Documenting, Closing and Servicing SBA 504 and 7(a)...
Transcript of Documenting, Closing and Servicing SBA 504 and 7(a)...
1
Documenting, Closing and Servicing
SBA 504 and 7(a) Loans
William C. Brown Heather E. Ward
Engel, Hairston & Johanson, P.C. Engel, Hairston & Johanson, P.C.
109 N. 20th
Street, 4th
Floor 109 N. 20th
Street, 4th
Floor
Birmingham, Alabama 35203 Birmingham, Alabama 35203
(205) 328-4600 (205) 328-4600
TABLE OF CONTENTS:
Page
I. SBA Loans ...............................................................................................................4
A. Lending Programs ....................................................................................................5
1. The 504 Loan .........................................................................................5
2. The 7(a) Loan .........................................................................................6
II. SBA Loan Approval ...........................................................................................7
A. Borrower Eligibility .................................................................................................8
B. Franchise Eligibility ...............................................................................................11
C. Credit Analysis.......................................................................................................13
D. Use of Proceeds......................................................................................................13
E. Equity Injection ......................................................................................................15
F. The Loan Application ............................................................................................17
1. Contents of the Loan Application ........................................................17
2. Specific Application Forms .................................................................19
III. Closing .....................................................................................................................21
A. Lender’s Responsibility (7(a) Loans) ....................................................................22
B. CDC’s Responsibility (504 Loans) ........................................................................23
C. Borrower’s Responsibility ....................................................................................23
D. Issues, Fees and Forms ..........................................................................................24
1. Fees ......................................................................................................24
a. The SBA 7(a) Guarantee Fee ...................................................24
b. The Ongoing SBA 7(a) Servicing Fee .....................................25
c. Fees Associated with 504 Loans ..............................................25
2. Disbursements ......................................................................................26
3. Repayment ...........................................................................................26
4. Verification of Use of Proceeds ...........................................................27
5. Collateral/Lien Position .......................................................................28
6. Guaranties ............................................................................................28
7. IRS Tax Transcripts .............................................................................29
8. Environmental Investigation ................................................................29
9. Insurance ..............................................................................................30
10. Standby Agreements ............................................................................31
3
IV. Servicing .................................................................................................................32
A. Necessity of Lender Compliance ...........................................................................33
B. Servicing and Liquidation Action ..........................................................................34
1. Lender Documentation & Reporting ...................................................34
a. 1502 Reports ............................................................................34
b. Site Visit Reports .....................................................................35
c. Transcript of Account ..............................................................36
2. Monitoring Creditworthiness ...............................................................37
3. Servicing & Liquidation Approval ......................................................37
4. Liquidation & Litigation Plans ............................................................38
V. Pitfalls ......................................................................................................................40
A. Expiration after Maturity Issue ..............................................................................40
B. Lien and Collateral Issues ......................................................................................40
C. Unauthorized Use of Proceeds Issues ....................................................................41
D. Liquidation Deficiency Issues................................................................................41
E. Undocumented Servicing Actions Issues...............................................................41
F. Early Default Issues ...............................................................................................42
LIST OF EXHIBITS
A. SBA Form 1919 (Borrower Information Form 7(a) Loan) ................................................43
B. SBA Form 912 (Statement of Personal History) ...............................................................50
C. SBA Form 413 (Personal Financial Statement) .................................................................53
D. SBA Form 159 (Compensation Agreement 7(a) Loan) .....................................................59
E. IRS Form 4506-T (Request for IRS Tax Transcripts) .......................................................63
F. SBA Form 147 (Note in 7(a) Loan) ...................................................................................66
G. SBA Form 1505 (Note in 504 Loan) .................................................................................72
H. SBA Form 148 (Unconditional Guarantee) .......................................................................78
I. SBA Form 2287 (Third Party Lender Agreement in 504 Loan) ........................................84
J. SBA Form 2288 (Interim Lender Certification in 504 Loan) ............................................82
K. SBA Form 1050 (Settlement Sheet in 7(a) Loan) ..............................................................96
L. SBA Form 722 (EEO Poster and Notice) ..........................................................................98
M. SBA Form 1502 (Field Descriptions for Lender Reporting in 7(a) Loan) ......................100
N. SBA Servicing and Liquidation 7(a) Lender Matrix .......................................................108
I. SBA Loans
The Small Business Administration (SBA) is a federal agency that was created to assist
small businesses and protect the interests of small business concerns in order to preserve free
competitive enterprise and strengthen the overall economy.1 Specifically, SBA strives to help
start, build, and grow businesses in order to create jobs and stimulate the economy. SBA is
governed by the Small Business Act of 1953, which is codified in 15 U.S.C. § 633. Under this
Act, SBA is empowered to deliver loans, guarantee loans made by lenders, assist with
government contracts, counsel small businesses, offer entrepreneur development services, and
provide other types of assistance for small businesses.2
Among these functions, SBA is able to make loans3 and guarantee private lender loans to
qualified small business concerns. Regulations for SBA’s loan programs are found in Part 120
of Title 13 in the Code of Federal Regulations (C.F.R.). SBA lending assistance provides
benefits to borrowers by making funds available and assisting with long-term financing. These
transactions result in, among other things, improved cash flow, fixed maturity, and no balloon
payments. Whether under the 7(a) or 504 Loan Programs, borrowers can be eligible for up to $5
million in SBA-backed financing.
1 15 U.S.C. § 631
2 Id.; see U.S. Small Business Administration, “About SBA: What We Do,” http://www.sba.gov/about-
sba-services/what-we-do
3 Although authorized to make direct non-disaster business loans, SBA has not been funded to do so since
the mid 1990s.
5
A. Lending Programs
SBA currently has three main lending programs: the 7(a) loan program, the 504 loan
program and the disaster loan program.
1. The 504 Loan
The 504 loan program is typically used for long-term financing to attain
major assets for business development and expansion. 13 C.F.R. § 120.102.
Instead of guaranteeing the loan of a private lender, the SBA uses a Certified
Development Company (CDC) as a lender partner to actually finance the loan
secured by a 100 percent SBA-guaranteed debenture. A CDC is nonprofit
corporation set up to encourage economic development of its community. Of
the projected costs for the venture, a private non-CDC lender provides 50% of
the financing with senior lien position; the CDC contributes up to 40% of the
financing backed by a 100% SBA-guaranteed debenture with junior lien
position; and the borrower is expected to provide at least 10% of the
financing. Id.; see also 13 C.F.R. § 120.801. The SBA 504 Loan is typically
used for acquisition of land, or acquisition of land and existing buildings,
construction of improvements, major renovations to existing structures, or
purchases of capital equipment or heaving machinery. SBA participates
alongside third party lenders in making these loans by funding debentures
with terms of either ten (10) or twenty (20) years depending upon the useful
life of the assets being financed at fixed interest rates over the life of the SBA
loan. These loans benefit borrowers because of the long-term fixed rates and
typically lower equity requirements.
2. The 7(a) Loan
These loans are made wholly by the lender who submits application to
SBA for approval of the SBA guarantee against lender’s deficiency in the
event of default. Under the 7(a) Loan Program SBA will guarantee up to 85%
for loans up to $150,000 and up to 75% for loans exceeding that amount up to
$5,000,000.4 SBA will collect a guaranty fee on the guaranteed portion of the
loan, which is charged to lenders but can be collected from borrowers.5 The
funds of this fee are designed to reimburse lenders for borrowers who default
on repayment. Through SBA’s 7(a) eligible use of proceeds requirement,
financing can be guaranteed for a variety of business purposes, such as
working capital, inventory, machinery and equipment, leasehold
improvements, land and building (for purchase, renovation or new
construction), and debt refinancing.6 The loan maturity will depend on the
nature of the loan and the borrower’s ability to repay. Typically, it is up to 10
years for working capital & equipment and may be up to 25 years for fixed
assets, such as real estate.7 SBA requires the lender to collateralize the loan to
the maximum extent possible up to the loan amount, which may include
4 15 U.S.C. § 636(a)(2)-(3)
5 15 U.S.C. § 636(a)(18)
6 15 U.S.C. § 636(a); 13 C.F.R. § 120.120
7 15 U.S.C. § 636(a)(5); 13 C.F.R. § 120.212
7
personal assets if business assets do not fully secure the loan.8 The lender
must verify that the borrower has invested a certain amount of equity into the
business to ensure the borrower is committed and indebted to the business.9
II. SBA Loan Approval
To qualify, the borrower must be a for-profit business, meet SBA size requirements,
show good character, credit, management, and ability to repay, and must be an eligible type of
business.10
The key factors for eligibility are based on what the business does to receive its income,
the character of its ownership and where the business operates. In general, the businesses must
meet the following criteria to be eligible for SBA assistance: be a business operating for-profit;
be located, engaged, or propose to do business in the United States; qualify as a small business
under SBA size requirements; be able to demonstrate the need for the loan proceeds; have
reasonable invested equity; attempt to use alternative financial resources before seeking financial
assistance from SBA; have a plan to use the funds for a sound business purpose; and not be
delinquent on any existing debt obligation to the United States.11
Additionally, there must be no
apparent conflict of interest between the borrower and the lender.
8 U.S. Small Business Administration, “7(a) Loan Program Terms and Conditions,” http://www.sba.gov/content/7a-
terms-conditions
9 13 C.F.R. § 120.102
10 13 C.F.R. § 120.100
11 13 C.F.R. § 120.100-101
A. Borrower Eligibility
As mentioned above, one of the eligibility requirements is that the borrower must
be a “small business concern.” SBA determines a “small business concern” to be a
business that has a net after-tax operating income, averaged over a two-year period, of
less than $5 million and a net worth of less than $15 million. Additionally, the lender
may use size standard defined under the North American Industry Classification System
(NAICS).12
The Small Business Act defines a small business as a business that is owned
and operated and not dominant in its field of operation.13
The size standards vary from
industry to industry and are developed considering the economic characteristics
comprising the structure of an average firm size, start-up costs, entry barriers, and
distribution of firms by size.14
Additional considerations include technological changes,
competition from other industries, growth trends, historical activity within an industry,
unique factors occurring in the industry which may distinguish small firms from other
firms, and objectives of the business’ programs and the impact on those programs of
different size standard levels.15
Certain businesses are automatically ineligible to receive a SBA loan. The
following businesses are ineligible:
Non-profit businesses (a for-profit subsidiary will be eligible);
12
13 C.F.R. § 121.101; The codes can be found at North American Industry Classification System, “Introduction to
NAICS,” http://www.census.gov/eos/www/naics/.
13 15 U.S.C. § 632
14 13 C.F.R. § 121.102
15 Id.
9
Financial businesses primarily engaged in the business of lending (such as banks
and finance companies);
Passive businesses owned by developers and landlords that do not actively use or
occupy the assets acquired or improved with loan proceeds (other than eligible
passive companies defined in 13 C.F.R. § 120.111);
Life insurance companies;
Businesses located in a foreign country (a U.S. business owned by aliens may
qualify);
Pyramid sale distribution plans;
Businesses deriving more than one-third (1/3) of gross annual revenue (not
income) from legal gambling activities;
Businesses that are involved in any illegal activity;
Private businesses that limit the number of memberships for reasons other than
capacity;
Government-owned entities;
Businesses principally engaged in teaching, instructing, counseling or
indoctrinating religious beliefs;
Consumer and marketing cooperatives (producer cooperatives are eligible);
Loan packagers earning more than 1/3 of their gross annual revenue from
packaging SBA loans;
Businesses with an associate who is in jail, on probation, on parole, or has been
indicted for a felony or a crime of moral turpitude.
o SBA cannot provide assistance to associates who are presently subject to an
indictment, criminal information, arraignment, or other means by which
formal criminal charges are brought in any jurisdiction. 50 10 5 (F) Pg. 258.
o If a subject reveals that he/she is currently on parole or probation under
question 9 on a 912, the business is ineligible. 50 10 5 (F) Pg. 258.
o Electronic fingerprint submissions are permitted as a substitute for an FD-
258 Fingerprint Card where available. 50 10 5 (F) Pg. 259.
o If a small business applicant is owned by a trust, the trustor must be of
good character and is required to provide a Form 912. 50 10 5 (D) Pg. 284.
