Program Manager
Georgia Department of Community Affairs
60 Executive Park South, NE
Atlanta, GA 30329
May __, 2012
Dear Lender:
We are pleased to deliver to you the attached lender application package for the Georgia State Small
Business Credit Initiative Program (“SSBCI”). This package contains everything you will need for your
organization to apply for participation in the Georgia Small Business Credit Guarantee Program
(“SBCG”) and to begin functioning as a SSBCI lender, including:
• The SBCG Lender Participation Agreement.
• SSBCI Forms.
After reviewing the attached materials, please complete the following steps:
1. Submit your institution’s most recent audited report, management letter, and point of contact
information. If you are not a financial institution, please contact Georgia SSBCI for further
requirements.
2. Provide a copy of your institution’s CRA Strategy for assisting designated distressed or
underserved markets. If you do not have a CRA Strategy, please attach your plan to reach
underserved markets.
3. Complete the Regulatory Order Certification attached as Exhibit A.
4. Complete the Training Request Form attached as Exhibit B if you would like to schedule
additional training.
Once you have completed these steps, please mail, email, or fax all documents to the following address:
Georgia Department of Community Affairs
Attn: SSBCI Program Manager
60 Executive Park South, NE
Atlanta, GA 30329
SSBCI.manager@dca.ga.gov
Fax: 404-679-0563
SBCG Application – 052912.1
1
Once all required documentation is received, we will review and process the information. If approved as
a participating lender, you will receive an e-mail indicating our approval as well as a complete digital
copy of the SBCG Program Participation Agreement. Please execute two originals and mail the
agreements to DCA at the address listed above. DCA will then execute both originals and send one of the
executed agreements back to you.
If you have any questions, please call me at (404) 679-3144 or email me at SSBCI.manager@dca.ga.gov.
We are delighted to welcome you to the Georgia SSBCI SBCG program, and our staff looks forward to
working with you to make the program a success for your institution, for your customers, and for the
small businesses of the state of Georgia.
Sincerely,
SSBCI Program Manager
Enclosures:
SBCG Lender Participation Agreement
SSBCI Forms
Regulatory Certification
Training Request Form
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Exhibit A
Regulatory Order Certification
Please check “yes” or “no” below if the Lender is currently under a Supervisory Enforcement Action.
YES
NO
If Yes, please identify (i) the regulatory body issuing the action, and (ii) the type of action. Please include
a copy of any such enforcement action along with your application.
Name of Regulatory Body:
Type of Enforcement Action:
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Exhibit B
Georgia SSBCI Training Request Form
Name of Financial Institution:
Primary Contact:
Phone:
E-mail:
Training Contact (if different from above):
Phone:
E-mail:
Number of employees to receive training:
Preferred location(s) of training (up to 3):
Preferred time frame for training (up to 3):
SBCG Application – 052912.1
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SMALL BUSINESS CREDIT GUARANTEE PROGRAM (SSBCI)
Agreement No.
LENDER PROGRAM PARTICIPATION AGREEMENT
(SMALL BUSINESS CREDIT GUARANTEE PROGRAM)
between
GHFA ECONOMIC DEVELOPMENT FINANCING, INC.
and
(PARTICIPATING LENDER NAME)
(PARTICIPATING LENDER ADDRESS)
(PARTICIPATING LENDER CITY/STATE/ZIP + 4)
ATTN:
(PARTICIPATING LENDER CONTACT / TITLE)
PHONE:
(PARTICIPATING LENDER)
FAX:
(PARTICIPATING LENDER)
SBCG Application – 052912.1
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STATE OF GEORGIA
GEORGIA SMALL BUSINESS CREDIT INITIATIVE
LENDER PROGRAM PARTICIPATION AGREEMENT
(SMALL BUSINESS CREDIT GUARANTEE PROGRAM)
This PROGRAM PARTICIPATION AGREEMENT (SMALL BUSINESS CREDIT GUARANTEE
PROGRAM) (the "Agreement") is entered into this __ day of________, _______ , by and between the GHFA
ECONOMIC DEVELOPMENT FINANCING, INC. ("GHFA EDFI"), a public body corporate and politic and
instrumentality of the State of Georgia, and _______, a/an _____ (the "Lender") as part of the implementation of the
Small Business Credit Guarantee Program implemented under the Georgia State Small Business Credit Initiative.
RECITALS
WHEREAS:
A.
The Small Business Jobs Act of 2010 (the "Act") is federal legislation that created the State Small
Business Credit Initiative ("SSBCI"), which seeks to increase credit availability for small businesses through the
appropriation of federal funds to participating states to use in programs that increase credit access for small
businesses.
B.
The State of Georgia (the "State") determined that, in order to promote economic development and
help create jobs for its citizens, the State needs to assist small businesses located in the State by providing access to
capital that State small businesses otherwise may not obtain.
C.
To provide State small businesses with additional access to capital, the State applied for and has
qualified to receive federal funds from the United States Department of Treasury ("Treasury") for SSBCI-related
programs administered by or on behalf of the State.
D.
The State has designated GHFA EDFI with the responsibility to (i) administer the federal funds
received from SSBCI in accordance with Treasury rules and regulations, and (ii) assist small businesses with access
to credit in order to create jobs and improve the State's economy for its citizens.
E.
The SSBCI funding allocated to the State will establish: (i) a capital access program that will
provide portfolio insurance for loans provided by each participating lender to State small businesses by establishing
a reserve fund to insure potential future losses from a portfolio of loans that a participating lender enrolls in such
program (the "Capital Access Program"); (ii) a credit guaranty program wherein the State will guarantee credit
granted by participating lenders to State small businesses in exchange for a loan guarantee fee paid to the State by
each participating lender (the "Small Business Credit Guaranty Program" or the "SBCG"), which is the subject of
this Agreement; and (iii) a GA Funding for Community Development Financial Institutions ("CDFI") Program
which entails two subcomponent programs, namely, (a) a CDFI origination and servicing program whereby the
GHFA EDFI will make loans originated and then serviced by participating CDFIs (the "Origination and Servicing
Program"), and (b) a CDFI direct loan participation program whereby participating CDFIs will make direct loans to
State small businesses meeting the criteria established by the State and Treasury (the "Direct CDFI Lending
Program" and, together with the other programs listed above, the "Georgia SSBCI Programs").
F.
Lender has been duly selected by the State as a participating lender in the Small Business Credit
Guaranty Program.
G.
GHFA EDFI and the Lender desire to set forth certain terms and conditions upon which the
Lender may enroll eligible credits into the Small Business Credit Guaranty Program being implemented under by
GHFA EDFI as part of the Georgia SSBCI Programs.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, other good and valuable
consideration the receipt and sufficiency of which the parties hereby acknowledge, and intending to be legally bound
hereby, the parties hereto agree as follows:
SBCG Application – 052912.1
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ARTICLE I
DEFINITIONS
In addition to the words and terms defined elsewhere in this Agreement, each of the following words and
terms as used in this Agreement shall have the following meaning, unless the context or use clearly indicates another
or different meaning or intent, and such definition shall be equally applicable to both the singular and plural forms
of the terms as the context may require:
"Affiliate" means, when describing a relationship with the Lender, the parent company of Lender, or any
present or future company that controls, is controlled by, or is under common control with Lender as defined under
12 U.S.C. § 1841(d). For purposes of describing a relationship with the Borrower, the term "affiliate" means an
individual or entity which is in a position to exert direct influence on the actions of another person or entity (which
persons or entities shall be deemed "control persons" or a "control person"). For purposes of this definition, the term
control person shall include, without limitation, persons who are owners of 10% or more of the voting shares or
other ownership interests of another entity, and persons who are directors, and senior elected officers and any other
persons or entities in a position to exert influence through such directors and senior elected officials of another entity
(such as members of a control persons immediate family and other close associates).
"Allocation Agreement" means that certain State Small Business Credit Initiative Allocation Agreement for
Participating States between the State and Treasury dated as of December 13, 2011.
"Allocated Funds" means funds awarded to the State on account of the Allocation Agreement for purposes
of implementing the Georgia SSBCI Programs, including the funds allocated to the Small Business Credit Guaranty
Program.
"Borrower" means the recipient of a loan, which is, has been, or will be filed by the Lender for enrollment
under the Small Business Credit Guaranty Program and is a State business which has 500 or fewer employees as
employees are defined in 13 C.F.R. § 121.106.
"Concentration Limit" means the maximum combined Current Credit Guaranty Exposure Amount which
may be outstanding at any one time with the Lender which, for all purposes, shall be $5,000,000 unless waived, in
writing, by GHFA EDFI or its designee. For purposes of clarification, the Concentration Limit shall be measured
only on the amount of guaranty liability in respect of the outstanding principal balances or maximum line of credit
balances of Enrolled Loans which are covered by the Pools, and not on the total loan balances which are not covered
by the guaranty provided under the Pools (e.g., the portions of the Enrolled Loans and/or the direct loans and/or the
third-party loans extended to the Borrower which are not guaranteed by GHFA EDFI under the Pools).
"Current Credit Guaranty Exposure Amount" means the sum of: (a) with respect to Enrolled Loans covered
by the Loan Guaranty Pool, (i) 50% of the then outstanding principal amount in respect of any Enrolled Loan which
is not a line of credit, calculated on each anniversary of the closing on the related Enrolled Loan, and (ii) 50% of the
average outstanding balance drawn down on an Enrolled Loan which is in the form of a line of credit, calculated at
the time of such draw for the then current loan year, plus (b) with respect to Enrolled Loans covered by the Risk
Reserve Pool, the amount then held in said Risk Reserve Pool to cover the guarantee obligations owed to the Lender
thereunder. By way of illustration only, if the Lender has an Enrolled Loan with an initial loan balance of
$1,000,000 at the time of closing ("Loan A"), the Current Credit Guaranty Exposure Amount for Loan A would be
$500,000 while Loan A remains in the Loan Guaranty Pool. If, at the end of year 3 of Loan A the outstanding
balance is $500,000, and said loan remains covered by the Loan Guaranty Pool, the Current Credit Guaranty
Exposure Amount for Loan A would be $250,000.
"Eligible Loan" means a loan or line of credit made by the Lender to a Borrower for which the
representations and warranties as set forth in Section 2.2 are true.
"Enrolled Loan" means a loan or line of credit enrolled by the Lender to a Borrower pursuant to the terms
of Article IV hereof.
SBCG Application – 052912.1
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"Georgia Open Records Act" means O.C.G.A. § 50-18-70, et seq.
"Initial Credit Guaranty Exposure Amount" means (i) 50% of the original principal amount in respect of
any Enrolled Loan which is not a line of credit and (ii) 50% of the maximum credit limit initially made available to a
Borrower on an Enrolled Loan which is in the form of a line of credit.
"Loan" or "loan" means, for all purposes of this Agreement, a loan or line of credit made by the Lender to a
Borrower for which the Lender seeks to enroll in the Small Business Credit Guaranty Program, unless the context
clearly indicates otherwise.
"Loan Guarantee Pool" means that certain loan guaranty pool maintained by GHFA EDFI and funded with
Allocated Funds in order to fund GHFA EDFI's 50%, limited guarantee obligations for Enrolled Loans held by the
Lender and not reallocated to the Risk Reserve Pool, as provided under this Agreement.
"Loan Documents" means the written documentation evidencing that an Enrolled Loan from the Lender to
a Borrower is covered under the State Business Credit Guaranty Program described herein and includes, but is not
limited to, the Enrollment Form, loan or credit agreement, note, mortgage, security agreement and any guaranty
agreement or other documents relating to the Enrolled Loan or the security therefor.
"Lobbying Activities" means the definition ascribed to lobbying activities by the Lobbying Disclosure Act
of 1995, P.L. 104-65, as amended.
"Low to Moderate Income Area" means an area or county within the State of Georgia that meets certain
federal income guidelines taking into consideration the number of household members. For convenience of
reference, in order to determine if a business is located in a Low to Moderate Income (LMI) Area, you may go to
http://www.ffiec.gov/geocode and type in the address. Then click on "Get Census Demographic" in order to
determine the income level of the tract.
"Maximum Enrolled Loan Amount" means the maximum aggregate principal amount of any loan which
may be enrolled under the Small Business Credit Guaranty Program. Currently, the Maximum Enrolled Loan
Amount is $500,000; provided, however that: (i) GHFA EDFI reserves the right, acting in its sole and absolute
discretion, to modify the Maximum Enrolled Loan Amount upon publication of notice of same to the Lender; and
(ii) GHFA EDFI reserves the right to increase said Maximum Enrolled Loan Amount on a case by case, exception
only basis, with the written approval of DCA as and to the extent such increased guarantee amount would not trigger
a violation of the applicable federal laws, rules, regulations and guidelines applicable to the Allocated Funds. For
purposes of clarification, under no circumstances shall the aggregate amount of any loan or group of loans made by
a Lender to a Borrower and the Borrower's Affiliates exceed said $500,000 Maximum Enrolled Loan Amount on an
aggregate basis without the written consent of GHFA EDFI.
"Maximum Guaranty Amount" shall have the meaning set forth in Section 4.4 of this Agreement.
"Passive Real Estate Ownership" means ownership of real estate for the purpose of deriving income from
speculation, trade or rental, except that such term shall not include: (a) the ownership of that portion of real estate
being used or intended to be used for the operation of the business of the owner of the real estate; or (b) ownership
of real estate for the purpose of construction or renovation, until the completion of the construction or renovation
phase.
