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HomeMy WebLinkAboutRecaptured Urban Development Action Grant Loan Fund Augusta Richmond GA DOCUMENT NAME:l2.ea:xy1-U'r -cd U 'r bo-n 1)e. ve-l () "j/rne-n t ACt-ion qyClXl\- Lcx2tn FLtX\d DOCUMENT TYPE: YEAR: 10,0 ( BOX NUMBER: '5' FILE NUMBER: J 31 t+ 3 NUMBER OF PAGES: to . . .~ .. ~...k II /3 7 ~ .:I Recaptured Urban Development Action Grant (UDAG) LOAN FUND POLICY MANUAL PREPARED FOR AUGUSTA-RICHMOND COUNTY COMMISSION BY HOUSING AND NEIGHBORHOOD DEVELOPMENT MAY 1998 I'~ TABLE OF CONTENTS PROGRAM ELEMENTS OF THE PLAN GOALS AND OBJECTIVES.....,..,..............,.,.................................................2 IDENTIFICATION OF FINANCING PROBLEMS WITHIN THE AUGUST A- :RI CtIMOND COUNTY AREA,...,.,..,.............,.,..."",..........,.,........................4 T ARGJ~TING CRITERIA...........".".,...:.........,...,.,........,...................,.,.,..............,.....4 ADMIN1STRATIVE ELEMENTS OF THE PLAN...................................................5 LOAN ADMINISTRATION ORGANIZATION,...... ..........,................ ....... ...5 STAFF CAPACITY OPERTION OF SIMILAR PROGRAMS......................5 LOAN SELECTION AND APPROVAL PROCESS,.....................................6 J\.1ERIT FACTORS CONSIDERED,.................... ...... .......... .......... .......... .......7 LOAN SERVICING.,...........,.............,........,...,.,.,..................................,.................... 7 ELI G IBLE LOAN RECIPIENTS................."..........,.....,.,....."....................,......,....,. 8 INELIGIBLE LOAN RECIPIENTS.. .........,.",., .,.,.,.".. ,..... .... ..... ........ ......,....., .,."., ,.,8 USE OF LOAN PROCEEDS.. ....,.. ....... ....................................... ......... ....................10 INELICfIBLE LOAN PURPOSES. .................,.. ....., ............ .................................. ...1 0 CREDrr STRUCTURE..... ............................... ......................... ... ..... ........ ......... .... ..11 LOAN JlliCOMMENDA TIONS.... ............ ............ ............ ............................... ...... .14 TYPES OF LOANS TO BE MADE........................................,..............,................. 14 FINANCING POLICIES PLAN. ........... ......................., ....,.. ..... .......... ................ ....14 FINANC:ING POLICIES......................................,................................................ ..16 RELATED ACTIVITIES....... .......,.. ..... .............,.......... ......... ..... ..... ...................... .18 OTHER REQillREMENTS.,.".,.".............".,...............,...............,.,..,............,.......18 AL TElliNG POLICIES PLAN........,.........,., ..........,........ ....,.."......., "....".,... .........19 U.S, DEPARTMENT OF HOUSING & URBAN DEVELOPMENT (HUD) FACTORS CONSIDERED IN ECONOMIC DEVELOPrvIENT LOANS,19 CREDIT FACTORS CONSIDERED. ..... .....",... ....,.".......... .,..,.,.... ..,.,......., .,........20 TYPES OF SECURITY, GUARANTEED, AND COLLATERAL NEEDED.....20 CDBG PROJECT REQUIREMENTS..,.. ............. ............. ....,.... ...., .......... ......... ...21 DELINQUENT LOANS,."..,.................".,.....,............,.,...........................,."...... .21 COLL:E:CTI ON LOANS............,.,...............,.......................".,...........,.........,...... .21 LOAN .A.MENDMENT REQUEST.....,.......,..,.,.....,.........,..,.".,...........,.,.........,.,22 APPENDICES RECAPTURED UDAG LOAN FUND - LOAN PROCESS......., ...APPENDIX A RECAPTURED UDAG LOAN APPLICATION....... .,.............. .APPENDIX B LOAN AGREEMENT........."..................,..,.",............,.... .APPENDIX C I. PROGRAM ELEMENTS OF THE PLAN Goals and Objectives The Augusta-Richmond County Commission has a goal to reduce the historically high unemployment and low income rates in Augusta-Richmond County. In accordance, the Augusta- Richmond County Commission has created the Augusta-Richmond County Recaptured Urban Development Action Grant Loan Fund Program to assist eligible areas with the retention, expansion, and creation of private sector employment opportunities. The following objectives are to be reached through the creation and availability of the Recaptured UDAG Loan Fund. > To retain existing jobs and create new jobs. > To increase the per capita income of Augusta-Richmond County. > To increase the tax base of Augusta-Richmond County. > To overcome specific gaps in local capital markets that inhibit firms from obtaining ~:uitable credit within the Augusta-Richmond County service area. > To provide employers with capital for start-up and/or expansion of locally owned businesses in order to stabilize and to diversify the economy within the Augusta-Richmond County service area. > To redevelop and/or recycle blighted or vacant land and facilities in order to put them to productive economic use. > To assist businesses which are owned and/or operated by women, by minorities, or by persons who are economically or socially disadvantaged. > To implement other state and federal economic development loan programs in conjunction with Recaptured UDAG funds. > To make available capital for manufacturing and service companies, especially if they utilize new technologies. > To achieve economic diversification of area businesses into the field of manufacturing, construction, and retail and wholesale services in Augusta-Richmond County. > To utilize the minimum amount of public funds in order to leverage the maximum amount 2 of private funds. 3 ~ To assist eligible neighborhoods in developing local lending programs that will compliment the Recaptured UDAG funds. ~ To sustain growth and viability of the fund through the identification of potential sources of additional capital. These objectives will be met by making loans to prospective entrepreneurs who have not been able to acquire any financing or complete financing from conventional sources. These loans will promote the development of new businesses and expansion of existing businesses which will create a.nd/or retain jobs that would have otherwise been lost in Augusta-Richmond County. IDENTIFICATION OF FINANCING PROBLEMS WITHIN THE AUGUSTA- RICHMOND COUNTY AREA ;Based upon experience, the Mayor and Commissioners have identified several gaps in the local financing environment which have created hardships upon small businesses. These gaps are: ~ Conservative lending practices (such as requiring high equity, desiring short-term loans, and preference towards existing businesses). ~ High int.erest rates which discourage fmancing. ~ Reluctance to participate/lack of expertise in participating in federal business development programs. ~ Loans are made to preferred customers, which rarely include smaller businesses. Recaptured UDAG Loan funds will be a financing entity which will attempt to fill these gaps making loans of moderate interest rates to small businesses in order to cultivate economic expansicm, job creation or retention and/or the prevention of business failure. Recaptured UDAG loans will be made, when possible, in conjunction with other federal programs and with somewhat more moderate lending practices (somewhat lower equity, longer-term loans, and towards new business). Other efforts to bridge this gap will include accepting a wider range of credit and security arrangements, financing potentially failing businesses to retain jobs, and considering innovative ideas and products. TARGETING CRITERIA Due to the limited amount of funds, Augusta-Richmond County will focus its resources upon areas of Augusta-Richmond County with high unemployment, low per capita income, or those su1fering from chronic distress. Preference for approval will be to applicants which create 4 and retain the largest number of permanent jobs for low and moderate income persons at the lowest cost per job. All enterprises must be located within specified areas of Augusta-Richmond County. ADMINISTRATIVE ELEMENTS OF THE PLAN LOAN ADMINISTRATION ORGANIZATION