Businesses where the lender, CDC, or any of its associates own an equity interest;
Businesses which present live performances of a prurient sexual nature or derive,
directly or indirectly, more than de minimis gross revenue through the sale of
products, services, or presentation of a prurient sexual nature (revised SOP 50
(10)(F) has eliminated the “community standards” language);
Businesses that have previously defaulted on any federal loan or federally assisted
financing (unless waived by SBA for good cause):
o The definition of federal debt does not include unpaid/delinquent taxes or
loss incurred by the FDIC when it sells a loan at a discount [50 10 5 (D) Pg.
290] or loans purchased, held or securitized by Fannie Mae or Freddie Mac
[50 10 5 (F) Pg. 264].
o The prior loss/delinquent federal debt rules apply to Associates (as opposed
to principals of the small business applicant) and guarantors. 50 10 5 (D) Pg.
291. “Associate” includes an office, director, owner or more than 20%, key
3
11
employee, business owned or controlled (at least 20%) by any of the
foregoing, or individual, or entity that controls or is controlled by the small
business.
Businesses engaged primarily in political or lobbying activities; and/or
Speculative businesses (such as oil wildcatting per SBA’s example).16
B. Franchise Eligibility
SBA must review proposed franchise/license/jobber or other similar agreements
to determine if the business is eligible on the basis of whether the small business
applicant constitutes an affiliate of the franchise. A finding that the agreement is
acceptable means that the agreement does not impose unacceptable control provision on
the applicant which would result in affiliation. SBA may determine affiliation can exist
between the applicant and franchisor through common ownership, common management,
excessive restrictions on the sale/transfer of the franchise interest, or excess control of the
franchisor over the applicant’s business operations. SBA has compiled a list of eligibility
issue for franchises, called the Franchise Findings, to determine common requirements
found in franchise agreements that would cause the business to be ineligible.17 The lender
is responsible for ensuring the franchise meets the eligibility requirements in accordance
with SBA policies in effect at the time the application was filed. To facilitate this review
16
13 C.F.R. § 120.110
17 SOP 50 10 (5)(F), Subpart B, Chapter 1.9.a, et seq.
SBA makes available a list of franchise agreements (the “Registry”) that have been
approved for size/affiliation/control issues at www.franchiseregistry.com .18
In General, the CDC and/or SBA Lender must consider:
i. When there is a franchise/jobber agreement, the agreement must be
executed prior to submission of the closing package to SBA for
funding (rather than prior to first disbursement). 50 10 5 (D) Pg. 268.
ii. The fact that a jobber agreement is acceptable does not mean that the
small business is eligible. The CDC must still review for other
eligibility issues under the SOP. 50 10 5 (F) Pg. 243.
iii. Review of a franchise agreement is conducted by SBA for all loans
processed through the SLPC (rather than all regular and ALP loans).
50 10 5 (F) Pg. 244.
iv. When the franchise is on the franchise registry, the CDC’s file must
contain the following: (i) executed franchise agreement and any
approved attachments or exhibits, (ii) executed addendum (if
required), (iii) executed certification of franchise documents, and (iv)
compliance with any required eligibility notes. 50 10 5 (D) Pg. 270.
v. When a franchise is not on the registry or when the CDC chooses not
to use the registry, CDCs should consult with the Franchise Findings
List to determine if there have been any findings that would result in
a determination of affiliation and whether there are any fixes
18
Id.
13
available. 50 10 5 (F) Pg. 245.
vi. Procedures are set forth for a franchise to appeal the decision not to be
placed on the registry. 50 10 5 (F) Pg. 250.
C. Credit Analysis
In order to qualify for an SBA loan, a borrower must be creditworthy, contribute a
small portion of the equity, and provide reasonable assurance of repayment. Lenders are
required to assess the applicant’s credit factors to determine that the borrower is able to
reasonably assure repayment. The most important factor in assuring repayment is the
cash flow of the business, not the liquidation of collateral.19
A lender must review the
following to adequately evaluate the borrower’s creditworthiness: character, reputation,
and credit history; experience and depth of management; strength of business; past
earnings, projected cash flow, and future prospects; ability to repay the loan with
earnings from the business; sufficient invested equity to operate on a sound financial
basis; potential for long-term success; nature and value of collateral; and any affiliates’
effect on the applicant’s repayment ability.20
D. Use of Proceeds
Borrowers may use SBA Loan proceeds for a variety of sound business purposes,
including starting a new business or assisting in the operating, acquisition, or expansion
19
SOP 50 10 (5)(F), Subpart B, Chapter 1.III.9
20 13 C.F.R. § 120.150
of an existing business. The following are the specific uses that the borrower may use
loan proceeds for:
Use of Proceeds 7(a) Loans vs. 504 Loans
Acquire land and/or
purchase, construct or
renovate buildings
Yes Yes
Improve a site (e.g.
grading, streets, parking,
landscaping), up to 5%
for community
improvements
Yes Yes
Acquire and install fixed
assets such a capital
equipment or heavy
machinery
Yes Yes
Purchase Inventory Yes Cannot be used for
inventory financing
Supplies Yes No; unless to finance
items such as furniture,
fixtures and other
equipment that are
essential to and directly
related to the construction
project
Raw Materials Yes No
Working Capital Yes No; except if amount less
than 2% of gross
debenture as a part of new
construction including
contingencies (SOP 50
(10) (F) Subpart C. pg.
280)
Refinancing Yes; subject to SBA
policies regarding debt
refinancing (SOP 50
(10)(F) pgs. 114 ff. )
Yes when refinancing in
connection with an
expansion; or short term
bridge financing for
acquisition of vacant land
Business Acquisition Yes; subject to SBA
policies regarding change
of ownership and business
valuations 13 CFR
§120.202 (SOP 50 (10)(F)
pgs. 120 ff.)
Only if demonstrates that
job would be lost if not
for change of ownership
and only costs associated
with fixed assets. All
other costs (i.e. inventory,
goodwill, other
15
intangibles) must be
financed in some other
manner, including a 7(a)(
Loan (SOP 50 (10)(F) pg.
282)
Borrowers are prohibited from using proceeds for certain items. If loan proceeds
are used for the following purposes:
Effecting a partial change of business ownership or a change that will not benefit
the business;
Permitting the payments, distributions or loans to be paid to associates of the
applicant (except for ordinary compensation for services rendered);
Investing in real or personal property acquired and held primarily for sale, lease,
or investment;
Refinancing existing debt when the lender is in a position to sustain a loss, and
SBA would take over the loss by refinancing;
Repaying delinquent state or federal withholding taxes or any other funds that
should be held in trust or escrow; and/or
Paying for a non-sound business purpose.21
E. Equity Injection
Lenders are required to verify the borrower’s equity injection before disbursing
loan proceeds. The lender should maintain evidence of this verification in their loan files.
Lenders must use every reasonable and prudent effort to verify that equity is injected and
21
13 C.F.R. § 120.130
will be used in accordance with its intended purpose.22
If there is a cash injection,
verification should include documentation such as a copy of a check along with evidence
that the check was processed.23
For example, the lender could show one bank account
statement dated before the disbursement showing that the funds were available and
deposited into the borrower’s account. Also, the lender could use a copy of an escrow
settlement, as well as a bank statement showing the injection of equity into the business
prior to disbursement. Generally, a promissory note or financial statement is not
sufficient evidence of cash injection. If the equity injection is funded by assets, the lender
has a duty to carefully determine the value of non-cash assets.24
Additionally, the lender must determine if the equity injection is “material” to the
borrower’s operation. For this purpose, “material” means any equity injection that is
greater than 1/3 of the amount of the loan or $200,000. If the cash equity injection is
material, the lender must verify the existence of the injection, as described above, in
addition to the source of the cash equity injection. The purpose of verifying the source of
the injection is to ensure that the funds will be used for the intended business purpose.
Specifically, the lender must present evidence demonstrating that the borrower did not
use the proceeds of the loan to fund the equity injection.25
22
13 C.F.R. § 120.102; SOP 50 51 (2)(B), Chapter 13, Paragraph 24
23 Id.
24 SOP 5010 (5)(F) Chapter 4 (I)(F)(3)
25 SOP 50 51 (2)(B), Chapter 13, Paragraph 24
17
F. The Loan Application26
SBA requires an application for a business loan to contain certain forms and
documentation for approval of the guaranty application. The information contained
within the loan application package should give SBA a clear understanding of the
purpose for the financing request, the amount of financing requested, the subject matter
to be financed, the business repayment ability, the basis for repayment, and the nature of
the business. A primary consideration of the SBA is repayment ability from business
cash flow. Other factors to be considered include the ability and experience of the
management team, the collateral offered as security, the financial strength of personal
guarantees, the ability of the owner to contribute equity, and the strength of historical
financial ratios.
1. Contents of the Loan Application Package
The loan application package should include any of the following items
applicable to the particular facts of the financing request:
a. A description of the business, which may include the following:
i) Synopsis of company and background;
ii) Summary of industry and industry background;
iii) Summary of business operational aspects;
iv) Detailed description of physical facilities, office and plant
locations, size and equipment;
v) Product, employee, and marketplace reports;
vi) Service information, sales method, and territories;
26
See SOP 50 10 (5)(F) Subpart B, Chapter 6
vii) List of major customers;
viii) Number of employees;
ix) Whether union or non-union;
x) Current potential in terms of production, employee
numbers and expansion plans; and
xi) References from suppliers and trade organization.
xii) Industry analysis
b. Description of competition.
c. Purpose for credit request;
d. Amount of credit requested; and
e. Proposal for credit repayment.
f. Comprehensive and well organized financial records including:
i) Current interim financial statements (dated within 120
days);
ii) Financial statements for the past 3 fiscal years;
iii) Tax returns for the past three fiscal years;
iv) Aging of receivables and payables (including supplier and
customer terms); and
v) Personal financial statement(s) (current within 90 days).
g. Cash flow projections for the next 2 years (minimum) with the first
year itemized on monthly basis; and
h. Summary of assumptions for cash flow projections.
i. Appraisal of collateral.
j. Type of organization; and
k. Date of business’ inception.
l. Breakdown of business ownership (including):
i) Listing of officers and percent ownership;
ii) Listing of directors and percent ownership; and
19
iii) Listing of members / managers and percent ownership.
m. Resumes of management and owners;
n. Corporate or organizational documents;
o. Organizational chart; and
p. Other outstanding financing including leases.
2. Specific Application Forms
SBA requires specially designed application forms which are available
upon request from any CDC or by contacting the SBA directly. All SBA forms
are also available on the web in PDF format at www.sba.gov.
In general, the application must contain the following SBA forms:
7(a) Loans vs. 504 Loans
SBA Form 191927
, the Borrower
Information Form
SBA Form 1244 Part A,
Checklist of Application Exhibits
SBA Form 1920, Lender
Application Form
SBA Form 1244 Part B,
Application for 504 Loan
Lender’s Credit Memo SBA Form 1244 Part C,
Statements Required by Law and Executive
Order
Documents required Based on
Condition of the Loan
SBA Form 1244 Part D,
Third Party Lender Certification for Debt
Refinancing
SBA Form 912, Statement of
Personal History (required for all
principals, officers, directors and
owners of 20% or more of the
borrower);
SBA Form 912, Statement of Personal
History (required for all principals,
officers, directors and owners of 20% or
more of the borrower);
27
SBA Information Notice 5000-1306 issued February 7, 2014 announced the release of the updated Forms 1919
and 1920, which consolidated processing methods to one set of forms. Form 1919 replaces the former the former
SBA 7(a) Eligibility Questionnaire, while 1920 replaces the former Forms 4 Application for Loan and Form 4-I.
