Acknowledgments
42
11.13
Hypothecation or Pledge of SBA Loans
42
11.14
Assignments; Participations.
42
11.15
Servicing.
43
11.16
Periodic Due Diligence Review
44
11.17
Set-Off
45
SCHEDULE 1
Representations and Warranties re: SBA Loans SCHEDULE 2
Filing
Jurisdictions and Offices SCHEDULE 3
Duties of the Borrower with Respect to
the SBA Loans
EXHIBITS
EXHIBIT A
Form of Promissory Note EXHIBIT B
Form of Opinion of Counsel to
Borrower EXHIBIT C
Form of Request for Borrowing and Notice of Pledge EXHIBIT
D
Underwriting Guidelines EXHIBIT E
Form of Newtek Guaranty EXHIBIT F
Form of Blocked Account Agreement EXHIBIT G
Form of Multiparty Agreement
EXHIBIT H
Form of Trust Account Agreement EXHIBIT I
Form of Servicer's
Certificate EXHIBIT J
Form of Amendment to Intercreditor and Blocked Account
Agreement
iii
AMENDED AND RESTATED
MASTER LOAN AND SECURITY AGREEMENT
AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT, dated as of December
31, 2002, between NEWTEK SMALL BUSINESS FINANCE, INC., a New York corporation
(the "Borrower"), and DEUTSCHE BANK STRUCTURED PRODUCTS, INC., a Delaware
corporation (the "Lender").
RECITALS
WHEREAS, Commercial Capital Corporation ("CCC") and Global Alliance Financial
Company, L.L.C. ("GAFCO") entered into the Master Loan and Security Agreement as
of August 26, 1997 (the "Initial Loan Agreement") for the purpose of providing
CCC with revolving credit loans to finance certain SBA Loans (as defined below)
to be originated by CCC;
WHEREAS, the Initial Loan Agreement has been amended from time to time (the
"Existing Loan Agreement");
WHEREAS, on or before the date hereof, GAFCO will assign its rights under the
Existing Loan Agreement to Deutsche Bank Structured Products, Inc. ("Lender");
WHEREAS, on or before the date hereof, a merger subsidiary of Small Business
Funding, Inc., will merge with and into CCC, which will be renamed Newtek Small
Business Finance, Inc. upon consummation of the merger; and
WHEREAS, the parties hereto desire to further amend and restate the provisions
of the Existing Loan Agreement;
NOW, THEREFORE, in consideration of the mutual provision and agreements made
herein, the parties, intending to be legally bound, hereby agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms shall have the
following meanings (all terms defined in this Section 1.01 or in other
provisions of this Loan Agreement in the singular to have the same meanings when
used in the plural and vice versa):
"Accepted Servicing Practices" shall have the meaning assigned thereto in
Section 11.15(a) hereof.
"Advance(s)" shall have the meaning provided in Section 2.01(a) hereof.
"Affiliate" means, with respect to any Person, any other Person which, directly
or indirectly, controls, is controlled by, or is under common control with, such
Person. For purposes of this definition, "control" (together with the
correlative meanings of "controlled by" and "under common control with") means
possession, directly or indirectly, of the power (a) to vote 10% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
directors or managing general partners (or their equivalent) of such