The Recaptured UDAG Loan Fund will be administered by the Augusta-Richmond County Housing and Neighborhood Development Department (HND) staff or a contracted agency. The staff w:lll publicize the availability of funds at least 60 days prior to the final date for applications when a competition is to be held. Management and technical assistance to potential borrowers will be available from the Housing and Neighborhood Development Department staff or a contracted agency during the application period. Application packages may be picked up in the office of the Housing and Neighborhood Development Department. (Appendix A is a sample applicadon). Immediately after the application deadline, the HND staff will determine which applications meet eligibility requirements and are sufficiently complete to score using the adopted criteria. Loan applications will be submitted as needed to the Housing and Neighborhood Citizens Advisory Board consisting of private sector individuals, members drawn from the banking community and from the business community. The Augusta-Richmond County Commission will be the Executive Board of the fund and will meet at least quarterly to be updated on the progress and accomplishments of the program. The Citizen Advisory Board will review each proposal as to its fi.nancial soundness and submit a written subjective evaluation from an underwriting perspecl:ive. After consideration of the input from the Citizen Advisory Board, the HND staff will score and rank the applications. The ranking will then be compared to the funding availability and a recommendation will be prepared as to which proposal should be approved. A list will be submitted to the Commission at the next subsequent meeting for their approval. After approval of the Commission, the successful and unsuccessful applicants will be properly notified. The notice to successful applicants shall outline the procedures for closing the loan. Any closing documents needed such as the security agreement, UCC-l, deed to secure debt, and guarantees will be prepared by our attorney. A loan agreement as outlined in appendix B shall also be included as closing documentation. STAFF CAPACITY OPERATION OF SIMILAR PROGRAMS The HND staff or a contracted agency possesses skills in the areas of business, finance, marketing, credit analysis, loan packaging, and loan servicing. The staff or a contracted agency will be in charge of the day-to-day operation of the Recaptured UDAG Loan Fund and will report 5 directly to Commission during the quarterly Recaptured UDAG Loan Fund meeting. The staff or a contracted agency will be responsible for preparing loan summaries for review by the Citizens Advisory Board as meetings are needed. The staff or a contracted agency will also be responsible for keeping the minutes of each Citizens Advisory Board and Recaptured UDAG Loan Fund Board meeting. LOAN SELECTION AND APPROVAL PROCESS The HND staff will publicize the availability of loan funds through the news media, seminars, banks, accountants, chamber of commerce, local business persons, University of Georgia Business Development Center, CSRA Regional Development Center and the CSRA Busine~;s League. The HND staff will interview loan applicants and submit their application to the loan review committee through the following process: 1. The HND staff will meet with applicants to discuss their project. The purpose of the initial interview is to give the applicant specific information about the loan fund and enable the staff member to determine whether the business and the project meet the eligibility requirements of program. 2. Applicants will be given an application to complete and return with a credit report and personal financial statement. The HND staff member will provide technical assistance in (;ompleting the application. The HND staff member or a contracted agency will prepare a comprehensive business plan for all eligible applicants. 3. The HND staff reviews the application to ensure that all eligibility requirements and conditions have been met by the applicant and analyzes the applicant's ability to carry out the project successfully and to repay the loan. 4. The HND staff presents the application to the Citizens Advisory Board for their consideration. A scoring system has been developed that will allow the staff or a contracted agency to review the proposals and advise the staff on the financial feasibility of each proposal. The following are the criteria which will be utilized to evaluate each loan proposal and the points assigned for each criteria. Each proposal will be scored using this system and the gross scores should provide a good analysis of the extent to which the proposal furthers the program goals and objectives. The criteria is as follows: ~ CDBG dollars per low/moderate job created or retained (documentation needed). Score i!i relative to other applications, and higher if the ratio of dollars per job is low. (0-25 points) 6 ~ Jobs created in target areas. (0-20 points) ~ Financial feasibility of loan proposal. (0-20 points) ~ Total low/moderate and other jobs created. (Measure of the overall community economic impact) (0-5 points) ~ Economic impact (other than jobs) in target areas. (0-5 points) ~ Capital/real estate tax base expansion. (0-5 points) ~ New business start. (0-5 points) ~ Potential for CDBG funds to stimulate future development beyond the initial impact. (0-5 points) ~ Minority/women owned businesses. (0-5 points) ~ Low-moderate jobs include training so that job skills will be acquired that would lead to advancement and/or self-employment. (0-5 points) MERIT FACTORS TO BE CONSIDERED ~ Increase or retain employment of low and moderate income individuals. ~ ]lmprove the County's tax base by increasing tax ratable property. ~ Assist neighborhood revitalization. ~ Assist opportunities for minority and female owned or operated businesses. ~ Increase desirable trade and commerce. ~ Assist in the revitalization of historic commercial, industrial or mixed-use property. LOAN SERVICING The HND staff or a contracted agency is responsible for the administration, monitoring, and serv icing of loans from the time of loan approval through full repayment. The staff or a contracted agency will monitor the loan agreement and the borrower's business activities for 7 default:; in covenants and will maintain a loan payment schedule, with payments posted as to principal and interest. Delinquencies in payments will be addressed by telephone, mail or personal visits from the HND staff or a contracted agency. Delinquencies may be resolved by loan restrucmring, a moratorium on payments, or other techniques upon approval of the Citizens Advisory Board. Delinquencies which remain unresolved will be declared a default and foreclo:;ure procedures will be initiated. A project calendar system will be maintained on each loan in the portfolio to assure that valid ha.zard insurance and life insurance is in place as agreed upon, financial statements received, and UCC-l financing statements are continued every five (5) years as required by law. ELIGllJLE LOAN RECIPIENTS Generally, any for-profit corporation, partnership, or sole proprietorship shall be eligible to apply for financing. This description shall include, and be limited to the following: · Credit worthy commercial and industrial property owners or tenants who are able to document the need for funds. · For-profit institutions, excluding religious or religious sponsored institutions, carry on a business activity for the purpose of obtaining pecuniary benefit, for its members, in the operation of their otherwise eligible small business concerns. · Each applicant will be required to provide a minimum of 10% equity injection into the project. · Prior to approval, all candidates for financing shall show evidence of, or provide for adequate accounting and collection functions, proper receivable and inventory (where applicable) control functions, and satisfactory billing and collections systems. INELIGmLE LOAN RECIPIENTS · Non-Profit institutions: If the applicant is a charitable institution or other non-profit enterprise (i.e., churches, etc.) · Newspapers, publishers, and broadcasting stations: If applicant is a newspaper, magazine, book publishing company, radio broadcasting company, television broadcasting company, or similar enterprise. Note: The reason for this prohibition is to avoid the possibility of ac.cusation of Government infringement on freedom of the press, and the communication of ideas and information which might tend to influence public opinion. "Similar enterprises" would include producers of educational, political or sociological firms, publications, training aids, or other materials, which could mold or influence public opinion. 