Personal Financial Statement, dated
within 90 days of submission to
SBA, with all owners of 20% or
more and any proposed guarantors
(lenders may use their own form or
SBA Form 413);
Personal Financial Statement, dated within
90 days of submission to SBA, with all
owners of 20% or more and any proposed
guarantors (lenders may use their own form
or SBA Form 413);
SBA Form 159, Fee Disclosure and
Compensation Agreement (must be
completed for each agent
compensated by the borrower or
lender);
SBA Form 159, Fee Disclosure and
Compensation Agreement (must be
completed for each agent compensated by
the borrower or lender);
Copy of IRS Form 4506-T, Request
for Copy of Tax Return;
Copy of IRS Form 4506-T, Request for
Copy of Tax Return;
SBA National 7(a) Authorization
Boilerplate language must be
complete; and if applicable:
SBA National 504 Authorization
Boilerplate, draft complete as applicable
for specific transaction
The following information may be required in order to complete the SBA forms for
loan application listed above:
Business Financial Statements dated within 90 days of submission (must consist
of year-end balance sheets for the last 3 years, year-end profit and loss statements
for the least three years, reconciliation of net worth, interim balance sheet, interim
profit and loss statements, affiliate and subsidiary financial statement
requirements, and cash flow projection);
Description of the business, list of principals, and the copy of the lease if
applicable;
Detailed list of all machinery and equipment to be purchased with loan proceeds
and cost quotes;
Equity Injection Form explaining type and source of applicant’s equity injection;
21
If real property is to be purchased with loan, need appraisal, lender’s
environmental questionnaire, cost breakdown, and copy of purchase agreement;
If an existing business is being purchased, need a copy of buy-sell agreement,
copy of business valuation, pro forma balance sheet for the business being
purchased as of the date of the transfer, copy of seller’s financial statements for
the last three complete fiscal years or for the number of years in business if less
than three years, interim statements no older than 90 days, and an alternate source
of verifying revenue if seller’s financial statements are not available; or
If business is a franchise, SBA requires a determination as to whether affiliation
exists. In all cases the franchise agreement and any addendums must be executed
prior to the first disbursement. To facilitate this review SBA makes a list of
franchise agreements available (the “Registry” at www.franchiseregistry.com ). In
order to rely on the Registry for its determination, the lender’s loan file must
include the executed franchise agreement (and any addendums), the Executed
Certification of Franchise Documents (available on the Registry website) and
compliance with any eligibility notes.28
III. Closing
The lender must comply with the Authorization, which lists the required conditions
which must be met for closing. A lender is expected to be able to carry out the necessary actions
to meet the conditions in the Authorization, including:
28
13 C.F.R. § 120.191; see also SOP 50 10 (5)(F) Subpart B, Chapter 1.III.9.d
A. Lender’s Responsibility (7(a) Loans):
1. Close the Loan in accordance with terms and conditions of the
Authorization;
2. Obtain valid and enforceable Loan documents, including obtaining the
signatures or written consent of any persons (e.g. spouses of obligors)
necessary to bind and create and valid lien on community or marital
property;
3. Retain all Loan closing documents, for audit as well as submitted to SBA
for request to honor guarantee.
B. CDC’s Responsibility (504 Loans):
1. Close Loan in accordance with the Authorization
2. Obtain valid and enforceable loan documents and all required lien
positions, along with the written consent of any persons (e.g. obligor’s
spouses) necessary to create a valid lien position on community or marital
property;
3. Obtain all necessary certifications;
4. Obtain a legal opinion from CDC counsel or borrower’s counsel if there is
one;
5. Certify to SBA that there has been no substantial unremedied adverse
change in the Borrower’s financial condition, organization, operation, or
assets (as set forth in CDC Certification, Form 2101);
23
6. Certify that all elements of Project Costs have been paid in full and that
the Interim Lender, Third Party Lender, Borrower and CDC have each
contributed to the Project in the amount and manner authorized by SBA;
7. Properly complete all closing documents using SBA Required Forms;
8. Submit Form 2286 and the 504 Debenture Closing Checklist and copies of
required documents to SBA for review and approval prior to debenture
sale deadlines
C. Borrower’s Responsibility
1. Comply with all conditions reasonably imposed by Lender or CDC, in
addition to those of the Authorization;
2. Cooperate with Lender or CDC in closing the Loan and obtaining
necessary certifications and documentation;
3. Execute all documents required by SBA;
4. Submit all documents required by CDC or Lender counsel sufficiently in
advance of loan closing;
5. Certify that all elements of Project Costs have been paid in full and how
they were paid;
6. Certify that any bankruptcy or insolvency proceeding involving, or
pending lawsuit against, Borrower, Operating Company or any of their
principals as been disclosed in writing to Lender or CDC.
D. Issues, Fees and Forms
A part of the responsibility of the parties to the transaction, as outlined above, is
to obtain and use SBA required forms in closing the transaction. In addition to outlining
terms and conditions for the SBA loan, the Authorization lists which SBA forms should
be used. Specific forms typically listed in the SBA Authorization are as follows:
7(a) Loans 504 Loans
SBA Form 147 Note SBA Form 1505 Note
SBA Form 1050 Settlement Sheet SBA Form 1504 Debenture
SBA Form 159 7(a) Compensation
Agreement
SBA Form 159 (504) Compensation Agreement
SBA Form 148, Guarantee SBA Form 148, Guarantee
SBA Form 148L, Limited Guarantee, when
required
SBA Form 148L, Limited Guarantee, when
required
SBA Form 601, Agreement of Compliance,
when required
SBA Form 2101, CDC Certification
SBA Form 722, Equal Opportunity Poster SBA Form 722, Equal Opportunity Poster
SBA Form 1624, Certificate of Debarment SBA Form 1506, Servicing Agent Agreement
SBA Loan Agreement SBA Form 1528, CDC Board Resolution
Borrower and Operating Company
Certifications
SBA Form 2286, 504 Debenture Closing
Checklist
IRS Form W-9 SBA Form 2287, Third Party Lender Agreement
SBA Form 2288, Interim Lender Certification
SBA Form 2289, Borrower and Operating
Company Certification
Opinion of CDC Counsel
IRS Form W-9
1. Fees.
a. The SBA 7(a) Guarantee Fee.
To counteract the costs of the 7(a) loan program, SBA charges the lender a
guaranty fee and a servicing fee for each 7(a) loan. The guarantee fee is a one-time
charge that the lender is obligated to pay SBA. If the loan has a maturity of less than
twelve months, the guaranty fee must be submitted with the application, and the fee will
25
be 0.25 percent of the guaranteed portion of the loan. For loans with a maturity greater
than one year, the guaranty fee can be anywhere between 2 percent to 3.75 percent
depending on the amount of the guaranteed portion of the loan, and the fee must be paid
within 90 days of the loan’s approval.29
The lender can charge this fee to the borrower
once SBA gives a loan approval. If the lender does not pay the guaranty fee in a timely
manner, SBA can terminate the guaranty.30
b. The SBA 7(a) Ongoing Servicing Fee.
Unlike the one-time charge for the guaranty fee, the servicing fee is an on-
going charge paid annually. This fee will be a percent of the outstanding balance of the
guaranteed portion of the loan. The servicing fee will remain in effect for the life of the
loan. Contrary to the guaranty fee, the lender may not charge the borrower for this fee.31
c. Fees Associated with SBA 504 Loans.
Some of the fees that a Borrower may be charged at the time of closing
and are specifically associated with a 504 Loan are outlined below (13 CFR § 120.971;
13 CFR § 120.972; SOP 50 10(5)(F), Subpart C, Chapter 8, I.).
Processing Fee
(13 CFR § 120.971 (a))
Up to 1.5% of Net
Debenture
Paid by Borrower to CDC, financed as
part of Gross Debenture
Closing Fee
(13 CFR § 120.971 (a))
Up to $2,500 Fee that CDC may charge for its
expenses associated with closing and
costs of counsel; limited to a
maximum of $2,500 that may be
29
15 U.S.C. § 636(a)(18); 13 C.F.R. § 120.220(a)-(b)
30 13 C.F.R. § 120.220(e)
31 13 C.F.R. § 120.220(f)
financed into the Debenture proceeds
Underwriter’ s Fee
(13 CFR § 120.971 (c))
0.4% at closing for
20-year Debentures
Paid by Borrower to CDC, financed as
part of Gross Debenture
Underwriter’s Fee
(13 CFR § 120.971 (c))
0.375% at closing for
10-year Debentures
Paid by Borrower to CDC, financed as
part of Gross Debenture
SBA Guaranty Fee
(13 CFR § 120.971 (d))
0.5% of Net
Debenture collected
at closing
Paid by Borrower to CDC, financed as
part of Gross Debenture
Funding Fee
(13 CFR § 120.971 (d))
0.25% of Net
Debenture collected
at closing
Paid by Borrower to CDC, financed as
part of Gross Debenture
Participation Fee (Third Party Lender Fee)
(13 CFR § 120.972)
0.50% of the amount
of the mortgage held
in senior lien position
– One-time fee
Fee from Third Party Lender to CDC;
fee may be paid by Borrower, CDC or
Third Party Lender
2. Disbursements.
As far as disbursing the loan, the lender can establish its own disbursement
schedule, but all proceeds must be disbursed within 48 months after the date of the
approval.32
Also, the lender has the option of calculating the loan maturity date from
either the date of the note or the date of the initial disbursement. However, a lender must
abide by the maximum maturity dates, which are 25 years for real estate and up to 10
years for equipment, machinery, and inventory loans.33
3. Repayment.
When using the SBA Note (Form 147) to document for documenting a SBA
7(a) Loan, the repayment terms must contain the exact boilerplate language for the
32
SOP 50 10 (5)(F), Subpart B, Chapter 7.IV.A
33 15 U.S.C. § 636(a)(5); 13 C.F.R. § 120.212
27
conditions in the Authorization.34
The lender has no option to enter its own specific
language for the repayment terms, without approval from SBA. Generally, 7(a) term
loans are repaid on a monthly basis with principal and interest from the loan. For any
variations that occur between agreed upon repayment terms and the language of the
Authorization, lender must request SBA modify the SBA Authorization to conform.
For variable rate loans, the lender can require different payment amounts as
the interest increases; whereas, a fixed-rate loan will require the same payment
throughout the life of the loan because the interest rate is constant. If the maturity is less
than 15 years, the lender may not charge the borrower if the loan is paid off before
maturity. The lender must be sure that it abides by these conditions when structuring the
terms of the loan.
4. Verification of Use of Proceeds
Lenders are responsible for verifying that loan proceeds are being used in
accordance with its authorized purpose. SBA Form 1050 Settlement Sheet requires
lenders to document disbursement of loan proceeds through the issuance of joint payee
checks. If the lender does not use joint payee checks to evidence use of loan proceeds, the
lender should provide copies of paid receipts, paid invoices or other supporting
documentation clearly showing that the proceeds were used in accordance with the loan
34
U.S. Small Business Administration, “7(a) Loan Repayment Terms,” http://www.sba.gov/content/7a-loan-
repayment-terms
authorization. Prudent lending standards mandate that the lender take reasonable
measures to verify the use of loan proceeds.35
5. Collateral/Lien Position
The lender must obtain proper lien position on collateral. The lender should
collateralize the loan to the maximum extent possible. If business assets do not fully
secure the loan, the lender should take/require available personal assets to be used as
collateral. Typically, the lender should create a list of significant collateral securing the
loan. The list of collateral should be kept with a UCC financing statement to ensure that
the lender will be able to establish priority of its secured position on the specified
collateral.36
Additionally, the collateral list with the UCC financing statement will greatly
assist the process in the event of default and consequent liquidation of the collateral.
6. Guaranties
The lender must obtain at least one individual or corporate guaranty for each
loan. If there is any entity that owns at least 20% of the borrower entity, this entity must
provide an unlimited full guaranty. If an individual owns 20% or more of the borrower
entity, the lender must obtain an unlimited full personal guaranty from this individual.