"Risk Reserve Pool" means that certain risk reserve pool maintained by GHFA EDFI in order to fund its
10%, limited guarantee obligations for one or more Enrolled Loans (taken as a portfolio), held by the Lender and
reallocated from the Loan Guaranty Pool, all as provided under this Agreement.
"Small Business Credit Guaranty Program" means that certain OCSP program referred to as the Small
Business Credit Guaranty Program, as approved by Treasury, and which is the subject of this Agreement.
"Underserved Borrower" means a Borrower, which:
SBCG Application – 052912.1
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(a)
is located in a municipality or county located in the State that, according to the most recently
available United States Department of Housing and Urban Development-adjusted census data, is comprised of more
than fifty percent (50.0%) low and moderate income residents; or
(b)
is located in a "minority census tract" as such term is defined in 12 U.S.C. § 4502(29) or in a Lowto-Moderate Income Area; or
(c)
has more than fifty percent (50.0%) of the Borrower's stock, partnership interests, membership
interests or other equity ownership interests owned solely by or by any combination of individuals who are women,
black, African-American, American Indians, Alaska natives, Asians, native Hawaiians, other Pacific Islanders
and/or Hispanics; or
(d)
is located within "distressed nonmetropolitan middle-income geographies" or "underserved
nonmetropolitan middle-income geographies" as such geographies are designated upon enrollment of a loan to the
Borrower by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System,
the Federal Deposit Insurance Corporation, and the Office of Thrift Supervision pursuant to the federal Community
Reinvestment Act as amended.
ARTICLE II
REPRESENTATIONS
Section 2.1.
Representations by GHFA EDFI. With respect to any loan enrolled hereunder, GHFA
EDFI covenants and represents that, as of the time of such enrollment, GHFA EDFI has the necessary power, and
has duly taken all actions on its part required to authorize, execute and deliver this Agreement. This Agreement
when executed will be valid, binding and enforceable in accordance with its terms. The execution and performance
of this Agreement by GHFA EDFI will not violate or conflict with any instrument by which GHFA EDFI is bound.
Section 2.2.
Representations by the Lender. With respect to any loan that the Lender files for
enrollment hereunder, the Lender makes the following representations and warranties as of the time of each such
filing and enrollment:
(a)
The Lender has obtained from the Borrower the following representations and warranties,
and, based on knowledge that the Lender has after reasonable inquiry, the Lender has no substantial reason to
believe that such representations and warranties are not true:
(i)
The Borrower is a corporation, partnership, limited liability company, limited
liability partnership, joint venture, sole proprietorship, cooperative, or other entity, which is authorized to conduct
business in the State, and the proceeds of the loan will be used for a business purpose, which includes, but is not
limited to, start-up costs, working capital, business procurement, franchise fees, equipment, inventory, lines
of credit, buildings or other real estate improvements for an industrial, commercial or other business enterprise that
is not for Passive Real Estate Ownership, or any combination thereof, generally within the state as described below;
however, a business purpose shall specifically exclude acquiring or holding passive investments such as Passive
Real Estate Ownership, the purchase of securities and Lobbying Activities. If proceeds of the loan are for buildings
or other real estate improvements, the real estate must be located in Georgia. If proceeds of the loan are for franchise
fees, the business for which the fees are paid must be located in Georgia. If proceeds of the loan are for equipment, the
equipment must be installed or titled in Georgia. If the proceeds of the loan are for start-up costs, working capital,
business procurement, inventory, or any other costs, the proceeds must be used to directly benefit a business within the
state of Georgia. However, nothing in this Agreement shall prohibit a business from using the proceeds of the loan to
purchase inventory, equipment, or otherwise making purchases and payments from/to businesses or persons outside of
the state of Georgia, provided that the purchases inure to the benefit of a business located within the state of Georgia.
Notwithstanding anything in this Section, GHFA EDFI reserves the right to approve any loan through which funds will
SBCG Application – 052912.1
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be expended in a state other than Georgia, and furthermore may request any and all documents from the borrower
necessary to verify the amount of funds and purpose of funds expended outside of the state of Georgia.1
(ii)
The loan will not be used to refinance any of the Borrower's existing
obligation(s) to the Lender or its Affiliates.
(iii)
The loan will not be used to (1) repay delinquent federal or state income taxes
unless the Borrower has a payment plan in place with the relevant taxing authority, (2) repay taxes held in trust or
escrow including, but not limited to, payroll or sales taxes, (3) reimburse funds owed to any owner, including any
equity injection or injection of capital for the continuance of the Borrower's business, or (4) purchase any portion of
the ownership interest of any owner of the Borrower's business.
(iv)
No officer, director, or shareholder is an executive officer, director, or principal
shareholder of the Lender, or a member of the immediate family of an executive officer, director or principal
shareholder of the Lender, or a related interest of any such executive officer, director, principal shareholder or
member of the immediate family. For the purposes of this provision, the terms "executive officer", "director",
"principal shareholder", "immediate family", and "related interest" shall refer to the same relationship to the Lender,
whether or not the Lender is a member bank, as the relationship specified for those terms in connection with
member banks in Part 215 of Title 12 of the Code of Federal Regulations, including amendments of such Part 215
which may be made from time to time.
(v)
The Borrower is not a business engaged in speculative activities that develop
profits from fluctuations in price rather than through normal course of trade, such as wildcatting for oil and dealing
in commodities futures, unless such activities are incidental to the regular activities of the business and part of a
legitimate risk management strategy to guard against price fluctuations related to the regular activities of the
business.
(vi)
The Borrower is not a business that earns more than half of its annual net
revenue from lending activities unless the Borrower is a non-bank or non-bank holding company certified as a
Community Development Financial Institution.
(vii)
The Borrower is not a business engaged in pyramid sales, where a participant's
primary incentive is based on the sales made by an ever-increasing number of participants.
(viii)
The Borrower is not a business engaged in activities that are prohibited by
federal law or applicable law in the jurisdiction where the business is located or conducted including, but not limited
to, a business engaged in the production, servicing, or distribution of otherwise legal products that are used in
connection with an illegal activity, such as selling drug paraphernalia or operating a motel that knowingly permits
illegal prostitution.
(ix)
The Borrower is not a business engaged in gambling enterprises, unless the
business earns less than thirty-three percent (33.0%) of its annual net revenue from lottery sales.
(x)
Neither the Borrower nor a principal of the Borrower has been convicted of a
sex offense against a minor (as such terms are defined in section 111 of the Sex Offender Registration and
Notification Act in 42 U.S.C. 16911). For purposes of this representation and warranty, "principal" is defined as (a)
if a sole proprietorship, the proprietor, (b) if a partnership, each managing partner and each partner who is a natural
person and holds a twenty percent (20.0%) or more ownership interests in the partnership, and (c) if a corporation,
limited liability company, association or other business entity, each director, each of the five (5) most highly
compensated executives or officers of the entity, and each natural person who is a direct or indirect holder of twenty
percent (20.0%) or more of the stock or equivalent ownership interests of such business entity.
1
Note that all loans to religious non-profits and faith-based organizations must comply with Federal
Constitutional law. All proposed loans to such entities must be pre-cleared with GHFA EDFI.
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(xi)
That the enrollment of the loan by the Lender will not violate the Maximum
Enrolled Loan Amount limitation.
(b)
The Lender further represents and warrants as follows:
(i)
That the Enrolled Loan or Loans have not been made in order to place under the
protection of the Georgia SSBCI Programs any prior debt that is not covered under the Georgia SSBCI Programs
and that is or was owed by the Borrower to the Lender or its Affiliate.
(ii)
That the Lender is and shall at all times remain in compliance with the
requirements of section 103.121 of Title 31, U.S.C., which regulation, at a minimum, requires financial institutions,
as that term is defined in section 5312 (a)(2) and (c)(1)(A) of Title 31, U.S.C., to implement reasonable procedures
to verify the identity of any person seeking to open an account, to the extent reasonable and practicable, maintain
records of the information used to verify the person’s identity, and determine whether the person appears on any lists
of known or suspected terrorists or terrorist organizations provided to the financial institution by any government
agency.
(iii)
That no principal of the Lender has been convicted of a sex offense against a
minor (as such terms are defined in section 111 of the Sex Offender Registration and Notification Act in 42 U.S.C.
16911). For purposes of this representation and warranty, "principal" is defined as (a) if a sole proprietorship, the
proprietor, (b) if a partnership, each managing partner and each partner who is a natural person and holds a twenty
percent (20.0%) or more ownership interests in the partnership, and (c) if a corporation, limited liability company,
association or other business entity, each director, each of the five (5) most highly compensated executives or
officers of the entity, and each natural person who is a direct or indirect holder of twenty percent (20.0%) or more of
the stock or equivalent ownership interests of such business entity. In addition, the Lender covenants and agrees
that if any principal, as defined above, changes at any point, Lender will immediately notify GHFA EDFI and take
steps to promptly certify the new principal. The burden to certify a new principal is upon the Lender and failure to
do so promptly will constitute an event of default under this Agreement.
(iv)
That the Lender has disclosed to the Borrower information concerning the Small
Business Credit Guaranty Program (or any other Georgia SSBCI Programs) as may be specified by GHFA EDFI.
(v)
That the Lender will exercise its standard due diligence in applying underwriting
criteria and evaluating underwriting results for purposes of determining whether the Enrolled Loan or Loans shall be
made by the Lender to the Borrower.
(vi)
That the Lender has complied or will comply with all State, federal and local
laws, rules and regulations pertaining to the making of the Enrolled Loan or Loans and that it is current as to the
filing and payment of any federal, State and/or local taxes applicable to Lender; and is not delinquent in its payment
of moneys owed to any federal, State, or local unit of government.
(vii)
That the Lender has not enrolled a loan for the unguaranteed portions of Small
Business Administration (SBA) guaranteed or other federally guaranteed loans without the express, prior written
consent of the Treasury.
(viii)
That the Lender is a________.
(ix)
That the Lender is familiar with all of the laws, rules and regulations applicable
to the SSBCI program and the Georgia SSBCI Programs (particularly the Small Business Credit Guaranty Program)
and shall use diligent, reasonable efforts to remain familiar with all such rules and regulations applicable to the
SSBCI program and the Georgia SSBCI Programs (particularly the Small Business Credit Guaranty Program),
including, but not limited to, any changes in lending limitations, information gathering and reporting requirements
and other program matters, and promptly shall notify the GHFA EDFI of such changes of which the Lender
becomes aware during the term of this Agreement
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(x)
That the Lender is a ________ validly existing and in good standing under the
laws of the __________, is duly qualified and in good standing to transact business in the State, and possesses all
requisite authority, power, licenses, permits and franchises to conduct any and all business contemplated by this
Agreement and to accept the duties hereunder and comply with its obligations under the terms of this Agreement. It
further certifies, covenants and represents that the execution and delivery and performance of this Agreement by the
Lender has been duly authorized by all necessary corporate action.
(xi)
That this Agreement, and all documents and instruments contemplated hereby,
which are executed and delivered by it, when duly authorized, executed and delivered by all other parties thereto,
will constitute valid, legal and binding obligations of the Lender, enforceable against it in accordance with their
respective terms, except as the enforcement thereof may be limited by applicable debtor relief laws.
(xii)
That the execution and delivery of this Agreement by Lender and the
performance and compliance with the terms hereof by it in the manner contemplated herein will not violate (i) its
articles of incorporation or bylaws, or (ii) any laws which could have any material adverse effect whatsoever upon
the validity, performance or enforceability of any of the terms of this Agreement or any financing documents
applicable to the Lender, and will not constitute a material default (or an event which, with notice or lapse of time,
or both, would constitute a material default) under, or result in the breach of, any material contract, agreement or
other instrument to which the Lender is a party or which may be applicable to it or any of its assets.
(xiii)
That the execution and delivery of this Agreement by the Lender and the
performance and compliance with the terms hereof by it in the manner contemplated herein do not require the
consent or approval of any governmental authority, or if such consent or approval is required, it has been obtained.
(xiv)
That the Lender, in the performance of its duties hereunder, will comply with
the applicable non discrimination provisions of the Civil Rights Act of 1964, and the regulations promulgated
thereunder, and Executive Order 11246, Equal Employment Opportunity.
(xv)
That so long as it shall continue to serve in the capacity contemplated under the
terms of this Agreement, the Lender will remain in good standing under the laws governing its organization and
qualified under the laws of the State to do business in the State, will not dissolve or otherwise dispose of all or
substantially all of its assets and will not voluntarily consolidate with or merge into any other entity or permit one or
more other entities to consolidate with or merge into it; provided, however, that the Lender may, without violating
the covenant contained in this provision consolidate with or merge into another entity, or permit one or more entities
to consolidate with or merge into it, or sell or otherwise transfer to another such entity all or substantially all of its
assets as an entirety and thereafter dissolve, if the surviving, resulting or transferee entity, as the case may be, shall
have a net worth equal to or greater than the net worth of the Lender immediately preceding any such merger,
consolidation or sale of assets, shall be qualified under the laws of the State to do business in the State, shall be
qualified under the laws and have all necessary approvals as a __________, as evidenced to the satisfaction of the
State, required of the Lender to perform its duties under this Agreement, and shall assume in writing all of the
obligations of the Lender under this Agreement, in which event the GHFA EDFI shall release the Lender in writing,
concurrently with and contingent upon such assumptions from all obligations so assumed.
