MULTI-PARTY AGREEMENT
BETWEEN
BUSINESS LOAN CENTER, INC., BLC FINANCIAL SERVICES, INC,
TRANSAMERICA BUSINESS CREDIT CORPORATION, XXXXXX SERVICES CORP.,
AND THE UNITED STATES SMALL BUSINESS ADMINISTRATION
This Multi-Party Agreement (this "Agreement") is entered into as of
March 25, 1998, by and among Business Loan Center, Inc. ("SBA Lender"), BLC
Financial Services, Inc. ("Guarantor"), Transamerica Business Credit Corporation
("Warehouse Lender"), Xxxxxx Services Corp. ("FTA"), and the United States Small
Business Administration ("SBA").
SBA Lender has made and intends to continue to make loans to small
businesses under the Small Business Act, as amended ("SBA Lender Loans").
SBA guarantees a portion of each SBA Lender Loan in accordance with
13 C.F.R. Part 120 ("SBA Regulations") and a Small Business Administration Loan
Guaranty Agreement (SBA Form 750), dated March 27, 1997, between SBA and SBA
Lender ("the SBA Agreement").
SBA Lender, Guarantor and Warehouse Lender have entered into a Loan
Agreement (together with any related security agreement and other related
documents, the "Warehouse Lender Agreement") dated as of March 25, 1998, under
which SBA Lender is borrowing money from Warehouse Lender to make SBA Lender
Loans.
SBA Lender has granted to Warehouse Lender a security interest in all SBA Lender
Loans, together with all collateral securing the SBA Lender Loans and all
related Loan Documents.
Because SBA guarantees a portion of each SBA Lender Loan, SBA has an
interest in the SBA Lender Loans, the underlying collateral, and Loan Documents.
13 C.F.R. Section 120.420 and the SBA Agreement require the SBA
Lender to obtain SBA's written consent before it pledges the SBA Lender Loans.
SBA Lender, Guarantor, Warehouse Lender, and SBA want to assure
consistency between the SBA Agreement and the Warehouse Lender Agreement and
clarify the respective rights of the parties.
NOW THEREFORE, SBA Lender, Warehouse Lender, Guarantor, FTA and SBA agree
as follows:
1. Definitions. In this Agreement, the following terms have
the following meanings:
a. "Guaranteed Interest": the guaranteed portion of a SBA Lender
Loan.
b. "SBA Lender's Permanent Fee": as defined in SBA Form 1086,
Secondary Participation Guaranty and
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Certification Agreement ("Participation Agreement") as compensation
for servicing and liquidation activities.
c. "Loan Documents": all Notes, mortgages, deeds of trust, security
deeds, security agreements, instruments of hypothecation, and other
agreements and documents that relate to the SBA Lender Loans.
d. "Notes": the notes evidencing the SBA Lender Loans.
e. "Retained Interest": the unguaranteed portion of a SBA Lender
Loan.
f. "SBA Lender Loan Debtor": any debtor obligated under a SBA Lender
Loan.
g. "Demand Notice": a written notice given by Warehouse Lender
following an Event of Default (as defined in the Warehouse Lender
Agreement) that states that Warehouse Lender intends to deliver a
demand for repayment.
h. "Servicing Fee": for those SBA Lender Loans sold in the secondary
market pursuant to a Participation Agreement, SBA Lender's Permanent
Fee plus .40% of the outstanding principal balance of such SBA
Lender Loans, and for those SBA Lender Loans not sold in the
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secondary market, a fee equal to 1% of the outstanding principal
balance of such SBA Lender Loans.