Additionally, the spouse of the personal guarantor must sign a guaranty on any interest
that he or she has in the collateral. In order to determine the assets available to support
35
SOP 50 51 2B, Chapter 13, Paragraph 22
36 SOP 50 51 2B, Chapter 13, Paragraph 27
29
the guaranty, the lender must obtain financial statements from all necessary individuals
and entities.37
7. IRS Tax Transcripts
Lenders must verify the financial information submitted with a loan
application using IRS Form 4506.38
IRS Form 4506 can be downloaded from IRS
website at IRS.gov. The IRS requires a fee for processing IRS Form 4506. However IRS
Form 4506-T can be downloaded from the SBA website at SBA.gov and the processing
fee will be waived. Even if this requirement is not specified in the Authorization, the
lender must verify the financial information to be sent to SBA against the information
sent to the IRS to ensure there are no discrepancies. Also, it is important to ensure the
borrower is up to date on taxes because the borrower is prohibited from using any of the
loan proceeds to pay past-due taxes.39
8. Environmental Investigation
The lender is required to get an environmental investigation on all commercial
property offered as security for the loan. The lender must check the NAICS to ensure that
the property is not in an environmentally sensitive area. Once the lender determines that
it is not likely that the property has environmental contamination, the lender must submit
an environmental questionnaire to SBA with recommendations and request SBA send an
37
SOP 50 10 (5)(F), Subpart B, Chapter 4.II.B
38 SOP 50 10 (5)(F), Subpart B, Chapter 5.III
39 13 C.F.R. § 120.160
environmental approval.40
If there is evidence of contamination, the lender must get a
Phase I and/or Phase II Environmental Site Assessment (ESA) and take necessary actions
depending on the assessment results.41
9. Insurance
The Loan Authorization will contain the insurance requirements from
origination of the loan. The Authorization will always require hazard insurance to insure
the collateral.42
Also, the lender should always get a title commitment (and associated
policy of title insurance) on the property to insure the required lien position on the
property.43
Additionally, the lender must get a Standard Flood Hazard Determination
(FEMA Form 81-93) done on the property.44
If the property is in a special flood hazard
area, the lender should require the borrower to get flood insurance through the National
Flood Insurance Program (NFIP).
As opposed to insuring the collateral with hazard and flood insurance, life
insurance is actually considered collateral. When the viability of the business and
repayment ability is directly attached to one individual, the lender should require an
assignment of life insurance. If the loan is fully collateralized otherwise, life insurance
may not be necessary, but it should be obtained if possible to protect the lender’s interest
in a key individual of the entity. In addition to the common insurance requirements
40
SOP 50 10 (5)(F), Subpart B, Chapter 4.III
41 SOP 50 10 (5)(F), Subpart B, Chapter 4.III
42 13 C.F.R. § 120.160(C)
43 SOP 50 57, Chapter 9, Paragraph B
44 13 C.F.R. § 120.170
31
mentioned above, the lender may also need to require other insurance suitable to the loan,
such as liability insurance, disability insurance, and worker’s compensation insurance.45
It is crucial that the lender monitor the status of the insurance. If the insurance
lapses and the property is destroyed or the insured dies, the lender will be accountable for
the loss. As soon as the lender becomes aware of a lapse in the insurance, the lender must
determine what action is considered prudent and reasonable. In some instances, the
prudent and reasonable action may be to force the insured to guarantee that the lender and
SBA are protected under the insurance policy, either by reinstating the insurance or
signing a new policy.46
10. Standby Agreements
A lender must obtain a Standby Agreement (SBA Form 155) if there are other
creditors involved in the secured property. The standby creditor must agree to
subordinate any lien rights in collateral securing the loan to the lender’s rights in the
collateral, or if applicable subordinate, in full or in part, any payment rights due standby
creditor to lender’s rights to payment. The standby creditor must also agree not to take
any action against the borrower or any collateral without lender’s consent.47
This
agreement is essential to ensure that the lender obtains the necessary lien and debt
position.
45
SOP 50 10 (5)(F), Subpart B, Chapter 5.II
46 U.S. Small Business Administration, “Helpful Hints for Navigating the National Guaranty Purchase Center,”
http://www.sba.gov/sites/default/files/Helpful_Hints_Guide_20120504.pdf
47 SOP 50 10 (5)(F), Subpart B, Chapter 5.IV
IV. Servicing
All lender actions must comply with SBA loan program requirements.48
While the lender
is servicing or liquidating a loan, there are many actions which require prior SBA approval or
notification.49
The Office of Financial Program Operations (OFPO) has developed a Servicing
and Liquidation Actions 7(a) Lender Matrix to ensure SBA lenders are able to find and comply
with Agency Loan Program Requirements.50
While servicing a loan, the lender is responsible for
actions necessary to support the growth of the business, as well as evaluating and responding to
problems which may arise.51
There are red flags indicating potential problems that must be
addressed when servicing loans, including: payment default notices; requests for relief in loan
terms or conditions; cash flow problems; adverse changes; cancellation of life or hazard
insurance policies; death or illness of a principal; tax problems; substantive changes in
management or control of the business; fire or loss of collateral due to natural disasters; legal
actions; loss of contracts; borrower’s failure to submit financial statements timely; and/or loan
delinquencies in excess of 60 days.52
The lender’s handling of the abovementioned situations in
the servicing process is crucial to the final review of the guaranty purchase.
48
See SOP 50 10 5, Subpart B and SOP 50 57; 13 C.F.R. § 120.535; 13 C.F.R. § 120.536
49 13 C.F.R. § 120.536
50 U.S. Small Business Administration, “7(a) Servicing and Liquidation Actions Matrix,”
http://www.sba.gov/content/servicing-and-liquidation-actions-7a-lender-matrix
51 SOP 50 50 4A
52 Id.
33
A. Necessity of Lender Compliance
In order to safeguard the SBA guaranty and interest, loans must be structured in
accordance with SBA loan requirements, comply with the SBA loan authorization, and certify
that all matters were performed with due diligence.53
It is imperative for lenders to understand
that the SBA authorization is not a contract to make a loan, so there is not an actual “guaranty”54
against loss or commitment to fund at the time the Authorization is issued. Nor can a potential
borrower force a lender to make a loan to a borrower merely because SBA has issued a loan
authorization. The making of the loan remains a credit decision of the lender. If a loan is made
by a lender under the SBA loan authorization, it is an agreement between SBA, as an agency of
the United States Government, and the lender. The borrower is not a party or a third party
beneficiary to any loan authorization. SBA has established Standard Operating Procedures
(SOPs) as practical requirements for lenders based on sound lending practices for all steps of the
loan process. In addition to complying with statutory and regulatory law, lenders must abide by
the SOPs to ensure that the borrower is creditworthy and the loan proceeds will be disbursed
according to the authorization, so that the guaranty will be realized.55
In the event of any conflict
between a loan Authorization and the guidelines established by the SOP, the SOP controls (SOP
50 10(5)(F), page 298, super priority of SOP versus loan authorization boilerplate).
53
13 C.F.R. § 120.410
54 Id.
55 U.S. Small Business Administration, “Standard Operating Procedures,”
http://www.sba.gov/about-sba-services/7481
B. Servicing and Liquidation Actions
1. Lender Documentation & Reporting
SBA is concerned with materiality and harm.56
The lender should
proactively approach any issues because early identification could lead to possible
solutions to ensure the guaranty. Therefore, the lender should ensure all actions
are properly documented and prudent to minimize the effect of an adverse action
on SBA’s decision to purchase.57
The lender’s actions will be reviewed to
determine if they were prudent, lawful and commercially reasonable, and
consistent with the lender’s practice on its non-SBA loans.58
Therefore,
documentation is crucial to evidence justifications for decisions.
a. 1502 Reports
In addition to documenting all actions, all SBA loans must be reported
on the SBA 1502 report to the Fiscal Transfer Agent (FTA) once a month.59
When the loan is transferred into liquidation status, the lender must change the
status code on the monthly 1502 report to “5” for liquidation status. After
purchase of the guaranty, quarterly liquidation reports must be submitted to
SBA at [email protected]
Once the lender becomes reasonably aware
that the loan is ready for charge off, the Wrap-Up report should be sent, but
56
SOP 50 57, Chapter 24, Subpart B
57 U.S. Small Business Administration, “Sale-Release of Collateral,” http://www.sba.gov/content/sale-release-
collateral
58 13 C.F.R. § 120.535
59 SOP 50 57, Chapter 3, Subpart F; U.S. Small Business Administration, “Lender Reporting,”
http://www.sba.gov/category/lender-navigation/lender-reporting
60 Id.
35
only after the lender has made a final determination that the loan will not be
fully repaid after all worthwhile collateral has been liquidated and no further
recoveries are anticipated within a reasonable time.61
This report should
address the status of the borrower, guarantors, collateral, workout or
restructuring plans, and liquidation activities, including sale of collateral,
foreclosures and litigation.62
b. Site Visit Reports
Additionally, the lender must submit a Site Visit Report after every
visit to the borrower’s business premise.63
All lenders are required to make
timely site visits to assess the value of the property. Additionally, lenders must
take inventory of loan collateral to assess workout possibilities and develop a
significant liquidation plan. A site visit is generally considered timely within
15 calendar days of the occurrence of an event that would cause the loan to be
placed in liquidation, such as abandonment of the business, bankruptcy of the
borrower when loan is in default and substantial collateral exists, litigation
against the borrower that may have a substantial adverse effect on the lender’s
interest, or foreclosure by a prior lien holder on substantial collateral. If there
is significant collateral that could be removed or the value could be depleted,
61
SOP 50 57, Chapter 26
62 SOP 50 57, Chapter 3, Subpart F
63 Id.
the site visit should be made as soon as possible. A current appraisal or third
party inspection is acceptable to assess the current collateral value.64
Once all the requirements for collection and liquidation are satisfied,
the lender must submit a Wrap-Up Report for each loan.65
Before sending a
Wrap-Up Report, the lender must be reasonably aware that the loan is ready
for charge off because loans cannot be sent to Treasury for further collection
if the lender is still servicing the loan.66
A lender must comply with all
reporting requirements to realize the guaranty.
c. Transcript of Account
A lender should document all transactions to the borrower’s account.
If the loan is in default, the lender must submit a certified transcript of account
to SBA when the lender requests guaranty purchase.67
The transcript must
adequately reflect all transactions on the borrower’s account. Specifically, the
lender must include the payment receipt dates, next due date, interest rates in
effect throughout loan’s term, application of payments and sale of collateral
proceeds, and the interest paid to date.68
The lender must carefully document
all information because the lender has to certify that it is a true and accurate
reflection of the account.
64
SOP 50 51 (2)(B), Chapter 13, Paragraph 28
65 SOP 50 57, Chapter 26
66 Id.
67 SOP 50 50 (4)(D)
68 Id.
37
2. Monitoring Creditworthiness
The lender is required to continually monitor the borrower’s
creditworthiness. The lender is responsible for ensuring the borrower maintain a
steady financial and operational condition. The lender can monitor credit by
requiring the borrower to submit financial statements, maintaining constant
contact with the borrower on the status of the business, and reviewing credit
reports, credit scores, or tax information when needed to verify the borrower is
still creditworthy.69
3. Servicing & Liquidation Approval
As mentioned earlier, the lender should refer to the Servicing and
Liquidation Action 7(a) Lender Matrix before any action to determine whether it
requires prior SBA approval or notification.70
Generally, the lender will need
written approval from SBA for the following types of servicing activities:
Altering substantially the terms or conditions of any loan
(including an increase in principal amount or change in interest
rate);
Releasing collateral having a cumulative value in excess of 20
percent of the original loan amount;
Accelerating the maturity of the note;
69
SOP 50 57, Chapter 3, Paragraph E
70 U.S. Small Business Administration, “7(a) Servicing and Liquidation Actions Matrix,” www.sba.gov/content/7a-
servicing-and-liquidation-actions-matrix
Bringing a suit upon any loan;
Compromising or waiving a claim against any borrower, guarantor,
obligor, or creditor arising out of the loan; and/or
Increasing the amount of any prior lien by the lender on collateral
securing the loan.71
If any servicing or liquidation action does not require prior approval,
lenders should document all justifications for their decisions with supporting
documentation in their file.
4. Liquidation & Litigation Plans
All Lenders are expected to liquidate and conduct debt collection litigation
for 7(a) loans in their portfolio no less diligently than for their non-SBA portfolio.