8 · Gamblers: If any part of the annual gross income (including rental income) of the applicant (or any of its principal owners) is derived from gambling activities, except in those cases where an otherwise eligible small business concern obtain less than 1/3 of its annual gross income (either at loan inception, or during loan term) from: 1. It's income or commissions from the sale of official state lottery tickets under a state license; or 2. It's gambling activities in those states where such activities are legal within the state. · Individuals or organizations who hold real property for sale or investment, except in designated business improvement districts where property is to be leased to otherwise eligible business concerns. · Individuals or organizations who wish to relocate a business: Loan proceeds may not be used to relocate an existing business, unless the relocation is for a sound business purpose, such as the following: 1. Consolidating operations in one location; 2. Locating closer to major consumers; 3. A voiding unreasonable burdens upon operation of business at its present location; or 4. Locating closer to a source of basic materials or transportation facilities. However, in no event shall loan proceeds be granted for business relocation if the relocation would result in one of the following: 1. The move would cause serious unemployment in the present location; 2. The move would nullify a labor union contract, or a commitment to negotiate a collective bargaining agreement; or 3. The move would involve substantial loss or expense to either party to an effective outstanding lease. · Applicants with a seriously delinquent credit history will not be accepted. · All city officials and employees directly involved with the Recaptured UDAG Loan Fund 9 Program. Note: Said officials and employe~s can become eligible after leaving office or program for one (1) year. · All Citizens Advisory Board members, employees and immediate family members. USES .oF LOAN PROCEEDS Proceeds of the loan are to be used in Augusta-Richmond County, Georgia to fInance development projects, establishment of new businesses and/or the expansion of existing businesses, creation of employment opportunities and/or retention of existing jobs. To the maximum extent possible, applicants should use the labor of low-income persons. Loan funds may be used. for, but not limited to: ~ Business acquisitions, construction, conversion, enlargement, repair, modernization, or development cost ~ Purchasing and development of land, easements, rights-of-way, building facilities, leases, .or materials ~ Purchasing of equipment, leasehold improvements, machinery, or supplies ~ jPollution control and abatement ~ Transportation services )> Start up operating costs, working capital ~ Feasibility studies Reasonable fees and charges. Authorized fees include loan packaging fees, environmental clata collection fees, and other professional fees rendered by professionals generally licensed by individual state or accreditation associations, such as engineers, architects, lawyers, accountants, and appraisers. The amount of fee will be what is reasonable and customary in the community or region where the project is located. Any such fees are to be fully documented. INELIGIBLE LOAN PURPOSES Loan proceeds may not be used for the following: )> For the transfer of ownership unless the loan will keep the business from closing, or prevent the loss of employment opportunities 10 ~ For community antenna television services or facilities ~ For any legitimate business activity when more than 10 percent of the annual gross revenue is derived from legalized gambling activity ~ For any illegal activity ~ For any otherwise eligible project that is in violation of either a Federal, State or Local environmental protection law or regulation or an enforceable land use restriction unless the financial assistance required will result in curing or removing the violation > For any hotels, motels, tourist homes or convention centers ~ For any transit, recreation, or amusement centers CREDIT STRUCTURE All opportunities to be favorably considered by the Citizens Advisory Board must have a well-written and thorough Credit Memorandum with [mancial statements and spread sheets attached. The Credit Memorandum should include at minimum, the following: ~ BACKGROUND: Include a brief history of the organization (Le., when and where founded, nature of products or services, sales territory, typical customers, main suppliers, derivation of revenues and percentages from various products and/or services, and on- going projects and backlog (if applicable). ~ MANAGEMENT: Include the background of principals and/or owners (including tenure with the organization, age, educational background, technical background, prior work experience, credit relationship with their bank, character, competence, depth of management in general, and major stockholders (if privately held). Discuss job delineation, availability of back-up, and management succession. ~ MARKET ANALYSIS: Discuss the size/maturity of the market. Is the industry and its market growing, or is it in the mature phase of its product life cycle? Are there any cyclical or seasonal influences; regulatory or legal considerations? Discuss competitions and the applicant's relative strengths/weaknesses. Comment on any competitive advantages or market niches which the company has. How significant are they? > LOAN REOUEST: Briefly, detail the amount and purpose of the loan request, along with the repayment orogram and source of repayment. There should be a repayment of reduction agreement on practically all loans made. 11 ~ CREDIT RELATIONSHIPS: Identify other creditor relationships, comment specifically on the experience of these other creditors and the circumstances surrounding those previous and/or existing relationships. Include comments on the applicant's relationship with suppliers. Also, include comments on the credit history of the principle - a formal credit report may be necessary (including explanations oflate payments). ~ FINANCIAL ANALYSIS: Comment on the company's financial performance to date. A description of the strength of the credit should be outlined. Include earnings history and net worth (3 to 5 years, if available), cash flow and pro forma data (projections), fmancial data on endorsers or guarantors. On loans where the fmancial conditions of the borrower or guarantor is the strength of the credit, mention his/her net worth (your estimate of it, not just what is shown on the fmancial statement), his/her liabilities, and the nature of his/her principal assets. Briefly, mention any contingent liabilities (if significant in relation to the borrower's net worth). Whenever possible, briefly mention the amount and type of other fmancing from banks and other like creditors. Also state whether experience has been satisfactory or not on each. ~ ~COLLATERAL SECURITY: Collateral analysis may include the following: :lNVENTORY It Account Receivables Aging .t Customer list It Insurability of inventory " Inventory breakdown 41 Inventory storage requirement ., Potential for obsolescence, perishability, in inventory, etc. ])ERSONAL GUARANTY .' Completed and current Personal Finance Statement (including contingent liabilities) · Description of guarantor's personal assets · Income and debt service capability OTHER (WHERE APPLICABLE) · Copy of Lease · Market value of negotiable securities · Copy of life insurance policy · Existing policy loans · Appraisal of fixed asset 12 REPAYMENT RISKS Comment upon the following: · What can go wrong for the? The Industry? · What can go wrong with our loan (volatility of repayment sources)? · What can we do about it? PROJECT COST ANALYSIS Equipment, construction and property acquisition loans shall be supported by industry standard estimates (i.e. other equipment store estimates, construction cost estimates based on reference manuals, and property appraisals). EQillPMENT LOANS Loans secured by equipment should mature within the lesser of the following: I. The useful life of the equipment , or It Seven (7) years Generally, loans should be no more than the following: .' 