PPPLF Letter of Agreement (Jan. 30, 2023) — OTO Analytics v. Benworth (N.D. Cal. No. 3:24-cv-03975, 2024-07-10, 2)

Record facts

U.S. District Court for the District of Puerto Rico · No. 3:23-cv-01034-GMM · Doc. 127-3 · 2024-07-10 · Docket on CourtListener

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PAYCHECK PROTECTION PROGRAM LIQUIDITY FACILITY 
LETTER OF AGREEMENT 
Date: January 30th, 2023 
Discount Window Officer 
Federal Reserve Bank 
(Non-Depository Institutions) 
(As Amended January 14, 2021) 
Subject: Paycheck Protection Program Liquidity Facility 
Dear Discount Window Officer: 
In consideration of our being able to request Advances from a Federal Reserve Bank designated 
by the Board of Governors of the Federal Reserve System ("Board") (the "Reserve Bank"), as set 
forth in this letter as amended and supplemented from time to time by the Reserve Bank ("PPPLF 
Letter of Agreement"), and to incur Indebtedness to the Reserve Bank pursuant to the Paycheck 
Protection Program Liquidity Facility (the "PPPLF" or the "Facility") authorized by the Board on 
April 8, 2020, as such authorization may be amended from time to time, under section 13(3) of the 
Federal Reserve Act, we (the "Borrower" or "us") agree to the provisions of the Reserve Bank's 
Operating Circular No. 10, effective July 16, 2013, as may be amended from time to time (the 
"Circular"), and to the terms and conditions of this PPPLF Letter of Agreement which together 
apply to all Advances made under the PPPLF (the Circular and this PPPLF Letter of Agreement, 
together, the "PPPLF Agreement"). To the extent any provision of the Circular is inconsistent 
with the terms of this PPPLF Letter of Agreement, the terms of this PPPLF Letter of Agreement 
shall govern with respect to all Advances made under the PPPLF. All capitalized terms used in 
this PPPLF Letter of Agreement but not defined herein shall have the meaning specified in the 
Circular. This PPPLF Letter of Agreement must be executed and delivered by us in order to obtain 
any Advance extended to us hereunder after January 14, 2021. 
Security for Advances: Under the PPPLF, Advances must be secured by pledges of loans to 
small businesses under the U.S. Small Business Administration's ("SBA") 7(a) loan program titled 
the Paycheck Protection Program ("PPP"), which was added to the SBA's 7(a) loan program by 
section 1102 of the Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act"), as 
amended by the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act and as 
may be amended from time to time ("PPP Loans"). To qualify for the PPPLF, PPP Loans must 
(1) be fully guaranteed as to principal and interest by the SBA, and have been either (2) originated 
by us, or (3) purchased by us in accordance with the SBA' s requirements for the sale and purchase 
of whole PPP Loans (in either case, such that we are the beneficiary of the SBA's guarantee of 
such PPP Loans). As a condition to obtaining an Advance, we agree to provide any documentation 
that the Reserve Bank requires evidencing that we are the beneficiary of the SBA's guarantee of 
PPP Loans pledged to the PPPLF. By pledging PPP Loans as collateral for Advances under the 
Case 3:23-cv-01034-GMM     Document 127-3     Filed 07/10/24     Page 1 of 10

