan funds.
[Publications: Publications referenced
are available from the agency.]
Stat. Auth.: ORS285A.075,
285B.740 - 285B.758
Stats. Implemented: ORS 285B.740
- 285B.758
Hist.: EDD 16-1991(Temp),
f. & cert. ef. 11-8-91; EDD 12-1992, f. & cert. ef. 8-26-92; EDD 11-1997(Temp),
f. & cert. ef. 10-7-97; EDD 10-1998, f. & cert. ef. 5-22-98; OBDD 10-2010(Temp),
f. & cert. ef. 4-12-10 thru 10-9-10; OBDD 34-2010, f. & cert. ef. 10-1-10;
OBDD 35-2010, f. 10-14-10, cert. ef. 10-15-10; OBDD 12-2014, f. 6-30-14, cert. ef.
7-1-14
123-019-0060
Appeals, Monitoring, Amendments
and Modifications
(1) If the Director denies a loan request,
the Department shall inform the Applicant in writing of the reasons for such denial.
(2) A denied Applicant has
the right to appeal in writing the Director's denial, whereupon the Department shall
schedule an appeal hearing in front of the Director, the Director's designee or
the Loan Committee, as the Department may decide. The Applicant may appear in person
at the appeal hearing, and may introduce whatever books, documents and data it regards
as necessary to support the appeal.
(3) An Applicant whose appeal
has been denied must submit a new credit application to be eligible for consideration
of a new loan request. This requirement may be waived by the Director, in his or
her sole discretion.
(4) All loans shall be monitored
by, and all loan repayments shall be made to, the Department or its assignee.
(5) It is the responsibility
of the borrower to ensure that its payment arrives in the Department by the due
date.
(6) Any request for modification
or amendment to any loan condition shall be made in writing to the Department and
approved by the Director. The Director may refer a request for modification or amendment
to the Loan Committee for recommendation.
(7) If the Director consents
to any requested modification or amendment, the borrower shall be responsible for
all costs of modifying or amending any loan documents, filings, recordings or financing
statements.
Stat. Auth.: ORS 285A.075, 285B.740
- 285B.758
Stats. Implemented: ORS 285A.075,
285B.740 - 285B.758, Ch. 765, OL 1993
Hist.: EDD 16-1991(Temp),
f. & cert. ef. 11-8-91; EDD 12-1992, f. & cert. ef. 8-26-92; OBDD 10-2010(Temp),
f. & cert. ef. 4-12-10 thru 10-9-10; OBDD 34-2010, f. & cert. ef. 10-1-10;
OBDD 12-2014, f. 6-30-14, cert. ef. 7-1-14
123-019-0070
Confidential Records
(1) Upon written request and within a reasonable time, the Director or his designee shall provide nonexempt loan program records for inspection in accordance with ORS Chapter 192.
(2) The person requesting inspection of the records may be charged in advance the Department's cost for locating, compiling, copying, and mailing the records. Such costs shall include but not be limited to costs incurred in locating records, separating exempt and nonexempt records, having a custodian present during the inspection, preparing lists of data, making photocopies, and telefaxing materials. Fees to be collected shall be set forth in the Department's schedule of fees and may be amended from time to time as the Department in its sole discretion may determine.
(3) Except as otherwise provided in ORS Chapter 192, records exempt from disclosure include but are not limited to:
(a) Reports and analyses of reports obtained in confidence from creditors, employers, customers, suppliers, and others which bear on the Applicant's character, finances, management ability, and reliability and which were obtained from persons or firms not required by law to submit them;
(b) Financial statements, tax returns, business records, employment history and other personal data submitted by or for Applicants, or analysis of such data;
(c) Interdepartmental advisory memoranda prior to a loan decision;
(d) Formulas, plans, designs and related information which constitute trade secrets under ORS Chapter 192;
(e) Personal financial statements;
(f) Financial statements of Applicants;
(g) Customer lists;
(h) Information of an Applicant pertaining to litigation to which the Applicant is a party if the complaint has been filed, or if the complaint has not been filed, if the Applicant shows that such litigation is reasonably likely to occur. This exemption does not apply to litigation which has been concluded and nothing in this section shall limit any right or opportunity granted by discovery or deposition statutes to a party to litigation or potential litigation;
(i) Production, sales or cost data; and
(j) Marketing strategy information that relates to an Applicant's plan to address specific markets and Applicant's strategy regarding specific competitors.
Stat. Auth.: ORS.192.410-192.505, ORS 285A.075