90% of the wholesale cost of the new equipment .' 85 % of the liquidation value of used equipment Specialized equipment should be appraised by qualified personnel. For any equipment of a specialized nature, a higher down payment should be required because of the limhed market for such equipment. The cost of equipment should be supported by a copy of the appraisal, purchase order or invoice and exclusive of the following: · Transportation cost · Commissions The staff or contracted agency officer should verify and evidence that borrower has insurance in acceptable amounts for the following: · Property damage insurance on property and equipment to be financed; and · Full coverage for existing equipment 13 LOAN RECOMMENDATIONS Loan recommendations from HND' s staff or contracted agency officers on why loan is being recommended to the Citizens Advisory Board. At minimum, in order to prepare a credit memorandum and process an application, the following information must be provided by all eligible clients: · Business Financial Statements lnterim Report (less 90 days - existing businesses only) Income statement and balance sheet (last 2 years - existing businesses only) Financial projection (2 years) Monthly cash flow statement (first 12 months) Narrative assumption to financial projections and cash flow analysis · Owners Information Personal financial statements Tax returns (last 2 years) Resume of key officers, or summary of key officer's business experience · Brief Projection Description Business history overview, outline of products or services, marketing and distribution program, geographic service area Amount of loan request and itemization of use of proceeds A source and use statement identifying the project's total cost and source of finance · Project Cost Estimates Two (2) estimates of equipment to be purchased At least two (2) different contractor estimates on construction projects (if applicable) Lease Agreement (proposed arrangement) or land/building purchase agreement (if applicable) Bank commitment letter (loan participation applicants) If the business is a franchise, include a copy of the Franchise Agreement, and the Franchisor's FTC Disclosure Statement A copy of Articles of Incorporation or Partnership Agreement for corporation or Partnership TYPES OF LOANS TO BE MADE ~ DJRECT LOANS: A direct loan may be provided to applicants within the targeted areas of Augusta-Richmond County if applicant is not able to secure a market rate loan for the 14 total financing needed. The maximum amount of loans available is $150,000 at an interest rate to be established based on the projects I cash flow to be repaid monthly over a term to exceed twenty (20) years. > LOAN P ARTICIP A TION: Project funds may be committed to participate in large loans (usually $150,000 or more) with other fmancing entities (i.e., SBA throughout the Community Development Impact Area (CDIA). Loans may be made to small businesses (when needed) to assist them in meeting local injection needs. No more that 10% of the total fmancing shall be provided from the Recaptured UDAG funds. The loan is to be repaid in principal and interest in equal monthly installments at a term no longer that of the longest participating lender (20 Years Maximum). Loans to SBA assisted activity can only be made if ARC has an adopted method of allocating administrative costs under which the CDBG expenditures for such costs are not chargeable to loans made with SBA funds. 15 FINANCING POLICIES The Recaptured UDAG Loan funds will be administered in accordance with the following policies: )> The minimum loan amount shall be $25,001 and the maximum loan amount shall be $150,000. )> The terms of the loan will be as short as possible, usually no longer than 20 years for fIxed assets and usually no longer that 10 years for non-fIxed asset loans. )> Interest rates on loan will normally be fIxed at 2 % above the treasury rate for 1he term at lhe time the loan is processed. )> Upon the appro\:,al of the loan, each applicant who receives a loan from the Recaptured UDAG Loan Fund will be charged a processing fee equal to 1 % of the total amount of the loan, or $500.00, whichever is greater. This processing fee may be deducted from the amount to be loaned to the borrower. )> Attorney fees charged in connection with the loan closing may also be deducted from the loan amount. )> The Commission, upon recommendation of the staff or a contracted agency, may modify the term(s) of this contract or make temporary adjustments to its provisions upon fInding that the applicant has temporary difficulties that could realistically be resolved by such actions. )> In the determination of collateral requirements, the Citizens Advisory Board will take into c.;)nsideration the merits and potential economic benefIts of each applicant's p~oject. The financing may be secured by liens or assignments of rights in the assets of the borrowing company. In order to encourage financial participation by other lenders, the fund I s lien position may be subordinated to liens securing other Loans made in connection with the pJoject. Hazard insurance assignments will be required on all collateral securing loans to the loan fund. The Recaptured UDAG Loan Fund may also require security in the form of assignment of patents and licenses, the acquisition of other forms of insurance, and such olher additional security as the administrative board may consider necessary to secure a loan. Loan requests submitted by security as the administrative board may consider necessary to secure a loan. Loan requests submitted by closely held corporations, partnerships, or proprietorships dependent for their continuing success on certain individuals will ordinarily be expected to provide and assign the loan fund life insurance all these key persons. Personal guarantees will be required from all principal owners 20 % or more ownership. 16 ).- All proceeds from interest payments and principal will be returned to the Recaptured UDAG Loan fund for additional loans. ).- Whenever feasible, the HND staff or a contracted agency will use other state and federal funding in lieu of or in conjunction with Recaptured UDAG funds. ).- The HND staff or a contracted agency presents the application to the Citizens Advisory Board for their consideration. The Committee evaluates the application and makes the decision, by majority vote, to approve or disapprove the application. The Committee may make its approval contingent on the applicant's fulfilling certain special conditions. ).- If the Citizens Advisory Board disapproves a loan application, the applicant is so infonned, and recommendations may be made to the applicant for further action. If the Citizens Advisory Board approves the loan application, the applicant is also infonned of any special conditions . ).