This includes liquidating in a prompt, cost-effective, and commercially reasonable
manner, consistent with prudent lending standards, and in accordance with Loan
Program Requirements. All collateral should be liquidated and all worthwhile
avenues of collection should be pursued until loans can be charged off. Lenders
must take precaution in liquidation actions to ensure that no actual or apparent
conflict of interest will result from the lender’s actions. For instance, if the lender
has any loans that are not guaranteed by SBA, the lender may not take any action
which confers a preference to the lender over recovery on the SBA loan.72
71
13 C.F.R. § 120.513
72 U.S. Small Business Administration, “Helpful Hints for Navigating the National Guaranty Purchase Center,”
http://www.sba.gov/sites/default/files/Helpful_Hints_Guide_20120504.pdf
39
Lenders should prepare a liquidation plan based on the facts known and
reasonable assumptions. This practice is considered prudent and commercially
reasonable to maximize recovery. SBA Form 1979 can be used to properly
prepare your liquidation plan.73
Further, lenders must liquidate all business
personal property that secures the loan before the lender submits a purchase
package to SBA, unless the borrower has filed for bankruptcy.74
In addition to a liquidation plan, lenders should prepare a litigation plan to
include any work to be performed and fees to be charged. Depending on the
anticipated cost and the nature of the work, lenders must obtain SBA’s prior
approval of a litigation plan before entering into any non-routine litigation. Non-
routine litigation includes factual or legal issues in dispute that require resolution
through adjudication; legal fees that are estimated to exceed $10,000; lender has a
potential or actual conflict of interest with SBA; or lender has made a separate
loan to the borrower, which was not a loan by SBA.75
Practice Tip: If a lender engages in non-routine litigation, incurs legal
expenses, and then submits its litigation plan and invoices for legal work already
performed, these legal expenses could be challenged and might be disallowed.
73
U.S. Small Business Administration, “SBA Form 1979, Liquidation Plan Format,”
www.sba.gov/sites/default/files/bank_sba1979.pdf
74 13 C.F.R. § 120.520(a)
75 U.S. Small Business Administration, “Litigation Plans,” www.sba.gov/content/litigation-plan
V. Pitfalls
SBA does not have to honor a guaranty purchase request in full or in part on a 7(a) loan if
the lender failed to comply materially with a loan program requirement; failed to make, close,
service, liquidate or litigate the loan in a prudent manner; placed SBA at risk through improper
action or inaction; failed to disclose a material fact to SBA in a timely manner; or misrepresented
a material fact to SBA regarding the loan.76
The following are the common reasons cited by SBA
for which a guaranty is repaired or denied:
A. Expiration after Maturity Issue
If the lender does not request purchase within 180 days after loan maturity, SBA
is not obligated to purchase the guaranty.
B. Lien and Collateral Issues
Lien and collateral issues may result in a missed recovery. Examples of lien and
collateral issues that may arise are as follows:
· Failure to obtain required lien position;
· Failure to properly perfect security interest; and/or
· Failure to fully collateralize loan at origination when additional collateral was
unavailable.
76
13 C.F.R. § 120.524(a)
41
C. Unauthorized Use of Proceeds Issues
Recovery can be repaired or denied when proceeds are disbursed for purposes
inconsistent with the loan authorization or subsequent modifications without a
business justification. Typically, if proceeds are distributed in a manner not consistent
with authorization, the guaranteed amount may be repaired. However, a complete
denial will result when early default and improper use of the proceeds cause the
failure of the business.
D. Liquidation Deficiency Issues
Liquidation deficiency will generally result in a repair. However, a denial may occur
when harm is the full value of the outstanding balance. The following situations are
examples of liquidation deficiencies:
· Failure to conduct a “Site Visit” which resulted in a missed recovery;
· Improper safeguarding or disposition of collateral which resulted in missed
recoveries; and/or
· Misapplication of recoveries to lender’s loan when SBA-guaranteed loan has lien
priority.
E. Undocumented Servicing Actions Issues
An undocumented servicing action will generally result in a repair of recovery
under the following situations:
· Liens not properly renewed during servicing on worthwhile collateral;
· Release or subordination of collateral without documented business justification;
· Allowing hazard insurance to lapse on major collateral when collateral is
subsequently destroyed; and/or
· Failure to maintain life insurance on principal when principal subsequently dies.
F. Early Default Issues
Early default can result in a denial if it is determined to be the reason for business
failure under the following circumstances:
· Missing or unsupported verification of required equity injection, which will include
verification of source in certain cases; and/or
· Missing or unsupported documentation of verification of borrower financial
information with IRS when financial information was relied on in lender’s credit
analysis.
43
EXHIBIT “A”
SBA Form 1919
(Borrower Application for 7(a) Loan)
45
47
49
EXHIBIT “B”
SBA Form 912
(Statement of Personal History)
51
53
EXHIBIT “C”
SBA Form 413
(Personal Financial Statement)
55
57
59
EXHIBIT “D”
SBA Form 159
(Compensation Agreement for 7(a) Loan)
61
63
EXHIBIT “E”
IRS Form 4506T
(Request for Tax Transcript)
65
EXHIBIT “F”
SBA Form 147
(Note for 7(a) Loan)
67
U.S. Small Business Administration
NOTE
SBA Loan # @@
SBA Loan Name
@@
Date September @@, 2014
Loan Amount $@@
Interest Rate @@Prime + @@%; Adjusting every @@ years from the date of the Note
Borrower @@
Operating Company
@@N/A
Lender
@@
1. PROMISE TO PAY:
In return for the Loan, Borrower promises to pay to the order of Lender the amount of @@ AND @@/100--
-($@@) ------ Dollars, interest on the unpaid principal balance, and all other amounts required by this Note.
2. DEFINITIONS:
“Collateral” means any property taken as security for payment of this Note or any guarantee of this Note.
“Guarantor” means each person or entity that signs a guarantee of payment of this Note.
“Loan” means the loan evidenced by this Note.
“Loan Documents” means the documents related to this loan signed by Borrower, any Guarantor, or anyone
who
pledges collateral.
“SBA” means the Small Business Administration, an Agency of the United States of America.
3. PAYMENT TERMS:
Borrower must make all payments at the place Lender designates. The payment terms for this Note are:
@@This Note will mature in 10 years from date of Note.
@@The initial interest rate is 6.00% per year for 3 years. This initial rate is the prime rate in effect on the first business day of the
month in which SBA received the loan application, plus 2.75%. The interest rate on this Note will then begin to fluctuate as described
below. The initial interest rate must remain in effect until the first change period begins.
@@Borrower must pay principal and interest payments of $4,497.00 every month, beginning one month from the month this Note is
dated; payments must be made on the first calendar day in the months they are due.
@@Lender will apply each installment payment first to pay interest accrued to the day Lender receives the payment, then to bring
principal current, then to pay any late fees, and will apply any remaining balance to reduce principal.
@@The interest rate will be adjusted every 3 years from the date of the Note (the "change period").
@@The "Prime Rate" is the prime rate in effect on the first business day of the month (as published in the Wall Street Journal) in which
SBA received the application, or any interest rate change occurs. Base Rates will be rounded to two decimal places with .004 being
rounded down and .005 being rounded up.
@@The adjusted interest rate will be 2.75% above the Prime Rate. Lender will adjust the interest rate on the first calendar day of each
change period. The change in interest rate is effective on that day whether or not Lender gives Borrower notice of the change.
@@Lender must adjust the payment amount at least annually as needed to amortize principal over the remaining term of the note.
@@If SBA purchases the guaranteed portion of the unpaid principal balance, the interest rate becomes fixed at the rate in effect at the
time of the earliest uncured payment default. If there is no uncured payment default, the rate becomes fixed at the rate in effect at the
time of purchase.
Loan Prepayment:
@@Notwithstanding any provision in this Note to the contrary:
@@Borrower may prepay this Note. Borrower may prepay 20% or less of the unpaid principal balance at any time without notice. If
Borrower prepays more than 20% and the Loan has been sold on the secondary market, Borrower must:
a. Give Lender written notice;
b. Pay all accrued interest; and
c. If the prepayment is received less than 21 days from the date Lender receives the notice, pay an amount equal to 21
days' interest from the date lender receives the notice, less any interest accrued during the 21 days and paid under
subparagraph b., above.
@@If Borrower does not prepay within 30 days from the date Lender receives the notice, Borrower must give Lender a new notice.
@@All remaining principal and accrued interest is due and payable 10 years from date of Note.
@@Late Charge: If a payment on this Note is more than 10 days late, Lender may charge Borrower a late fee of up to 5.00% of the
unpaid portion of the regularly scheduled payment.
69
4. @@DEFAULT:
Borrower is in default under this Note if Borrower does not make a payment when due under this Note, or if
Borrower or Operating Company:
A. Fails to do anything required by this Note and other Loan Documents;
B. Defaults on any other loan with Lender;
C. Does not preserve, or account to Lender’s satisfaction for, any of the Collateral or its proceeds;
D. Does not disclose, or anyone acting on their behalf does not disclose, any material fact to Lender or
SBA;
E. Makes, or anyone acting on their behalf makes, a materially false or misleading representation to Lender
or SBA;
F. Defaults on any loan or agreement with another creditor, if Lender believes the default may materially
affect Borrower’s ability to pay this Note;
G. Fails to pay any taxes when due;
H. Becomes the subject of a proceeding under any bankruptcy or insolvency law;
I. Has a receiver or liquidator appointed for any part of their business or property;
J. Makes an assignment for the benefit of creditors;
K. Has any adverse change in financial condition or business operation that Lender believes may materially
affect Borrower’s ability to pay this Note;
L. Reorganizes, merges, consolidates, or otherwise changes ownership or business structure without
Lender’s prior written consent; or
M. Becomes the subject of a civil or criminal action that Lender believes may materially affect Borrower’s
ability to pay this Note.
5. @@LENDER’S RIGHTS IF THERE IS A DEFAULT:
Without notice or demand and without giving up any of its rights, Lender may:
A. Require immediate payment of all amounts owing under this Note;
B. Collect all amounts owing from any Borrower or Guarantor;
C. File suit and obtain judgment;
D. Take possession of any Collateral; or
E. Sell, lease, or otherwise dispose of, any Collateral at public or private sale, with or without
advertisement.
6. @@LENDER’S GENERAL POWERS:
Without notice and without Borrower’s consent, Lender may:
A. Bid on or buy the Collateral at its sale or the sale of another lienholder, at any price it chooses;
B. Incur expenses to collect amounts due under this Note, enforce the terms of this Note or any other Loan
Document, and preserve or dispose of the Collateral. Among other things, the expenses may include
payments for property taxes, prior liens, insurance, appraisals, environmental remediation costs, and
reasonable attorney’s fees and costs. If Lender incurs such expenses, it may demand immediate
repayment from Borrower or add the expenses to the principal balance;
C. Release anyone obligated to pay this Note;
D. Compromise, release, renew, extend or substitute any of the Collateral; and
E. Take any action necessary to protect the Collateral or collect amounts owing on this Note.
7. @@WHEN FEDERAL LAW APPLIES:
When SBA is the holder, this Note will be interpreted and enforced under federal law, including SBA
regulations. Lender or SBA may use state or local procedures for filing papers, recording documents, giving
notice, foreclosing liens, and other purposes. By using such procedures, SBA does not waive any federal
immunity from state or local control, penalty, tax, or liability. As to this Note, Borrower may not claim or
assert against SBA any local or state law to deny any obligation, defeat any claim of SBA, or preempt
federal law.
8. @@SUCCESSORS AND ASSIGNS:
Under this Note, Borrower and Operating Company include the successors of each, and Lender includes its
successors and assigns.
9. @@GENERAL PROVISIONS:
A. All individuals and entities signing this Note are jointly and severally liable.
B. Borrower waives all suretyship defenses.
C. Borrower must sign all documents necessary at any time to comply with the Loan Documents and to
enable Lender to acquire, perfect, or maintain Lender’s liens on Collateral.
D. Lender may exercise any of its rights separately or together, as many times and in any order it chooses.
Lender may delay or forgo enforcing any of its rights without giving up any of them.
E. Borrower may not use an oral statement of Lender or SBA to contradict or alter the written terms of this
Note.
F. If any part of this Note is unenforceable, all other parts remain in effect.
G. To the extent allowed by law, Borrower waives all demands and notices in connection with this Note,
including presentment, demand, protest, and notice of dishonor. Borrower also waives any defenses
based upon any claim that Lender did not obtain any guarantee; did not obtain, perfect, or maintain a
lien upon Collateral; impaired Collateral; or did not obtain the fair market value of Collateral at a sale.
