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HomeMy WebLinkAbout949900RECEIVED 10/7/2009 at 11:29 AM RECEIVING # 949900 BOOK: 733 PAGE: 339 JEANNE WAGNER WHEN RECORDED, MAIL TO: Mountain West Small Business Finance 2595 East 3300 South Salt Lake City, Utah 84109 LINCOLN COUNTY CLERK, KEMMERER, WY ()00339 For recorder's use only THIRD PARTY LENDER AGREEMENT INSTRUCTIONS: Fill in all blanks in the Agreement. Instructions regarding particular certifications and other matters appear in brackets and italics. THIS THIRD PARTY LENDER AGREEMENT (Agreement) is dated this September 25, 2009, by and between THE BANK OF STAR VALLEY, (Third Party Lender), of 364 Washington, PO Box 8007, Afton, WY 83110, and MOUNTAIN WEST SMALL BUSINESS FINANCE, of 2595 East 3300 South, Salt Lake City, UT 84109 (CDC). RECITALS 1. As described in the "Authorization for Debenture Guarantee (SBA 504 Loan)," as amended (Authorization), and as detailed below, the Third Party Lender will provide permanent financing (Third Party Lender Loan), and the CDC will provide a loan (the 504 Loan) funded by a debenture issued by the CDC and guaranteed by the U.S. Small Business Administration (SBA), to the company or companies identified below as Borrower and Operating Company if any, (collectively "Borrower") 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 is such is attached to this Agreement (Project Property): SBA Loan 35567650-06 SBA Loan Name: SALT RIVER AUTO BODY INC Borrower: Christopher W. Wolfley and Rachael M. Wolfley Operating Company (if any): SALT RIVER AUTO BODY INC CDC: MOUNTAIN WEST SMALL BUSINESS FINANCE Third Party Lender: THE BANK OF STAR VALLEY Third Party Lender Loan Amount: $203,000.00 Term of Third Party Lender Loan: 20 If Real Property Project Property Address Street address: 93 CMR Lane City, State, Zip code: Etna, WY 83118 Attach Legal description as Exhibit A If Personal Property: Describe property, including name of manufacturer, name of equipment, and applicable serial number(s) or other identifying numbers. If needed, attach a more complete description as Exhibit A. 2. The parties have required the Borrower to grant liens or security interests in the Project Property to secure the separate loans advanced by the parties (Common Collateral), and the lien or security interest held by CDC SBA Form 2287 (August 2007) Page 1 of 6 m OLI 340 (CDC Lien) will be junior and subordinate to the lien or security interest held by the Third Party Lender (Third Party Lender Lien), unless CDC and SBA agree otherwise in writing. TERMS AND CONDITIONS In consideration of the above factual recitals, 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 Lender Loan. The Third Party Lender Loan is fully advanced and does not exceed the amount allowed in the Authorization. 2. Subordination of 504 Loan. CDC agrees to make the 504 Loan to the Borrower and accept a junior and subordinate position in the Common Collateral upon the condition that Third Party Lender executes this Agreement and makes the Third Party Loan. 3. Accurate Information. The Third Party Lender warrants and represents that all information provided 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 the United States Small Business Administration (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 a false statement to the SBA, and that CDC and the SBA are relying upon the information submitted by the Third Party Lender. 4. Waiver of Provision Not to Encumber Common Collateral. If Third Party Lender's documents evidencing the Third Party Lender Loan and Third Party Lender Lien contain provisions that prohibit further encumbrances on the Common Collateral or subordinate debt by the Borrower or which restrict Borrower's ability to assign its lease on, or rents, income or profits from, the Common Collateral, then Third Party Lender waives its right to enforce such provisions as they may apply to the 504 Loan and the CDC Lien. 5. Compliance with 504 Loan Program Requirements. Third Party Lender agrees that all documents evidencing the Third Party Lender Loan and the Third Party Lender Lien will comply with the 504 Loan Program requirements, as established by the SBA, identified in the following paragraphs. In the event that it is determined that one or more provisions in such documents do not comply with any of these 504 Loan Program requirements Third Party Lender agrees to waive the right to enforce all such provisions : a. No Open-Ended Features and No Future Advances. The Third Party Lender Loan is not open-ended. Third Party Lender agrees that it will not make any future advances to Borrower on the Third Party Loan, provided, however, that Third Party Lender may make reasonable advances against the balance owed on the loan for the purposes of collection of amounts due, maintenance of collateral, and protection of the Third Party Lender Lien. b. No Early Call or Demand Provisions. Third Party Lender agrees that either (i) Third Party Lender's documents evidencing the Third Party Lender 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 such loan is in default in making payments on the Third Party Loan), or (ii) if Third Party Lender Loan or Third Party Lender Lien does contain any such provision(s), SBA Form 2287 (August 2007) Page 2 of 6 Third Party Lender will not exercise its rights under the provision(s) so long as the 504 Loan has any outstanding unpaid balance. C. No Cross-Collateralization. Third Party Lender agrees that the Common Collateral is not now, and will not be in the future, security for any other financing provided by Third Party Lender to Borrower other than the Third Party Loan, unless authorized in writing by CDC and SBA. d. No Cross-Default. During the term of the Third Party Lender Loan, Third Party Lender will not exercise any cross-default, "deem at-risk," or any other provisions in documents evidencing the Third Party Lender Loan or Third Party Lender Lien which allow Third Party Lender to make demand prior to maturity (other than when Borrower is in default in making payments on the Third Party Lender Loan), unless authorized in writing by CDC and SBA. e. Maturity and Balloon Payments. The Third Party Lender Loan has an overall maturity of at least, and does not require a balloon payment prior to, ten years when made in connection with a 20-year 504 Loan, or seven years when made in connection with a 10-year 504 Loan. f. Reasonable Interest Rate. The Third Party Lender Loan has a reasonable interest rate which does not and will not exceed the maximum interest rate for Third Party Lender Loans from commercial financial institutions as published periodically by SBA and in effect as of the date of this Agreement. (This maximum interest rate is published periodically by SBA in the Federal Register.) 