2. SBA's Guaranteed Interest. Warehouse Lender and FTA
acknowledge SBA's interest in the Guaranteed Interest of all SBA Lender Loans,
together with the collateral securing the SBA Lender Loans and the Loan
Documents, and in all payments and recoveries with respect to the SBA Lender
Loans and the collateral, including insurance proceeds. 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. If SBA
purchases the Guaranteed Interest in any SBA Lender Loan from SBA Lender, SBA
will remit the purchase price to SBA Lender. If SBA receives a Demand Notice
prior to its purchase of the Guaranteed Interest from SBA Lender, SBA will remit
the purchase price to Warehouse Lender for the credit of SBA Lender. If SBA
purchases the Guaranteed Interest in any SBA Lender Loan, any recoveries from
the SBA Lender Loan Debtor or the collateral underlying the SBA Lender Loan will
be distributed pro rata to SBA as the holder of the Guaranteed Interest and to
SBA Lender as holder of the Retained Interest. If SBA receives a Demand Notice
prior to receipt of any such recoveries, SBA will remit SBA Lender's pro rata
share
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of such recoveries to Warehouse Lender for the credit of SBA Lender.
3. SBA Lender's Retained Interest. SBA acknowledges that it
has no interest in any Retained Interest. SBA further acknowledges that it has
no interest in any collateral that secures any SBA Lender Loan or any Loan
Document, except to the extent the collateral secures or a Loan Document relates
to the Guaranteed Interest. The collateral for a SBA Lender Loan secures the
Guaranteed Interest and the Retained Interest pari passu and all recoveries from
insurance or any other source will be shared pro rata. If SBA receives any
amount to which SBA Lender is entitled on account of any Retained Interest (or
any Guaranteed Interest, if still held by SBA Lender), SBA will remit the sum to
SBA Lender. If SBA receives a Demand Notice prior to receipt of any such amount,
SBA will remit such amount to Warehouse Lender for the credit of SBA Lender.
This Agreement constitutes a notice of claims assignment for the full term of
the Warehouse Lender Agreement under the Federal Assignment of Claims Act of
1940, as amended, 31 U.S.C. Section 3727, with respect to any right to payment
of any Retained Interest (or Guaranteed Interest, if still held by SBA Lender).
4. SBA Consent to Warehouse Lender Agreement. (a) SBA consents
to SBA Lender's execution and performance of the
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Warehouse Lender Agreement and the transactions contemplated in it. SBA
specifically consents to SBA Lender's grant to Warehouse Lender of a security
interest in SBA Lender's interest in the Notes, together with all collateral
securing the Notes, and all Loan Documents as described in the Warehouse Lender
Agreement.
(b) 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 rights under its Loan Guaranty
Agreement, Form 750, or its SBLC Participation Agreement, Form 1082, to make SBA
Lender Loans or the Servicing Fee, (ii) a default under another agreement by SBA
Lender or by an entity other than SBA Lender under another agreement may not
constitute an Event of Default under the Warehouse Lender Agreement, (iii)
except for Loan Documents held by a Servicer pursuant to Section 10 below, SBA
Lender will retain the originals of all Loan Documents other than the Notes, and
(iv) except for payments made to a Servicer pursuant to Section 10 below, all
payments made by SBA Lender Loan Debtors will be made directly to SBA Lender.
Warehouse Lender waives any right it may have, including rights of set-off and
any bankers' lien, to any account of SBA Lender into which payments from SBA
Lender Loan Debtors are received.
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5. SBA Lender to Retain Ultimate Risk of Loss. As required by
13 C.F.R. Section 120.420(b)(2), SBA Lender must retain all economic risk in and
bear the ultimate risk of loss on the unguaranteed portions of the SBA Lender
Loans.
6. Restriction on Use of SBA Loans. SBA Lender will not use
the SBA Lender Loans or the collateral supporting the SBA Lender Loans for any
borrowing not related to financing of the guaranteed or unguaranteed portions of
the SBA Lender Loans.