- After satisfactory resolution of any special conditions, the loan closing is held and funds are disbursed in accordance with the loan agreement. In addition to the standard closing documents needed for any closing, such as the Note, Security Agreement, UCC-l, the Deed to Secure Debt, and guarantees, the staff or a contracted agency shall also obtain a loan agreement as outlined in Appendix B. 17 RELA TED ACTIVITIES In addition to making loans, the Augusta-Richmond County Housing and Neighborhood Development Department will aid businesses through the following forms of assistance. >> Technical and Management Assistance The HND staff or a contracted agency will assist businesses in obtaining the technical and management assistance provided by various federal, state, and local government agencies. >> Loan Packaging and Referral Service The HND staff or a contracted agency will assist applicants in packaging loans so as to encourage private sector fmancial participation. The HND staff or a contracted agency will also assist small businesses and industries in obtaining fmancing from other public and private sources whenever feasible. OTHER REQUIREMENTS >> ~Civil Rights No applicant or potential applicant is to be denied a loan on the basis of race, color, national origin, age, religion, sex or handicap. This is to be assured through minority representation on the Citizens Advisory Board and through an outreach program including the following elements: >> Notice of Recaptured UDAG Loan Funds availability is to be given to: a. Community minority leaders or organizations b. Community women leaders or organizations c. Local radio and television stations that provide public servIce announcements d. Area newspapers To assure that borrowers will not discriminate against employees or applicants for employment on the basis of race, color, national origin, age, religion, sex, or handicap, applicants will submit information concerning their civil rights status and involvement in any complaints, lawsuits or other charges of discrimination and information concerning the racial composition of their work force. Applicants will also be required to provide a 18 statement of compliance with all applicable state and federal civil rights laws and regulations . The Recaptured UDAG Loan Fund will have direct minority representation on its Citizens Advisory Board to assure that minority groups are included in the process of establishing and administering lending practices. >> Environmental Considerations All projects to be considered for funding will adhere to environmental performance standards. No project will be approved which produces an insurmountable harmful alteration of the environment. >> ,Flood Hazard Insurance Borrowers will obtain the required flood hazard insurance, which must be applied for prior to loan closing or disbursement if necessary. >> j\ccess for the Handicapped Applicants must comply with all requirements for providing adequate access to the handicapped if covered under the American's with Disabilities Act as amended (ADA). >> )~eporting Requirements The staff or a contracted agency will submit an annual report to the Mayor and County Commissioners. ALTERING POLICIES /PLAN This plan for the Recaptured UDAG Loan Fund cannot be altered without consent of a majority vote of the Mayor and Commission in an open meeting. U .S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD) FACTORS CONSIDERED IN ECONOMIC DEVELOPMENT LOANS In consideration to whom HND or the contracted agency will make loans, from the fund, the applicant(s) proposed loan should result in one or more of the following: "- I. Increase or retain employment 19 2. Improve the Augusta-Richmond County's taxbase by increasing tax rateable property 3. Assist neighborhood revitalization 4. Assist opportunities for minority and female-owned or operated businesses 5. Increase desirable trade and commerce 6. Assist in the rehabilitation of historic commercial, industrial, or mixed-use property CRED][T FACTORS CONSIDERED 1. 'Willingness and ability to pay is required. 2. :~o loans are made in cases where state, local or federal tax liens, or back taxes exist. 3. lPersonal and business credit history must be good. Previous credit delinquency is not necessarily disqualifying, if accounts have been re-established in credit-worthy condition, and the ability to repay is apparent. 4. Soundness of the existing or proposed business enterprise will be considered (i.e., available cash flow must be evident). TYPES OF SECURITY, GUARANTEE, AND COLLATERAL NEEDED 1. Personal and business guarantees of loans are required. 2. Chattel mortgages, liens, and mortgages are taken or placed to provides collateral of the greatest possible security. 3. The security interest (collateral position) of the Recaptured UDAG Loan Fund Program may be made subordinate to the interest of other lenders (i.e., banks or the SBA) in order to secure total project fmancing. 4. Face value of life insurance on asset loans. CDBG FIROJECT REQUIREMENTS 20 HND staff or a contracted agency shall make a Necessary and Appropriate Determination on all private for-profit business before assistance is provided. HND Staff or a contracted agency will determine eligibility of the assistance based on the federal national objectives - benefit to low and moderate income area, creation or retention of jobs for low and moderate income persons, or elimination of slum and blight. · For each business assisted under low and moderate area benefit, the HND staff or a contracted agency shall maintain documentation of boundaries of the service area and income data on the service area. · For each business assisted under job creation for low and moderate income persons or job :retention for low and moderate income persons, the HND staff or a contracted agency shall complete and maintain job creation forms or job retention forms. In addition, HND staff I)r a contracted agency shall maintain documentation verifying that in the absence of CDBG assistance, the jobs would be lost. · For all jobs, HND staff or a contracted agency shall maintain, or have access to documentation on family-size and household income for each person holding a job. This documentation must be applicable to the holder before the assistance was provided HND ~;taff or a contracted agency shall report on job creation /retention to Augusta-Richmond County Commission on a quarterly basis. · For each business assisted under addressing - slum and blight on an area basis, HND staff or a contracted agency shall maintain records on the boundary of the area, and a description of the conditions which qualify the area. For each business assisted under addressing slum and blight on a spot basis, HND staff or a contracted agency shall maintain records on the description of the specific blight or physical decay being treated. DELINQUENT LOANS PJI delinquent loans will be serviced by the HND staff or a contracted agency. A delinquent loan is considered delinquent 45 days after loan payment is due. A late charge (4% of any insta.llment of principal and/or interest) may be charged at the discretion of the HND staff or contracted agency if payment is not received by HND staff or contracted agency 15 days after such installme:nt is due. COLLECTION LOANS All loans that have been turned over to a collection attorney will be serviced by the 21 attorney and not HND's staff or a contracted agency loan officers. LOAN AMENDMENT REQUEST Any request from borrowers seeking changes to the initial loan terms (i.e., moratorium on loan payments, loan assumptions, etc.) shall be approved by a quorum of the Commission. The borrower shall provide HND staff or the contracted agency with detailed supporting information (business and personal). 22 (APPENDIX ~) Recaptured UDAG LOAN FUND Loan Process The folic wing items will be needed to process your loan request: '1. Personal Financial Statement :~. Fiscal year end Financial Statements for the previous three years :~. Current Financial Statements, no older that 90 days for the current year 4. Financial Statements for the previous three years of all affiliates, includes any businesses' principals have ownership in ~;. Two years projections with narrative (Form Enclosed) 6. Monthly Cash Flow Projection for the first year (Start Up Only) (Form Enclosed) 7. Tax Returns for the past three years for all principals. 