AGREEMENT - Small Business Administration



MULTIPARTY AGREEMENTAMONG[NAMEOF SBA LENDER][NAME OF CREDIT PROVIDER]COLSON SERVICES CORP. ANDUNITED STATES SMALL BUSINESS ADMINISTRATIONThis MultiParty Agreement is entered into as of the __ day of __________, 201_ (this "Agreement" or this "MultiParty Agreement"), by and among [NAME OF SBA LENDER] , a corporation ("SBA Lender"), [NAME OF CREDIT PROVIDER], ("Warehouse Lender"), Colson Services Corp. ("FTA"), and the United States Small Business Administration ("SBA").PRELIMINARY STATEMENTSBA Lender has made and intends to continue to make loans to small businesses under the Small Business Act, as amended.SBA guarantees a portion of each SBA Lender Loan (as defined herein) in accordance with 13 C.F.R. Part 120 and one or more Small Business Administration Loan Guaranty Agreements (SBA Form 750), between SBA and SBA Lender (as amended, supplemented or replaced from time to time, the "SBA Agreements").Because SBA guarantees a portion of each SBA Lender Loan, SBA has an interest in SBA Lender Loans, the collateral securing the SBA Lender Loans, and the Loan Documents (as defined herein).SBA Lender and Warehouse Lender have entered into a Loan Agreement dated as of ____________?___, 201_ (together with any related Security Agreement and other related documents, the "Warehouse Lender Agreement") under which SBA Lender intends to borrow money from Warehouse Lender to make Section 7(a) Loans. SBA Lender has granted to Warehouse Lender a security interest in all of SBA Lender's interest in the SBA Lender Loans (as defined below) financed by Warehouse Lender pursuant to the Loan Agreement, together with an undivided pro rata interest in all collateral securing such SBA Lender Loans and all related Loan Documents.SBA Lender has entered or may enter into certain Secondary Participation Guaranty Agreements on SBA Form 1086 (each, a "Participation Agreement") under which SBA Lender has sold or may sell the guaranteed portion (the "Guaranteed Interest") in the SBA Lender Loans and SBA has caused or will cause FTA to issue a certificate to each Registered Holder (as defined in CFR 13-120.600(i)) which entitles the Registered Holder to receive the payments of principal relating to the Guaranteed Interest on the related SBA Lender Loan, together with interest on the Guaranteed Interest at a per annum rate in effect from time to time in accordance with the Participation Agreement.SBA Rules and Regulations require SBA Lender to obtain SBA's written consent before it grants a security interest in Section 7(a) Loans.SBA Lender, Warehouse Lender, and SBA want to assure consistency between this Agreement, the SBA Agreement and the Warehouse Lender Agreement and clarify the respective rights of the parties.AGREEMENTFor valuable consideration, SBA Lender, Warehouse Lender, FTA and SBA agree as follows:Definitions In this Agreement, the following terms have the following meanings:"Appointed Servicer": a participating lender, satisfactory to SBA in its sole discretion, operating under a current 750 Agreement, which SBA appoints to act as servicer."Event of Default": as defined in the Warehouse Lender Agreement."Guaranteed Interest": the portion of an SBA Lender Loan guaranteed by SBA."Loan Documents": all Notes, mortgages, deeds of trust, security deeds, security agreements, instruments of hypothecation, guarantees and other agreements and documents that relate to the SBA Lender Loans."Notes": the notes evidencing the SBA Lender Loans."Participation Agreement": SBA Form 1086, Secondary Participation Guarantee Agreement."Premium Protection Fee": for any SBA Lender Loan, 0.60% per annum of the outstanding principal balance of the Guaranteed Interest."Pro Rata": according to the ratio of (i) the Guaranteed Interest's percentage of the entire SBA Lender Loan to (ii) the Unguaranteed Interest's percentage of the entire SBA Lender Loan."SBA Lender Loan" means a loan SBA Lender makes under Section 7(a) of the Small Business Act and in which SBA Lender has granted to Warehouse Lender a security interest under the Warehouse Lender Agreement."SBA Lender Loan Debtor": a person or entity, including a guarantor, obligated under an SBA Lender Loan."SBA Rules and Regulations": the Small Business Act, as amended, any other legislation binding on SBA relating to financial transactions, the SBA Agreement, all rules and regulations promulgated from time to time under the Small Business Act, and SBA Standard Operating Procedures and official Notices, all as from time to time in effect."Servicer": either (i) SBA, acting in its capacity as servicer, if it takes over servicing at any time or (ii) if SBA appoints a participating lender to act as servicer, such participating lender. In this Agreement, this term is only used when SBA Lender is no longer acting as servicer."Servicing Fee": for any SBA Lender Loan, a fee equal to 0.40% of the outstanding principal balance of such SBA Lender Loans plus the Premium Protection Fee."Unguaranteed Interest": the portion of an SBA Lender Loan that is not guaranteed