(xvi)
That no information or statement furnished in writing or report required
hereunder delivered to GHFA EDFI, the State or Treasury (or any of their respective agents or designees) has or
will, to the knowledge of the Lender, contain any untrue statement of a material fact or omit a material fact
necessary to make the information, statements or report not misleading.
(xvii) That on the date hereof, there is no pending, or to Lender's knowledge,
threatened litigation or administrative proceedings against Lender, which, if adversely determined, would materially
affect Lender and its assets or its ability to perform the services contemplated in this Agreement.
(xviii) That the Lender's services, programs, and activities contemplated under this
Agreement are and will continue to be in compliance with the Americans with Disabilities Act (ADA) (42 U.S.C.
12101 et seq.) and the regulations thereunder (28 CFR 35.130), which prohibit discrimination against persons with
disabilities, whether directly or through contractual arrangements, in the provision of any aid, benefit, or service.
SBCG Application – 052912.1
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The Lender further certifies that all facilities utilized by it in the performance of this Agreement comply with State
accessibility laws.
(xix)
That the Lender is in compliance with the requirements of the federal Drug Free
Workplace Act.
(xx)
That the Lender is not currently operating under or subject to any formal
regulatory action such as a cease and desist order (or consent order), issued by a Federal or State agency charged
with the regulation of financial institutions.
(xxi)
That the Lender has reviewed a copy of Articles IV and VI of the Allocation
Agreement attached hereto as Annex A, is familiar with the content, requirements and obligations set forth in such
articles, and notwithstanding anything in the contrary herein contained, agrees to be bound by, and further covenants
and agrees to comply with, the provisions of Article IV and Article VI of the Allocation Agreement, as and to the
extent applicable to the State Small Business Credit Program, as if the Lender were deemed to be the "Participating
State" for purposes of such provisions of the Allocation Agreement; provided, further, that as and solely to the
extent of any conflict between the provisions of this Agreement and those contained in Articles IV and VI of the
Allocation Agreement or otherwise, the provisions of the Allocation Agreement shall control.
(xxii) That the Lender has fully and truthfully disclosed on its application any formal
supervisory enforcement action which it is subject to. The Lender further represents that it will notify GHFA EDFI,
in writing, within ten days, if it becomes subject to a formal enforcement action. Failure to disclose any and all
enforcement actions issued against Lender may constitute a default under this agreement.
ARTICLE III
ENROLLMENT OF LOANS IN SMALL BUSINESS CREDIT GUARANTY PROGRAM; WITHDRAWAL
Section 3.1.
Loans. A loan to be filed for enrollment under this Agreement may be made with such
interest rate, fees, and other terms and conditions as the Lender and Borrower may agree. The loan may be in the
form of a line of credit, in which case the amount of the loan shall be considered to be the maximum amount that
can be drawn down against the line of credit. Notwithstanding the foregoing, the term of the coverage provided by
GHFA EDFI through operation of the Loan Guaranty Pool or Risk Reserve Pool for any Enrolled Loan shall not
exceed 48 months2 for any term or amortizing loan or 24 months for any line of credit. Enrolled Loans may be
made on a subordinate basis to loans made by the Lender from non-Allocated Funds or any other loans or financings
provided by other financial institutions or private (non-equity) investors.
Section 3.2.
Enrollment.
(a)
In order to enroll a loan under the Small Business Credit Guaranty Program, the Lender
shall (i) file the loan for enrollment by causing to be delivered to GHFA EDFI a copy of the Enrollment Form as
may be specified by GHFA EDFI, bearing an execution signature of an authorized officer of the Lender, and (ii)
submit such additional documentation and information reasonably required by GHFA EDFI and related to the loan
to be enrolled. The loan shall be deemed enrolled in the Small Business Credit Guaranty Program at such time as
the Enrollment Form is accepted, in writing, by GHFA EDFI as evidenced by GHFA EDFI's (or its designee's)
signature on the approval line of the Enrollment Form.
(b)
The Lender shall file the loan for enrollment at least five (5) business days before the
Lender advances funds under the loan or the line of credit. For the purposes of this Agreement, the date on which
the Lender makes a loan or opens the line of credit shall be deemed to be the earlier to occur of the date on which
the Lender (i) first disburses proceeds of the loan to the Borrower, or (ii) first permits the Borrower to make draws
on the line of credit, or (iii) has executed and delivered Loan Documents. For the purposes of this Agreement, the
2
GHFA EDFI seeking authorization to provide guarantee for up to 84 months for Enrolled Loans
transferred into the Risk Reserve Pool. Lenders will be notified as and to the extent that Treasury approves this
modification.
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filing of a loan for enrollment shall be deemed to occur on the date on which the Lender executes and delivers the
Enrollment Form and delivers to GHFA EDFI the documentation as required by this Section.
(c)
The Lender shall execute any and all documentation reasonably requested by GHFA
EDFI to memorialize the terms and conditions of any loan enrolled by the Lender in the Small Business Credit
Guaranty Program and/or the guaranty extended by GHFA EDFI for any such Enrolled Loan.
Section 3.3.
Acknowledgment. Upon receipt by GHFA EDFI of the documentation identified in
Section 3.2 hereof, GHFA EDFI shall enroll the loan, unless the information provided pursuant to Section 3.2
indicates or GHFA EDFI reasonably believes that the loan is not an Eligible Loan, and shall mail or otherwise
deliver to the Lender, within five (5) business days of such receipt, an acknowledgment of enrollment, bearing the
execution signature of an authorized representative of GHFA EDFI, and including documentation of the guaranty
obligation being extended by GHFA EDFI to the Lender in respect of such Enrolled Loan. Notwithstanding the
provisions of this Section 3.3, GHFA EDFI is under no obligation to accept loans for enrollment in the Small
Business Credit Guaranty Program if GHFA EDFI does not have sufficient funds to make the necessary transfer of
amounts to the Loan Guaranty Pool or the Risk Reserve Pool, as the case may be, needed to fully fund future
guaranty obligations in respect of Enrolled Loan commitments. Unless otherwise agreed by the parties, all Enrolled
Loans shall initially be deemed covered under the Loan Guaranty Pool until reallocated to the Risk Reserve Pool as
herein provided.
Section 3.4.
Portions of Loans. When filing a loan for enrollment, the Lender may specify an amount
to be covered under the Small Business Credit Guaranty Program that is less than the total amount of the loan.
Unless the context clearly requires otherwise, when used in this Agreement in connection with a loan or loans, the
words "amount and proceeds" shall refer only to the amount covered under this Agreement.
Section 3.5.
Renewal of Enrolled Loans. In the event that an Enrolled Loan is renewed, and the total
amount to be covered under the Small Business Credit Guaranty Program does not exceed the covered amount of the
loan as previously enrolled, the loan, as renewed, may continue as an Enrolled Loan, and there shall be no additional
transfers to be made by GHFA EDFI, into the loan closing, escrow or other similar fund established in respect of the
closing on said renewed Enrolled Loan. The Lender shall pay to GHFA EDFI, at the closing, the applicable renewal
fee, in the amount calculated by multiplying the renewal rate in place (and as determined by GHFA EDFI) at the
time of renewal by the covered amount of the Enrolled Loan which is being renewed.
Section 3.6.
Renewal and Increase of Enrolled Loans. In the event that an Enrolled Loan is renewed in
an amount that exceeds the amount covered when the loan was previously enrolled,
(a)
the Lender shall again file the loan for enrollment pursuant to Section 3.2;
(b)
the Lender at the time of such renewal shall be deemed to have made, with respect to
such renewed loan, the representations and warranties specified for the Lender in Section 2.2(a) and Section 2.2(b)
hereof; and
(c)
the Lender shall pay to GHFA EDFI, at the closing, the applicable renewal fees for (i) the
portion of the Enrolled Loan which is equal to the covered amount outstanding at the time of renewal of the prior
Enrolled Loan (calculated as set forth in Section 3.5 above), and (ii) the portion of the Enrolled Loan which
constitutes and increase in the covered amount of the prior Enrolled Loan at the time of the renewal (the "New
Enrolled Loan Amount") (calculated in the same manner as the Initial Guarantee Fee set forth in Section 4.2 hereof
and based on the New Enrolled Loan Amount).
Section 3.7.
Line of Credit Fluctuations. For the purposes of this Agreement, fluctuations in the
outstanding balance of a line of credit, without increasing the covered amount under the Small Business Credit
Guaranty Program, shall not be deemed to be a refinancing of the loan.
Section 3.8.
Line of Credit Renewals. To renew of an Enrolled Loan which is a line of credit, or
extend the maturity date of such line of credit, the Lender must advise and the Borrower consent to such extension in
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writing and the GHFA EDFI must receive a new enrollment. Otherwise, an Enrolled Loan which is a line of credit is
considered no longer enrolled in the Small Business Credit Guaranty Program after the maturity date of the line of
credit, as indicated on the enrollment form, has passed.
Section 3.9.
Zero Balances. If the outstanding balance of an Enrolled Loan which is not a line of
credit is reduced to zero, such loan shall no longer be considered an Enrolled Loan. If an Enrolled Loan which is a
line of credit has an outstanding balance of zero for a six (6) month period, such line of credit shall no longer be
considered an Enrolled Loan, unless before the expiration of the six (6) month period the Lender has reaffirmed in
writing to the Borrower that the line of credit will remain open, and the Borrower has acknowledged in writing such
reaffirmation.
Section 3.10.
Reporting Requirements. (a) For each month, the Lender is to submit to the GHFA EDFI
within ten (10) days of the end of the preceding month a report listing the number, amount, and identity of loans
moved from the Loan Guarantee Pool (50% Pool) to the Risk Reserve Pool (10% Pool) and for lines of credit, a
monthly statement detailing amounts of all drawdowns in that month; (b) For each calendar quarter, the Lender is to
submit to the GHFA EDFI within 10 days of the most recent calendar quarter-end a report listing Borrowers and
outstanding balances of all Enrolled Loans as of the end of that preceding calendar quarter; provided, however, the
GHFA EDFI reserves the right to supplement the Lender's quarterly reporting requirements at any time; and (c) for
each calendar year, the Lender is required to submit to the GHFA EDFI, an annual report containing the
information, on the respective due dates, as set forth in Annex B. In computing the aggregate outstanding balance
of all Enrolled Loans, the balance of any loan shall in no event be considered to be greater than the covered amount
of the loan as enrolled and, in the case of lines of credit, the total line of credit amount shall be considered to be the
enrolled line amount. Notwithstanding the foregoing, GHFA EDFI reserves the right to supplement the annual
report and/or to require interim reports as may be required for GHFA EDFI to remain in compliance with the laws,
rules and regulations, as amended from time to time, of Treasury relating to the SSBCI program
Section 3.11.
Termination of Enrollment Rights under the Program. GHFA EDFI, in its sole and
absolute discretion, may terminate its obligation under this Agreement with the Lender to enroll loans under the
Small Business Credit Guaranty Program. Such termination may be temporary (e.g., in the case where the Lender
reaches the Concentration Limit) or permanent and shall be applicable on the effective date specified in the written
notice of termination, except that such termination shall not apply to any loan which is made on or before the date
on which the notice of termination is received by the Lender. However, if GHFA EDFI is terminating the enrollment
of loans not merely for the Lender but instead for all participating lenders under the Small Business Credit Guaranty
Program and/or all other Georgia SSBCI Programs, and such termination is not required by Treasury or resulting
from (i) a termination of all or a portion of the Allocated Funds or (ii) reaching the cap placed on enrolled loans for
all lenders participating in the Small Business Credit Guaranty Program, as established under State SSBCI
Regulations (all of which shall be mandatory termination events), then and only in such event GHFA EDFI shall
provide notice of at least thirty (30) days to the Lender. Any non-mandatory terminations under this Section shall be
prospective only, and shall not apply to any loans previously enrolled under the Small Business Credit Guaranty
Program, except that if a previously Enrolled Loan is refinanced, the amount covered under the Small Business
Credit Guaranty Program shall not be increased beyond the covered amount as previously enrolled after the effective
date of termination. For purposes of clarification, nothing herein provided is intended, nor shall it be construed, to
modify, limit or restrict the GHFA EDFI's or Treasury's termination rights and remedies under Section 3.13 hereof
or upon the occurrence of an event of a default (as provided herein or in the Allocation Agreement), which
provisions shall expressly control.
Section 3.12.
Lender's Withdrawal from Program. The Lender may withdraw from the Small Business
Credit Guaranty Program at any time with prior written notice to GHFA EDFI. Such withdrawal shall be applicable
on the effective date specified in the written notice of withdrawal, except that such withdrawal shall not apply to any
loan which is made on or before the date on which the notice of withdrawal is received by GHFA EDFI. Any
withdrawals under this Section shall be prospective only, and shall not apply to any loans previously enrolled under
the Small Business Credit Guaranty Program. Upon notification of the Lender's intention to withdraw from the
Small Business Credit Guaranty Program,
Section 3.13.
