Exhibit 2, Paycheck Protection Program Liquidity Facility Letter of Agreement — No. 1:22-cr-00251-LJL (Dkt. 77-2, S.D.N.Y.)
Summary
Exhibit 2, Document 77-2 filed 07/05/23 in United States v. Martinez, No. 1:22-cr-00251-LJL, in the S.D.N.Y. It is a Paycheck Protection Program Liquidity Facility Letter of Agreement for depository institutions, as amended January 14, 2021, addressed to the Discount Window Officer of the Federal Reserve Bank of [X]. The form states that advances must be secured by pledges of PPP loans fully guaranteed by the SBA, that the interest rate on an advance is thirty-five (35) basis points, and that an advance matures on the maturity date of the pledged collateral. It also covers prepayment, non-recourse repayment, consent to share information with the SBA and a section for correspondents, and its date and signature lines are unfilled.
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“Exhibit 2, Paycheck Protection Program Liquidity Facility Letter of Agreement — No. 1:22-cr-00251-LJL (Dkt. 77-2, S.D.N.Y.).”
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Case 1:22-cr-00251-LJL Document 77-2 Filed 07/05/23 Page 1 of 9
Exhibit 2
Case 1:22-cr-00251-LJL Document 77-2 Filed 07/05/23 Page 2 of 9
PAYCHECK PROTECTION PROGRAM LIQUIDITY FACILITY
LETTER OF AGREEMENT
(Depository Institutions)
(As Amended January 14, 2021)
Date: ______________________________, 2021
Discount Window Officer
Federal Reserve Bank of [X]
Address
City, State, ZIP
Subject: Paycheck Protection Program Liquidity Facility
Dear Discount Window Officer:
In consideration of our being able to request Advances from the Federal Reserve Bank of [X] (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 of Governors of the Federal Reserve System (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 originated or purchased by us 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 to evidence that we are the
beneficiary of the SBA’s guarantee of PPP Loans pledged to the PPPLF. By pledging PPP Loans
Case 1:22-cr-00251-LJL Document 77-2 Filed 07/05/23 Page 3 of 9
as collateral for Advances under the 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
(Depository Institutions – As amended January 14, 2021)
Page 2 of 8
Case 1:22-cr-00251-LJL Document 77-2 Filed 07/05/23 Page 4 of 9
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: 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 Federal Home Loan Banks, 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 the 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,
wire transfer instructions sufficient to enable the SBA to make payment directly to the
Paycheck Protection Program Liquidity Facility Letter of Agreement
(Depository Institutions – As amended January 14, 2021)
Page 3 of 8
Case 1:22-cr-00251-LJL Document 77-2 Filed 07/05/23 Page 5 of 9
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 5.1(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 Account and shall be debited from the Borrower’s Account on the Maturity
Date.
PPPLF Termination: No Advance made pursuant to the PPPLF may be made after March 31,
2021, unless authorized by the Board.
Paycheck Protection Program Liquidity Facility Letter of Agreement
(Depository Institutions – As amended January 14, 2021)
Page 4 of 8
Case 1:22-cr-00251-LJL Document 77-2 Filed 07/05/23 Page 6 of 9
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
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.
Correspondent Credit and Payment Agreement: If the Borrower does not have an Account
with any Federal Reserve Bank, the Borrower hereby agrees to the provisions of the Correspondent
Credit and Payment Agreement, currently an ancillary agreement appended to the Circular (Exhibit
Paycheck Protection Program Liquidity Facility Letter of Agreement
(Depository Institutions – As amended January 14, 2021)
Page 5 of 8
Case 1:22-cr-00251-LJL Document 77-2 Filed 07/05/23 Page 7 of 9
1 to the Circular’s Appendix 5), and designates ________________________________________
(Name of Agent/Correspondent) as “Correspondent” under that agreement.
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
A Borrower that has not previously established access to the Discount Window by executing a
standard Letter of Agreement to the Circular must enclose with this PPPLF Letter of Agreement a
certified copy of the Authorizing Resolutions for Borrowers containing the titles of those persons
authorized to request Advances from and to pledge PPPLF Collateral under the PPPLF.
Notices: Any notices required under the PPPLF Agreement shall be directed as follows:
If to the Borrower: If to the Reserve Bank:
List department(s) and address(es) List department(s) and address(es)
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Paycheck Protection Program Liquidity Facility Letter of Agreement
(Depository Institutions – As amended January 14, 2021)
Page 6 of 8
Case 1:22-cr-00251-LJL Document 77-2 Filed 07/05/23 Page 8 of 9
Executed this ___ day of ______, 2021.
_____________________________________________
Full Legal Name of Borrower
By: _________________________________________
Signature(s) of individual(s) authorized to sign documents
on behalf of the Borrower as provided in the Authorizing Resolution 1
______________________________________________
Name(s)
______________________________________________
Title(s)
______________________________________________
Telephone
______________________________________________
E-mail
______________________________________________
Routing Transit Number (RTN) of Borrower
1
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
(Depository Institutions – As amended January 14, 2021)
Page 7 of 8
Case 1:22-cr-00251-LJL Document 77-2 Filed 07/05/23 Page 9 of 9
For Correspondents for Borrowers who do not have an Account with a Federal Reserve Bank:
For the purposes of the PPPLF, we agree to act as Agent/Correspondent 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. 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.
______________________________________________ _______________________, 2021
Name(s) of Agent/Correspondent Date
By: ___________________________________________
Authorized signature(s) of Agent/Correspondent
______________________________________________
Name(s)
______________________________________________
Title(s)
_____________________________________________
Telephone
_____________________________________________
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]
Name Title, Telephone and Email
Paycheck Protection Program Liquidity Facility Letter of Agreement
(Depository Institutions – As amended January 14, 2021)
Page 8 of 8
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