by SBA."750 Agreement": a Small Business Administration Loan Guaranty Agreement (SBA Form 750). The term "750 Agreement" is a generic reference to agreements on that form between SBA and a participating lender. The term "SBA Agreement" refers to specific agreements between SBA Lender and SBA."Warehouse Lender Interest": the portion of an SBA Lender Loan financed with loan(s) from Warehouse Lender.Acknowledgment of SBA's Guaranteed Interest. The parties acknowledge SBA's interest in the Guaranteed Interest of all SBA Lender Loans, together with an undivided Pro Rata interest in the collateral securing the SBA Lender Loans, the Loan Documents, and all payments and other recoveries with respect to the SBA Lender Loans from any source, including insurance proceeds. The parties agree to uphold and recognize SBA's interests under SBA Rules and Regulations. SBA Lender and Warehouse Lender will execute any release, assignment, endorsement or other document that SBA may from time to time reasonably request with respect to the Guaranteed Interest.Distributions with Respect to Guaranteed Interest and Unguaranteed InterestSBA acknowledges that it has no interest in any Unguaranteed Interest in any SBA Lender Loan which does not constitute the FTA's fee or other amounts of the Unguaranteed Interest required to be maintained by SBA Lender pursuant to applicable SBA Rules and Regulations.The collateral for each SBA Lender Loan secures the Guaranteed Interest and the Unguaranteed Interest pari passu.All payments on any SBA Lender Loan and all recoveries with respect to the SBA Lender Loans from any source, including recoveries from collateral, insurance and guarantees, will be shared Pro Rata determined in accordance with applicable SBA Rules and Regulations, including SBA Rules and Regulations with respect to the sharing of costs and expenses. All such payments and recoveries will be distributed in accordance with SBA Rules and Regulations, this Agreement and to the extent there is no conflict, the Warehouse Lender Agreement. If SBA receives any amount to which SBA Lender is entitled with respect to the Unguaranteed Interest (or the Guaranteed Interest if still held by SBA Lender), SBA will remit the sum to SBA Lender.Purchases.If SBA purchases from SBA Lender the Guaranteed Interest in any SBA Lender Loan, SBA will remit the purchase price to SBA Lender. SBA will determine the purchase price in accordance with SBA Rules and Regulations and the applicable SBA Agreement.If SBA purchases from SBA Lender the Guaranteed Interest in any SBA Lender Loan, any recoveries from the SBA Lender Loan Debtor, the collateral securing the SBA Lender Loan or any other source will be distributed Pro Rata to SBA as the holder of the Guaranteed Interest, and any balance to SBA Lender as holder of the Unguaranteed Interest.Any party receiving collections on any SBA Lender Loan with respect to which the Guaranteed Interest has been sold pursuant to a Participation Agreement will remit to FTA all payments required to be delivered to FTA under the Participation Agreement prior to making any other distributions.SBA Consent to Warehouse Lender Agreement.SBA consents to SBA Lender's execution and performance of the Warehouse Lender Agreement and the transactions contemplated in it. If (i) the Guaranteed Interest in any SBA Lender Loan has been sold at the time SBA Lender grants a security interest in any portion of such SBA Lender Loan to Warehouse Lender, (ii) SBA Lender grants a security interest in only the Unguaranteed Interest in any SBA Lender Loan to Warehouse Lender or (iii) SBA Lender sells the Guaranteed Interest in any SBA Lender Loan after SBA Lender grants a security interest in such SBA Lender Loan to Warehouse Lender, and such security interest is released due to FTA’s receipt of the purchase price therefor pursuant to Section 9, then Warehouse Lender will have a security interest in the SBA Lender Loan and the Note evidencing the SBA Lender Loan only to the extent of the Unguaranteed Interest.Notwithstanding anything to the contrary contained in the Warehouse Lender Agreement, (i) the collateral for the loans Warehouse Lender makes to SBA Lender will not include SBA Lender's right to make SBA Lender Loans, or SBA Lender's right to demand that SBA purchase the Guaranteed Interest in any SBA Lender Loan or any other rights of SBA Lender under SBA Rules and Regulations, (ii) a default under another agreement by SBA Lender or an entity other than SBA Lender under another agreement may not constitute an Event of Default under the Warehouse Lender Agreement, (iii) the SBA Lender Loans may not secure any obligations other than obligations from SBA Lender to Warehouse Lender under the Warehouse Lender Agreement or amounts due under any note made by SBA Lender to Warehouse Lender under the Warehouse Lender Agreement, (iv) except for Loan Documents held by a Servicer pursuant to Section 11, SBA Lender will retain the originals of all Loan Documents other than the Notes, (v) except for payments made to a Servicer or FTA pursuant