8. History of Business. 9. Resume of Manager/Owner 10. Sales contract (if real estate or business being purchased) 11. Copy of Lease if premises are leased 12. Construction Bid or Contract on site improvements 13. Copy of Vendor quotes showing Machinery, Equipment, Fumiture or Fixtures to be purchased 14. Copy of Franchise Agreement 15. Copy of Articles of Incorporation (if applicable). 16. Statement by applicant describing business ability and why applicant thinks business will succeed 23 (APPENDIX B) AUGUSTA-RICHMOND COUNTY Recaptured Urban Development Action Grant (UDAG) LOAN FUND APPLICATION I. REQUEST Date Amount of Loan Request $ Terms Requested II. GENERAL INFORMATION Name ofBI)ITower Operating Name (If Different) Address of Project City County State Zip Phone # (H) (W) o Corporation o Partnership o Proprietorship How Long (?) Date Established o New o Existing Type of Business III. ECONOMIC IMPACT A. # LowlModerate Income Jobs To Be Created # LowlModerate Income Jobs To Be Retained B. Community Project: If the project does not meet the job requirements, attach a separate justification for qualification. 1 IV. USE OF PROCEEDS Land Acquisition Land Improvements ConstructionlRenovation Cost(s) Purchase Machinery and Equipment Purchase Existing Land & Building Purchase Furniture and Fixtures Working Capital Inventory Debt Consolidation Professional Fees Interim Interest Other $ $ $ $ $ $ $ $ $ $ $ $ $ % $ % $ % $ % $ 100% $ TOTAL PROJECT COST V. SOURCES OF FUNDS TOTAL SOURCES OF FUNDS (20% Cash injection requiredfor start up business). VI. COLLA TI:RAL The collatE:ral offered to secure this loan is as follows: (Examples: Automobile, land, property, life insurance policy (Cash Surrender Value)} (1) $ (2) $ (3) $ TOTAL COLLATERAL OFFERED $ Guarantees/Life Insurance/Other: Personal and business guarantees required 2 VII. INDEBTEDNESS Furnish tlrelollowing information on all installment debt owed by the business or in relation to the business: To Whom Amount Date Balance Amount Matures Security VIII. TELL US ABOUT YOURSELF YOUR SPOUSE Name: Social Security # Social Security # Age Date of Birth Age Date of Birth EMPLOYMENT Employer's Name Employer's Name Address Address YOURSELF YOUR SPOUSE Telephone#( ) Telephone#( ) How Long Employed? How Long Employed? Position Position Monthly Incom(~ Monthly Income Do You: Own Your Home? 0 Yes 0 No Rent? 0 Yes ONo 3 Name & Address of Mortgage Company: IX. BANKING RELATIONSHIP NAME OF BANK ADDRESS TYPE OF ACCOUNT X. CLIENT DATA Minority Group (Check One) o o o o o Black! African American ~.1exican Puerto Rican Cuban American Other o . American Indian o Eskimo & Aleut o Asian American o Other Minority . .0 Non-Minority Gender: o Male 0 Female Number of Dependents: Marital Status: o Single o Widowed o Married 0 Divorced o Separated Education: GRADUATE DIPlOMAI NAME ADDRESS YES/NO DEGREE HIGH SCHOOL TECHNICAL SCHOOL COLLEGE 4 GRADUATE :I SCHOOL XI. BUSINESS INFORMATION New/Start Up Business: Propose:d location of Business I Equity Capital: Cash $ Type of Assistance desired Property Value Amount of Loan desired for Proposed Venture of Business Existing: Businesses: Do you own a business? Business Type (Check One) o Franl:;hise o Dealership o Distributionship o Licensee o Independent DYes (If yes, fill out Business Information Section) o No (If No, Proposed Percentage of Ownership) # Employees Total Minority Paid Non-Minority Gross Receipts Year-to-date Last year 19 2-years ago 3-years ago 5 Was business founded by present owner? I:l Yesl:l No If no, how was ownership of this business acquired: I:l New Start I:l Spin-off I:l Buyout acquisition I:l Merger/combination I:l Joint Venture I:l Other Do you own location? I:l Yes UNo, LeaselRent Per Month $ I:l No XII. MANAGEMENT/OWNERSHIP List all proprietors, partners, officers, directors, and holders of stock, 100% ownership must be shown *: Name Social Security # Complete Address NOTE: Percentage must total 1000/0 XIII. BANKING RELATIONSHIP Name of Current Banlc Addft:~ss : Bankl~r's Name: Phone # 6 XIV. AGREEMENTS The applicant agrees, to the maximum extent possible, to use labor of low-income per:;ons. The applicant certifies that neither they nor members of their families hold any legal or financial interest in the Augusta-Richmond County Commission, nor does any Commission member own any legal or financial interest or influence with the applicant. The undersigned assures that it does not and/or will at all time comply with Title VI of the Civil Rights Act of 1964. "Nondiscrimination in Federally Assisted Programs," (42 U.S.C. 2000d-2000d-4) and that it will not discriminate on the basis of race, color, religion, national origin, age, physical or mental handicap, sex or marital status with respect to its day to day operations. The applicant certifies by signing that the proposed business is located within Augusta-Richmond County, Georgia. The applicant certifies that the financing they are requesting is not available from other federal, state, or private sectm programs. The applicant certifies that those facilities under its ownership, lease or supervision which will be utilized in the accomplishment of the project noted above, are not listed on the Environmental Protection Agency's (EP A) List of Violating Facilities. The undersigned will notify Augusta-Richmond County of the receipt of any communication from EP A of activity that the facility is under consideration for listing on the Violating Facilities list. XV. CERTIFICATION The undersigned hereby certifies that all information contained above and in exhibits attached hereto are true and complete to the best knowledge and belief of the applicant and are submitted for the purpose of inducing Augusta-Richmond County to consider his/her financial request. This also certifies that Augusta-Richmond County, Housing and :"l'eighborhood Development Department staff is authorized to check the applicant's credit and employment history and to ask questions about their experiences with the applicant for the purposes of considering the financial assistance requested in this application. Whether or not the financial assistance herein applied for is approved, applicant agrees to pay for the cost of any survey, title or mortgage examinations, appraisals, etc., performed by non-Augusta-Richmond County personnel with consent of the applicant. APPLICANT SHALL IMMEDIATELY NOTIFY THE AUGUSTA-RICHMOND COUNTY HOUSING AND NEIGHBORHOOD DEVELOPMENT DEPARTMENT OF ANY CHANGE(S) IN OR ADDITION TO THE INFORMATION ABOVE. BY: Applicant's Signature Signature TITLE: ATTEST: (SEAL) TITLE: 7 (APPENDIX C) LOAN AGREEMENT THIS AGREEMENT, made as of the 199-, by and between (hereinafter referred to as "Borrower"), and organized and existing under the Laws of the State of Georgia (hereinafter referred to as "Lender"); WITNESSETH WHEREAS, Borrower desires to acquire funds for leasehold improvements, purchase of machinery, equipment fumiture, and fixtures, an j the refinance of existing debt WHEREAS, Lender has agreed upon the tenns set forth herein to lend Borrower the amount of . (the "Loan") for the purposes set forth above; and WHEREAS, Borrower and Lender wish to enter into this Agreement in order to more particularly set forth the tenns and conditions of the Loan to be extended to Borrower by Lender; NOW, THEREFORE, for the mutual covenants herein contained and other valuable consideration, the receipt and adequacy whereof are hereby acknowledged, Borrower and Lender hereby convenant and agree as follows: (1) Status of Borrower. Borrower does hereby certify to Lender that, as of the date of this Agreement, Borrower has full power and authority to consummate the transactions contemplated by this Agreement (2) Loar Documents: Borrower has duly authorized, executed and delivered to Lender its Note (hereinafter