The Small Business Administration (“SBA”) has released SOP 50 10 5(I), which will take effect on January 1, 2017. One of the biggest changes in the new SOP relates to the SBA’s franchise procedures, which were modified to incorporate regulatory changes that were put in place on July 27, 2016. 13 CFR §121.301(f)(5) was revised to read as follows:
“Affiliation based on franchise and license agreements. The restraints imposed on a franchisee or licensee by its franchise or license agreement generally will not be considered in determining whether the franchisor or licensor is affiliated with an applicant franchisee or licensee provided the applicant franchisee or licensee has the right to profit from its efforts and bears the risk of loss commensurate with ownership. SBA will only consider the franchise or license agreements of the applicant concern.”
So what does that mean for lenders who are extending SBA loans to franchisees (as such term is defined by the Federal Trade Commission in 16 CFR §436 and set forth on page 81 of the new SOP)?
The new SOP specifically states that (i) failure to identify the franchise in SBA One and/or E-Tran and (ii) obtain the SBA Addendum may result in denial of a lender’s guaranty – so it is imperative for lenders to comply with the new franchise procedures for loans approved on or after January 1, 2017.
See SOP 50 10 5(I) for a full list of the changes to the SBA’s franchise procedures and stay tuned for further clarification as these changes unfold.
For more information, contact Katie at 267-470-1207 or you can email her at kobrien@starfieldsmith.com.
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