to Section 11, all payments made by SBA Lender Loan Debtors will be made directly to SBA Lender, (vi) all assignments to Warehouse Lender of any interest in SBA Lender Loans, any collateral for SBA Lender Loans, any Loan Documents or any other documents or rights relating to SBA Lender Loans will be collateral assignments and not absolute assignments and will indicate that the assignment is for the benefit of SBA and Warehouse Lender as their interests appear under this Agreement; as used in this Section and in Section 10(a), the term "assignment" refers to a document executed and delivered to Warehouse Lender primarily for the purpose of providing Warehouse Lender a document which may be recorded in the applicable public records, rather than a document intended to evidence the grant of a security interest, (vii) Warehouse Lender will have no claim, by means of a security interest or otherwise, to the Servicing Fee, and (viii) if SBA Lender is also an SBA-approved Certified Development Company (“504 CDC”), Warehouse Lender will have no claim, by means of a security interest or otherwise, to any 504 CDC processing, closing, servicing, late and other fees or costs associated with the SBA Lender’s 504 Loan Portfolio or pending 504 loan applications (as applicable), including the SBA Lender’s proportionate share of any interest earned on the 504 MRA Escrow Account. Warehouse Lender waives any rights it may have, including rights of setoff, recoupment and banker's liens, to any account (or any property credited to such account) of SBA Lender, any successor Servicer or any other account into which payments from SBA Lender Loan Debtors or recoveries with respect to the SBA Lender Loans from any source, including recoveries from collateral, insurance and guarantees are received.Under no circumstances, including upon an Event of Default, may Warehouse Lender take any action regarding any SBA Lender Loan (including servicing), any SBA Lender Loan Debtor, any Note, any collateral securing any SBA Lender Loan or any Loan Document without SBA's prior written consent. Without limiting the generality of the foregoing, Warehouse Lender may not, without SBA's prior written consent, assign any original assignment of mortgage, any assignment of a Uniform Commercial Code financing statement or any other assignment of collateral securing the SBA Lender Loans. If Warehouse Lender records or files any such assignment, Warehouse Lender will give notice to SBA and SBA Lender and deliver to SBA Lender a copy of the assignment showing recording or filing information. Warehouse Lender may not without SBA's prior written consent, exercise any remedies it may have upon the occurrence of an Event of Default, whether such remedies arise under the Warehouse Lender Agreement, the Uniform Commercial Code or any other applicable law, except for (i)?its remedy of foreclosure under Part 6 of the Uniform Commercial Code (or any successor Part or provisions, including any change in numbering of Sections), or (ii)?its rights under the Warehouse Lender Agreement to immediately cease making further advances, require more frequent reporting by SBA Lender, or institute the default rate of interest, and, subject to the giving of any notice required under Section 11(a), to accelerate the payments due to Warehouse Lender, to demand repayment, to exercise any right of setoff for such repayment other than such right of setoff waived pursuant to the last sentence of Section 5(b), or to terminate the financing facility under the Warehouse Lender Agreement. Warehouse Lender must give 10 days written notice to SBA of any action to foreclose, but SBA's consent, other than consent to transfer under Section 11, is not necessary for Warehouse Lender to foreclose.Warehouse Lender may not take any action under any power of attorney granted by SBA Lender to Warehouse Lender without SBA's prior written consent. If SBA does grant consent for any action, Warehouse Lender will act in accordance with SBA Rules and Regulations.SBA Lender to Retain Ultimate Risk of Loss. As required by SBA Rules and Regulations, SBA Lender must retain an economic risk in and bear the ultimate risk of loss on the Unguaranteed Interest in SBA Lender Loans.Restriction on Use of SBA Loans. SBA Lender will not use the SBA Lender Loans or the collateral securing the SBA Lender Loans for any borrowing not related to financing of the Guaranteed Interest or the Unguaranteed Interest of Section 7(a)loans.FTA To Hold Original SBA Lender Notes.Concurrently with the execution of this Agreement, SBA Lender will deliver to FTA all original Notes evidencing the SBA Lender Loans in which SBA Lender at such time grants a security interest to Warehouse Lender, accompanied by a receipt in the form of Exhibit A completed for each applicable Note. No later than five business days after SBA Lender grants a security interest in any interest in any additional SBA Lender Loan to Warehouse Lender, SBA Lender will deliver to FTA the original Note evidencing the SBA Lender Loan, accompanied by a receipt in