referred to as the "Note") of e'/en date herewith, in the principal amount of . The indebtednes 5 evidenced by the Note is secured by a security deed, security agreement, UCC-1, UCC-2, and personal guaranties. The Note and all other documents are sometimes hereinafter collectively referred to as the "Loan Documents" and are incorporated into this Agmement by reference. (3) Warranties of Borrower. Borrower hereby warrants to Lender as follows: (a) TIlat this Agreement and the Loan Documents are in all respect legal, valid, binding and enforceable according to their tenns, subject to the bankruptcy laws and other laws of debtor relief and grant to Lender a valid and enforceable lien against the property dl~scribed in the security agreement. (b) That the consummation of the transactions hereby contemplated and the performance of the obligations of Borrower under and by virtue of the Loan Documents will not result in any violation of, breach of, or constitute a default under any mortgage, security deed, deed of trust, lease, bank loan, credit agreement, assignment, any other security instrument, or any other instrument or agreement to which Borrower may be bound or affected. (c) That there are no actions, suits or proceedings pending or to the knowledge of Borrower, threatened, against or affecting Borrowers, or any of Borrower's property, either real or personal, or involving the validity or enforceability of any of the ~oan Documents or the priority of the lien or security interest thereof, at law or in equity, or before or by any governmental authority, and Borrower is not in default with respect to any order, writ, injunction, decree or demand of any court of any governmental authority. (d) That Borrower has no knowledge of any violations or notices of violation of any federal law or any law of any state, any county or municipal ordinance or any order or requirement of any governmental authority having jurisdiction affecting the Borrower, Borrower's property or the conduct of Borrower's business. (e) That the facilities and equipment of Borrower's business are not prohibited by and will comply with governmental laws, ordinances, regulations, and requirements which are applicable and are not prohibited by and will comply with the standards and regulations of appropriate supervising boards of fire underwriters and similar agencies. (fj That the Borrower's place of business in Richmond County, Georgia, is not now damaged as a result of any fire, explosion, accident or other casualty. (g) That there is no default of Borrower under the Loan Documents or this Agreement, and no event has occurred and is continuing which, with notice or the passage of time or either, would constitute a default under any thereof, (h) Borrower's financial statements heretofore delivered to Lender correctly represent the financial condition of Borrower. (4) Covenants of Borrower: Borrower hereby covenants and agrees with Lender as follows: (a,1 To permit and commit no default under the terms of the Loan Documents or this Agreement. (b) To pay before they shall become past due all taxes for which Borrower is liable; provided, however, that Borrower shall be permitted to withhold the payment of any taxes which Borrower is actively contesting in good faith for so long as such non-payment does not have a materially adverse effect on the priority of Lender's security for this Loan. In the event Borrower shall contest the payment of any taxes against it, Borrower shall give Lender prompt notice of such fact and shall keep lender informed as 2 . to the pro~ ress of such proceedings. (c) To keep Borrower's equipment and properties in good repair and operating condition, and when necessary, to make such renewals, replacements and improvements to Borrowers' equipment and property so that Borrower's business may be carried on at all times in a proper and efficient manner consistent with prudent business management (d) no supply Lender with evidence by , that the borrower has created a minimum of ----..: jobs, which evidence shall consist of copies of Fonn 941 filed with the Intemal Revenue Service and such other documentation as Lender shall require. (e) To comply with the Civil Rights Act of 1964 and any amendments thereto and the regulations issued by the Department of Commerce, in implementation of the Civil Rights Act of 1964, designated as Part 8 of Subtitle A of Title 15 of the Code of Federal Regulatiomi, and any amendments thereto. Borrower shall supply to Lender upon request, and within a reasonable time, assurance in fonn and content satisfactory to Lender of Borrower's compliance with this section. (1) To comply with the provisions of Section 112 of Public Law 92-65, amending the Public Works and Economic Development Act of 1965 and the rules and regulations issued pursuant thereto. In addition, Borrower agrees to secure the compliance or to cooperate actively with Lender to secure the compliance of others doing business with Borrower with said law regulations. Said law and regulations provide that no person shall, because of race, color, national origin or sex, be excluded from participation, be denied the benefits of or be otherwise subjected to discrimination under any program or activity for which federal financial as~;istance has been provided. Borrower assure Lender that the provisions of this section shall be incorporated into agreements contracts or other documents which Borrower may enter into in the future so that such provisions shall be binding upon Borrower's ~Irantees, assignees, transferees, lessees, or successors in interest to the business of Borrower. Borrower shall supply to Lender, pronptly upon request, assurance in fonn and content satisfactory to Lender of Borrower's compliance with this section. (g) To obtain at Borrower's expense, such insurance as Lender may reasonably require, including but not limited to, the following: (1) Hazard Insurance - fire and extended coverage insurance and such other hazard insurance as Lender may require, all property of Borrower which is of an insurable character, showing Lender as loss payee as its interest may appear, with standard non-contribuong mortgage clauses and standard subrogation clauses, such insurance to be such amounts (which in any event shall be great enough to prevent Borrower from being a co-insurer) and fonn and issued by such companies as shall be approved by Lender. The. originals of such policies (together with appropriate endorsements thereto, evidence of payment of premiums thereon 3 . and written agreement by insurer or insurers therein to give Lender ten (10) days prior written notice of intention to cancel) shall be promptly dHlivered to Lender; such insurance to be in force, immediately upon execution of this Agreement and to be kept in full force and effect at all times thereafter until the payment in full of the indebtedness evidenced by the Note. (2) Public Uability and Workmen's Compensation Insurance - a certificate from an insurance company indicating that Borrower and all contractors with Borrower are covered by public liability and workmen's compensation insurance in an amount customary in similar situations or as required by law. (t1) To pay all costs of closing the Loan and all expenses of Lender with respect thereto, including but not limited to, advances, recording expenses, taxes, fees of Lender's counsel, and similar items, and to allow all closing papers, loan documents and other le~al matters to be subject to the approval of Lender's counsel prior to execution by any of the parties. (I) To pennit Lender and its representative and agents to enter upon the Borrower's property at any reasonable time and to inspect sam3 and to cooperate with Lender and its representatives and agents during such inspection. There shall be a reasonable span of time between each inspection and Borrowers shall be given reasonable notice of each such inspection. U) To furnish to Lender all instruments, documents, certificates, business