Term and Termination of Availability. Subject to earlier termination as provided in,
among others, Sections 3.11, 4.13 and 4.15 herein, this Agreement shall terminate (subject, however, to the survival
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provision set forth in this Section 3.13 hereinbelow) on the earlier to occur of (i) (a) the date on which the State has
reached the maximum credit exposure capacity or "cap" designated for all Enrolled Loans guaranteed under the
Loan Guaranty Pool of the Small Business Credit Guaranty Program (initially, $4,000,000 assuming that no
Enrolled Loans are transferred to the Risk Reserve Pool) and/or (b) the State has exceeded the funding allocation for
the Small Business Credit Guaranty Program (taking into consideration actual payments made in respect of
guarantee obligations for Enrolled Loans held in the Loan Guaranty Pool and the Risk Reserve Pool), or (ii) the date
on which the Allocation Agreement is terminated or (iii) the date on which Allocated Funds are no longer available;
provided, however, that in all cases this Agreement shall remain effective and its terms and conditions shall
remain applicable to any Enrolled Loan made during the time this Agreement was effective (including, but not
limited to, the reporting and inspection requirements set forth herein). Lender further acknowledges and agrees
that Treasury may, in addition to its other rights of termination upon the occurrence of events of default hereunder or
under the Allocation Agreement, upon submitting to the State written notification, terminate the State's allocation of
any portion of the Allocated Funds that Treasury has not disbursed to the State within two (2) years from the date of
the Allocation Agreement (December 13, 2011).
ARTICLE IV
LENDER GUARANTY PROGRAM AND RELATED PROVISIONS
Section 4.1.
Small Business Credit Guaranty Program. Lender may enroll a loan in the Small
Business Credit Guaranty Program by complying with (i) the enrollment procedures set forth in Article III
hereinabove and (ii) the terms and conditions of the Small Business Credit Guaranty Program set forth in this Article
IV.
Section 4.2.
Loan Guaranty Fee. For each loan enrolled by Lender in the Small Business Credit
Guaranty Program, Lender shall pay GHFA EDFI an initial fee equal to two percent (2.0%) of the Initial Credit
Guaranty Exposure Amount relating to each loan enrolled by Lender in the Small Business Credit Guaranty
Program (the "Initial Guaranty Fee"). For loans, the Initial Guaranty Fee shall be paid by the Lender to GHFA
EDFI at or before the closing on the loan which is enrolled in the Loan Guarantee Pool of the Small Business Credit
Guaranty Program. For lines of credit, the Initial Guaranty Fee shall be paid by the Lender to GHFA EDFI, on a
monthly pro rata basis, as amounts are drawn down on the enrolled line of credit, by operation of deductions from
each drawdown which is funded by the Lender. The amount of the fee shall be based upon the highest amount
drawndown against the line of credit within any given month; therefore, a monthly fee equal to one-twelfth (1/12) of
two percent (2.0%) of the guaranteed portion of the highest drawndown amount within the previous month shall be
due by the Lender to GHFA EDFI. Notwithstanding the applicable fees in this section, no initial fees shall be
applicable to drawdowns against the enrolled line of credit which occur more than twelve months from the date of
enrollment. The Initial Guaranty Fee shall be deposited by GHFA EDFI into the Loan Guaranty Pool as, when and
to the extent paid to it by the Lender. In addition to the Initial Guaranty Fee, the Lender shall pay to GHFA EDFI,
but solely as such relates to Enrolled Loans covered by the Loan Guaranty Pool, on each anniversary of the closing
on each such Enrolled Loan, an annual fee in the amount of 0.5% of the Current Credit Guaranty Exposure Amount
(the "Annual Guaranty Fee," as and to the extent applicable, and together with the Initial Guaranty Fee, are
collectively referred to as the "Loan Guaranty Fee"). The Annual Guaranty Fee in respect of lines of credit covered
by the Loan Guaranty Pool shall be payable in the same manner as the Initial Guaranty Fee relating to such lines of
credit (that is, by operation of pro rata payments deducted as and when the Lender funds drawdowns on the enrolled
line of credit). Remittance by the Lender to GHFA EDFI of the Loan Guaranty Fee shall be paid by a check payable
by Lender to GHFA EDFI for the amount of such Loan Guaranty Fee (or by other payment method deemed
acceptable to GHFA EDFI) and shall be due and payable at the times as provided in this Section 4.2. For purposes
of clarification, no Annual Guaranty Fee shall be payable in respect of an Enrolled Loan which has been
allocated by the Lender to the Risk Reserve Pool. Failure to timely pay all or any portion of the Loan Guaranty Fee
shall be an event of default unless cured within 5 days; provided, however, that GHFA EDFI shall have no
obligation to provide notice to Lender of any such default, it being the understanding and agreement of the parties
that the Lender shall bear the administrative burden of complying with its payment obligations under this
Agreement.
Section 4.3.
Discretion of GHFA EDFI to Enroll Certain Loans in Small Business Credit Guaranty
Program. In addition to the limitations set forth in the definition of Maximum Enrolled Loan Amount, GHFA EDFI
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shall have the sole and absolute right to approve or reject enrollment of any loan in the Small Business Credit
Guaranty Program where the amount of the loan by Lender to Borrower exceeds $350,000.
Section 4.4.
GHFA EDFI's Limited Guaranty of Loan Enrolled in Small Business Credit Guaranty
Program. In consideration for Lender's compliance with the terms and conditions of this Agreement including, but
not limited to, Lender's payment of the fee to GHFA EDFI more particularly described in Section 4.2 hereinabove,
GHFA EDFI hereby guarantees and promises to pay, subject to the Maximum Guaranty Amount and other terms
and conditions herein, the guarantee amount related to each loan enrolled by the Lender in the Small Business Credit
Guaranty Program. Notwithstanding anything to the contrary set forth elsewhere in this Agreement, the maximum
liability of GHFA EDFI to the Lender related to a loan enrolled by the Lender in the Small Business Credit
Guaranty Program shall not exceed the lesser of: (i) that amount which is 50% of the outstanding principal amount,
at the time of default, on any Enrolled Loan which is covered by the Loan Guaranty Pool, or (ii) that amount which
is 80% of the outstanding principal amount, at the time of default, on any Enrolled Loan (as required under the
Treasury's SSBCI guidelines and OMB Circular A-129) which has been transferred by the Lender to the Risk
Reserve Pool (in each such case, the "Maximum Guaranty Amount").
Section 4.5.
Default by a Borrower under Loan Enrolled in Small Business Credit Guaranty Program.
Upon the occurrence of an event of default by the Borrower of an Enrolled Loan in the Loan Guaranty Program:
(a)
the Lender shall copy GHFA EDFI with all notices to the Borrower, and further provide
GHFA EDFI written notice describing in reasonable detail the circumstances of the event of default; and
(b)
prior to the Lender's demand for payment from GHFA EDFI pursuant to GHFA EDFI's
guaranty obligations to the Lender for loan(s) enrolled in the Small Business Credit Guaranty Program, the Lender
shall diligently pursue the collection of all amounts owed by the Borrower under the Loan Documents pursuant to
Section 5.11 hereof.
Section 4.6.
Annual Review by GHFA EDFI. The Lender acknowledges and agrees that GHFA EDFI
will annually review its financial condition and performance. As and to the extent GHFA EDFI reasonably
determines that the Lender's performance or financial condition is unsatisfactory, the Lender shall be deemed in
default of this Agreement.
Section 4.7.
Meaningful Lender Participation and Lending Targets. The Lender shall have, or require
another financial institution or other private investor to have meaningful capital resources at risk with respect to any
loan sought to be enrolled in the Small Business Credit Guaranty Program. For purposes of this Agreement,
"meaningful capital resources at risk" shall mean that the Lender or other financial institution or private investor
must have at least 50% capital at risk (measured in terms of the total amount of loans or other financing being made
available simultaneously with the closing on the Enrolled Loan) or such other percentage as set forth in the State's or
Treasury's SSBCI rules and regulations so that the State may achieve a minimum of a $1:$1 private to public
investment ratio. In addition, the Lender hereby covenants and agrees that it will (a) target businesses with an
average Borrower size of 500 employees or less; provided, however, that in no case shall an Enrolled Loan be made
to a businesses with more than 750 employees; (b) notwithstanding the Maximum Enrolled Loan Amount, target
average loan sizes ranging from $100,000 to $250,000; (c) target Underserved Borrowers consistent with the
requirements of Treasury and the marketing and outreach plan provided by the Lender to DCA; and (d) in all cases,
and notwithstanding anything in this Section to the contrary, target Enrolled Loans such that the amount of the
guarantee is less than or equal to 10% of the aggregate amount of the Enrolled Loan plus the sum of all direct loans
made by the Lender from non-Allocated Funds and any other financial institutions, together with any other private
investment made in respect of the business/project which is the subject of the Enrolled Loan, in order to immediately
achieve the $10:$1 private to public leverage ratio desired. As such, the GHFA EDFI reserves the right to place a
priority on approving Enrolled Loans which immediately have a private to public leverage ratio meeting or
exceeding said $10:$1 ratio.
Section 4.8.
Ownership by Lender of Loan and Terms and Conditions of Loan Documents. The
Lender shall be considered for all purposes as the legal and equitable owner of each Enrolled Loan and all security
and documents related to each such Enrolled Loan. The enrollment of a loan by the Lender in the Small Business
Credit Guaranty Program shall not constitute a sale by the Lender to GHFA EDFI of the enrolled loan and related
SBCG Application – 052912.1
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security and related documents, nor an extension of credit by GHFA EDFI to the Lender. GHFA EDFI will not
disburse any monies toward the initial funding of any Enrolled Loan; rather, it will deposit an amount sufficient to
meet its guaranty obligation in respect of each Enrolled Loan in the Loan Guaranty Pool or the Risk Reserve Pool,
as the case may be, at the time of closing or reallocation, as the case may be, of each Enrolled Loan. GHFA EDFI
shall be entitled to maintain any income or other amounts earned on funds held in the Loan Guaranty Pool and the
Risk Reserve Pool. Notwithstanding the foregoing or anything else set forth in this Agreement, GHFA EDFI shall
have no obligation whatever in respect of any Enrolled Loan for which Lender has disbursed funds to a Borrower
without the Borrower's full execution of all of the applicable Loan Documents. The Lender shall cause the Loan
Documents to reflect, in addition to such normal and customary loan provisions required by Lender, and the terms
and conditions required for the Borrower to maintain compliance with the State's and Treasury's laws, rules and
regulations governing the use of Allocated Funds.
Section 4.9.
Administration of Loan Enrolled in Small Business Credit Guaranty Program.
(a)
Upon its request, the Lender shall provide GHFA EDFI with copies of all Loan
Documents executed by a Borrower and any co-maker, guarantor or endorser or other debtor or obligor of any or all
Enrolled Loans. Additionally, upon GHFA EDFI's request, the Lender shall provide GHFA EDFI with any
additional documents arising out of, or related to, the Loan Documents.
(b)
The Lender shall disclose GHFA EDFI's role in facilitating a loan enrolled by the Lender
in the Small Business Credit Guaranty Program in connection with Lender's making of such loan and the restrictions
and limitations placed upon such loan arising out of the SSBCI program. The Lender shall exercise the same degree
of care and discretion in servicing a loan enrolled by the Lender in the Small Business Credit Guaranty Program as
the Lender would take in servicing and collecting payments on loans made with non-SSBCI funds for the Lender's
own account.
(c)
For purposes of clarification, the Lender may, without the express prior written approval
of GHFA EDFI, as and to the extent consistent with it obligations under Section 4.5(b):
(i)
waive or release any claim against a Borrower or any co-maker, guarantor or
endorser of any loan enrolled by the Lender in the Small Business Credit Guaranty Program; or
(ii)
amend any material terms and conditions of any loan enrolled by the Lender in
the Small Business Credit Guaranty Program, any Loan Documents or any documents otherwise securing such loan
which effectuate any of the circumstances described in Section 4.9(c)(i) hereinabove.
(d)
The Lender shall promptly notify GHFA EDFI in writing (and describe in reasonable
detail) of any of the following:
(i)
should the Lender receive any written request by the Borrower or any co-maker,
guarantor, endorser, or other debtor or obligor of any loan enrolled by the Lender in the Small Business Credit
Guaranty Program for any change in the terms and conditions of such loan, or any of the Loan Documents,
including, without limitation, any request for the release, substitution, or exchange of collateral for such loan or the
release of any of their personal obligations under such loan;
(ii)
should the Lender commence any collection proceeding against any Borrower or
any co-maker, guarantor, endorser, or other debtor or obligor of any loan enrolled by the Lender in the Small
Business Credit Guaranty Program; and
(iii)
should the Lender seize, sell, transfer, assign, foreclose or attempt to exercise
against any collateral securing any loan enrolled by the Lender in the Small Business Credit Guaranty Program.
Section 4.10.
Risk Reserve Pool. The Risk Reserve Pool shall, at all times, be held and administered
by GHFA EDFI, or a State or other governmental agency, authority or department designated by GHFA EDFI and
not the Lender. The Lender may, at its sole option, transfer coverage of any or all of the Enrolled Loans originated
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by it from the Loan Guaranty Pool to the Risk Reserve Pool by sending written notice (in the form and in
accordance with the then-current procedures of GHFA EDFI) of such transfer to GHFA EDFI. Within ten (10)
business days of receipt of such transfer notice, GHFA EDFI will transfer (or cause to be transferred) that amount
which equals 10% of the outstanding principal amount of the loan (or in the case of a line of credit, 10% of the
maximum amount which may be drawn down on the line of credit) into a Risk Reserve Pool which has been
established solely for the purpose of meeting the guarantee obligations made by GHFA EDFI to the Lender in
respect of any such Enrolled Loans so transferred from the Loan Guaranty Pool to the Risk Reserve Pool.
Immediately upon such transfer, the Enrolled Loans so transferred into the Risk Reserve Pool shall be subject to a
guaranty, up to 80% of the outstanding principal amount thereof, which will be funded solely from the amounts then
available in the Risk Reserve Pool and from no other source whatever.