7. FTA To Hold Original SBA Lender Notes. SBA Lender will
deliver all existing original Notes pledged to Warehouse Lender to FTA
concurrently with executing this Agreement. No later than three business days
after it closes a new SBA Lender Loan, SBA Lender will deliver the original Note
to FTA. SBA appoints FTA as its fiscal and transfer agent and as its agent to
hold the Notes. Warehouse Lender hereby notifies FTA that it has a security
interest in all Notes SBA Lender delivers to FTA until the sale of the
Guaranteed Interest in the related SBA Lender Loan pursuant to a Participation
Agreement as provided in Section 8 below. If the Guaranteed Interest is sold,
Warehouse Lender will continue to hold a security interest in the Notes to the
extent of SBA Lender's Retained Interest. FTA will hold the Notes as agent for
SBA, and as bailee for Warehouse
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Lender for the purpose of perfecting Warehouse Lender's security interest in the
Notes. FTA will not release any Note to Warehouse Lender, SBA Lender, or any
other person without SBA's prior written consent. If SBA Lender sells the
Guaranteed Interest in an SBA Lender Loan pursuant to a Participation Agreement,
FTA will deliver the original Note to SBA Lender to record the sale. SBA Lender
will promptly return the Note to FTA. FTA is not required to obtain SBA consent
before FTA delivers the Notes to SBA Lender to record the secondary market sale.
8. Sales of Guaranteed Interests by SBA Lender. If SBA Lender
sells the Guaranteed Interest of any SBA Lender Loans pursuant to a
Participation Agreement, Warehouse Lender's security interest with respect to
such Guaranteed Interest will automatically be released concurrently with the
receipt of the purchase price by FTA.
9. Servicing of SBA Lender Loans. Except as set forth in
Section 10 below, SBA Lender will service the SBA Lender Loans. Under no
circumstances may Warehouse Lender take any action regarding the servicing or
take action against any SBA Lender Loan Debtor or to foreclose on collateral
securing any SBA Lender Loan without obtaining SBA's prior written consent.
10. Default Under Warehouse Lender Agreement.
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(a) If an Event of Default (as defined in the Warehouse Lender
Agreement) occurs with respect to which Warehouse Lender intends to deliver to
SBA Lender a demand for repayment, Warehouse Lender must give SBA and SBA Lender
written notice of its intent to deliver a demand for repayment at least three
business days before it delivers such a demand for repayment to SBA Lender. Upon
the occurrence of an Event of Default (as defined in the Warehouse Lender
Agreement), SBA may take over or transfer to another SBA participating lender
(SBA or such SBA participating lender being a "Servicer") all collection,
servicing, enforcement of remedies and liquidation of the SBA Lender Loans. SBA
Lender will transfer to the Servicer all Loan Documents under its control. FTA
will retain possession of the original Notes. The Servicer will remit to
Warehouse Lender, for the credit of SBA Lender, SBA Lender's pro rata share of
each Note payment. The Servicer may retain the Servicing Fee as compensation for
servicing and liquidation activities. SBA Lender will be liable to the Servicer
for costs of servicing, collection, and liquidation in excess of the Servicing
Fee.
(b) If an event of default occurs under the Warehouse Lender
Agreement, Warehouse Lender may not transfer the SBA Lender Loans or the Notes
pursuant to a foreclosure sale or otherwise (including any transfer to itself)
without the SBA's
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prior written consent. The proposed transferee must be an SBA participating
lender, operating under a current Small Business Administration Loan Guaranty
Agreement (Form 750) and must be acceptable to SBA. Any transferee must agree to
be bound by this Agreement.
(c) If (i) Warehouse Lender delivers a demand for repayment to
SBA Lender and SBA, (ii) SBA has not after 90 days either appointed a Servicer
or taken over servicing of the SBA Lender Loans, and (iii) the Event of Default
(as defined in the Warehouse Lender Agreement) to which the demand for repayment
relates has not been cured, then SBA will authorize FTA to collect payments on
the Notes. In such event, SBA Lender will notify all remitters of payments in
respect of the Notes to forward payments to FTA. Upon receipt of such payments,
FTA will segregate from the payments all amounts due holders of interests in the
Notes in the secondary market and all fees due SBA and/or FTA in connection with
such SBA Lender Loans and remit the balance to Warehouse Lender for the credit
of SBA Lender. In providing these services, FTA will be entitled to its
customary fees for such activities in effect at that time.