plans, appraisals, insurance, reports and agreements and each and every other document and instrument required to be furnished to Lender by the tenns of the Loan Documents or this Agreement. (k) To do and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Agreement, including using the proceeds of the loan in a timely manner. (I) To provide Lender with financial infonnation concerning Borrowers in fonn and frequency satisfactory to Lender, which shall include, but not be limited to, annual financial statements of the Borrower (including a balance sheet and profit and loss statements) certified to by the Borrower. (m) To pay to Lender a late charge of 4% of any installment of principal and/or interest not received by Lender within 15 days after such installment is due. 5. Default - An event of default shall be deemed to have occurred hereunder if (a) Any default or event of default occurs under any of the Loan Documents; or (b) Borrower breach or fail to perfonn, observe or meet any covenant or condition of the Loan Document or this 4 '. . ". Agreement; or (c) Any warranties made herein or in any of the Loan Documents shall be breached by Borrower or shall prove to be false or misleading; or :d) Any lien for labor, material, taxes or otherwise shall be filed against the property of Borrowers which is not discharged, released by bonding, or otherwise disposed of in such fashion as is acceptable to Lender within 15 days of the filing N thereot, or (e) Any suit shall be filed against Borrower which, if adversely determined, could substantially impair the ability of Borrower to perform each and every one of its obligation under and by virtue of the Loan Documents or this Agreement; or m A levy be made under any process on, or a receiver be appointed for, any property of Borrower; or (!~) Borrower commits any act of bankruptcy or any proceedings under bankruptcy laws or other laws of general application to creditors be brought by or against Borrower; or (i1) In any legal proceeding, Borrower are adjudicated to be insolvent or unable to pay its debts as they become due; or (i) Borrower omit to do any act or any event occurs as a result of which any obligation of Borrower, not arising hereunder, may be declared immediately due and payable by the holder thereof, which declaration could substantially impair the ability of Borrower to perform pursuant to this Agreement or the Loan Documents; or Q) Lender shall reasonably suspect the occurrence of one or more of the above said events of default and Borrower, upon request of Lender, shall fail to provide evidence reasonably satisfactory to Lender that such events or events of default have not in fact, occurred. (6) Remedies of I.ender - Upon the occurrence of an event of default under this Agreement or any of the Loan Documents, Lender shall, at its option, be entitled to proceed to exercise any, all or any combination of the following remedies: (a) Borrower agrees that the occurrence of such event of default shall constitute a default under each of the Loan Documents and this Agreement, thereby entitling Lender to exercise any of the various remedies therein provided, including but not limited to, the acceleration of the indebtedness evidenced by the Note and the exercise of the power of sale under same, or the foreclosure of the mortgage and cumulatively to exercise all other rights, options and privileges provided by law. (b) Borrower agrees, upon the request of Lender, to permit Lender: (1) To perform or cause to be performed any and all work and labor necessary to preserve and protect the property 5 ! .- ~ described in the Security Agreement (7) Application for Loan - Borrower affirms that all of the representations made and facts presented by Borrower in its Revolving Loan Fund Application to Lender are, as of the date of this Agreement, true, accurate and correct and Borrowers acknowledge that they shall continue to be bound by all agreements and certifications made by Borrowers in said Revolving Loan Application, all of which is incorporated herein by reference and which shall survive the closing of the Loan. (8) Rights of Third Parties - All conditions of ,the obligations of Lender hereunder, are imposed solely and exclusively for the benefit of lender and its successors and assigns and no other person shall have standing to require satisfaction of such conditions in accordance with their terms. In particular, Lender makes no representations and assumes no obligations as third parties. In this connection, Borrower agrees to and shall indemnify Lender from any liability, claim or losses resulting from the disbursement of the Loan proceeds. (9) Relationship of Parties - No express or implied term, provision 16H or condition of the Loan Documents or this Agreement shall, or shelll be deemed, to constitute Borrower and Lender as partners or joint ventures. (10) Evidence of Satisfaction of Conditions - Any condition of this Agreement which requires the submission of evidence of the . existence or non-existence of a specified fact or facts, implies as a condition the existence or non-existence, as the case may be, or such fact or facts, and Lender shall, at all times, be free independently to establish to its own satisfaction and in its absolute discretion such existence or non-existence. (11) Assgnment - Borrower may not assign this Agreement or any of its rights or obligations hereunder or under the Loan Documents without the prior written consent of lender. (12) Successors and Assigns Included in Parties - Whenever in this Agreement, one of the parties is named or referred to, the legal representatives, successors and assigns of such parties shall be included and all covenants and agreements contained in this Agreement by or on behalf of Borrower or Lender shall bind and inure to the benefit of their respective heirs, legal representatives, successors and assigns, as the case by be, whether so expressed or not, subject to the provisions of Section 11 hereinabove. (13) Headings - The headings of the sections of this Agreement are for the convenience of reference only, and are not to be considered a part hereof and shall not limit or otherwise effect any of the terms hereof. (14) Invalid Provisions to Effect no Others - If fulfillment of any provision hereof or any transaction related hereto, at the time performance ,)f such provision or transaction shall be due, shall involve transcending the limit of validity prescribed by law, ipso facto 6 ~ .. , !oo the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision herein contained operates or would prospectively operate to invalidate this Agreement in whole or in part, then such clause or provision only shall be held for naught, a~; though not herein contained, and the remainder of this Agreement shall remain operative and in full force and effect. (15) Amendments - Neither this Agreement nor any provision hereof may be changed, waived, discharged or terminated orally, but only b:1 an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or terminate is sought. (16) Counterparts - This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall comprise but a single instrument. (17) Governing Law - This Agreement is made under and shall be governed by and construed pursuant to the laws of the State of Georgia. (18) NOjices - All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when mailed by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to Borrower. If to Lender. (19) Borrowl~r agrees to cooperate in the correction of any errors in the closing documents. The Borrower and the Lender may, by notice given to all parties to this agreement, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. 7 '. ~ '. . ~" IN WITNESS WHEREOF, Borrower and Lender have hereunto executed these presents on the date first above written. Borrower. BY: As its President ATTEST: As its Secretary (Corporate Seal) Augusta-Richmond County: BY: ATTEST: (Seal) Signed, Sealed & Deliverd In The Present at 8