As an inducement for the Lender to transfer Enrolled Loans from the Loan Guaranty Pool into the Risk
Reserve Pool, GHFA EDFI shall waive the Lender's obligation to pay any and all future Annual Guaranty Fees
owed in respect of any and all Enrolled Loans when and if transferred to the Risk Reserve Pool.
Section 4.11.
Other Loans by Lender with Loans Enrolled in Small Business Credit Guaranty Program.
GHFA EDFI acknowledges that the Lender may have other existing loans with a Borrower that were made prior to
the date of any loan enrolled by Lender in the Small Business Credit Guaranty Program ("Prior Loans") and may, in
the future, make additional loans to the Borrower that are not enrolled by the Lender in the Small Business Credit
Guaranty Program ("Future Loans"). After an event of default by a Borrower with respect to any Prior Loans, the
loan enrolled by the Lender in the Small Business Credit Guaranty Program or any Future Loans, then in any
collection proceeding or legal action taken by the Lender against a Borrower to collect amounts due under such
loans (if any) and in any decisions or instructions concerning the priority of distribution of any amounts received by
the Lender from the Borrower resulting from the Lender's or any other party's collection efforts in respect of such
loans, any proceeds collected by the Lender or such other party shall be applied in the following order:
(a)
First, to reimburse the Lender for the reasonable costs of any such collection action;
(b)
Second, to pay interest, fees and principal with respect to the Prior Loans;
(c)
Third, to pay interest, fees and principal with respect to loans or other financings to
which the Enrolled Loan is subordinated;
(d)
Fourth, to pay interest, fees and principal with respect to Enrolled Loans; and
(e)
Fifth, to pay interest, fees and principal with respect to the Future Loans (to the extent the
Enrolled Loans have not been expressly subordinated thereto).
The foregoing provisions shall not in any way limit the obligations of the Lender to take action against the
Borrower after the occurrence of an event of default.
Section 4.12.
Default by the Lender. The occurrence of any one or more of the following events or
conditions shall constitute an event of default by the Lender under this Agreement (which defaults may be
determined by GHFA EDFI or the Treasury, acting in their sole discretion):
(a)
any representation, warranty, certification, assurance or any other statement of fact
contained in this Agreement, or any representation or warranty set forth in any document, report, certificate,
financial statement or instrument now or hereafter delivered to GHFA EDFI or Treasury in connection with this
Agreement, is found to be inaccurate, false, incomplete or misleading when made, in any material respect;
(b)
any breach by Lender whereby the Lender materially fails to observe, comply with, meet
or perform any term, covenant, agreement or other provision contained in this Agreement including, but not limited
to, the failure to submit complete and timely file quarterly and annual reports, or the Lender ceases to use the
Allocated Funds to undertake the activities authorized in this Agreement and Annex 1 to the Allocation Agreement;
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(c)
any other material breach by the Lender of any duty or obligation of the Lender under
this Agreement, including, without limitation, the failure to reasonably pursue collections as specified in Section
5.11 hereof;
(d)
the appointment of a receiver or custodian over a material portion of the Lender's assets,
which receiver or custodian is not discharged within sixty (60) days following its appointment;
(e)
any voluntary bankruptcy or insolvency proceedings are commenced by the Lender; or
(f)
any involuntary bankruptcy or insolvency proceedings are commenced against the
Lender, which proceedings are not set aside within sixty (60) calendar days from the date of institution thereof.
Section 4.13.
Remedies to GHFA EDFI and Treasury upon Lender's Default. Upon the occurrence of
any one or more Events of Default by the Lender as set forth in Section 4.12 hereinabove, GHFA EDFI or Treasury
(in the case of defaults under Section 4.12(a) or Section 4.12(b) above and acting pursuant to the provisions of the
Allocation Agreement) shall be entitled, acting in their sole discretion, to pursue any or all of the following
remedies, plus any additional rights and remedies available to such parties, whether such remedies are based in law
or in equity:
(a)
withhold disbursements under this Agreement pending the Lender's correction of the
default; or
(b)
wholly or partly reduce, suspend, or terminate the commitment to make disbursements to
the Lender under this Agreement, whereupon the commitment of Treasury to make Disbursements (as defined in the
Allocation Agreement) to the State under the Allocation Agreement may be reduced, suspended, or terminated, as
the case may be; or
(c)
the right to require the Lender's books and records related to any loan enrolled by the
Lender in the Small Business Credit Guaranty Program to be separately audited by an independent certified public
accountant selected by GHFA EDFI, at GHFA EDFI's sole cost and expense. Provided however, in the event the
audit reveals that a breach of this Agreement has occurred, the Lender shall reimburse GHFA EDFI for the fees and
expenses incurred to perform the audit.
Section 4.14.
Specific Events of Default. In the event of a Treasury Inspector General audit finding of
either:
(a)
intentional or reckless misuse of Allocated Funds by the Lender; or
(b)
the Lender having intentionally made misstatements in any report issued to GHFA EDFI
or Treasury (directly or indirectly) under the Act;
GHFA EDFI or Treasury shall find the Lender to be in default.
Section 4.15.
Mandatory Remedies. If the GHFA EDFI or Treasury finds the Lender (or the State as a
result of Lender's default) to be in default under Section 4.14 of this Agreement, either GHFA EDFI or Treasury
shall take the following actions, as applicable:
(a)
in the case of an event of default under Section 4.14(a), recoup any misused Allocated
Funds that have been disbursed to the Lender; or
(b)
in the case of an event of default under Section 4.14(b), GHFA EDFI shall terminate the
commitment to make disbursements to the Lender under this Agreement, Treasury may find the State ineligible to
receive any additional funds under the Act, whereupon the commitment of Treasury to make Disbursements (as
defined under the Allocation Agreement) to the State under the Allocation Agreement may be terminated and the
State will be ineligible to receive any additional funds under the Act.
SBCG Application – 052912.1
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Section 4.16.
Remedies Not Exclusive. No remedy is intended to be the sole and exclusive remedy in
case any event of default by the Lender under this Agreement shall occur and each remedy shall be cumulative and
in addition to every other provision or remedy now or later existing at law, in equity, by statute or otherwise. The
Lender shall pay all costs and expenses, including, without limitation, reasonable attorneys fees and expenses
incurred by GHFA EDFI in enforcing any obligation of the Lender arising from or under any loan enrolled by the
Lender in the Small Business Credit Guaranty Program or the Loan Documents.
Section 4.17.
No Waiver. No delay or failure by GHFA EDFI or Treasury, as the case may be, in the
exercise of any right, power, or remedy accruing upon the occurrence of any event described in Section 4.12 or
Section 4.14 herein shall impair any such right, power, or remedy, or be construed to be a waiver of or acquiescence
in such event, nor shall any abandonment or discontinuance of steps taken to exercise any right, power or remedy
preclude any further exercise thereof.
Section 4.18.
Prior Notice to State of Exercise of Remedies; Notice to Lender. The Lender
acknowledges that, prior to exercising or imposing any remedy contained in Section 4.13 other than a withholding of
a Disbursement(s) (as permitted under Section 6.2(a) of the Allocation Agreement), Treasury has agreed, to the
maximum extent practicable, to provide the State with written notice of the event(s) described in Section 4.12(a) and
Section 4.12(b) hereof and the proposed remedy. Treasury's written notice will give the State 10 calendar days from
the date of the notice to respond. Treasury may, in its sole discretion, also afford the State 20 calendar days from the
date of the notice to correct the event. The GHFA EDFI (or its designee) shall provide the Lender with any such
notice as soon as practicable. If the Lender fails to correct the event within either the 10 calendar day response time
or, if applicable, the 20 calendar day correction or cure period, Treasury may, in its sole discretion, impose or
exercise the remedy or remedies set forth in its written notice. Moreover, if the Lender fails to respond timely to
Treasury's written notice, Treasury may impose or exercise the remedy or remedies set forth in its written notice,
effective as of the date specified in such notice. Nothing in this Agreement, however, will provide the Lender with
any right to any formal or informal hearing or comparable proceeding not otherwise required by law.
ARTICLE V
MISCELLANEOUS
Section 5.1.
Amendments of Agreement. GHFA EDFI may, with at least thirty (30) days prior written
notice to the Lender, amend in writing any provision of this Agreement. However, in the absence of the consent of
the Lender, no such amendment shall be applicable to loans made prior to the effective date of the amendment.
Section 5.2.
Information to GHFA EDFI. The Lender shall promptly provide GHFA EDFI with such
additional information regarding its participation and activities in the Georgia SSBCI Programs, including the Small
Business Credit Guaranty Program, as GHFA EDFI or Treasury may from time to time reasonably require.
Section 5.3.
Records Retention and Inspection of Files. The Lender agrees to maintain, for a
minimum of the greater of (a) five (5) years after the repayment, repurchase or other termination of each Enrolled
Loan or (b) three (3) years after the termination of Treasury's SSBCI reporting requirements (currently March 31,
2020), adequate books, records, and supporting documents to verify the amounts, recipients, and uses of all
disbursements of funds passing in conjunction with each Enrolled Loan and Loan Documents or otherwise derived
from Allocated Funds (including program-related principal, interest and fees). The Lender agrees that all books,
records, and supporting documents related to each Enrolled Loan and the Loan Documents shall be available for
review and audit by the State Auditor and the State of Georgia Attorney General, and agrees to cooperate fully with
any audit and to provide full access to all relevant materials. Failure to maintain the books, records, and supporting
documents required by this Section shall establish a presumption in favor of the GHFA EDFI for the recovery of any
amounts paid by the GHFA EDFI pursuant to all Enrolled Loans for which adequate books, records, and supporting
documentation are not available to support their purported disbursement. The Lender further agrees that it will
make available to the Treasury Inspector General all books and records related to the use of the Allocated Funds,
subject to the Right to Financial Privacy Act (12 U.S.C. § 3401 et seq.), including detailed loan records, as
applicable.
Section 5.4.
Compliance with Applicable Law. The Lender and GHFA EDFI shall comply with all
applicable State, federal, and local laws, rules and regulations in the performance of this Agreement.
SBCG Application – 052912.1
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Section 5.5.
Limitation of Rights. This Agreement shall be for the exclusive benefit of the Lender and
GHFA EDFI, and shall not be construed to give any person other than the parties hereto any legal or equitable right,
remedy or claim under or in respect to this Agreement, other than as expressly set forth herein.
Section 5.6.
Severability. If any clause, provision or section of this Agreement is held illegal or
invalid by any court of competent jurisdiction, the invalidity of such clause, provision or section shall not affect any
of the remaining clauses, provisions or sections hereof, and this Agreement shall be construed and enforced as if
such illegal or invalid clause, provision or section had not been contained herein.
Section 5.7.
Notices. All notices, certificates, requests or other communications hereunder (other than
Exhibits and Reports referred to herein, which may be sent via regular mail) shall be sufficiently given when
delivered by messenger, by professional courier service or by registered or certified mail postage prepaid, return
receipt requested, addressed as follows:
(a)
If to GHFA EDFI:
GHFA Economic Development Financing, Inc.
c/o Georgia Department of Community Affairs
Attention: SSBCI Program Manager
60 Executive Park South, NE
Atlanta, Georgia 30329
Facsimile: (404) 679-0563
(b)
If to the Lender:
________________
Section 5.8.
Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective successors and assigns.
Section 5.9.
No Personal Liability. No member, officer, elected or appointed official or employee of
GHFA EDFI, the State of Georgia, the Georgia Department of Community Affairs, the Georgia Housing and
Finance Authority or the Lender, including any person executing this Agreement, shall be liable personally under
this Agreement or subject to any personal liability solely by reason of his or her execution of this Agreement or
participation in the Georgia SSBCI Program; provided, however, that nothing in this Section 5.9 shall be construed
nor is it intended to be a waiver of any rights or remedies GHFA EDFI, the State of Georgia, the Georgia
Department of Community Affairs or the Georgia Housing and Finance Authority shall have for any actual actions
or omissions to act hereunder by the Lender; provided, however, that nothing in this Section 5.9 shall be construed
nor is it intended to be a waiver of any rights or remedies GHFA EDFI, the State of Georgia, the Georgia
Department of Community Affairs or the Georgia Housing and Finance Authority shall have for any actual actions
or omissions to act hereunder by the Lender.
Section 5.10.
Collateral. GHFA EDFI shall have no legal or equitable interest in any collateral,
security, third party guarantees or other right of recovery in connection with any loan enrolled in the Small Business
Credit Guaranty Program, and, therefore GHFA EDFI's consent is not necessary for any amendment or modification
to the Lender's loan documents related to an Enrolled Loan; provided, however, that Lender must enforce its rights
under any collateral, security, third party guarantees (if any) and other rights of recovery consistent the provisions of
Section 5.11 below and without taking into account the limited guarantee of collection afforded under the Small
Business Credit Guaranty Program.
SBCG Application – 052912.1
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Section 5.11.