71
10. @@STATE-SPECIFIC PROVISIONS:
@@NONE – @@
[Initialed - @@:________ ]
[Initialed - @@:________ ]
11. BORROWER’S NAME(S) AND SIGNATURE(S):
By signing below, each individual or entity becomes obligated under this Note as Borrower.
@@
By: @@
@@
By:
@@
@@
@@dba @@
By: @@
@@
By:
@@
@@
DATE:_______________________
EXHIBIT “G”
SBA Form 1505
(Note for 504 Loan)
73
SBA Loan # @@
SBA Loan Name @@
Date September @@, 2014
Loan Amount $@@
Borrower @@
Operating Company @@
CDC @@
Funding Date: @@ * Interest Rate: _____________ %
First Payment Due: @@ * P&I Amount: $____________
Note Maturity Date: @@ * Monthly Payment: $ ________
(* blank at signing)
1. PROMISE TO PAY:
In return for the Loan, Borrower promises to pay to the order of CDC the amount of @@ ---
($@@) --- Dollars, interest on the unpaid principal balance, the fees specified in the Servicing
Agent Agreement, and all other amounts required by this Note.
2. DEFINITIONS:
"Collateral" means any property taken as security for payment of this Note or any guarantee of this
Note.
"Debenture" means the debenture issued by CDC to fund the Loan
"Guarantor" means each person or entity that signs a guarantee of payment of this Note.
"Loan" means the loan evidenced by this Note.
"Loan Documents" means the documents related to this loan signed by Borrower, Guarantor, or
anyone who pledges collateral.
"SBA" means the Small Business Administration, an Agency of the United States of America.
"Servicing Agent Agreement" means the agreement between the Borrower and the CDC that,
among other things, appoints a servicing agent ("Servicing Agent") for this Note.
3. INTEREST RATE AND PAYMENTS:
The terms of the Debenture sale will establish the interest rate, P & I amount, and Monthly Payment
for this Note. Borrower acknowledges that these terms are unknown when Borrower signs this
Note.
A. Once established, the interest rate is fixed. Interest begins to accrue on the Funding Date.
B. Monthly Payments are due on the first business day of each month, beginning on the First
Payment Date and continuing until the Note Maturity Date, when all unpaid amounts will
be due. Borrower must pay at the place and by the method the Servicing Agent or CDC
designates. The Monthly Payment includes the monthly principal and interest installment
(P & I Amount), and the monthly fees in the Servicing Agent Agreement. The Servicing
Agent will apply regular Monthly Payments in the following order: 1) monthly fees, 2)
accrued interest, and 3) principal.
4. LATE-PAYMENT FEE:
CDC charges a late fee if the Servicing Agent receives a Monthly Payment after the fifteenth day of
the month when it is due. The late fee is five percent of the payment amount, or $100.00,
whichever is greater. The late fee is in addition to the regular Monthly Payment.
5. RIGHT TO PREPAY:
Borrower may prepay this Note in full on a specific date each month set by the Servicing Agent.
Borrower may not make partial prepayments. Borrower must give CDC at least 45 days' prior
written notice. When it receives the notice, CDC will give Borrower prepayment instructions. At
least 10 days before the payment date, Borrower must wire a non-refundable deposit of $1,000 to
the Servicing Agent. The Servicing Agent will apply the deposit to the prepayment if Borrower
prepays. In any prepayment, Borrower must pay the sum of all of the following amounts due and
owing through the date of the next semi-annual Debenture payment:
A. Principal balance;
B. Interest;
C. SBA guarantee fees;
D. Servicing agent fees;
E. CDC servicing fees;
F. Late fees;
75
G. Expenses incurred by CDC for which Borrower is responsible; and
H. Any prepayment premium.
6. PREPAYMENT PREMIUM;
If Borrower prepays during the first half of the Note term, Borrower must pay a prepayment
premium. The formula for the prepayment premium is specified in the Debenture and may be
obtained from CDC.
7. DEFAULT:
Borrower is in default under this Note if Borrower does not make a payment when due under this
Note, or if Borrower or Operating Company:
A. Fails to do anything required by this Note and other Loan Documents;
B. Defaults on any other loan made or guaranteed by SBA;
C. Does not preserve or account to CDC's satisfaction for any of the Collateral or its proceeds;
D. Does not disclose, or anyone acting on their behalf does not disclose, any material fact to
CDC or SBA;
E. Makes, or anyone acting on their behalf makes, a materially false or misleading
representation to CDC or SBA;
F. Defaults on any loan or agreement with another creditor, if CDC believes the default may
materially affect Borrower's ability to pay this Note;
G. Fails to pay any taxes when due;
H. Becomes the subject of a proceeding under any bankruptcy or insolvency law;
I. Has a receiver or liquidator appointed for any part of their business or property;
J. Makes an assignment for the benefit of creditors;
K. Has any adverse change in financial condition or business operation that CDC believes may
materially affect Borrower's ability to pay this Note;
L. Reorganizes, merges, consolidates, or otherwise changes ownership or business structure
without CDC's prior written consent, except for ownership changes of up to 5 percent
beginning six months after the Loan closes; or
M. Becomes the subject of a civil or criminal action that CDC believes may materially affect
Borrower's ability to pay this Note.
8. CDC'S RIGHTS IF THERE IS A DEFAULT:
Without notice or demand and without giving up any of its rights, CDC may:
A. Require immediate payment of all amounts owing under this Note;
B. Collect all amounts owing from any Borrower or Guarantor;
C. File suit and obtain judgment;
D. Take possession of any Collateral; and,
E. Sell, lease, or otherwise dispose of, any Collateral at public or private sale, with or without
advertisement.
9. CDC'S GENERAL POWERS:
Without notice and without Borrower's consent, CDC may:
A. Bid or buy at any sale of Collateral by Lender or another lienholder, at any price it chooses;
B. Incur expenses to collect amounts due under this Note, enforce the terms of this Note or
any other Loan Document, and preserve or dispose of the Collateral. Among other things,
the expenses may include payments for property taxes, prior liens, insurance, appraisals,
environmental remediation costs, and reasonable attorney's fees and costs. If CDC incurs
such expenses, it may demand immediate repayment from Borrower or add the expenses to
the principal balance;
C. Release anyone obligated to pay this Note;
D. Compromise, release, renew, extend or substitute any of the Collateral; and
E. Take any action necessary to protect the Collateral or collect amounts owing on this Note.
10. FEDERAL LAW:
When SBA is the holder, this Note will be interpreted and enforced under federal law, including
SBA regulations. CDC or SBA may use state or local procedures for filing papers, recording
documents, giving notice, foreclosing liens, and other purposes. By using such procedures, SBA
does not waive any federal immunity from state or local control, penalty, tax, or liability. As to this
Note, Borrower may not claim or assert against SBA any local or state law to deny any obligation,
defeat any claim of SBA, or preempt federal law.
11. SUCCESSORS AND ASSIGNS:
Under this Note, Borrower and Operating Company include the successors of each, and CDC
includes its successors and assigns.
12. GENERAL PROVISIONS:
A. All individuals and entities signing this Note are jointly and severally liable.
B. Borrower authorizes CDC, the Servicing Agent, or SBA to complete any blank terms in
this Note and any other Loan Documents. The completed terms will bind Borrower as if
they were completed prior to this Note being signed.
C. Borrower waives all suretyship defenses.
D. Borrower must sign all documents necessary at any time to comply with the Loan
Documents and to enable CDC to acquire, perfect, or maintain CDC's liens on Collateral.
E. CDC may exercise any of its rights separately or together, as many times and in any order it
chooses. CDC may delay or forgo enforcing any of its rights without giving any up.
F. Borrower may not use any oral statement to contradict or alter the written terms of, or raise
a defense to, this Note.
G. If any part of this Note is unenforceable, all other parts remain in effect.
H. To the extent allowed by law, Borrower waives all demands and notices in connection with
this Note, including presentment, demand, protest, and notice of dishonor. Borrower also
waives any defenses based upon any claim that CDC did not obtain any guarantee; did not
obtain, perfect, or maintain a lien upon Collateral; impaired Collateral; or did not obtain the
fair market value of Collateral at a sale.
77
13. STATE-SPECIFIC PROVISIONS:
NONE -- @@
14. BORROWER'S NAME(S) AND SIGNATURE(S):
By signing below, each individual or entity becomes obligated under this Note as Borrower.
IN WITNESS WHEREOF, we have hereunto set our hands and seals on the date first above written.
@@
By:______________________________________
@@
EXHIBIT “H”
SBA Form 148
(SBA Unconditional Guarantee)
79
SBA Loan # @@
SBA Loan Name @@
Guarantor @@
Borrower @@
Lender @@
Date September @@, 2014
Note Amount $@@
1. GUARANTEE:
Guarantor unconditionally guarantees payment to Lender of all amounts owing under the Note.
This Guarantee remains in effect until the Note is paid in full. Guarantor must pay all amounts due
under the Note when Lender makes written demand upon Guarantor. Lender is not required to seek
payment from any other source before demanding payment from Guarantor.
2. NOTE:
The "Note" is the promissory note dated this date , in the principal amount of @@ --- ($@@) ---
Dollars, from Borrower to Lender. It includes any assumption, renewal, substitution, or
replacement of the Note, and multiple notes under a line of credit.
3. DEFINITIONS:
"Collateral" means any property taken as security for payment of the Note or any guarantee of the
Note.
"Loan" means the loan evidenced by the Note.
"Loan Documents" means the documents related to the Loan signed by Borrower, Guarantor or any
other guarantor, or anyone who pledges Collateral.
"SBA" means the Small Business Administration, an Agency of the United States of America.
4. LENDER'S GENERAL POWERS:
Lender may take any of the following actions at any time, without notice, without Guarantor's
consent, and without making demand upon Guarantor:
A. Modify the terms of the Note or any other Loan Document except to increase the amounts
due under the Note;
B. Refrain from taking any action on the Note, the Collateral, or any guarantee;
C. Release any Borrower or any guarantor of the Note;
D. Compromise or settle with the Borrower or any guarantor of the Note;
E. Substitute or release any of the Collateral, whether or not Lender receives anything in
return;
F. Foreclose upon or otherwise obtain, and dispose of, any Collateral at public or private sale,
with or without advertisement;
G. Bid or buy at any sale of Collateral by Lender or any other lienholder, at any price Lender
chooses; and
H. Exercise any right it has, including those in the Note and other Loan Documents.
These actions will not release or reduce the obligations of Guarantor or create any rights or claims
against Lender.
5. FEDERAL LAW:
When SBA is the holder, the Note and this Guarantee will be construed and enforced under federal
law, including SBA regulations. Lender or SBA may use state or local procedures for filing papers,
recording documents, giving notice, foreclosing liens, and other purposes. By using such
procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or
liability. As to this Guarantee, Guarantor may not claim or assert any local or state law against
SBA to deny any obligation, defeat any claim of SBA, or preempt federal law.
6. RIGHTS, NOTICES, AND DEFENSES THAT GUARANTOR WAIVES:
To the extent permitted by law,
A. Guarantor waives all rights to:
1) Require presentment, protest, or demand upon Borrower;
2) Redeem any Collateral before or after Lender disposes of it;
3) Have any disposition of Collateral advertised; and
4) Require a valuation of Collateral before or after Lender disposes of it.
81
B. Guarantor waives any notice of:
1) Any default under the Note;
2) Presentment, dishonor, protest, or demand;
3) Execution of the Note;
4) Any action or inaction on the Note or Collateral, such as disbursements, payment,
nonpayment, acceleration, intent to accelerate, assignment, collection activity, and
incurring enforcement expenses;
5) Any change in the financial condition or business operations of Borrower or any
guarantor;
6) Any changes in the terms of the Note or other Loan Documents, except increases in
the amounts due under the Note; and
7) The time or place of any sale or other disposition of Collateral.
