EXHIBIT 10.22
DEBTOR NAME AND ADDRESS _____________ NAME AND ADDRESS
ebank Financial Services, Inc. Newnan Coweta Bank
0000 Xxxxx Xxxxx Xxxx X.X. Xxx 00000
Xxxxxxx, XX 30336-_______ Xxxxxx, XX 00000
TAX ID NUMBER: 00-0000000
Type: [ ] Individually [ ] partnership [X] corporation [ ] _________________
COMMERCIAL SECURITY AGREEMENT
The date of this Commercial Security Agreement (Agreement) is December 10,
2003.
SECURED DEBTS. This Agreement will secure all some advanced by Secured Party
under the terms of this Agreement and the payment and performance of the
following described Secured Debts that (check one)[X] Debtor [ ]
________________________________________ (Borrower) owes to Secured party:
[ ] SPECIFIC DEBTS. The following debts and all extensions, renewals,
refinancings, modifications, and replacements (describe):
[X] ALL DEBTS. All present and future debts, even if this Agreement is
not referenced, the debts are also secured by other collateral, or
the future debt is unrelated to or of a different type than the
current debt. Nothing in this Agreement is a commitment to make
future loans or advances.
SECURITY INTEREST. To secure the payment and performance of the Secured Debts,
Debtor gives Secured Party a security interest in all of the Property described
in this Agreement that Debtor owns or has sufficient rights in which to
transfer an interest, now or in the future, wherever the Property is or will be
located, and all proceeds and products of the Property. "Property" includes all
parts, accessories, repairs, replacements, improvements, and accessions to the
Property; any original evidence of use or ownership; and all obligations that
support the payment or performance of the Property. "Proceeds" includes
anything acquired upon the sale, lease, license, exchange, or other disposition
of the Property; any rights and claims arising from the Property; and any
collections and distributions on account of the Property. This Agreement
remains in effect until terminated in writing, even if the Secured Debts are
paid and Secured Party is no longer obligated to advance funds to Debtor or
Borrower.
PROPERTY DESCRIPTION. The Property is described as follows:
[ ] ACCOUNTS AND OTHER RIGHTS TO PAYMENTS. All rights to payment,
whether or not earned by performance, including, but not
limited to, payment for property or services sold, leased,
rented, licensed, or assigned. This includes any rights and
Interests (including all liens) which Debtor may have by law
or agreement against any account debtor or obligor of Debtor.
[ ] INVENTORY. All inventory held for ultimate sale or lease, or
which has been or will be supplied under contracts of
service, or which are raw materials, work in process, or
materials used or consumed in Debtor's business.
[ ] EQUIPMENT. All equipment including, but not limited to,
machinery, vehicles, furniture, fixtures, manufacturing
equipment, farm machinery and equipment, shop equipment,
office and record keeping equipment, parts, and tools. The
Property includes any equipment described in a list or
schedule Debtor gives to Secured Party, but such a list is
not necessary to create a valid security interest in all of
Debtor's equipment.
[ ] INSTRUMENTS AND CHATTEL PAPER. All instruments, including
negotiable instruments and promissory notes and any other
writings or records that evidence the right to payment of a
monetary obligation, and tangible and electronic chattel
paper.
[ ] GENERAL INTANGIBLES. All general intangibles including, but
not limited to, tax refunds, patents and applications for
patents, copyrights, trademarks, trade secrets, goodwill,
trade names, customer lists, permits and franchises, payment
intangibles, computer programs and all supporting information
provided in connection with a transaction relating to computer
programs, and the right to use Debtor's name.
[ ] DOCUMENTS. All documents of tile including, but not limited
to, bills and lading instruments and receipts, and warehouse
receipts.
[ ] FARM PRODUCTS AND SUPPLIES. All farm products, including but
not limited to, all poultry and livestock and their young,
along with their produce, products, and replacements; all
crops, and all products of the crops; and all feed, seed
fertilizer, medicines, and other supplies used or produced in
Debtor's farming operations.
[ ] GOVERNMENT PAYMENTS AND PROGRAMS. All payment accounts,
general intangibles, and benefits including, but not limited
to, payments in kind, delinquency payments, ledgers of
enrollment, warehouse receipts, storage payments, emergency
assistance and diversion payments, production flexibility
contracts, and conversion reserve payments under any
preexisting, current, or future federal or state government
program.