Collection of Loans/Payment of Claims; No Pledge of Faith, Credit, or Taxing Power. In
addition to the requirements of Section 4.5(b) hereof, the Lender agrees to collect loans enrolled under the Small
Business Credit Guaranty Program in compliance with all applicable provisions of State, federal and local law, and
in a manner consistent with commercially reasonable and customary standards of collecting business loans not
enrolled in the Georgia SSBCI Program. The Lender further covenants, acknowledges and agrees that the Small
Business Credit Guaranty Program and the Loan Guaranty Pool and the Risk Reserve Pool maintained thereunder,
each serve as a deficiency guarantee (that is, a limited guaranty of collection and not of payment and performance);
therefore, the Lender must, in all cases, use its commercially reasonable efforts to initiate the liquidation of any and
all collateral and/or security, commence assertion of any other rights of recovery, and seek performance of all thirdparty guarantees (if any) prior to making a claim for reimbursement by operation of the guaranty provided under the
Small Business Credit Guaranty Program; provided, however, that nothing herein contained is intended, nor shall it
be construed as requiring the Lender to seek and/or receive a final judgment or otherwise take legal action to collect
on any Enrolled Loan prior to seeking payment from the respective Pool. Failure to comply with the provisions of
this Section 5.11 shall be, for all purposes, an immediate and non-curable event of default with respect to the
Enrolled Loan for which a reimbursement is sought under the Small Business Credit Guaranty Program.
Upon the approval of any claim for payment by GHFA EDFI from the Loan Guaranty Pool or the Risk
Reserve Pool, as the case may be, in respect of an Enrolled Loan, GHFA EDFI will make, or cause to be made,
payments on said claim within 15 business days. 3
Subject to the terms and conditions of any subordination agreement executed in writing by GHFA EDFI
and the Lender and/or any third party lender, any amounts recovered upon the Borrower's default, either before or
after payment on a claim by GHFA EDFI as contemplated herein, are to be distributed on a pro rata basis equal to
GHFA EDFI's percentage interest in the total loans made to the Borrower by GHFA EDFI, the Lender and any third
party lender, after payment of the reasonable fees and expenses of collection.
The Lender hereby covenants and agrees that the performance of the guarantee obligations in respect of the
Enrolled Loans under the Pools, as contemplated in this Agreement, shall not be deemed nor are such payment
obligations intended to be a pledge the faith, credit, or taxing power of the State or any component unit or
instrumentality thereof (GHFA EDFI, DCA and GHFA have no taxing power) or a general obligation of the Small
Business Credit Guaranty Program. Any assurances, guarantees, or other credit enhancements provided under the
Small Business Credit Guaranty Program do not pledge the faith, credit, or taxing power of the State or any
component unit or instrumentality thereof (GHFA EDFI, DCA and GHFA have no taxing power), and such
enhancements are expressly payable only to the extent of the funds contained in, and subject to the limitations of
GHFA EDFI's guarantee obligations made in respect of, the applicable Pool to which each Enrolled Loan relates.
Section 5.12.
Confidentiality. Except as may be required by law, including under the Georgia Open
Records Act (and any similar federal laws), the GHFA EDFI will endeavor to maintain the confidentiality of all
information furnished to it (or its designee) hereunder or in connection with any document relative to an Enrolled
Loan, except that the GHFA EDFI will have no obligation of confidentiality with respect to information that may be
generally available to the public, disclosed pursuant to a court order, or otherwise becomes generally available to the
public through no fault of the GHFA EDFI. The sharing of information with or providing of information to another
agency or authority of the State of Georgia by the GHFA EDFI (or its designee) shall not be deemed to violate this
undertaking, provided that such agency or authority shall remain bound by the confidentiality provisions contained
herein. The GHFA EDFI shall be authorized to publicize information regarding all Enrolled Loans, including,
without limitation, information related to the name of the Borrower, the name of the Lender and the amount of the
Enrolled Loan. Notwithstanding anything set forth herein to the contrary, the GHFA EDFI shall be authorized to
share with the Treasury any information or any document related to the Georgia SSBCI Programs or any Enrolled
Loan thereunder, upon the request of or as otherwise required by the Treasury
Section 5.13.
Captions. The captions in this Agreement are for convenience only and in no way define,
limit or describe the scope or intent of any provisions or sections of this Agreement.
3
Payment mechanics and approval process to be discussed. They could be set forth in guidelines
established by DCA and agreed to be the parties as part of the enrollment process.
SBCG Application – 052912.1
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Section 5.14.
Interpretation Jurisdiction, and Venue. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Georgia. The parties agree that jurisdiction shall be solely in
the courts of the State of Georgia and that venue shall be solely in the Superior Court of Fulton County, Georgia.
Section 5.15.
Entire Agreement. This Agreement and its exhibits and any documents referred to herein
constitute the complete understanding of the parties and merge and supersede any and all other discussions,
agreements and understandings, either oral or written, between the parties with respect to the subject matter hereof.
[Signatures on following page]
SBCG Application – 052912.1
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IN WITNESS WHEREOF the parties have caused this Agreement to be executed by their respective duly
authorized officers as of the date first set out above.
GHFA EDFI:
GHFA ECONOMIC DEVELOPMENT FINANCING, INC.
ATTEST:
By:
Date: ______
_______
Its:______
LENDER:
[INSERT LENDER'S LEGAL NAME HERE]
ATTEST:
By:
Date:_______
______
Its:
_______
Tax Identification Number:________
(LENDER'S SEAL)
SBCG Application – 052912.1
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STATE OF GEORGIA
SMALL BUSINESS CREDIT GUARANTEE PROGRAM
ANNEX A – ARTICLES IV & VI OF THE ALLOCATION AGREEMENT
ARTICLE IV
COVENANTS AND AGREEMENTS OF THE LENDER
The Lender shall duly perform and observe each and all of
the following covenants and agreements unless the text clearly
requires a different duration:
Section 4.1
Compliance with Government Requirements. In
carrying out its responsibilities pursuant to this Agreement, the
Lender shall comply with the Act, Treasury regulations or other
requirements prescribed by Treasury pursuant to the Act, and
applicable provisions of the grants management common rule
referenced in the attachment to OMB Circular A-102 (“Grants and
Cooperative Agreements with State and Local Governments”), which
are incorporated herein by reference. The Lender also shall
comply with all applicable Federal, State, and local laws,
regulations, ordinances, and OMB Circulars, including, but not
limited to, the regulations at 31 C.F.R. Part 21, related to
lobbying.
Section 4.2
Authorized Uses of Allocated Funds/Allowable
Costs. The Lender shall only use the Allocated Funds for the
purposes and activities specified in this Agreement including,
but not limited to, the Schedule contained in Annex 3 attached
hereto, which is incorporated herein by reference, and for paying
allowable costs of those purposes and activities in accordance
with the cost principles set forth in OMB Circular A-87 (Cost
Principles for State, Local, and Indian Tribal Governments) and
codified in 2 C.F.R. Part 225.
Section 4.3
Authorized Uses of Program Income. The Lender
shall add Program Income to the Allocated Funds, and shall use
such Program Income for the same purposes and under the same
conditions as the Allocated Funds.
Section 4.4
Restrictions on the Use of Allocated Funds
Funds and Program Income.
(a)
The Lender shall not use any Allocated Funds in a
manner other than as authorized hereunder, without the
prior written approval of Treasury.
SBCG Application – 052912.1
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(b)
The Lender shall not use any Allocated Funds to pay
any person to influence or attempt to influence any
agency, elected official, officer or employee of a
State or Local Government in connection with the
making, award, extension, continuation, renewal,
amendment, or modification of any State or Local
Government contract, grant, loan or cooperative
agreement as such terms are defined in 31 U.S.C. §
1352.
(c)
No member of or delegate to the United States Congress
or resident U.S. Commissioner shall be admitted to any
share or part of this Agreement or to any benefit that
may arise herefrom.
(d)
The Lender shall not use any Allocated Funds to pay
any costs incurred in connection with (i) any defense
against any claim or appeal of the United States
Government, any agency or instrumentality thereof
(including Treasury), against the Lender, or (ii) any
prosecution of any claim or appeal against the United
States Government, any agency or instrumentality
thereof (including Treasury), which the Lender
instituted or in which the Lender has joined as a
claimant.
(e)
The Lender shall not use any Allocated Funds for loans
used to finance, in whole or in part, business
activities prohibited by Treasury regulations,
including Treasury regulations promulgated after the
date of this Allocation Agreement and the SSBCI Policy
Guidelines as published by Treasury on its website at
www.treasury.gov/ssbci.
Section 4.5
Commencement of Performance. The Lender shall
be fully positioned within 90-days of the date of this Agreement
to act on providing the type of credit support that the Approved
State Program was established to provide using the Allocated
Funds.
Section 4.6
SSBCI Policy Guidelines, National Standards
and Internal Control and Financial Management System
Requirements.
(a)
The Lender shall comply
Guidelines published by
www.treasury.gov/ssbci,
Guidelines and national
SBCG Application – 052912.1
with the SSBCI Policy
Treasury on its website at
including any SSBCI Policy
standards that are established
27
by Treasury after the date of this Allocation
Agreement.
(b)
The Lender shall comply with the standards for
financial management systems, including internal
control requirements, specified in the grants
management common rule at § __.20. Notwithstanding the
foregoing, the cash management requirements in §
__.20(b)(7) of the grants management common rule shall
not apply to the Lender.
Section 4.7
Quarterly Reporting. Within 30 days after the
end of each quarterly reporting period (excluding the quarterly
reporting period ending on the expiration date of this
Allocation), the State shall deliver to Treasury a quarterly
report, which shall be signed by the Authorized State Official.
The reporting period covered by, and the due date for, each
quarterly report are listed in Annex 5 attached hereto. Each
report shall be in such form as Treasury may, from time to time
prescribe, and shall consist of the following information:
(a)
A report on the use of Allocated Funds for each
Approved State Program on both a quarterly and a
cumulative basis, including the total amount of
Allocated Funds used for direct and indirect
administrative costs, the total amount of Allocated
Funds used, the amount of Program Income generated,
and the amount of charge-offs against the Federal
contributions to the reserve funds set aside for any
Approved State Capital Access Programs; and
(b)
A certification in the form prescribed in Annex 4.
Section 4.8
(a)
Annual Reports.
For CAPs and OCSPs other than venture capital
programs, by March 31 of each year, beginning March
31, 2012, the Lender shall submit to Treasury an
annual report, for the prior calendar year ending
December 31st, which shall be signed by the Authorized
State Official, in such form as Treasury may from time
to time prescribe, that contains the following
information for each loan, indicating the SSBCIapproved loan program in which the loan is enrolled
(e.g. capital access program, loan guarantee, loan
participation, direct loan, collateral support):
SBCG Application – 052912.1
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1. A unique loan identifier number, the census tract
and zip code of the borrower’s principal location
in the state;
2. The lending institution’s name and Employer
Identification Number (EIN);
3. The total amount of principal loaned/authorized as
a line of credit, and of that amount, the portion
that is from non-private sources;
4. Date of initial disbursement;
5. For CAP loans, the insurance premiums paid by the
borrower, the lender, and the Lender; or for loans
in which the Lender is participating, the amount
of the participation; or for loans guaranteed by
the Lender, the amount of loan guarantee provided
by the SBBCI recipient and the amount of funds set
aside by the Lender to cover the loan guarantee;
or for loans for which the Lender provides
collateral support, the amount of collateral
support provided and the amount of funds set aside
by the Lender to cover the collateral support
obligation;
6. The borrower’s annual revenues in the last fiscal
year;
7. The borrower’s Full Time Equivalent (FTE)
employees;
8. The 6-digit North American Industry Classification
System (NAICS) code for the borrower’s industry;
9. The year the borrower’s business was incorporated;
and
10. The estimated number of jobs created or retained
as a result of the loan.
11. The amount of additional private financing
occurring after the loan closing, if required
under the provisions of Annex 7.
All data elements (1) through (10)shall be reported only in
the annual report covering the period in whichthe loan was
made. If required under the provisions of Annex 7, Lenders
SBCG Application – 052912.1
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will provide the data required in (11) for the periods
specified in Annex 7.
(b)
For OCSP venture capital programs, , by March 31 of
each year, beginning March 31, 2012, the Lender shall
submit to Treasury an annual report, for the year
ending December 31st, which shall be signed by the
Authorized State Official, in such form as Treasury
may from time to time prescribe, that contains the
following information for each investment in an
eligible small business, indicating the SSBCI approved venture capital program:
1. A unique investment identifier number, the census
tract and zip code of the investee’s principal
location in that state;
2. The State Small Business Credit Initiativeapproved program in which the venture capital
investment is enrolled;
3. The total amount of venture capital and other
financing invested or loaned, and of that amount,
the portion that is from non-private support;
4. The amount of venture capital provided by the
state-sponsored venture capital fund program;
5. Date of initial disbursement;
6. The business’s annual revenues in the last fiscal
year;
7. The business’s Full Time Equivalent (FTE)
employees;
8. The 6-digit North American Industry Classification
System (NAICS) code for each business’s industry;
9. The year the business was incorporated; and
10. The estimated number of jobs created and the
estimated number of jobs retained as a result of
the investment;
11. The amount of additional private financing
occurring after the investment closing, if
required under the provisions of Annex 7.
SBCG Application – 052912.1
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All data elements (1) through (10) shall be reported only
in the annual report covering the period in which the
investment was made. If required under the provisions of
Annex 7, Lenders will provide the data required in (11) for
the periods specified in Annex 7.
(c)
The Lender shall also provide detailed information on
any qualifying loan or swap funding facility and
information on aggregate loan losses.
(d)
For the final annual report due on March 31, 2017, a
summary of the performance results of this Allocation,
including a narrative of how or the extent to which
the purpose of this Allocation, as described in Annex
1 attached hereto, was accomplished using Allocated
Funds.