the form of Exhibit A completed for each applicable Note. SBA Lender will identify in writing all Notes it delivers to FTA pursuant to this Agreement as having been pledged to Warehouse Lender under the Warehouse Lender Agreement. Within two days after receiving a Note, FTA will deliver by regular mail to Warehouse Lender the executed receipt for the Note in the form of Exhibit A with a copy to SBA Lender. If any Note is amended, SBA Lender will deliver the original executed amendment to FTA within two business days after the SBA Lender Loan Debtor delivers the executed amendment to SBA Lender. Any amendment will indicate on its face the applicable SBA loan number.SBA appoints FTA as its fiscal and transfer agent and as its agent to hold the Notes. FTA will hold the Notes as agent for SBA. Warehouse Lender hereby notifies FTA that it has a security interest in an undivided Pro Rata interest in all Notes SBA Lender delivers to FTA which have been identified in writing to FTA as having been pledged to Warehouse Lender under the Warehouse Lender Agreement. FTA will hold such Notes as agent for SBA, and as bailee for Warehouse Lender for the purpose of perfecting by possession Warehouse Lender's security interest in the Notes under Section 9313 of the Uniform Commercial Code (or any comparable successor provision). FTA does not and will not during the term of this Agreement have any interest in the SBA Lender Loans or the related Loan Documents. The Notes may not be endorsed, but may bear a legend on the first page stating " has a security interest in an interest in this Note."Subject to Section 15, upon receipt from SBA Lender of a Request for Release of Note in the form of Exhibit B and a written consent to release from Warehouse Lender, FTA will release to SBA Lender (as indicated in the Request for Release of Note), the Note identified in the Request for Release of Note within three business days after receipt of Warehouse Lender's consent. FTA will have no responsibility to ensure that any Note is returned to FTA.Upon reasonable notice to FTA, SBA and Warehouse Lender will have the right to inspect the original Notes at FTA's office during normal business hours.FTA will not release any Note to either SBA Lender or any other person except (i) upon the terms and conditions set forth in Section 8(c), or (ii) with SBA's prior written consent or instruction. If a Note is being released because Warehouse Lender is releasing its lien, Warehouse Lender or its duly authorized representative must mark the Note or the allonge, as the case may be, to indicate that its lien has been released. Within 3 business days after the later of the receipt of the written request and the written consent of Warehouse Lender required in clause (i) and, in the case of a Note being released because Warehouse Lender has released its lien, the required mark indicating release of lien, FTA will release the identified Note. FTA will have no obligation to make sure any Note is returned to it. SBA will notify Warehouse Lender if FTA releases any Note solely upon the instructions of SBA.Release of Security Interest in Guaranteed Interest Upon Sale. Warehouse Lender hereby releases its security interest in any Guaranteed Interest which SBA Lender sells pursuant to a Participation Agreement. Such release will take effect automatically, concurrently with the receipt by FTA of the purchase price for the Guaranteed Interest.Servicing of SBA Lender Loans.Except as set forth in Section 11, SBA Lender will continue to hold all Loan Documents, except that (i)?FTA will hold the Notes and (ii)?Warehouse Lender may hold any original assignment of mortgage, any original assignment of any other collateral securing an SBA Lender Loan and any original assignment of a Uniform Commercial Code financing statement.SBA Lender or Appointed Servicer, as the case may be, will service the SBA Lender Loans, collect amounts owing under the Note or any other Loan Document, enforce remedies and liquidate collateral in accordance with SBA Rules and Regulations, except as approved by SBA. The SBA Lender, Appointed Servicer and any successor Servicer, as the case may be, will be responsible for providing the information on the Guaranty Loan Status and Lender Remittance Form (SBA Form 1502), with respect to each SBA Lender Loan, to the FTA in accordance with SBA Rules and Regulations. After the occurrence of an Event of Default, property acquired through foreclosure or deedinlieu of foreclosure will be titled in the name of the person or entity SBA directs, for the benefit of SBA and Warehouse Lender, as their interests appear under this Agreement. Appointed Servicer will administer and be responsible for the disposition of all property acquired through foreclosure or deed-in-lieu of foreclosure in accordance with SBA Rules and Regulations, except as approved by SBA.SBA may take over servicing of SBA Lender Loans under any circumstances allowing SBA to take over servicing under SBA Rules and Regulations. SBA may use contractors to perform these actions. So long as