[X] INVESTMENT PROPERTY. All investment property including, but
not limited to, certificated securities, uncertified
securities, securities entitlements, securities accounts,
commodity contracts, commodity accounts, and financial
assets.
[ ] DEPOSIT ACCOUNTS. All deposit accounts including, but not
limited to, demand, time, savings, passbook, and similar
accounts.
[X] SPECIFIC PROPERTY DESCRIPTION. The Property includes, but is
not limited by, the following (if required, provide real
estate description): 246,550 SHARES OF EBANK FINANCIAL
SERVICES, INC. COMMON STOCK, CERTIFICATE NUMBER(S) 4 DATED
NOVEMBER 26, 2003.
[ ] USE OF PROPERTY. The Property will be used for [ ] personal
[X] business [ ] agricultural [ ] __________________ purposes.
SIGNATURES. Debtor agrees to the terms on pages 1 and 2 of this Agreement and
acknowledges receipt of a copy of this Agreement.
DEBTOR: SECURED PARTY:
ebank Financial Services, Inc.
/s/ Xxxxx X. Box /s/ Xxxxx X. Xxxxxx
------------------------------------ ---------------------------------
XXXXX X. BOX, CEO 12/10/2003 XXXXX X. XXXXXX 12/10/2003
SENIOR VICE PRESIDENT
GENERAL PROVISIONS. Each Debtor's obligations under this Agreement are
independent of the obligations of any other Debtor. Secured Party may xxx each
Debtor individually or together with any other Debtor. Secured Party may
release any part of the Property and Debtor will remain obligated under this
Agreement. The duties and benefits of this Agreement will bind the successors
and assigns of Debtor and Secured Party. No modifications of this Agreement is
effective unless made in writing and signed by Debtor and Secured Party.
Whenever used, the plural includes the singular and the singular included the
plural. Time is of the essence.
APPLICABLE LAW. This Agreement is governed by the laws of the state in which
Secured Party is located. In the event of a dispute, the exclusive Forum,
venue, and place of jurisdiction will be the state in which Secured Party is
located, unless otherwise required by law. If any provision of this Agreement
is unenforceable by law, the unenforceable provision will be severed and the
remaining provisions will still be enforceable.
NAME AND LOCATION. Debtor's name indicated on page 1 is Debtor's exact legal
name. If Debtor is an Individual, Debtor's address is Debtor's principal
residence. If Debtor is not an individual, Debtor's address is the location of
Debtor's chief executive offices or sole place of business. If Debtor is an
entity organized and registered under state law, Debtor has provided Debtor'
state of registration on page 1. Debtor will provide verification of
registration and location upon Secured Party's request, Debtor will provide
Secured Party with at least 30 days notice prior to any change in Debtor's
name, address, or state of organization or registrations.
WARRANTIES AND REPRESENTATIONS. Debtor has the right, authority, and power to
enter into this Agreement. The execution and delivery of this Agreement will
not violate any agreement governing Debtor or Debtor's Property, or to which
Debtor is a party. Debtor makes the following warranties and representations
which continue as long as this Agreement is in effect:
(1) Debtor is duly organized and validly existing in all jurisdiction in which
Debtor does business;
(2) the execution and performance of the terms of this Agreement have
been duly authorized, have received all necessary governmental approval, and
will not violate any provision of law or order;
(3) other than previously disclosed to Secured Party, Debtor has not changed
Debtor's name or principal place of business within the last 10 years and has
not used any other trade or fictitious name; and
(4) Debtor does not and will not use any other name without Secured Party's
prior written consent.
Debtor owns all of the Property, and Secured Party's claim to the Property is
ahead of the claims of any other creditor, except as otherwise agreed and
disclosed to Secured Party prior to any advance on the Secured Debts. The
Property has not been used for any purpose that would violate any laws or
subject the Property to forfeiture or seizure.