Facility ( collectively, "PPPLF Collateral," or any PPP Loan individually, an "Item") the Borrower 
warrants, represents and covenants that each such Item pledged as collateral for Advances under 
the Facility: 
(a) 
Is a "covered loan" for purposes of 15 U.S.C. § 636(a)(36) or (37); 
(b) 
Complies with all requirements of the PPP, including without limitation any rules or 
guidance issued by the SBA implementing the PPP, and any requirements set forth in any 
agreement the Borrower is required to execute by the SBA in connection with the PPP; 
( c) 
Has been duly approved under delegated authority for guaranty by the SBA; 
( d) 
Satisfies applicable Collateral requirements in the Circular; and 
(e) 
Was either (1) originated by us or (2) purchased by us in accordance with the SBA's 
requirements for the sale and purchase of whole PPP Loans (in either case, such that we are 
the beneficiary of the SBA's guarantee of such PPP Loans). 
In addition, the Borrower understands and agrees that PPPLF Collateral and each Item is 
"Collateral" within the meaning of the Circular and that all representations, warranties and other 
agreements with respect to the Collateral in the Circular apply to the PPPLF Collateral and to each 
Item. 
Structure of Advances: The Borrower shall comply with the directions of the Reserve Bank with 
respect to the manner and form of submission of requests for Advances under the PPPLF and the 
pledge of PPPLF Collateral. The Reserve Bank may combine PPPLF Collateral into pools of PPP 
Loans having the same maturity date for purposes of making Advances on the pooled 
PPPLF Collateral, and shall have the right (but not the obligation) to combine multiple Advances 
into one Advance, or to separate, divide, or process on a lag any Advance as the Reserve Bank 
may determine in its sole discretion to be advisable or convenient for administration. 
Collateral Valuation: PPPLF Collateral valuation for each Item shall equal the principal amount 
of the PPP Loan outstanding at the time the PPP Loan is pledged as PPPLF Collateral. 
Amount of Advance: Each Advance shall be in a principal amount equal to the aggregate 
principal amount of PPP Loans pledged by the Borrower to secure that Advance. The amount of 
any Advance made pursuant to the PPPLF outstanding at any one time shall not exceed the 
outstanding amount of PPP Loans pledged by the Borrower to secure that Advance. 
Interest Rate: The interest rate applicable to any Advance made under the PPPLF shall be 
thirty-five (35) basis points. 
Advance Maturity: The maturity date of an Advance under the PPPLF (the "Maturity Date") will 
be the maturity date of the PPPLF Collateral pledged to secure the Advance. The Maturity Date 
of an Advance will be accelerated on and to the extent of (i) the date of any 7(a) loan forgiveness 
Paycheck Protection Program Liquidity Facility Letter of Agreement 
(Non-Depository Institutions-As amended January 14, 2021) 
Page 2 of 10 
Case 3:23-cv-01034-GMM     Document 127-3     Filed 07/10/24     Page 2 of 10

reimbursement by the SBA for any PPPLF Collateral; or (ii) the date of purchase by the SBA from 
the Borrower of any PPPLF Collateral to realize on the SBA's guarantee of such PPPLF Collateral. 
The Maturity Date of all Advances made pursuant to the PPPLF to a Borrower shall be accelerated 
upon the occurrence of an Event of Default by the Borrower, including but not limited to the failure 
to comply with a requirement of the PPPLF Agreement or any representation, warranty, or 
covenant of the Borrower under the PPPLF Agreement is inaccurate on or as of the date it is 
deemed to be made or on any date on which an Advance remains outstanding. 
Consent to Sharing Information with SBA and Other Entities: The Borrower agrees that the 
Reserve Bank may provide any and all information relating to any Advance to the SBA and the 
Board and, if applicable, one or more entities determined by the Reserve Bank to have a current 
or potential legal or financial interest in such information, and hereby consents to the providing of 
such information to such entities by the Reserve Bank. 
Assignment to Reserve Bank of Amounts Payable to Borrower: 
(a) 
The Borrower agrees that any payments or other amounts received by the Borrower or any 
other person (including without limitation prepayments by borrowers under PPP Loans) 
arising from or in connection with PPPLF Collateral are the property of the Reserve Bank, 
and that the Borrower shall immediately pay any such amounts to the Reserve Bank, in full 
and in actually and finally collected funds, without any demand therefor or other action by 
the Reserve Bank. 
(b) 
The Borrower agrees that the Reserve Bank under this PPPLF Letter of Agreement is a 
pledgee of a first-priority security interest in and to any PPP Loan pledged as PPPLF 
Collateral and that the Reserve Bank is not a registered holder, or acting as a registered 
holder, of any PPP Loan pledged as PPPLF Collateral. 
( c) 
The Borrower agrees that any payment received by the Borrower or any other person from 
the SBA in connection with any such loan forgiveness reimbursement or any such loan 
guarantee amounts arising from or in connection with PPPLF Collateral is the property of 
the Reserve Bank, and that the Borrower shall immediately pay any such amounts to the 
Reserve Bank, in full and in actually and finally collected funds, without any demand therefor 
or other action by the Reserve Bank. 
( d) 
The Borrower agrees that, at any time if so instructed by the Reserve Bank, the Borrower 
will irrevocably assign to the Reserve Bank any and all amounts to which the Borrower is or 
may become entitled related to PPPLF Collateral, including but not limited to any and all 
amounts paid or payable to the Borrower from the SBA for (i) PPP Loan forgiveness 
reimbursement on any PPP Loan pledged as PPPLF Collateral, or (ii) satisfaction by the SBA 
of the SBA's guarantee of any PPP Loan pledged as PPPLF Collateral. 
( e) 
The Borrower agrees that, upon receiving an instruction from the Reserve Bank under 
paragraph ( d), it shall provide to the SBA, in such form and manner as the SBA may require, 
Paycheck Protection Program Liquidity Facility Letter of Agreement 
(Non-Depository Institutions-As amended January 14, 2021) 
Page 3 of 10 
Case 3:23-cv-01034-GMM     Document 127-3     Filed 07/10/24     Page 3 of 10