SBA Lender is the Servicer, SBA Lender will deposit (or cause to be deposited) in a general account of SBA Lender all funds received by SBA Lender from SBA Lender Loan Debtors or any other source, including payments and recoveries from collateral, insurance and guarantees. All subservicers, successor Servicers, and to the extent Warehouse Lender is acting in any capacity other than successor Servicer, Warehouse Lender, will deposit all such funds it receives in a segregated account containing only such funds.SBA Lender or Appointed Servicer will remit funds to which the Registered Holders, FTA or SBA are entitled in accordance with the terms of the Participation Agreements.Unless it becomes the Servicer, under no circumstances, including an Event of Default (but subject to the following sentences in this subsection), may Warehouse Lender take any action regarding any SBA Lender Loan (including collecting payments or any other servicing), any SBA Lender Loan Debtor, any Note, any collateral securing any SBA Lender Loan, any other source of payment or any Loan Document without SBA's prior written consent, including any action pursuant to any power of attorney granted to it by SBA Lender, except for the limited purpose of executing or filing or recording financing statements under the Uniform Commercial Code or other documents required to perfect or evidence the grant of a security interest or lien to Warehouse Lender and not executed or filed or recorded by SBA Lender. Other than its remedy of foreclosure under Part?6 of the Uniform Commercial Code (or any successor Part or provisions), Warehouse Lender may not, without SBA's prior written consent, exercise any remedies it may have upon the occurrence of an Event of Default against the SBA Lender Loans, any Note, any collateral for the SBA Lender Loans or the SBA Lender Loan Debtors or under any Loan Document whether such remedies arise under the Uniform Commercial Code, any other applicable law or otherwise. Warehouse Lender will give SBA notice within three business days after it becomes aware of an Event of Default that Warehouse Lender intends to use as the basis for any such action. Warehouse Lender must give 10 days written notice to SBA of any action to foreclose, but no consent other than SBA's consent to the proposed transferee is required to foreclose. Warehouse Lender may not transfer any interest in any SBA Lender Loan in a foreclosure sale or otherwise without SBA's prior written consent to the proposed transferee. The proposed transferee must be an SBA participating lender, operating under a current 750 Agreement, and must be acceptable to SBA in its sole discretion. Upon consenting to any proposed transfer, SBA will give FTA prompt written notice of its consent. Any transferee must agree to be bound by this Agreement and must enter into any other agreement SBA requires in connection with transfer of any interests in any SBA Lender Loan.So long as SBA Lender, an Appointed Servicer or SBA is servicing the SBA Lender Loans, Warehouse Lender shall not prevent such servicer from having access to or use of SBA Lender’s books and records (including computer records and databases) or related equipment for the purpose of servicing the SBA Lender Loans.Default Under Warehouse Lender Agreement.If an Event of Default occurs with respect to which Warehouse Lender intends to (i) accelerate the loans made to SBA Lender under the Warehouse Lender Agreement or the amounts due under any note made by SBA Lender to Warehouse Lender under the Warehouse Lender Agreement or (ii) deliver to SBA Lender a demand for repayment, Warehouse Lender must give SBA and SBA Lender and, if there is an Appointed Servicer, the Appointed Servicer, a written notice at least three business days before it takes any action. The notice must identify the SBA Lender Loans and, for each SBA Lender Loan, the portion of the SBA Lender Loan in which Warehouse Lender has a security interest. Upon receipt of either notice, SBA may take over or, in its sole discretion, transfer to an Appointed Servicer all or part of the servicing, collection, enforcement of remedies and liquidation of the SBA Lender Loans. SBA has no obligation to appoint or consider appointing Warehouse Lender or any other entity as Appointed Servicer. If SBA decides to appoint an Appointed Servicer, it will give notice to Warehouse Lender. Any Appointed Servicer must agree to be bound by the terms of this Agreement.Upon substitution of a Servicer, SBA Lender will assign and transfer to Servicer all Loan Documents under its control. SBA Lender will endorse the Notes to SBA, Warehouse Lender or Appointed Servicer, as directed by SBA, by means of an allonge which SBA Lender will deliver to FTA for permanent attachment to the original Note. FTA will retain possession of the original Notes and attach to the applicable original Note any allonge delivered to it. SBA Lender will identify the Note to which any allonge is to be attached by referencing the obligor, the original payee, the date, the original principal amount