Stats. Implemented: ORS.192.410 -192.505, 285A.075, Ch.765, OL 1993

Hist.: EDD 16-1991(Temp), f. & cert. ef. 11-8-91; EDD 12-1992, f. & cert. ef. 8-26-92; OBDD 10-2010(Temp), f. & cert. ef. 4-12-10 thru 10-9-10; OBDD 10-2010(Temp), f. & cert. ef. 4-12-10 thru 10-9-10; OBDD 34-2010, f. & cert. ef. 10-1-10
123-019-0080
Restrictions
(1) If the loan will result in the construction, expansion, rehabilitation or remodeling of a facility to which the public has access, access for handicapped persons must be provided in accordance with ORS 447.210 to 447.280. This provision applies only to firms which deal directly with the general public in the normal and usual course of their business, and to facilities in which business is customarily transacted by and with members of the general public.
(2) Borrowers receiving assistance from the EDLF are required to make a good faith effort to hire low income people who are trained by publicly-funded job training providers. Borrowers may also be required to enter into a First Source Hiring Agreement as defined in OAR 123-070-0300 through 123-070-0370.
Stat. Auth.: ORS.285A.075, 447.210-447.280

Stats. Implemented: ORS 285A.075, 447.210 - 447.280, Ch.765, OL 1993

Hist.: EDD 16-1991(Temp), f. & cert. ef. 11-8-91; EDD 12-1992, f. & cert. ef. 8-26-92; OBDD 10-2010(Temp), f. & cert. ef. 4-12-10 thru 10-9-10; OBDD 34-2010, f. & cert. ef. 10-1-10
123-019-0090
Payment of Monies for Project
(1) The Director shall be the sole judge of the suitability and eligibility of a Project for financing from the Fund, and approval of such financing shall be in the sole discretion of the Director.
(2) If the Director approves a loan for a Project, the Department shall pay monies for the Project from the Fund, in accordance with the terms of the loan contract as prescribed by the Director.
(3) If the Director determines that a loan should be made, the Director shall also determine the amount of the loan and authorize the disbursement of the funds. The Director may authorize the Department to disburse the funds and execute such documents as may be necessary to conclude the transaction.
Stat. Auth.: ORS.285A.075

Stats. Implemented: ORS 285A.075, .285B.740 - 285B.758, Ch. 765, OL 1993

Hist.: EDD 16-1991(Temp), f. & cert. ef. 11-8-91; EDD 12-1992, f. & cert. ef. 8-26-92; OBDD 10-2010(Temp), f. & cert. ef. 4-12-10 thru 10-9-10; OBDD 34-2010, f. & cert. ef. 10-1-10
123-019-0100
Certification of Entities for Business Plan Review
(1) In addition to SBDCs, the Director
may certify an entity for the review of business plans and for providing a Small
Business Management Program if the Director finds in his or her sole discretion
that the entity possesses:
(a) Sufficient experience
in providing financial counseling to businesses;
(b) Sufficient experience
in providing a Small Business Management Program; and
(c) Sufficient experience
in reviewing business plans.
(2) The Director may establish
time periods for certification and review in his or her sole discretion.
(3) The SBDCs and certified
entities will continue to provide small business management services and counseling
to the Applicant after the loan has been provided to the Applicant.
Stat. Auth.: ORS 285A.075, 285B.740
-.285B.758
Stats. Implemented: ORS.285B.740
- 285B.758, Ch. 688, OL 1991 & Ch. 765, OL 1993
Hist.: EDD 8-1995, f. &
cert. ef. 10-26-95; OBDD 10-2010(Temp), f. & cert. ef. 4-12-10 thru 10-9-10;
OBDD 34-2010, f. & cert. ef. 10-1-10; OBDD 35-2010, f. 10-14-10, cert. ef. 10-15-10;
OBDD 12-2014, f. 6-30-14, cert. ef. 7-1-14

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