C. Guarantor waives defenses based upon any claim that:
1) Lender failed to obtain any guarantee;
2) Lender failed to obtain, perfect, or maintain a security interest in any property
offered or taken as Collateral;
3) Lender or others improperly valued or inspected the Collateral;
4) The Collateral changed in value, or was neglected, lost, destroyed, or underinsured;
5) Lender impaired the Collateral;
6) Lender did not dispose of any of the Collateral;
7) Lender did not conduct a commercially reasonable sale;
8) Lender did not obtain the fair market value of the Collateral;
9) Lender did not make or perfect a claim upon the death or disability of Borrower or
any guarantor of the Note;
10) The financial condition of Borrower or any guarantor was overstated or has
adversely changed;
11) Lender make errors or omissions in Loan Documents or administration of the
Loan;
12) Lender did not seek payment from the Borrower, any other guarantors, or any
Collateral before demanding payment from Guarantor;
13) Lender impaired Guarantor's suretyship rights;
14) Lender modified the Note terms, other than to increase amounts due under the
Note. If Lender modifies the Note to increase the amounts due under the Note
without Guarantor's consent, Guarantor will not be liable for the increased amounts
and related interest and expenses, but remains liable for all other amounts;
15) Borrower has avoided liability on the Note; or
16) Lender has taken an action allowed under the Note, this Guarantee, or other Loan
Documents.
7. DUTIES AS TO COLLATERAL:
Guarantor will preserve the Collateral pledged by Guarantor to secure this Guarantee. Lender has
no duty to preserve or dispose of any Collateral.
8. SUCCESSORS AND ASSIGNS:
Under this Guarantee, Guarantor includes heirs and successors, and Lender includes its successors
and assigns.
9. GENERAL PROVISIONS:
A. ENFORCEMENT EXPENSES. Guarantor promises to pay all expenses Lender incurs to
enforce this Guarantee, including, but not limited to, attorney's fees and costs.
B. SBA NOT A CO-GUARANTOR. Guarantor's liability will continue even if SBA pays
Lender. SBA is not a co-guarantor with Guarantor. Guarantor has no right of contribution
from SBA.
C. SUBROGATION RIGHTS. Guarantor has no subrogation rights as to the Note or the
Collateral until the Note is paid in full.
D. JOINT AND SEVERAL LIABILITY. All individuals and entities signing as Guarantor
are jointly and severally liable.
E. DOCUMENT SIGNING. Guarantor must sign all documents necessary at any time to
comply with the Loan Documents and to enable Lender to acquire, perfect, or maintain
Lender's liens on Collateral.
F. FINANCIAL STATEMENTS. Guarantor must give Lender financial statements as
Lender requires.
G. LENDER'S RIGHTS CUMULATIVE, NOT WAIVED. Lender may exercise any of its
rights separately or together, as many times as it chooses. Lender may delay or forgo
enforcing any of its rights without losing or impairing any of them.
H. ORAL STATEMENTS NOT BINDING. Guarantor may not use an oral statement to
contradict or alter the written terms of the Note or this Guarantee, or to raise a defense to
this Guarantee.
I. SEVERABILITY. If any part of this Guarantee is found to be unenforceable, all other
parts will remain in effect.
J. CONSIDERATION. The consideration for this Guarantee is the Loan or any
accommodation by Lender as to the Loan.
10. STATE-SPECIFIC PROVISIONS:
NONE -- @@
83
11. GUARANTOR ACKNOWLEDGMENT OF TERMS:
Guarantor acknowledges that Guarantor has read and understands the significance of all terms of
the Note and this Guarantee, including all waivers.
12. GUARANTOR NAME(S) AND SIGNATURE(S):
By signing below, each individual or entity becomes obligated as Guarantor under this Guarantee.
IN WITNESS WHEREOF, we have hereunto set our hands and seals on the date first above written.
L.S.
@@ (Individually)
@@
By:
Name: @@
Title: @@
Witness
EXHIBIT “I”
SBA Form 2287
(Third Party Lender Agreement for 504 Loan)
85
THIRD PARTY LENDER AGREEMENT
THIS THIRD PARTY LENDER AGREEMENT (“Agreement") is dated this ______ day of
@@_________, 2014, by and between @@ (“Third Party Lender”) whose address is @@ and
@@ (“CDC”) whose address is @@
RECITALS
1. The Third Party Lender and CDC will provide separate loans to the Borrower and Operating
Company, if any (collectively “Borrower”), according to the terms in the Authorization for
Debenture Guarantee (SBA 504 Loan), as amended (“Authorization”). The Third Party Lender
will provide term financing (“Third Party Loan”), and the CDC will provide a loan (“504 Loan”)
funded by a debenture issued by the CDC and guaranteed by the U.S. Small Business
Administration (“SBA”), for purposes of financing the Project described in the Authorization,
which involves the acquisition and/or improvement of the real and/or personal property
described below, and in Exhibit A attached hereto and incorporated herein by reference (“Project
Property”):
SBA Loan #: ______________________________@@
SBA Loan Name: __________________________@@
Borrower: ________________________________@@
Operating Company (if any): _________________@@
Third Party Loan Amount: ___________________@@
Term of Third Party Loan: ___________________@@
If Real Property -- Project Property Address:
Street address: _________________@@
City, State, Zip code: ___________@@
Attach Legal description as an exhibit.
If Personal Property: Describe property, including name of manufacturer, name of
equipment, and applicable serial number(s) or other identifying numbers for property
valued at $5000 or more. Attach a detailed description as an exhibit.
2. The parties have required the Borrower to grant liens on the Project Property to secure the
separate loans advanced by the parties (“Common Collateral”), and the lien of the CDC (“CDC
Lien”) will be junior and subordinate to the lien of the Third Party Lender (“Third Party
Lender Lien”), unless Third Party Lender, CDC and SBA agree otherwise in writing.
TERMS AND CONDITIONS
In consideration of the above, the mutual agreements set forth below, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Amount of Third Party Loan. The Third Party Lender represents that the Third Party
Loan is fully advanced; does not exceed the amount stated in the Authorization; and, will not
exceed the amount allowed by the Authorization, plus reasonable costs of collection, maintenance,
and protection of the Third Party Lender Lien. Any amounts owed by Borrower to Lender in excess
of the Third Party Lender Lien amount stated in the Authorization cannot be secured by a lien on
the Common Collateral unless it is subordinate to the 504 Loan.
2. Subordination of 504 Loan. CDC agrees to make the 504 Loan to the Borrower, subject to
SBA’s approval, and accept a junior and subordinate lien position in the Common Collateral upon
the conditions that Third Party Lender executes this Agreement and disburses the Third Party Loan
according to the terms represented to CDC and SBA.
3. Accurate Information. The Third Party Lender warrants and represents that all information
provided by the Third Party Lender to CDC, including, without limitation, all information regarding
the Borrower’s financial condition, is accurate to the best of its knowledge and that Third Party
Lender has not withheld any material information. Third Party Lender acknowledges that for
purpose of this transaction, CDC is acting on behalf of SBA, an agency in the United States
Government, except that SBA accepts no liability or responsibility for any wrongful act or omission
by CDC. Third Party Lender further acknowledges that any false statements to CDC can be
considered false statements to the federal government under 18 U.S.C. §1001, and may subject the
Third Party Lender to criminal penalties, and that CDC and SBA are relying upon the information
submitted by the Third Party Lender.
4. Waiver of Provision Not to Encumber Common Collateral. Third Party Lender waives
its rights to enforce, as against CDC and SBA, any provisions in its documents that prohibit
Borrower from further encumbering the Common Collateral or which restrict Borrower’s
ability to assign its lease on, or rents, income or profits from, the Common Collateral.
5. Compliance with 504 Loan Program Requirements. Third Party Lender agrees that all
documents evidencing the Third Party Loan and the Third Party Lender Lien will comply with
the 504 Loan Program Requirements as established by SBA, including those identified in the
following subparagraphs, and, in the event one or more of the provisions in such documents do
not comply with these 504 Loan Program Requirements, Third Party Lender waives any right to
enforce such provisions while the 504 Loan has any unpaid balance and agrees that it must act in
87
a commercially reasonable manner with regard to any enforcement action.
a. No Open-Ended Features and No Future Advances. The Third Party
Loan must not be open-ended. After completion of the Project, the Third Party Lender
may not make future advances under the Third Party Loan except for reasonable costs
of collection, maintenance, and protection of the Third Party Loan and Third Party
Lender Lien.
b. No Early Call or Demand Provisions. Third Party Lender agrees that
documents evidencing the Third Party Loan and the Third Party Lender Lien do not contain
an early call feature or any provision which allows Third Party Lender to make demand
under the Third Party Lender Loan other than when there is a material default under the
terms of its Third Party Loan documents, which shall include, but not be limited to, failure
to make timely payments on the Third Party Loan, failure to pay taxes when due or
violation of any financial covenants which would cause a prudent lender to believe that the
prospect of payment or performance of the Third Party Note is impaired.
c. No Cross-Collateralization. Third Party Lender agrees that the Common
Collateral will only secure its Third Party Loan and the Common Collateral is not
currently, and will not be used in the future, as security for any other financing provided
by Third Party Lender to Borrower that purports to be in a superior position to that of
the CDC Lien, unless authorized in writing by CDC and SBA.
d. No Cross-Default. During the term of the 504 Loan, Third Party Lender
will not exercise any cross-default, "deem at-risk," or any other provisions in documents
evidencing the Third Party Loan or Third Party Lender Lien which allow Third Party
Lender to make demand on the Third Party Loan prior to maturity unless the Third Party
Loan is in material default.
e. Maturity and Balloon Payments. The Third Party Loan must have a term
of at least 7 years (when the 504 loan is for a term of 10 years), or a term of at least10
years (when the 504 loan is for 20 years). If the Third Party Lender has made more
than one loan, then an overall loan maturity must be calculated, taking into account the
amounts and maturities of each loan. Any balloon payment for the Third Party Loan
must be clearly identified and disclosed to SBA and approved at application or
subsequently approved by SBA.
f. Reasonable Interest Rate. The Third Party Loan has a reasonable
interest rate which does not and will not exceed the maximum interest rate for Third
Party Loans from commercial financial institutions as published periodically by SBA
in the Federal Register and in effect as of the date of this Agreement.
6. Marshaling of Assets. If the Third Party Lender takes additional collateral as
security for the Third Party Loan, in the case of liquidation, any proceeds received from
such additional collateral, must be applied to the Third Party Lender's Loan prior to the
proceeds from the liquidation of the Common Collateral held by the CDC/SBA and the
Third Party Lender. If the additional collateral no longer exists at the time of
liquidation, or has insufficient value to justify the cost of collection, then the Third
Party Lender is not required to liquidate such collateral, provided the Third Party
Lender notifies CDC/SBA.
7. Notice of Default under the Third Party Loan. Within thirty (30) days after the
expiration of any cure period for any continuing material default of the Third Party
Loan or Third Party Lender Lien, Third Party Lender must provide written notice
(referencing SBA’s loan number for the 504 Loan) of the default to CDC and SBA. At
least sixty 60 days prior to any legal proceedings against or liquidation of the Common
Collateral (not including sending a demand letter), Third Party Lender must provide
SBA with written notice of its intent to do so.
8. Limitation on Default Interest Rate. Third Party Lender may not escalate the rate
of interest upon default to a rate greater than the maximum rate published by SBA in the
Federal Register. SBA will only pay the interest rate on the note in effect before the
date of Borrower’s default.