and the SBA loan number. SBA Lender will notify all SBA Lender Loan Debtors to remit payments to Servicer or FTA as directed by SBA.Substitution of a Servicer will not affect any SBA defense under SBA Rules and Regulations to purchase of any Guaranteed Interest. SBA will retain its right to refuse to purchase the Guaranteed Interest due to any action or inaction by an Appointed Servicer that would, if SBA Lender were the Servicer, give rise to SBA's right to refuse to purchase the Guaranteed Interest.If at any time after the substitution of a Servicer, Warehouse Lender is the holder, the record owner, the secured party, assignee, payee or beneficiary with respect to any Note, any collateral securing any SBA Lender Loan, or any Loan Document, Warehouse Lender will, at Servicer's request, assign by an appropriate instrument, to the person or entity designated by Servicer the Note, collateral or Loan Document.Servicer may retain the Servicing Fee as compensation for servicing, collection, enforcement of remedies and liquidation. After transfer to FTA of all amounts required under Section 3(c) to be transferred to FTA with respect to any amounts Servicer receives in respect of SBA Lender Loans, Servicer may deduct the Servicing Fee from the remainder prior to making any distribution to the holder of the Unguaranteed Interest. SBA Lender will be liable to Servicer for costs of servicing, collection, enforcement of remedies and liquidation in excess of the Servicing Fee.If SBA becomes the Servicer, SBA may authorize FTA to collect payments on the Notes. In such event, SBA Lender will notify all SBA Lender Loan Debtors to forward payments to FTA. If the Guaranteed Interest in any SBA Lender Loan has been sold in the secondary market pursuant to a Participation Agreement, upon receipt of payments on the SBA Lender Loan, FTA will (i) segregate from the payments all amounts due to the holders of the Guaranteed Interest and all fees due to SBA or FTA pursuant to the Participation Agreement and (ii) remit the remainder to SBA Lender. However, if the Guaranteed Interest in any SBA Lender Loan has not been sold in the secondary market or if SBA has purchased the Guaranteed Interest in the SBA Lender Loan, FTA will remit all payments it receives on the SBA Lender Loan Pro Rata to the holder of the Guaranteed Interest and the holder of the Unguaranteed Interest in accordance with instructions from SBA. In providing these services, FTA will be entitled to its customary fees in effect at that time. SBA Lender will be responsible for payment of such fees to FTA and FTA may set off any amounts owed to it in respect of these fees from amounts to be paid to SBA Lender under this clause.If an Event of Default occurs, Warehouse Lender may not transfer any interest in any SBA Lender Loan in a foreclosure sale or otherwise without SBA's prior written consent to the proposed transferee. The proposed transferee must be an SBA participating lender, operating under a current 750 Agreement, and must be acceptable to SBA in its sole discretion. Upon consenting to any proposed transfer, SBA will give FTA prompt written notice of its consent. Any transferee must agree to be bound by this Agreement and must enter into any other agreement SBA requires in connection with transfer of any interests in any SBA Lender Loan. A transferee will acquire the Guaranteed Interest in any SBA Lender Loans subject to any defense SBA may have to purchasing the Guaranteed Interest, whether then existing or thereafter arising.No Assignment by Warehouse Lender. Warehouse Lender will not assign its rights under the Warehouse Loan Agreement and will not sell, participate, pledge, hypothecate, enter into any repurchase agreement with respect to, or otherwise transfer any of its interest in the loans made to SBA Lender under the Warehouse Lender Agreement or the SBA Lender Loans, the Notes, the collateral for the Notes (other than by foreclosure after an Event of Default and subject to this Agreement) or the Loan Documents, without SBA's prior written consent. The proposed transferee must be acceptable to SBA in its sole discretion. Upon consenting to any proposed transfer, SBA will give FTA prompt written notice. Any transferee must agree to be bound by the terms of this Agreement.SBA Lender Acknowledgment of Continuing Obligation No Assumption of Liabilities.No action taken by Warehouse Lender, SBA or a Servicer under this Agreement, the SBA Agreement, or the Warehouse Lender Agreement will release or relieve SBA Lender of any of its obligations to SBA, Warehouse Lender, any Servicer or FTA. None of SBA, Warehouse, Lender, FTA or a Servicer will incur any liability or obligation to SBA Lender or Warehouse Lender by reason of any reasonable or customary action taken in carrying out the provisions of this Agreement. Neither the execution of this Agreement, nor the taking of any action by Warehouse Lender, SBA, FTA or a Servicer under this Agreement will be an assumption by Warehouse Lender, SBA, FTA or a Servicer of any liabilities or obligations of SBA