DUTIES TOWARD PROPERTY. Debtor will protect the Property and Secured Party's
interest against any competing claim. Except as otherwise agreed, Debtor will
keep the Property in Debtor's possession at the address indicated on page 1 of
this Agreement. Debtor will keep the Property in good repair and use the
Property only for purposes specified on page 1. Debtor will not use the
Property in violation of any law and will pay all taxes and assessments levied
or assessed against the Property. Secured Party has the right of reasonable
access to inspect the Property, included the right to require Debtor to
assemble and make the Property available by Secured Party. Debtor will
immediately notify Secured Party of any loss or damage to the Property. Debtor
will prepare and keep books, records, and accounts about the Property and
Debtor's business, to which Debtor will allow Secured Party reasonable access.
Debtor will not sell, offer to sell, license, lease, or otherwise transfer or
encumber the Property without Secured Party's prior written consent. Any
disposition of the Property will violate Secured Party's rights, unless the
Property is inventory sold in the ordinary course of business at fair market
value. If the Property includes chattel paper or instruments, either as
original collateral or as proceeds of the Property. Debtor will record Secured
Party's interest on the face of the chattel paper or instruments.
If the Property includes accounts, Debtor will not settle any account for less
than the full value, dispose of the accounts by assignment, or make any
material change in the terms of any account without Secured Party's prior
written consent. Debtor will collect all accounts in the ordinary course of
business, unless otherwise required by Secured Party. Debtor will keep the
proceeds of the accounts, and any goods returned to Debtor, in trust for
Secured Party and will not commingle the proceeds or returned goods with any of
Debtor's other property. Secured Party has the right to required Debtor to pay
Secured Party the full price on any returned items. Secured Party may require
account debtors to make payments under the accounts directly to Secured Party.
Debtor will deliver the accounts to Secured Party at Secured Party's request.
Debtor will give Secured Party all statements, reports, certificates, list of
account debtors (showing names, addresses, and amounts owing), invoices
applicable to each account and any other data pertaining to the accounts as
Secured Party requests.
If the Property includes farm produces, Debtor will provide Secured Party with a
list of the buyers, commission merchants, and selling agents to or through whom
Debtor may sell the farm products. Debtor authorizes Secured Party to notify any
additional parties regarding Secured Party's interest in Debtor's farm products,
unless prohibited by law. Debtor agrees to plant, cultivate, and harvest crops
in due season. Debtor will be in default if any loan proceeds are used for a
purpose that will contribute to excessive erosion of highly erodible land or to
the conversion of wetland to produce or to make possible the production of an
agricultural commodity, further explained in 7 CPR Part 1940, Subpart G, Exhibit
M. If Debtor pledges the Property to Secured Party (delivers the Property into
the possession or control of Secured Party or a designated third party), Debtor
will, upon receipt, deliver any proceeds and products of the Property to Secured
Party, Debtor will provide Secured Party with any notices, documents, financial
statements, reports, and other information relating to the Property Debtor
receives as the owner of the Property.
PERFECTION OF SECURITY INTEREST. Debtor authorizes Secured Party to file a
financing statement covering the Property. Debtor will comply with, facilitate,
and otherwise assist Secured Party in connection with obtaining possession or
control over the Property for purposes of perfection Secured Party's interest
under the Uniform Commercial Code.
INSURANCE. Debtor agrees to keep the Property insured against the risks
reasonably associated with the Property until the Property is released from
this Agreement. Debtor will maintain this Insurance in the amounts Secured
Party requires. Debtor may choose the insurance company, subject to Secured
Party's approval, which will not be unreasonably withheld. Debtor will have the
insurance provider name Secured Party as loss payee on the insurance policy.
Debtor will give Secured party and the insurance provider immediate notice of
any loss. Secured Party may apply the insurance proceeds toward the Secured
Debts. Secured Party may require additional security as a condition of
permitting any insurance proceeds to be used to repair or replace the Property.
If Secured Party acquires the Property in damaged condition. Debtor's rights to
any insurance policies and proceeds will pass to Secured Party to the extent of
the Secured Debts. Debtor will immediately notify Secured Party of the
cancellation or termination of insurance. If Debtor fails to keep the Property
insured, or fails to provide Secured Party with proof of insurance, Secured
Party may obtain insurance to protect Secured Party's interest in the Property.
The insurance may include coverage's not originally required of Debtor, may be
written by a company other than one Debtor would choose, and may be written at
a higher rate than Debtor could obtain if Debtor purchased the insurance.