In addition, the Authorized State Official shall
attach to the Lender’s annual report a completed and
executed Federal Financial Report, SF-425. The due
dates for the submission of the annual reports are
listed in Annex 5 attached hereto.
Treasury may require the Lender to submit this report using an
electronic reporting system.
Section 4.9
Access to Records of and Certifications from
Financial Institutions. Before providing any loan, loan
guarantee, or other financial assistance using Allocated Funds to
a financial institution or any other private entity, the Lender
shall obtain the following:
(a)
the binding written agreement of the financial
institution or other private entity to make available
to the Treasury Inspector General all books and
records related to the use of the Allocated Funds,
subject to the Right to Financial Privacy Act (12
U.S.C. § 3401 et seq.), including detailed loan
records, as applicable;
(b)
a certification from the financial institution that
the financial institution is in compliance with the
requirements of 31 C.F.R. § 103.121; and
(c)
a certification from the private entity, including any
financial institution, that the Principals of such
entity have not been convicted of a sex offense
against a minor (as such terms are defined in section
SBCG Application – 052912.1
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111 of the Sex Offender Registration and Notification
Act (42 U.S.C. 16911)).
Section 4.10
Notices of Certain Material Events. The
Lender shall promptly notify Treasury in writing in reasonable
detail of any of the following events:
(a)
any proceeding instituted against the Lender in, by or
before any court, governmental or administrative body
or agency, which proceeding or its outcome could have
a material adverse effect upon the operations, assets
or properties of the Lender;
(b)
any material adverse change in the condition,
financial or otherwise, or operations of the Lender;
(c)
the occurrence of any event described in Sections 6.1
and 6.2 herein (General Events of Default and Specific
Events of Default);
(d)
problems, delays, or adverse conditions, real or
anticipated, that will materially impair the Lender’s
ability to accomplish the purpose of this Allocation
set forth in Annex 1 attached hereto, with a
description of actions taken or contemplated to be
taken, and any assistance needed to resolve the
situation;
(e)
deviations from the annual schedule submitted by the
Lender under Section 4.8 apportioning Allocated Funds
among its Approved State Programs if the deviations
will result in the need for additional funding from
any third party to accomplish the purpose of this
Allocation set forth in Annex 1 attached hereto; and
(f)
favorable developments which enable meeting time
schedules and objectives sooner or at less cost than
anticipated or producing more beneficial results than
originally planned.
Section 4.11
High Risk. Notwithstanding the foregoing,
Treasury may unilaterally increase the frequency and the scope of
Lender reporting requirements if Treasury finds the Lender to be
high risk in accordance with the grants management common rule at
§ __.12.
Section 4.12
Subgrants. The Lender shall not make any
Subgrants using Allocated Funds without the prior written
approval of Treasury.
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Section 4.13
Retention of Records. The Lender shall
retain all financial records, supporting documents, statistical
records, and all other records pertinent to the Allocation for a
period of three years from the date of submission of the final
quarterly report under Section 4.7 herein, except as otherwise
provided in the grants management common rule at § __.42.
Section 4.14
Right to Inspect, Audit and Investigate.
Treasury, the Treasury Inspector General, the Comptroller General
of the United States, or any of their duly authorized
representatives, have the right of timely and unrestricted access
to any books, documents, papers, or other records of the Lender
that are pertinent to the Allocation, in order to make audits,
investigations, examinations, excerpts, transcripts and copies of
such documents. This right also includes timely and reasonable
access to the Lender’s personnel for the purpose of interview and
discussion related to such documents. This right of access shall
last as long as records are retained, except that Treasury’s
right of access expires on September 27, 2017.
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ARTICLE VI
TERMINATION FOR CAUSE AND OTHER REMEDIES
Section 6.1
either:
General Events of Default. In the event that
(a)
any representation, warranty, certification, assurance
or any other statement of fact contained in this
Agreement or the Application of the Lender including,
but not limited to, the Assurances (Non-Construction)
contained as part of the Application, or any
representation or warranty set forth in any document,
report, certificate, financial statement or instrument
now or hereafter delivered to Treasury in connection
with this Agreement, is found to be inaccurate, false,
incomplete or misleading when made, in any material
respect; or
(b)
the Lender materially fails to observe, comply with,
meet or perform any term, covenant, agreement or other
provision contained in this Agreement including, but
not limited to, the Lender’s failure to submit
complete and timely quarterly reports or annual
reports, or the Lender ceases to use the Allocated
Funds to undertake the activities authorized in Annex
1 attached hereto;
Treasury, in its sole discretion, may find the Lender to be in
default.
Section 6.2
Discretionary Remedies. If Treasury finds the
Lender to be in default under Section 6.1 of this Agreement,
Treasury may, in its sole discretion, take any one or more of the
following actions, subject to Section 6.6 of this Agreement:
(a)
withhold Disbursements pending the Lender’s correction
of the default; or
(b)
wholly or partly reduce, suspend, or terminate the
commitment of Treasury to make Disbursements to the
Lender under this Agreement, whereupon the commitment
of Treasury to make Disbursements to the Lender under
this Agreement will be reduced, suspended, or
terminated, as the case may be.
Section 6.3
Specific Events of Default. In the event of a
Treasury Inspector General audit finding of either:
SBCG Application – 052912.1
34
(a)
intentional or reckless misuse of Allocated Funds by
the Lender; or
(b)
the Lender having intentionally made misstatements in
any report issued to Treasury under the Act;
Treasury shall find the Lender to be in default.
Section 6.4
Mandatory Remedies. If Treasury finds the
Lender to be in default under Section 6.3 of this Agreement,
Treasury shall take the following actions:
(a)
in the case of an event of default under Section
6.3(a), recoup any misused Allocated Funds that have
been disbursed to the Lender; or
(b)
in the case of an event of default under Section
6.3(b), terminate the commitment of Treasury to make
Disbursements to the Lender under this Agreement, and
find the State ineligible to receive any additional
funds under the Act, whereupon the commitment of
Treasury to make Disbursements to the Lender under
this Agreement will be terminated and the State will
be ineligible to receive any additional funds under
the Act.
Section 6.5
No Waiver. No delay or failure by Treasury in
the exercise of any right, power, or remedy accruing upon the
occurrence of any event described in Section 6.1 or Section 6.3
herein shall impair any such right, power, or remedy, or be
construed to be a waiver of or acquiescence in such event, nor
shall any abandonment or discontinuance of steps taken to
exercise any right, power or remedy preclude any further exercise
thereof.
Section 6.6
Prior Notice to Lender of Exercise of
Remedies. Prior to exercising or imposing any remedy contained in
Section 6.2 other than a withholding of a Disbursement(s) under
Section 6.2(a), Treasury will, to the maximum extent practicable,
provide the Lender with written notice of the event(s) described
in Section 6.1 hereof and the proposed remedy. Treasury’s written
notice will give the Lender 10 calendar days from the date of the
notice to respond. Treasury may, in its sole discretion, also
afford the Lender 20 calendar days from the date of the notice to
correct the event. If the Lender fails to correct the event
within either the 10 calendar day response time or, if
applicable, the 20 calendar day correction or cure period,
Treasury may, in its sole discretion, impose orexercise the
remedy or remedies set forth in its written notice. Moreover, if
SBCG Application – 052912.1
35
the Lender fails to respond timely to Treasury’s written notice,
Treasury may impose or exercise the remedy or remedies set forth
in its written notice, effective as of the date specified in such
notice. Nothing in this Agreement, however, will provide the
Lender with any right to any formal or informal hearing or
comparable proceeding not otherwise required by law.
SBCG Application – 052912.1
36
STATE OF GEORGIA
SMALL BUSINESS CREDIT GUARANTEE PROGRAM
ANNEX B – ANNUAL REPORTING REQUIREMENTS AND FORM
GHFA EDFI is required by the U.S. Treasury Department to report annually on the status
of all SSBCI programs authorized under the Small Business Jobs Act of 2010. In order to do so,
GHFA EDFI requires that the Lender and Borrower agree to provide the following information
in connection with any and all loans enrolled in an approved Georgia SSBCI program, including
but not limited to the Georgia Capital Access Program (GCAP), the Georgia Small Business
Credit Guarantee Program (SBCG), and the Georgia Funding for Community Development
Financial Institutions Program (CDFI), both the Direct Lending CDFI program and the
Originator & Servicer CDFI program.
I.
REPORTING REQUIREMENTS
The following information is required to be provided cumulatively by the borrower and
lender, for each enrolled loan, on an annual basis:
Required Lender Information
1.
Lender’s Name
2.
Lender’s (EIN)
Required Borrower Information
3.
Borrower’s Census Tract
4.
Borrower’s Zip Code (principal location in Georgia)
5.
Borrower’s Annual Revenues in the last fiscal year
6.
Borrower’s Full Time Equivalent (FTE) employees
7.
Borrower’s NAICS Code (6 digit)
8.
Borrower’s Year of Incorporation
9.
Borrower’s estimated number of jobs created as a result of the loan
10.
Borrower’s Estimated Number of Jobs Retained as a result of the loan
Required Loan Information
11.
Individual Loan ID # (unique to Lender)
12.
Total Principal Loaned/Guaranteed
13.
Portion of Total Principal from Non-private Sources
14.
Date of Initial Disbursement
15.
For CAP loans, the insurance premiums paid by:
i. the borrower;
ii. the lender; and
iii. the Participating State;
16.
For CDFI loans in which GHFA EDFI is participating, the amount of the
participation
SBCG Application – 052912.1
37
17.
18.
For SBCG loans guaranteed by GHFA EDFI:
i. the amount of loan guarantee provided by the SBBCI recipient; and
ii. the amount of funds set aside by GHFA EDFI to cover the loan
guarantee
Additional Private Financing Occurring After the loan closing4
The following information is required to be provided cumulatively by the borrower and
lender, for each SBCG enrolled loan, on a quarterly basis:
Required Lender Information
1.
Lender’s Name
2.
Lender’s (EIN)
Required Borrower Information
3.
Borrower’s Name
4.
Borrower’s Zip Code
Required Loan Information
5.
Individual Loan ID #
6.
Total Principal Guaranteed
7.
Amount of Principal Payments to Date
8.
Remaining Balance to Date
9.
Total Interest Payments to Date
4 Required for every previously closed SSBCI loan if the total cumulative private financing generated by all approved
SSBCI programs fails to reach a 10:1 leveraging ratio.
SBCG Application – 052912.1
38
II.
DUE DATES
Annual Reports must be submitted for the entire term of the loan. Below are the due dates
for each Annual Report:
Report for period ending on:
Due Date:
December 31, 2012
January 31, 2013
December 31, 2013
January 31, 2014
December 31, 2014
January 31, 2015
December 31, 2015
January 31, 2016
December 31, 2016
January 31, 2017
Quarterly Reports must be submitted for each SBCG loan. Below are the due dates for
each Quarterly Report:
Report for period covering:
January 1, 2012 through March 31, 2012
April 1, 2012 through June 30, 2012
July 1, 2012 through September 30, 2012
October 1, 2012 through December 31, 2012
January 1, 2013 through March 31, 2013
April 1, 2013 through June 30, 2013
July 1, 2013 through September 30, 2013
October 1, 2013 through December 31, 2013
January 1, 2014 through March 31, 2014
April 1, 2014 through June 30, 2014
July 1, 2014 through September 30, 2014
October 1, 2014 through December 31, 2014
January 1, 2015 through March 31, 2015
April 1, 2015 through June 30, 2015
July 1, 2015 through September 30, 2015
October 1, 2015 through December 31, 2015
January 1, 2016 through March 31, 2016
April 1, 2016 through June 30, 2016
July 1, 2016 through September 30, 2016
October 1, 2016 through December 31, 2016
SBCG Application – 052912.1
Due Date:
April 15, 2012
July 15, 2012
October 15, 2012
January 15, 2013
April 15, 2013
July 15, 2013
October 15, 2013
January 15, 2014
April 15, 2014
July 15, 2014
October 15, 2014
January 15, 2015
April 15, 2015
July 15, 2015
October 15, 2015
January 15, 2016
April 15, 2016
July 15, 2016
October 15, 2016
January 15, 2017
39
STATE OF GEORGIA
SMALL BUSINESS CREDIT GUARANTEE PROGRAM
ANNUAL REPORTING FORM
Loan ID #
Lender Information
Name:
Borrower Information
Name:
Address:
Zip Code:
NAICS:
FTE Employees:
Jobs Created:
Incorporation Date:
EIN:
Census Tract:
Jobs Retained:
Loan Information
Total Principal Loaned/Guaranteed:
Amount of Total Loan from Non-Private Sources:
Date of Initial Disbursement:
Additional Financing After Closing:
Lender:
For CAP Loans ONLY – Insurance Premiums paid by
Borrower:
State:
For SBCG Loans ONLY
Amount Guaranteed by Recipient:
Amount Set Aside by State:
For CDFI Loans ONLY
Amount of State Participation:
SBCG Application – 052912.1
40
STATE OF GEORGIA
SMALL BUSINESS CREDIT GUARANTEE PROGRAM
EXHIBIT 1 – BORROWER CERTIFICATION AND ENROLLMENT FORM
BORROWER CERTIFICATION
Please complete this form for all loans enrolled in an SSBCI program.
These assurances reference Section 3005(e)(7) and Section 3011(c)(2) of the Small Business
Jobs Act of 2010.