Lender.Neither SBA nor FTA will have any duties or obligations other than those specifically set forth in this Agreement and no further duties or obligations shall arise by implication or otherwise. Warehouse Lender (acting solely in its capacity as Warehouse Lender) will not have any duties or obligations under this Agreement other than those specifically set forth in this Agreement and no further duties or obligations shall arise by implication or otherwise. Neither SBA, FTA nor Warehouse Lender will be liable for its acts or omissions hereunder except as may result from its gross negligence or willful misconduct.The provisions of this Section 13 will survive termination of this Agreement.FTA's and SBA's Limited Liability and Expenses.FTA may rely upon any signature, notice, certificate, or other document received by it, including facsimile transmissions and electronic correspondence, that it reasonably believes to be genuine and to have been signed by the person or entity purporting to sign it or transmitted by the person or entity purporting to transmit it. FTA will not be obligated to inquire as to the authority or power of any person executing or transmitting any such document or the truthfulness of any statements therein. SBA Lender will assume liability for and indemnify, protect, and hold harmless FTA from any liabilities or losses arising out of this Agreement, except in the case of FTA's gross negligence or willful misconduct. SBA Lender will reimburse FTA for all expenses, taxes, and other charges that FTA incurs in administering this Agreement. SBA Lender will pay FTA its standard fee for its services under this Agreement. FTA may set off from any amounts it is to remit to SBA Lender under this Agreement any amounts SBA Lender owes to FTA under this Agreement. In performing its obligations under this Agreement, FTA will not follow instructions from any party other than SBA or SBA Lender. Neither SBA Lender nor Warehouse Lender will hold FTA liable for any action taken in accordance with Section 8(c) or SBA's instructions.SBA may rely on any signature, notice, certificate, request or other document received by it including facsimile transmission and electronic correspondence, that it reasonably believes to be genuine and to have been signed by the person or entity purporting to sign it or transmitted by the person or entity purporting to transmit it. SBA will not be obligated to inquire as to the authority or power of any person executing or transmitting any such document or the truthfulness of any statements therein. SBA Lender will assume liability for and indemnify, protect and hold harmless SBA from all liabilities or losses arising out of this Agreement, except in the case of SBA's gross negligence or willful misconduct. Upon request by SBA, SBA Lender will reimburse SBA for all expenses and other charges that SBA incurs in connection with this Agreement.The provisions of this Section 14 will survive termination of this Agreement.Other Financings.SBA Lender may not grant a security interest in any portion of an SBA Lender Loan to more than one lender at any time. SBA Lender may not at the same time grant a security interest in the Guaranteed Interest in any SBA Lender Loan to one lender and grant a security interest in the Unguaranteed Interest in the same SBA Lender Loan to another lender. SBA Lender may not grant security interests in portions of and sell participation interests in the same SBA Lender Loan.SBA Lender may have in effect from time to time financing arrangements with one or more lenders pursuant to which it has granted security interests in SBA Lender Loans. SBA Lender may also from time to time own SBA Lender Loans in which it has not granted a security interest in any interest. SBA will have no obligation to notify or obtain the consent of Warehouse Lender prior to consenting to any release of a Note. In releasing any Note, FTA will have no obligation other than (i)?in the case of a release pursuant to Section 8(c), confirming that its own records indicate that SBA Lender identified an interest in the Note as having been pledged to Warehouse Lender pursuant to the Warehouse Lender Agreement when SBA Lender delivered the Note to FTA and (ii)?complying with instructions of SBA pursuant to Section 8(e).Conditions Precedent to Effectiveness of this Agreement. This Agreement will not become effective until SBA receives satisfactory opinions of counsel to each party to this Agreement (other than FTA) to the effect that this Agreement is enforceable against each party.Counterparts. This Agreement may be executed in any number of counterparts, each of which will be an original.Inconsistencies: If any provision of this Agreement is inconsistent with any provision in any other agreement, including but not limited to the Warehouse Lender Agreement, the provision of this Agreement controls. The Warehouse Lender Agreement and any agreements entered into in connection with the Warehouse Lender Agreement are amended to the extent necessary to give effect to the prior sentence. The