11. Transferees. Warehouse Lender will not sell, participate,
pledge, hypothecate, enter into any repurchase agreement with respect to, or
otherwise transfer any of its
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interest in the loans made to SBA Lender under the Warehouse Lender Agreement,
or the SBA Lender Loans or the Notes (other than after an Event of Default and
subject to this Agreement), without SBA's prior written consent.
12. SBA Lender Acknowledgement of Continuing Obligation: No
Assumption of Liabilities. No action taken by Warehouse Lender, SBA, FTA 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 or
Warehouse Lender. None of SBA, Warehouse Lender, FTA or a Servicer will incur
any liability or obligation to SBA 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. The provisions of this Section will survive termination of this
Agreement.
13. FTA's and SBA's Limited Liability and Expenses.
(a) FTA may rely upon any signature, notice, certificate, or
other document reasonably believed by it to be genuine and to have been signed
by the person purporting to sign
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it. 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. In performing its obligations under this
Agreement, FTA will not follow instructions from any other party other than SBA.
SBA Lender will not hold FTA liable for any action taken in accordance with
SBA's instructions. The indemnities in this Section will survive the termination
of this Agreement.
(b) SBA may rely upon any signature, notice, certificate, or
other document reasonably believed by it to be genuine and to have been signed
by the person purporting to sign it. SBA Lender will assume liability for and
indemnify, protect, and hold harmless SBA from any 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
indemnities in this Section will survive the termination of this Agreement.
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14. Counterparts. This Agreement may be executed in any number
of counterparts each of which will be an original.
15. 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 such 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 that are pledged pursuant to the Warehouse Lender Agreement.
16. Amendment and Term. This Agreement may not be terminated
or amended without the prior written consent of Warehouse Lender, FTA, SBA and
SBA Lender.
17. Governing Law. 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.
18. Successors and Assigns. This Agreement binds and benefits
the parties and their respective successors and assigns.
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19. Section Headings. The section headings in this Agreement
are for convenience only, and are without substantive meaning or content.
20. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction will be given no effect and
shall not invalidate any other provision of this Agreement.
21. 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 addresses below or to 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:
Business Loan Center, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xx. Xxxxxx X. Xxxxxxxxxxxx
President
with a copy to:
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Simeon Gold, Esq.
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If to Warehouse Lender, at:
Transamerica Business Credit Corporation
0000 X. Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxxxxx 00000
Attn.: Account Executive - BLC
and
Transamerica Business Credit Corporation
0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn.: Xxxx X. Xxxxxxxxx, Esq.
With copies to:
Xxxxxx, Xxxx & Xxxxxx
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Hill Xxxxxxxx, III, Esq.
If to Guarantor, at:
BLC Financial Services, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xx. Xxxxxx X. Xxxxxxxxxxxx
President
with a copy to:
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Simeon Gold, Esq.
If to FTA, at:
Xxxxxx Services Corp.
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx
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If to SBA, at:
U.S. Small Business Administration
000 0xx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attn: Associate Administrator
for Financial Assistance
22. Guarantor. If Guarantor pays Warehouse Lender pursuant to
its guaranty and Guarantor becomes subrogated to the rights of Warehouse Lender
under the Warehouse Lender Agreement, Guarantor will be bound by all of the
terms of this Agreement relating to Warehouse Lender.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, SBA Lender, Guarantor, Warehouse Lender, FTA,
and SBA have executed this Agreement below.
BUSINESS LOAN CENTER, INC.
By:
-----------------------
Xxxxxx X. Xxxxxxxxxxxx
President
BLC FINANCIAL SERVICES, INC.
By:
-----------------------
Xxxxxx X. Xxxxxxxxxxxx
President
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By:
-----------------------
Xxxxxxx X. Xxxxxx
Senior Vice President
XXXXXX SERVICES CORP.
By:
-----------------------
Name:
------------------------
Title:
------------------------
UNITED STATES SMALL BUSINESS
ADMINISTRATION
By:
-----------------------
Xxxx Xxxxxxxxx Xxxxxx
Title:
------------------------
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