wire transfer instructions sufficient to enable the SBA to make payment directly to the 
Reserve Bank of loan forgiveness reimbursement and loan guarantee amounts as described 
above, and shall consult with the Reserve Bank regarding obtaining accurate wire transfer 
instructions to provide to the SBA as provided herein. 
Prepayment: Advances made under the PPPLF may be prepaid in full or in part, without penalty. 
The Borrower shall prepay an Advance made pursuant to the PPPLF (i) on the date and to the 
extent of the payment by the SBA for the amount of covered 7(a) loan forgiveness for any 
PPP Loan ( or, in the case of a pool of PPP Loans, a PPP Loan in such loan pool) that is pledged to 
secure an Advance; (ii) on the date of purchase by the SBA from the Borrower of a PPP Loan ( or, 
in the case of a pool of PPP Loans, a PPP Loan in such loan pool) that is pledged to secure such 
Advance to realize on the SBA's guarantee of that PPP Loan; or (iii) on the date and to the extent 
a borrower under a PPP Loan (or, in the case of a pool of PPP Loans, a PPP Loan in such pool) 
repays or prepays such PPP Loan, in each case, so that the amount of any Advance outstanding 
does not exceed the outstanding amount of PPP Loans pledged to secure such Advance. 
Prepayments of any Advance shall be accompanied by accrued and unpaid interest thereon. 
Notwithstanding anything to the contrary elsewhere in this PPPLF Agreement, interest on a 
prepayment of any Advance under this paragraph will accrue daily until the date that such 
prepayment is made to the Reserve Bank. 
Waiver of Right to Repayment on Demand: The Reserve Bank waives its right to require 
repayment on demand under Section 5.l(a) of the Circular with respect to any Advance made 
under the PPPLF, provided that the Reserve Bank shall retain all other rights and remedies under 
the Circular, including but not limited to remedies upon the occurrence of an Event of Default 
except as provided elsewhere in this PPPLF Letter of Agreement. 
Repayment on Maturity Date: 
On the Maturity Date, with respect to each Advance, the 
Borrower shall repay such Advance in an aggregate amount equal to the Advance plus accrued 
interest, which shall be debited from the Borrower's Account as provided below. 
Non-Recourse Basis: In the event that the Borrower fails to pay an Advance on the Maturity Date 
thereof, the Reserve Bank first shall seek repayment from realization upon the PPPLF Collateral, 
including any proceeds of payments by the SBA in connection with loan forgiveness or loan 
guarantees with respect to such PPPLF Collateral. Thereafter, the Reserve Bank may pursue any 
remedies it may have to recover the remaining outstanding amount of an Advance. 
Notwithstanding any provisions of the PPPLF Agreement to the contrary, all Advances made to 
the Borrower pursuant to the PPPLF shall become a recourse obligation if, in the sole discretion 
of the Reserve Bank, the Borrower (i) has breached any of the representations, warranties, or 
covenants made under the PPPLF Agreement or (ii) has engaged in any fraud or misrepresentation 
in connection with any Advance or any request to obtain an Advance under the PPPLF. 
Accrual of Interest, Debits by Reserve Bank: Interest on each Advance shall accrue daily 
against the Borrower's outstanding obligations and shall be debited from the account of the 
Borroweris depository institution as identified in the section captioned "Borrower's Depository 
Institution" below. 
Paycheck Protection Program Liquidity Facility Letter of Agreement 
(Non-Depository Institutions -As amended January 14, 2021) 
Page 4 of 10 
Case 3:23-cv-01034-GMM     Document 127-3     Filed 07/10/24     Page 4 of 10