AUTHORITY TO PERFORM. Debtor authorizes Secured party to do anything Secured
Party deems reasonably necessary to protect the Property and Secured Party's
interest in the Property. If Debtor fails to perform any of Debtor's duties
under this Agreement, Secured Party is authorized, without notice to Debtor, to
perform the duties or cause them to be performed. These authorizations include,
but are not limited to, permission to pay for the repair, maintenance, and
preservation of the Property and take any action to realize the value of the
Property. Secured Party's authority to perform for Debtor does not create an
obligation to perform, and Secured Party's failure to perform will not preclude
Secured Party from exercising any other rights under the law or this Agreement.
If Secured Party performs for Debtor, Secured Party will use reasonable care.
Reasonable care will not include any steps necessary to preserve rights against
prior parties or any duty to take action in connection with the management of
the Property.
If Secured Party comes into possession of the Property, Secured Party will
preserve and protect the Property to the extent required by law. Secured
Party's duty of care with respect to the Property will be satisfied if Secured
Party exercises reasonable care in the safekeeping of the Property or in the
selection of a third party in possession of the Property.
Secured Party may enforce the obligations of an account debtor or other person
obligated on the Property. Secured Party may exercise Debtor's rights with
respect to the account debtor's or other person's obligations to make payment
or otherwise render performance to Debtor, and enforce any accruity interest
that secures such obligations.
PURCHASE MONEY SECURITY INTEREST. If the Property includes items purchased with
the Secured Debts, the Property purchased with the Secured Debts will remain
subject to Secured Party's security interest until the Secured Debts are pain
in full. Payments on any non-purchase money loan also secured by this Agreement
will not be applied on the purchase money loan. Payments on the purchase money
loan will be applied first to the non-purchase money portion of the loan. If
any, and then to the purchase money portion in the order in which the purchase
money Property was acquired. If the purchase money Property was acquired at the
same time, payment will be applied in the order Secured Party selects. No
security interest will be terminated by application of this formula.
DEFAULT. Debtor will be in default if:
(1) Debtor (or Borrower, if not the same) fails to make a payment in full when
due;
(2) Debtor fails to perform any condition or keep any covenant on this or any
debt or agreement Debtor has with Secured Party;
(3) a default occurs under the terms of any instrument or agreement evidencing
or pertaining to the Secured Debts;
(4) anything else happens that causes Secured Party to reasonably believe that
Secured Party will have difficulty in collecting the Secured Debt or
significantly impairs the value of the Property.
REMEDIES. After Debtor defaults, and after Secured Party gives any legally
required notice and opportunity to cure the default, Secured Party may at
Secured Party's option do any one or more of the following:
(1) make all or any party of the Secured Debts immediately due and accrue
interest at the highest post-maturity interest rate;
(2) requires Debtor to gather the Property and make it available to Secured
Party in a reasonable fashion;
(3) enter upon Debtor's premises and take possession of all or any part of
Debtor's property for purposes of preserving the Property or in value and
use and operate Debtor's property to protect Secured Party's interest, all
without payment or compensation to Debtor;
(4) use any remedy allowed by state or federal law, or provided in any
agreement evidencing or pertaining to the Secured Debts.
If Secured Party repossesses the Property or enforces the obligations of an
account debtor, Secured Party may keep or dispose of the Property as provided
by law. Secured Party will apply the proceeds of any collection of disposition
first to Secured Party's expenses of enforcement, which includes reasonable
attorneys' fees and legal expenses to the extent not prohibited by law, and
then to the Secured Debtor. Debtor (or Borrower, if not the same) will be
liable for the deficiency, if any. By choosing any one or more of these
remedies, Secured Party does not give up the right to use any other remedy.
Secured party does not waive a default by not using a remedy.
WAIVER. Debtor waives all claims for damages caused by Secured Party's acts or
omissions where Secured Party acts in good faith.
NOTICE AND ADDITIONAL DOCUMENTS. Where notice is required, Debtor agrees that
10 days prior written notice will be reasonable notice to Debtor under the
Uniform Commercial Code. Notice in one party is notice to all parties. Debtor
agrees to sign, deliver, and file any additional documents and certification
Secured Party considers necessary to perfect, continue or preserve Debtor's
obligations under this Agreement and to confirm Secured Party's lien status on
the Property.