SBA Agreement is amended to provide that FTA will hold the Notes evidencing the SBA Lender Loans.Amendment and Term. This Agreement may not be terminated or amended without the prior written consent of Warehouse Lender, FTA, SBA and SBA Lender; provided, however, that in the event SBA Lender is removed as Servicer, SBA Lender shall only have the right to consent to a proposed termination or amendment to the extent such proposed amendment or termination materially and adversely affects the interests of SBA Lender. The Warehouse Lender Agreement may not be amended without the prior written consent of SBA. The SBA Agreements may not be amended in any manner that would impair the respective rights of SBA or Warehouse Lender under this Agreement without the prior written consent of SBA or Warehouse Lender, as applicable; provided, however, that SBA may terminate the SBA Agreements in its sole discretionGOVERNING LAW. EXCEPT TO THE EXTENT INCONSISTENT WITH FEDERAL LAW, IN WHICH CASE FEDERAL LAW WILL GOVERN, THIS AGREEMENT WILL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS RULES.Successors and Assigns. This Agreement binds and benefits the parties and their respective successors and assigns.Section Headings. The Section headings in this Agreement are for convenience only, and are without substantive meaning or content.Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be given no effect in that jurisdiction and will not invalidate any other provision of this Agreement.Notices and Deliveries. Except as otherwise expressly provided in this document, all notices or deliveries under this Agreement will be given by actual delivery to the parties at the respective addresses below or such other addresses that any party may designate for itself by written notice to each of the other parties. All notices will be effective upon receipt by the applicable party.If to SBA Lender, at:[NAME OF SBA LENDER]Attention:If to Warehouse Lender, at:[NAME OF CREDIT PROVIDER]Attention:If to FTA, at: Colson Services Corp.2 Hanson Place 7th Fl.Brooklyn, New York 11217Attention: Vice-PresidentIf to SBA, at:U.S. Small Business Administration409 3rd Street, S.W.Washington, D.C. 20416Attention: Director, Office of Financial Assistance25.Guarantors. If any guarantor pays Warehouse Lender pursuant to its guarantee and such guarantor becomes subrogated to the rights of Warehouse Lender under the Warehouse Lender Agreement, such guarantor will be bound by all the terms of this Agreement relating to Warehouse Lender.[SIGNATURE PAGES FOLLOW]IN WITNESS WHEREOF, SBA Lender, Warehouse Lender, SBA and FTA have executed this Multiparty Agreement below.SBA LENDERBy:WAREHOUSE LENDERBy:SBAUNITED STATES SMALL BUSINESS ADMINISTRATIONBy:Director, Office of Financial AssistanceFTACOLSON SERVICES CORP.By:Vice-PresidentEXHIBIT AFORM OF RECEIPTOn _____________?__, 201__, Colson Services Corp. acknowledges receipt of the following described note, which is being held in accordance with the MultiParty Agreement dated as of _________?___, 201_, by and among [NAME OF SBA LENDER], [NAME OF WAREHOUSE LENDER], COLSON SERVICES CORP., and the UNITED STATES SMALL BUSINESS ADMINISTRATION (the "MultiParty Agreement").MAKER:ORIGINAL PRINCIPAL AMOUNT:DATE OF NOTE:SBA LOAN NUMBER (GP NUMBER):WAREHOUSE LENDER ACCOUNT NUMBER:COLSON SERVICES CORP.By: Name: Title: An original of this receipt will be sent by regular mail to, Attention: Loan Portfolio Manager, with a copy sent by regular mail to_____________________________________, Attention: _____________________.THE ORIGINAL NOTE DELIVERED AGAINST THIS RECEIPT IS TO BE HELD PURSUANT TO THE MULTIPARTY AGREEMENT UNTIL SUCH TIME AS WRITTEN NOTICE AUTHORIZING RELEASE IS RECEIVED BY FTA AS PROVIDED IN SECTION 8(c) OF THE MULTIPARTY AGREEMENT OR FROM SBA.EXHIBIT BREQUEST FOR RELEASE OF NOTEColson Services Corp.2 Hanson Place, 7th Fl.Brooklyn, New York 11217Attention: Vice-PresidentIn accordance with Section 8(c) of the MultiParty Agreement dated as of _________?___, 201_ by and among ("SBA Lender"), ("Warehouse Lender"), Colson Services Corp. and the United States Small Business Administration, and subject to your receipt of consent to release of the Note from Warehouse Lender, SBA Lender hereby requests release of the Note described below.OBLIGOR'S NAME AND ADDRESS:SBA LOAN NUMBER (GP NUMBER):Reason for Requesting Release of Note (ONE OF THESE MUST BE CHECKED)___________1. SBA Loan Paid in Full___________2. SBA Loan in Foreclosure___________3. Guaranteed Portion of SBA Loan to Be Sold in Secondary Market___________4. Loan Agreement between SBA Lender and Warehouse Lender Paid in Full___________5. Warehouse Lender is releasing its lien on this Note___________6. Non-Guaranteed Portion of SBA Loan is being sold pursuant to a securitization transactionSBA LENDERBy:Name:Title: Date:Consented to by Warehouse Lender:By: Name:Title: Date: This Request for Release of Note by SBA Lender and the Consent by Warehouse Lender may be executed in counterparts. ................
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