PPPLF Termination: No Advance made pursuant to the PPPLF may be made after March 31, 
2021, unless authorized by the Board. 
Additional Financial and Operational Information: Borrower hereby agrees that upon request, 
Borrower will furnish the Reserve Bank with such financial and operating data and other 
information, and to promptly provide notice of any material change, with respect to Borrower's 
organizational structure, overall financial position, creditworthiness, the PPPLF Collateral, or 
Borrower's SBA 7(a) program lending practices, procedures, and compliance. 
Terms and Conditions: 
Advances under the PPPLF shall be subject to such procedures, 
requirements, and terms and conditions of the PPPLF as may be published and supplemented by 
the Board or by the Reserve Bank, in either case at its sole discretion, including conditions 
regarding safekeeping of PPPLF Collateral, provided that any terms and conditions published or 
supplemented after the date of an outstanding Advance shall not apply to such Advance. Any 
update, amendment, restatement, supplement or other modification of the procedures and 
requirements and terms and conditions of the PPPLF Agreement (including the terms and 
conditions of this PPPLF Letter of Agreement as amended and supplemented from time to time) 
published by the Reserve Bank (including on the Reserve Bank's or the Board's website) shall 
constitute notification to the Borrower for purposes of Section 15.0 and Section 16.0 of the 
Circular. 
Counterparts. Delivery of an executed counterpart of a signature page of this PPPLF Letter of 
Agreement by telecopy, e-mailed .pdf, or any other electronic means that reproduces an image of 
the actual executed signature page shall be effective as delivery of a manually executed counterpart 
of this the PPPLF Letter of Agreement. The words "execution," "signed," "signature," "delivery," 
and words of like import in or relating to any document to be signed in connection with this PPPLF 
Letter of Agreement and the transactions contemplated hereby shall be deemed to include 
electronic signatures, deliveries or the keeping of records in electronic form, in each case, in a 
form acceptable to the Reserve Bank at its sole discretion, each of which shall be of the same legal 
effect, validity or enforceability as a manually executed signature, physical delivery thereof or the 
use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for 
in any applicable law, including the Federal Electronic Signatures in Global and National 
Commerce Act, or any other similar state laws based on the Uniform Electronic Transactions Act. 
Failure of Borrower to Meet PPP Requirements or PPPLF Requirements: Failure by the 
Borrower to meet any of the requirements of the PPPLF Agreement (including if any PPPLF 
Collateral fails to satisfy the requirements of the PPP including but not limited to any requirements 
of the SBA for the sale and purchase of whole PPP Loans, if applicable) may, at the sole discretion 
of the Reserve Bank, void the non-recourse provisions and any related provisions, i.e., the Reserve 
Bank's rights shall be full recourse with respect to that portion of any Advance equal to the amount 
of the PPPLF Collateral Valuation ( on the date of the Advance) of any non-conforming PPPLF 
Collateral, and may, at the sole discretion of the Reserve Bank, result in the Borrower's 
disqualification from participating in the PPPLF. For the avoidance of doubt, the Reserve Bank's 
exercise of any of the foregoing rights and discretion will not be deemed exclusive of any other 
Paycheck Protection Program Liquidity Facility Letter of Agreement 
(Non-Depository Institutions -As amended January 14, 2021) 
Page 5 of 10 
Case 3:23-cv-01034-GMM     Document 127-3     Filed 07/10/24     Page 5 of 10