Legal name of borrower:
The borrower hereby certifies the following to the lender:
1. The Borrower is a corporation, partnership, limited liability company, limited liability
partnership, joint venture, sole proprietorship, cooperative, or other entity, which is
authorized to conduct business in the State, and the proceeds of the loan will be used for a
business purpose, which includes, but is not limited to, start-up costs, working capital,
business procurement, franchise fees, equipment, inventory, lines of credit, buildings or
other real estate improvements for an industrial, commercial or other business enterprise that
is not for Passive Real Estate Ownership, or any combination thereof, generally within the
state as described below; however, a business purpose shall specifically exclude acquiring or
holding passive investments such as Passive Real Estate Ownership, the purchase of
securities and Lobbying Activities as defined in Section 3(7) of the Lobbying Disclosure Act
of 1995, P.L. 104-65, as amended. If proceeds of the loan are for buildings or other real estate
improvements, that the real estate is located in Georgia. If proceeds of the loan are for
franchise fees, that the business for which the fees are paid is located in Georgia. If proceeds
of the loan are for equipment, that the equipment is installed or titled in Georgia. If the
proceeds of the loan are for start-up costs, working capital, business procurement, inventory, or
any other costs, that the proceeds are used to directly benefit a business within the state of
Georgia.
2. The loan or investment proceeds will not be used to:
a. repay a delinquent federal or state income taxes unless the Borrower has a payment
plan in place with the relevant taxing authority; or
b. repay taxes held in trust or escrow (e.g., payroll or sales taxes); or
c. reimburse funds owed to any owner, including any equity injection or injection of
capital for the Borrower's continuance; or
d. to purchase any portion of the ownership interest in the Borrower.
SBCG Application – 052912.1
41
3. The borrower or investee is not:
a. an executive officer, director, or principal shareholder of the Lender; or
b. a member of the immediate family of an executive officer, director or principal
shareholder of the lenders; or
c. a related interest of an such executive officer, director, principal shareholder, or
member of the immediate family.
For the purpose of these three restrictions, the terms "executive officer," "director,"
"principal shareholder," "immediate family," and "related interest" refer to the same
relationship to a Lender as the relationship described in Part 215 of Title 12 of the Code
of Federal Regulations, or any successor to such part.
4. The borrower is not:
a. a business engaged in speculative activities that develop profit from fluctuations in
price rather than through normal course of trade, such as wildcatting for oil and
dealing in commodities futures, unless those activities are incidental to the regular
activities of the business and part of a legitimate risk management strategy to guard
against price fluctuations related to the regular activities of the business; or
b. a business that earns more than half of its annual net revenue from lending
activities; unless the business is a non-bank or non-bank holding company
Community Development Financial Institution (CDFI); or
c. a business engaged in pyramid sales, where a participant's primary incentive is
based on the sales made by an ever-increasing number of participants; or
d. a business engaged in activities that are prohibited by federal law or applicable law
in the jurisdiction where the business is located or conducted. (Included in these
activities is the production, servicing, or distribution of otherwise legal products
that are to be used in connection with an illegal activity, such as selling drug
paraphernalia or operating a motel that knowingly permits illegal prostitution); or
e. a business engaged in gambling enterprises, unless the business earns less than 33%
of its annual net revenue from lottery sales.
(Continued on the Next Page)
SBCG Application – 052912.1
42
As required by Section 3011(c)(2) of the Small Business Jobs Act of 2010, the Borrower hereby
certifies to the GHFA EDFI that the Principals of the Borrower have not been convicted of a sex
offense against a minor (as such terms are defined in section 111 of the Sex Offender
Registration and Notification Act (42 U.S.C. 16911)). For the purposes of this Certification,
Principal means the following: if a sole proprietorship, the proprietor; if a partnership, each
partner5; if a corporation, limited liability company, association or a development company, each
director, each of the five most highly compensated executives, officers, or employees of the
entity, and each direct or indirect holder of twenty percent (20%) or more of the ownership stock
or stock equivalent of the entity.
Legal Name:
By:______________________________________
Authorized Signatory
Name:
Title:
Date:
5
Including Limited Partners
SBCG Application – 052912.1
43
BORROWER ENROLLMENT FORM
Name of Borrower:
Borrower's Trade Name (D/B/A), if applicable:
*
*If Doing Business under another name, please include the County where your Trade Name was
registered pursuant to O.C.G.A. 10-1-490:
Address of Borrower:
Will loan proceeds be used at the above address?
Yes
No
If no, what is the address where the loan proceeds will be used?
Borrower’s Current number of Employees:
Borrower’s Number of employees from affiliates (if applicable):
Borrower’s Estimate of jobs retained by reason of this loan:
(Jobs which would be lost if not for this loan)
Borrower’s Estimate of jobs created by reason of this loan:
Borrower’s Annual Net Revenues based on the most recent fiscal year:
Year the current owners began operating the business (e.g. 2001):
Borrower, hereby grants permission to the Lender to share confidential information with the
GHFA EDFI or its appointed agents limited to: (a) the name and address of the Borrower,
(b) primary activity of the Borrower, (c) recent annual revenues, (d) amount of the Eligible
Loan to the Borrower enrolled in the SBCG Program, (e) interest rate applicable to the
Enrolled Loan, (f) number of employees of the Borrower and (g) estimated number of jobs
to be added and retained by the Borrower by reason of the SBCG loan.
(Continued on the Next Page)
SBCG Application – 052912.1
44
Voluntary Disclosure of Gender, Ethnicity, and Veteran Status
This section of the enrollment form may be voluntarily completed by the Borrower in order to
assist GHFA EDFI with tracking the effectiveness of the SBCG Program in reaching certain
groups. It is not mandatory and the failure to complete this section will not affect the eligibility
of the loan for enrollment in the SBCG Program.
Is
this
Yes
business female-owned (51%
No
Decline to answer
or
more
ownership)?
(Check
one):
Is this business minority-owned (51% or more ownership)? (Check one):
Yes
No
Declined to answer
Ethnicity (Check as many that apply):
White
Other:
Asian-American
African-American
Declined to answer
American Indian
Hispanic
Is this business veteran-owned (51% or more ownership)? (Check one):
Yes
No
Declined to answer.
The borrower hereby certifies that all the above information is true and accurate to the best of his
or her knowledge, and further covenants that it shall deliver prompt notice to Lender and the
State of any inaccuracies that it discovers.
Borrower's Name:
Authorized Signature: ___________________________________
Printed Name:
Title:
Date:
SBCG Application – 052912.1
45
Privacy Notice
Georgia Open Records Act Notice:
Under the Georgia Open Records Act, all public records of entities deemed agencies under
Georgia law, including GHFA EDFI, are required to be open for a personal inspection by any
citizen of Georgia at a reasonable time and place, except those which by order of a court of the
Georgia or by law are prohibited or specifically exempted from being open to inspection by the
general public. The persons in charge of such records shall not refuse this privilege to any
citizen. Under the Georgia Open Records Act, public disclosure shall not be required for records
that are, among other exemptions:
(a)
Specifically required by the federal government to be kept confidential; or
(b)
An individual's social security number, mother's birth name, credit card information,
debit card information, bank account information, financial data or information, and insurance or
medical information in all records, and if technically feasible at reasonable cost, day and month
of birth, which shall be redacted prior to disclosure of any record requested pursuant to the
Georgia Open Records Act; provided, however, that such information shall not be redacted from
such records if the person or entity requesting such records requests such information in a
writing signed under oath by such person or a person legally authorized to represent such entity
which states that such person or entity is gathering information as a representative of a news
media organization for use in connection with news gathering and reporting; and provided,
further, that such access shall be limited to social security numbers and day and month of birth.
SBCG Application – 052912.1
46
STATE OF GEORGIA
SMALL BUSINESS CREDIT GUARANTEE PROGRAM
EXHIBIT 2 — LOAN FILING FORM AND LENDER CERTIFICATION
LOAN FILING FORM
Lender Information
Lender Name:
Lender EIN:
Lender Loan #:
Borrower Information
Name of Borrower:
Address of Borrower:
Zip Code:
County:
Census Tract:
NAICS Code (6 Digit):
Primary Business Activity of Borrower:
Loan Information
Loan Amount:
Enrolled/Covered Loan Amount:
Loan Term: from
to
Interest rate at time of Enrollment:
Loan Type (Please check one):
(i.e. 6.0%)
Term
Line of Credit
Does Borrower Currently Have any Other Loans with Lender:
SBCG Application – 052912.1
Yes
No
47
Please fill out only if renewing an Enrolled Loan:
Increased Loan Amount to be Covered:
Previous Loan Amount Covered:
Balance Immediately Prior to Financing:
New Total Covered Loan Amount:
Please Indicate Loan Purpose:
Public-Private Leveraging
The U.S. Treasury Department requires that each loan enrolled in the SBCG program leverage
private financing to public financing at a rate of 10 to 1. Please indicate how the Lender plans to
achieve the 10:1 ratio required by federal regulations:
Also, please indicate the total dollar amount of private financing (non-SSBCI) secured, to date,
in connection with this loan?
The lender hereby certifies that all the above information is true and accurate to the best
of his or her knowledge, and further covenants that it shall deliver prompt notice to GHFA EDFI
of any inaccuracies that it discovers.
Lender's Name:
Authorized Signature:
____________________________________
Name & Title:
Date:
STATE USE ONLY
APPROVED
NOT APPROVED*
Amount Authorized/Guaranteed:
SBCG Participation Fee Amount (2%):
*Please indicate reason for denial:
SBCG Application – 052912.1
Signed:
_____
Holly Hunt, Program Manager
Date:
Signed:
_____
Joanie Perry, Office Director
Date:
48
LENDER CERTIFICATION
Please complete this form for every loan enrolled in an SSBCI program.
This Assurance is referenced by Section 3005(e)(7) of the Small Business Jobs Act of 2010.
Legal name of lender:
The Lender hereby certifies to the Participating State the following:
1. The loan or investment has not been made in order to place under the protection of the
approved state program prior debt that is not covered under the approved state program
and that is or was owed by the borrower to the lender or to an affiliate of the lender.
2. The loan or investment is not a refinancing of a loan or investment previously made to
that borrower by the lender or an affiliate of the lender.
3. The lender is not attempting to enroll the unguaranteed portions of the SBA-guaranteed
loans.
Legal Name:
By:______________________________________
Authorized Signatory
Name:
Title:
Date:
SBCG Application – 052912.1
49
STATE OF GEORGIA
SMALL BUSINESS CREDIT GURARANTEE PROGRAM
EXHIBIT 3 – NOTICE OF TRANSFER FROM LOAN GUARANTEE POOL TO RISK
RESERVE POOL
This form is used when Lender wishes to move an Enrolled Loan from the Loan Guarantee Pool
to the Risk Reserve Pool.
Lender Information
Lender Name:
Lender EIN:
Lender Loan #:
Borrower Information
Borrower Name:
Borrower Address (including Zip code):
Loan Information
Original Enrolled Loan Amount:
Outstanding Principal at Time of Transfer:
Loan Type (Please check one):
Original Loan Term: from
Term
Line of Credit
to
Lender's Name:
Authorized Signature:
____________________________________
Name:
Title:
Date:
SBCG Application – 052912.1
50
STATE OF GEORGIA
SMALL BUSINESS CREDIT GUARANTEE PROGRAM
EXHIBIT 4 - CLAIM FORM
1. Name of Lender:
2. Lender EIN:
3. Lender Loan #:
4. Name of Borrower/Loan:
5. Is the Loan in the Loan Guarantee Pool or the Risk Reserve Pool?:
LGP
RRP
6. Original Amount of Enrolled Loan:
7. Outstanding Balance of Enrolled Loan (Immediately prior to charge-off):
8. Total Amount of Claim:
(up to 80% of Outstanding Balance)
The completed Claim Form, along with proof that the above Enrolled Loan has been charged off,
should be submitted to:
SSBCI Program Manager
60 Executive Park South, NE
Atlanta, Georgia 30329
OR
Fax To:
(404) 679-0563
Attn: SSBCI Program Manager
Authorized Signature:
Name and Title (Printed):
Email:
(i.e. John Smith, President)
Phone:
FOR STATE USE ONLY
Claim Amount in LGP:
Claim Amount in RRP:
Total Claim Amount:
Signed__________________________
Printed Name & Title:
Date:
SBCG Application – 052912.1
Date:
FUNDS TRANSFER INFORMATION
(To be completed by Lender)
Lender Account #
Lender Routing #
51
STATE OF GEORGIA
SMALL BUSINESS CREDIT GUARANTEE PROGRAM
EXHIBIT 5 — LOAN RENEWAL FORM
Lender Information
Borrower Information
Lender Name:
Name of Borrower:
Lender EIN:
Address of Borrower (including Zip Code):
Lender Loan #:
Loan Information
Original Loan Amount:
Increased Loan Amount to be Covered:
New Loan Term: from
Loan Type:
Term
to
Previous Loan Amount Covered:
Line of Credit
Current Outstanding Balance:
New Total Covered Loan Amount:
The Lender hereby certifies that all the above information is true and accurate to the best of his
or her knowledge.
Lender's Name:
Authorized Signature:
____________________________________
Printed Name & Title:
Date:
STATE USE ONLY
APPROVED
Amount Authorized/Guaranteed:
SBCG Renewal Fee Amount:
Has Fee Been Deposited?
Yes
Date of Deposit:
NOT APPROVED*
*Please indicate reason for denial:
Signed:
No
Printed Name & Title:
Date:
SBCG Application – 052912.1
52