9. Subordination to 504 Loan and/or CDC Lien, of Amounts
Attributable to Default Provisions.
a. The term "Default Charges" used in this paragraph includes, but is not
limited to, prepayment penalties, late fees, other default charges, and escalated
interest after default due under the Third Party Loan.
b. To the extent the Third Party Lender Lien secures any amounts
attributable to Default Charges, which may exist in the Third Party Loan and Third
Party Lender Lien, Third Party Lender Lien is and will be subordinate to the 504 Loan
and the CDC Lien. This subordination applies only to CDC and SBA and their
successors and assigns, and shall not inure to the benefit of Borrower or any guarantor
of the Third Party Loan.
c. In the event of default under the Third Party Loan, CDC or SBA may
bring the Third Party Loan current or may acquire the Third Party Loan secured by the
Third Party Lender Lien. Third Party Lender agrees that in either of these
circumstances, the amount to bring the Third Party Loan current or the purchase price of
that loan will be net of all amounts attributable to the Default Charges so subordinated to
the 504 Loan and the CDC Lien. Third Party Lender further agrees that if it receives from
CDC or SBA any amounts attributable to such Default Charges, Third Party Lender holds
such funds in trust for SBA and will remit such funds to SBA as soon as possible. In
addition, Third Party Lender shall charge as against SBA only the interest rate on the
Third Party Loan that was in effect before the date of Borrower’s default. Should CDC or
SBA not purchase the Third Party Loan but rather bring the Third Party Loan current,
Default Charges on the Third Party Loan may remain due and owing from the Borrower.
d. The Third Party Lender agrees:
89
(1) If the Third Party Lender sells its Note (other than when liquidating
the Third Party Loan), then the Third Party Lender must provide CDC/SBA, within
fifteen (15) days of the sale, with written notice of the purchaser's name, address
and telephone number and confirmation that the purchaser has received a copy of
the executed Third Party Lender Agreement.
(2) If the Third Party Loan is in default and the Third Party
Lender, as part of its liquidation strategy,
(i) proposes to sell its note, or
(ii) receives an offer from a third party, then
the Third Party Lender must provide CDC/SBA with the
option to purchase the note at the same price offered by
the potential purchaser, net any Default Charges per
paragraph 9(c). SBA will have forty-five (45) days from
receipt of the notice from the Third Party Lender to
exercise its option to purchase the note. If SBA does not
exercise its option and the Third Party Lender sells its
note, then the Third Party Lender must provide
CDC/SBA, within fifteen (15) days of the sale, with
written notice of the purchaser's name, address and
telephone number, and must provide the purchaser with a
copy of the executed Third Party Lender Agreement.
e. If the Third Party Lender sells or otherwise transfers its note to a
third party, then any Default Charges, including, but not limited to, prepayment
penalties, late fees, other Default Charges, and escalated interest after default
due under the Third Party Loan must be subordinate to the amounts outstanding
on the 504 Loan and/or CDC Lien.
f. If the Third Party Lender loan documents contain a swap component
or hedging contract (hereinafter defined as “swap agreement), all costs associated
with this swap agreement, which may be termed swap fees, termination fees,
default fees or other related fees, shall be subordinate to the amounts outstanding
on the 504 Loan and/or CDC Lien.
10. Liquidation. In the event that either the Third Party Loan or the 504 Loan is declared in
default, Third Party Lender and CDC and SBA agree to cooperate in liquidating and/or selling
the Common Collateral. Third Party Lender agrees to (a) accept a U.S. Treasury check(s) in
connection with any purchase of Third Party Lender’s note or any foreclosure or liquidation bid
by CDC or SBA; (b) to provide CDC and SBA with the loan payment status, loan payment
history, and an itemized payoff statement of the Third Party Loan; (c) to provide CDC and SBA,
at no charge (except for reasonable charges for photocopies) with copies of any appraisals,
environmental investigations, or title examinations or searches of the Collateral conducted by or
for Third Party Lender; and (d) to provide any other information about Borrower or the Third
Party Loan requested by CDC and SBA in writing.
11. Waiver of Right to Indemnification by SBA or CDC. If Third Party Lender's
documents contain provisions granting Third Party Lender the right to indemnification by
subsequent owners of the Project Property, then Third Party Lender waives its right to enforce
such provisions against SBA or CDC in the event SBA or CDC acquires title to the Project
Property through foreclosure of the CDC Lien, acceptance of a deed in lieu of foreclosure, or
otherwise.
Paragraph 12 is optional and should be marked if CDC uses Third Party Lender to perform
Customer Identification.
12. Bank Regulatory Issues. If Third Party Lender is regulated by one of the
Federal functional regulators (Comptroller of the Currency, Federal Deposit Insurance
Corporation, or National Credit Union Administration), Third Party Lender represents that it
is subject to the Joint Final Rule on Customer Identification Programs (CIP) in 31 C.F.R.
103.121 and that it or its agent will perform with respect to the Borrower the specified
requirements of its CIP.
13. No Implied Third Party Beneficiaries. To the extent there is a conflict between this
Agreement and any provision in any agreement either Party may have with a third party,
including but not limited to, Borrower, the terms and conditions in this Agreement shall
supersede any such provision. The parties agree that SBA may enforce this agreement as a third
party beneficiary, and further agree that this Agreement shall not grant any right, benefit,
priority, or interest to any other third party, including but not limited to, Borrower and
Guarantor(s).
14. Successors and Assigns. This Agreement will inure to the benefit of and bind the respective
parties to this Agreement, and their successors and assigns, including any party acquiring the Third
Party Loan and Third Party Lender Lien by sale, assignment, or other transfer from Third Party
Lender. Third Party Lender agrees that CDC may assign this Agreement to SBA, and waives all
rights to contest such assignment.
15. Federal Law. When SBA is the holder of the loan instruments evidencing the 504 Loan and
any security for that loan (including but not limited to the CDC Lien on the Common Collateral),
this Agreement and all such instruments will be construed in accordance with Federal law. CDC or
SBA may use local or state procedures for purposes such as filing papers, recording documents,
giving notice, foreclosing liens, and other purposes, but by using these procedures, SBA does not
waive any federal immunity from local or state control, penalty, tax, or liability. The Third Party
Lender may not claim or assert against SBA any local or state law to deny any obligation of
Borrower, or defeat any claim of SBA with respect to the 504 Loan.
16. Termination: This document will be released and terminated upon the payment in full
of either the Third Party Loan or the 504 loan and all costs related thereto.
17. Counterparts. This Agreement may be executed in any number of counterparts, each of
91
which will be deemed an original, and all of which together constitute one and the same
instrument.
18. Validity of Provisions. In the event that any provision of this Agreement is deemed
invalid by a court of competent jurisdiction, all other provisions of this Agreement shall remain
valid and enforceable.
19. Revision of this Agreement. Both Third Party Lender and CDC agree that this
Agreement is a standard SBA Form, and, as such, neither party has authority to modify or
delete any provision in this Agreement, or add any additional provisions, without prior
written authorization from the SBA.
20. Authority to Execute Agreement. The persons signing below certify that they have
been duly authorized to execute this Agreement on behalf of their respective party.
LENDER:
@@
CERTIFIED DEVELOPMENT COMPANY (CDC):
@@
[INSERT SIGANTURES AND NOTARIAL ACKNOWLEDGEMENT AS APPROPRIATE]
EXHIBIT “J”
SBA Form 2288
(Interim Lender Certification)
93
U.S. Small Business Administration
INTERIM LENDER CERTIFICATION
SBA Loan # @@
SBA Loan Name @@
Borrower(s) @@
Operating Company @@
CDC @@
Interim Lender @@
Address of Project Property @@
Date of Certification
(No more than 60 days prior to proposed
Debenture funding)
@@
CDC has agreed to make a loan (the 504 Loan) to Borrower and Operating Company, if applicable
(collectively, “Borrower”) for purposes of financing the Project described in the “Authorization for
Debenture Guarantee (SBA 504 Loan),” as amended (the Authorization). The 504 Loan will be funded
by a debenture issued by CDC and guaranteed by the U.S. Small Business Administration (SBA). One of
the conditions for the 504 Loan is that Interim Lender executes this Interim Lender Certification not
more than 60 days prior to debenture funding. Interim Lender acknowledges that CDC will rely upon
this Interim Lender Certification in making the 504 Loan and that SBA will rely upon this Interim
Lender Certification in guaranteeing the debenture.
Interim Lender certifies, to the best of its knowledge, information and belief, that:
1. The Interim Loan in the amount of $@@ has been fully advanced except for $@@, which will
be placed in escrow until completion of the Project.
2. The Interim Loan has been disbursed in reasonable compliance with the Authorization.
3. Borrower has contributed to the Project the cash, land or other property required by the
Authorization.
4. If the Interim Loan includes construction financing, the Project has been completed in accordance
with the final plans and specifications.
5. Project cost overruns, if any, have been paid by Borrower with cash, representing additional
injection of equity; or with proceeds of a separate note secured by additional collateral which is not a
part of the Interim Loan; or by other source described here:
.
6. Interim Lender has no knowledge of any unremedied substantial adverse change in the condition of
Borrower and Operating Company (if any) since the date of loan application to Interim Lender. Borrower
is current on its payments to Interim Lender and not otherwise in default on the Interim Loan.
[Choose one of the following options for paragraph 7 by checking the paragraph that applies.]
[Option 1: Use if Interim Lender is different from Third Party Lender referred to in the
Authorization.]
___ 7. Upon receipt, Interim Lender will apply the Net Debenture Proceeds to pay off Interim
Lender’s share of Interim Financing stated in the Authorization. Within 30 days of receipt of the Net
Debenture Proceeds, Interim Lender then will record or cause to be recorded releases of any recorded
lien instruments (including without limitation mortgages, deeds of trust, deeds to secure debt, trust
indentures, UCC financing statements) in favor of Interim Lender and securing the Interim Loan; will
provide CDC with recorded copies of these releases; and will cancel, mark as paid, or release the note
evidencing the Interim Loan, any guarantees, and all other documents securing the Interim Loan.
[Option 2: Use if Interim Lender is the same as the Third Party Lender referred to in the
Authorization.]
7. Upon receipt, Interim Lender will apply the Net Debenture Proceeds to pay off Interim Lender’s
share of Interim Financing stated in the Authorization, and Interim Lender will reduce the principal
balance of Interim Lender’s debt to an amount not to exceed the amount of the Third Party Lender Loan
stated in the Authorization or cancel the Interim Loan note, as appropriate, and will provide CDC
evidence of such reduction or cancellation. Within 30 days of receipt of the Net Debenture Proceeds,, Interim Lender will record or cause to be recorded partial or full releases of any recorded lien
instruments (including without limitation mortgages, deeds of trust, deeds to secure debt, trust
indentures, UCC financing statements) in favor of Interim Lender and securing the Interim Lender’s
share of Interim Financing, and will provide CDC with recorded copies of these releases.
[Option 3: Use only if SBA has approved allowing Interim Lender to assign its note and lien
instrument to CDC, regardless of whether Interim Lender is the same as the Third Party Lender
referred to in the Authorization.]
95
Interim Lender’s share of Interim Financing stated in the Authorization. Interim Lender then
will assign to CDC the note evidencing the Interim Loan, any guarantees, the lien instruments
(including without limitation mortgages, deeds of trust, deeds to secure debt, trust indentures,
UCC financing statements) in favor of Interim Lender and securing the Interim Lender’s
share of Interim Financing, and other documents securing the Interim Loan.
8. Interim Lender warrants and represents that all information above, and all information
provided to CDC, including without limitation, all information regarding the Borrower’s and Operating Company’s, if any, financial condition, is accurate to the best of its
knowledge and that Interim Lender has not withheld any material information. Interim
Lender acknowledges that for the purpose of this transaction, CDC is acting on behalf of
SBA, an agency of the United States Government, except that SBA accepts no liability or responsibility for any wrongful act or omission by CDC. Interim Lender also
acknowledges that CDC and SBA are relying upon the accuracy of the responses above
and of all information submitted by the Interim Lender to CDC in determining whether to
approve financing to Borrower and Operating Company, if any, that will be used to repay a loan made by Interim Lender. Interim Lender further acknowledges that submission of
false information to CDC, or the withholding of material information from CDC, can
result in criminal prosecution under 18 U.S.C. § 1001 and other provisions, liability for
treble damages under the False Claims Act, 31 U.S.C. §§ 3729-3733, debarment and suspension, and other consequences.
INTERIM LENDER:
@@
___ 7. Upon receipt, Interim Lender will apply the Net Debenture Proceeds to pay off the
96
EXHIBIT “K”
SBA Form 1050
(SBA Settlement Sheet - 7(a) Loan)
97
98
EXHIBIT “L”
SBA Form 722
(EEO Poster and Notice)
99
100
EXHIBIT “M”
SBA Form 1502
(Field Descriptions and Information)
101
102
103
104
105
106
107
108
EXHIBIT “N”
SBA Unilateral Servicing and Liquidation Matrix
(7(a) Lender Matrix)
109
110
111
112