rights or remedies to which the Reserve Bank may be entitled under the PPPLF Agreement or any 
other Lending Agreement or applicable law. The Reserve Bank's determination that any PPPLF 
Collateral fails to conform to the requirements of this PPPLF Letter of Agreement or the Circular 
shall be conclusive absent manifest error. 
Borrower's Depository Institution: 
The Borrower hereby agrees to the provisions of the 
Correspondent Credit and Payment Agreement (Exhibit 1 to the Circular's Appendix 5, pages 
46-51 of the Circular) ("Correspondent Agreement"). For purposes of the PPPLF Agreement, 
references to the following terms in the Correspondent Agreement shall have the following 
meanings: references to the "Borrower" shall mean the Borrower hereunder, references to the 
"Bank" shall mean the Reserve Bank, and references to the "Correspondent" shall refer to the 
depository institution having an Account at the Reserve Bank and that is designated by the 
Borrower hereunder ("Borrower's Depository Institution"). In the event of any conflict between 
the terms of the Correspondent Agreement and the PPPLF Agreement, the PPPLF Agreement shall 
control to the extent of any conflict. The Borrower designates the following as the Borrower's 
Depository Institution under this PPPLF Letter of Agreement: 
Banesco USA 
(Name of Depository Institution) 
Authorized Individuals: The following individuals are permitted to provide instructions, pledge 
PPPLF Collateral to and request Advances from the Reserve Bank under the PPPLF on behalf of 
the Borrower. 
Name 
Title, Telephone and Email 
Bernardo E. Navarro 
Manager, (305) 502-8511; bnavarro@benworthcapital.com 
Mildred J. Avila 
Controller, (305)332-4400; mavila@benworthcapital.com 
A Borrower must enclose with this PPPLF Letter of Agreement a certified copy of the Authorizing 
Resolutions for Non-Bank Borrowers containing the titles of those persons authorized to request 
Advances from and to pledge PPPLF Collateral under the PPPLF. 
Paycheck Protection Program Liquidity Facility Letter of Agreement 
(Non-Depository Institutions -As amended January 14, 2021) 
Page 6 of 10 
Case 3:23-cv-01034-GMM     Document 127-3     Filed 07/10/24     Page 6 of 10

Bernardo NavatTo: bnavarro@benworthcapital.com 
ppplfcredit@sf.frb.org 
Paycheck Prntection Program Liquidity Facility Letter of Agreement 
(Non-Depository Institutions) 
Page 7 of 10 
Case 3:23-cv-01034-GMM     Document 127-3     Filed 07/10/24     Page 7 of 10

Executed 
• s ~ 
day o --1'-"t===-.,..~-' 2023. 
Be 
com an 
Fu 
-----
By~· t=~~~-tr:--t-t-:-"~==--=---:-----
1 ature(s) of indi idual(s) 
authorized 
to 
sign 
ocuments on behalf o the Bonower as provided in the 
uthorizing Resolutio\ 
Bernardo E. Navan·o 
Name(s) 
President 
Title(s) 
700 Biltrnore Way. Suite Cl, Coral Gables, FL 33134, Miami-Dade 
Address, City, State, County of Bol1'ower. 
(305) 445~5223 
Telephone 
bnavarro@benworthcapi ta!. com 
E-mail 
1 
067015779 
Routing Transit Number (RTN) of Borrower's Deposito1y Institution 
Banesco USA 
Name of Borrower's Depository Institution 
3155 N.W. 77th Avenue, Miami, Florida 33122 
Address, City, State of Bon-ower's Depository Institution 
888-228-1597 
Telephone of Borrower's Depository Institution 
The signatory or signatories should be authorized to sign documents on behalf of the Borrower as provided in the 
Authorizing Resolutions for Borrowers required by the Circular. 
Paycheck Protection Program Liquidity Facility Letter of Agreement 
(Non-Depository Institutions -As amended January 14, 2021) 
Page 8 of 10 
Case 3:23-cv-01034-GMM     Document 127-3     Filed 07/10/24     Page 8 of 10