6. No Preference. Third Party Lender will take no action that would establish a preference (as defined in 13 C.F.R. 120.10) in favor of Third Party Lender as compared to CDC and/or SBA, related to making, servicing, or liquidating the Third Party Lender Loan (including without limitation actions with respect to repayment, collateral, guarantees, control, maintenance of a compensating balance, purchase of a certificate of deposit, or acceptance of a separate or companion loan), other than Third Party Lender's senior lien position on the Common Collateral. 7. Notice of Default under the Third Party Lender Loan. In the event that Third Party Lender decides to pursue debt collection or other action against a borrower due a default under the Third Party Loan or Third Party Lien, Third Party Lender agrees to give CDC and SBA written notice of such default within thirty (30) days after the event of default. After a default, Third Party Lender also will give CDC and SBA written notice at least sixty (60) days prior to Third Party Lender's foreclosure upon the Common Collateral. 8. Certification as to Default Interest Rate as Against Borrower. Any right Third Party Lender may have to increase the rate of interest upon default under the Third Party Lender Loan, as against Borrower, does not exceed SBA's maximum interest rate for Third Party Lender Loans from commercial financial institutions, in effect as of the date of this Agreement. 9. Subordination to 504 Loan and CDC Lien, of Amounts Attributable to Default Provisions. a. The term "Default Provisions" used in this paragraph means prepayment fees or charges, default interest rates (in excess of the amount of interest charged in the absence of a default), monetary penalties for violations of any agreement between Third Party Lender and Borrower (including without limitation penalties for violation of covenants regarding environmental conditions); and late payment fees or charges. b. To the extent the Third Party Lender Lien secures any amounts attributable to Default Provisions, which may exist in the Third Party Lender Loan and Third Party Lender Lien, Third Party Lender Lien is and will be subordinate to the 504 Loan and the CDC Lien. SBA Form 2287 (August 2007) Page 3 of 6 'VW34 C. In the event of default under the Third Party Lender Loan, CDC or SBA may bring the Third Party Lender Loan current or may acquire the Third Party Lender 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 Lender Loan current or the purchase price of that loan will be net of all amounts attributable to the Default Provisions so subordinated to the 504 Loan and the CDC Lien. Third Party Lender further agrees that if it receives from CDC/SBA any amounts attributable to such Default Provisions, Third Party Lender holds such funds in trust for SBA and will remit such funds to SBA as soon as possible. Paragraph 10 is optional and is applicable only if marked XX 10. Liquidation. In the event that either the Third Party Lender 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 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 Lender Loan; (c) to provide CDC and SBA 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 Lender 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. [Insert the following paragraph 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, Office of Thrift Supervision, 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 supercede 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. 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 Lender 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 the 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 SBA Form 2287 (August 2007) Page 4 of 6 ~I ' 0 3 4 3 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. Neither Borrower nor any guarantor of the note evidencing the 504 Loan may 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. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, and all of which together constitute one and the same instrument. 17. Validity of Provisions. In the event that any provision of this Agreement is deemed invalid by a court of law, all other provisions of this Agreement shall remain valid and enforceable. 18. 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. 19. 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: THE BANK OF STAR V By: Print Title: CERTIFIED DEVELOPMENT COMPANY (CDC): MOUNTAIN WEST SMALL BUSINESS FINANCE By: obert Edminster Title:Vice President ASSIGNMENT TO SBA ASSIGNMENT: CDC assigns this Third Party Lender Agreement to SBA. By: Date: September 25, 2009 Typed Name: Robert Edminster, Vice President SBA Form 2287 (August 2007) Page 5 of 6 344 STATE OF 0~0 (r] 9 ) jss. COUNTY OF C) h 01 r) was acknowledged before me (individual name). STATE OF UTAH ) :ss. COUNTY OF Salt Lake ) The foregoing instrument was acknowledged before me this September 25, 2009 by Robert Edminster, Vice President, Mountain West Small Business Finance. NOTARY PUBLIC GOLDIE M OLSON 576597 COMMISSION EXPIRES NOVEMBER 1, 2012 STATE OF UTAH SBA Form 2287 (August 2007) r Yopbj,Public i Page 6 of 6 34~ "EXHIBIT A" Lot 19 of CMR Subdivision Third Filing, Lincoln County, Wyoming as described on the official plat filed on March 25, 2009 as instrument No. 946109 of the records of the Lincoln County Clerk.