For Borrower's Depository Institution: 
For the purposes of the PPPLF, we agree to act as the Borrower's Depository Institution for the 
Borrower named above and, as such, to be bound by the provisions relating to a Correspondent in 
the Correspondent Credit and Payment Agreement (the "Correspondent Agreement"), currently an 
ancillary agreement attached to your Circular, as may be amended, and we agree that all references 
to "Correspondent" in the Correspondent Agreement shall refer to us. Pursuant to paragraph 3.1 
of the Correspondent Agreement, we are furnishing below a list of individuals to whom you may 
provide an advice of credit or debit entries made under the Correspondent Agreement for the 
PPPLF. These individuals are also authorized to instruct you not to debit our account or to reverse 
a debit in accordance with Paragraph 5 of the Correspondent Agreement. We may amend this list 
from time to time. 
Banesco USA 
Date: January 30, 2023 
Name(s) of Borrower's Depository Institution 
' 
' Digitally signed by 
Michel Vogel 
Date: 2023.01.30 
By: ___ 
~_1s_:01_,22_-os_·oo_· -------------=---
Authorized signature(s) of Borrower's Depository Institution2 
Michel Vogel 
Name(s) 
SVP Chief Credit Officer 
Title(s) 
786-552-0408 
Telephone 
mvogel@banescousa.com 
E-mail 
Individuals permitted to receive notification of credit or debit entries described in the 
Correspondent Agreement and authorized to instruct us not to debit the Correspondent Account or 
to reverse a debit: [list between 3 and 5 employees] 
2 
Name 
Title, Telephone and Email 
John Kenneth Schoeni 
EVP, Chief Financial & Risk Officer, 786-552-0549, 
kschoeni@banescousa.com 
Leticia Pino 
EVP, Chief Administrative Officer, 786-552-0572, 
lpino@banescousa.com 
Maria Mercedes Escotet 
EVP, Chief Corporate Governance Officer, 786-552-0563, 
mescotet@banescousa.com 
The signatory or signatories should be authorized to sign documents on behalf of the Borrower's Depository 
Institution as provided in the Borrower's Depository Institution's Official Authorization List. 
Paycheck Protection Program Liquidity Facility Letter of Agreement 
(Non-Depository Institutions-As amended January 14, 2021) 
Page 9 of 10 
Case 3:23-cv-01034-GMM     Document 127-3     Filed 07/10/24     Page 9 of 10

• 
• 
• 
• 
Name 
Title, Telephone and Email 
Michel Vogel 
SVP, Chief Credit Officer, 786-552-0408, 
mvogel@banescousa.com 
Instructions to Email this Letter of Agreement to Your Processing Reserve Bank 
Please select your Reserve Bank according to the following contact list 
PPPLF Contact Table for Non-Depository Institutions 
Borrower Entity Type 
Processing Reserve Bank 
Email, Telephone & Mailing Address 
Non-bank Community 
Federal Reserve Bank of 
Email: CLEV .pgplfcredit@.clev.frb.org 
Development Financial Institution 
Cleveland 
Telephone: (888) 719-4636 
(CDFI) - certified by the U.S. 
Department of the Treasury 
Credit Risk Management 
Federal Reserve Bank of Cleveland 
P.O. Box 6387 
Cleveland, OH 44101-1387 
Small Business Lending Company 
Federal Reserve Bank of 
Email: mpls.creclit<iilmpls.frb.org 
(SBLC) - licensed and regulated 
Minneapolis 
Telephone: (877) 837-8815 
by the Small Business 
Administration 
Credit/PSR Section 
Agricultural Credit Association 
Federal Reserve Bank of Minneapolis 
(ACA)-member of the Farm 
P.O. Box 291 
Credit System 
Minneapolis, MN 55480-0291 
All other Non-Depository SBA PPP 
Federal Reserve Bank of San 
Email: ppplforedit@sf.frb.org 
Lenders 
Francisco 
Telephone: (866) 974-7475 
Credit Risk Management 
Federal Reserve Bank of San Francisco 
101 Market Street, MS 830 
San Francisco, CA 94105 
Paycheck Protection Program Liquidity Facility Letter of Agreement 
(Non-Depository Institutions-As amended January 14, 2021) 
Page 10 of 10 
Case 3:23-cv-01034-GMM     Document 127-3     Filed 07/10/24     Page 10 of 10

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