PROMISSORY NOTE
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Principal
$600,000.00
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Loan Date
06-10-2009
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Maturity
06-10-2014
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Loan No
1764000
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Call/Coll
23
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Account
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Officer
GSS
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Initials
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References in the boxes above are
for Lender's use only and do not limit the applicability of this
document to any particular loan or item.
Any item above containing "'""has
been omitted due to text length limitations
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Borrower:
Champion Industries, Inc.
Lender: FIRST SENTRY
BANK
2450 1st Avenue
P. 0.BOX 2107
Huntington, WV
25703 823 8TH STREET
HUNTINGTON, WV 25721
____________________________________________________________________________________________________________________________________________________________________________
Principal Amount:
$600,000.00
Date of Note: June 10, 2009
PROMISE TO PAY.
Champion Industries, Inc. ("Borrower") promises to pay to FIRST
SENTRY BANK ("Lender"), or order, in lawful money of the United
States of America, the principal amount of Six Hundred Thousand
& 00/100 Dollars ($600,000.00), together with interest on the
unpaid principal balance from June 10, 2009, until paid in
full.
PAYMENT.
Subject to any payment changes resulting from changes in the Index,
Borrower will pay this loan in 59 principal payments of $10,000.00
each and one final principal and interest payment of $10,043.06.
Borrower's first principal payment is due July 10, 2009, and all
subsequent principal payments are due on the same day of each month
after that. In addition, Borrower will pay regular monthly payments
of all accrued unpaid interest due as of each payment date,
beginning July 10, 2009, with all subsequent interest payments to
be due on the same day of each month after that. Borrower's final
payment due June 10, 2014, will be for all principal and all
accrued interest not yet paid. Unless otherwise agreed or required
by applicable law, payments will be applied first to any unpaid
collection costs; then to any late charges; then to any accrued
unpaid interest; and then to principal. Borrower will pay Lender at
Lender's address shown above or at such other place as Lender may
designate in writing.
VARIABLE
INTEREST RATE. The interest rate on this Note is subject to change
from time to time based on changes in an independent index which is
the Prime Rate as published in the Wall Street Journal (the
"index"). The Index is not necessarily the lowest rate charged by
Lender on its loans. If the Index becomes unavailable during the
term of this loan, Lender may designate a substitute index after
notifying Borrower. Lender will tell Borrower the current index
rate upon Borrower's request. The interest rate change will not
occur more often than each day. Borrower understands that Lender
may make loans based on other rates as well. The Index currently is
3.250% per annum. The interest rate to be applied to the unpaid
principal balance of this Note will be calculated as described in
the "INTEREST CALCULATION METHOD" paragraph using a rate equal to
the Index, adjusted if necessary for any minimum and maximum rate
limitations described below, resulting in an initial rate of 5.000%
per annum based on a year of 360 days. NOTICE: Under no
circumstances will the interest rate on this Note be less than
5.000% per annum or more than the maximum rate allowed by
applicable law.
INTEREST
CALCULATION METHOD. Interest on this Note is computed on a 365/360
basis; that is, by applying the ratio of the interest rate over a
year of 360 days, multiplied by the outstanding principal balance,
multiplied by the actual number of days the principal balance is
outstanding. All interest payable under this Note is computed using
this method.
PREPAYMENT.
Borrower may pay without penalty all or a portion of the amount
owed earlier than it is due. Early payments will not, unless agreed
to by Lender in writing, relieve Borrower of Borrower's obligation
to continue to make payments under the payment schedule. Rather,
early payments will reduce the principal balance due and may result
in Borrower's making fewer payments. Borrower agrees not to send
Lender payments marked "paid in full", "without recourse", or
similar language. If Borrower sends such a payment. Lender may
accept it without losing any of Lender's rights under this Note,
and Borrower will remain obligated to pay any further amount owed
to Lender. All written communications concerning disputed amounts,
including any check or other payment instrument that indicates that
the payment constitutes "payment in full" of the amount owed or
that is tendered with other conditions or limitations or as full
satisfaction of a disputed amount must be mailed or delivered to:
FIRST SENTRY BANK, P. 0. BOX 2107, 823 8TH STREET, HUNTINGTON, WV
25721.
LATE CHARGE. If
a payment is 10 days or more late, Borrower will be charged
$25.00.
INTEREST AFTER
DEFAULT. Upon default, including failure to pay upon final
maturity, the total sum due under this Note will continue to accrue
interest at the interest rate under this Note. However, in no event
will the interest rate exceed the maximum interest rate limitations
under applicable law.
DEFAULT. Each
of the following shall constitute an event of default ("Event of
Default") under this Note:
Payment
Default. Borrower fails to make any payment when due under this
Note.
Other Defaults.
Borrower fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Note or in any
of the related documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement
between Lender and Borrower.
False
Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Note or the related documents is false or misleading in any
material respect, either now or at the time made or furnished or
becomes false or misleading at any time thereafter.
Insolvency. The
dissolution or termination of Borrower's existence as a going
business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit
of creditors, any type of creditor workout, or the commencement of
any proceeding under any bankruptcy or insolvency laws by or
against Borrower.
Creditor or
Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by
any governmental agency against any collateral securing the loan.
This includes a garnishment of any of Borrower's accounts,
including deposit accounts, with Lender. However, this Event of
Default shall not apply if there is a good faith dispute by
Borrower as to the validity or reasonableness of the claim which is
the basis of the creditor or forfeiture proceeding and if Borrower
gives Lender written notice of the creditor or forfeiture
proceeding and deposits with Lender monies or a surety bond for the
creditor or forfeiture proceeding, in an amount determined by
Lender, in its sole discretion, as being an adequate reserve or
bond for the dispute.
Events
Affecting Guarantor. Any of the preceding events occurs with
respect to any guarantor, endorser, surety, or accommodation party
of any of the indebtedness or any guarantor, endorser, surety, or
accommodation party dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any guaranty of the
indebtedness evidenced by this Note.
Change In
Ownership. Any change in ownership of twenty-five percent (25%) or
more of the common stock of Borrower.
Adverse Change.
A material adverse change occurs in Borrower's financial condition,
or Lender believes the prospect of payment or performance of this
Note is impaired.
Cure
Provisions. if any default, other than a default in payment is
curable and if Borrower has not been given a notice of a breach of
the same provision of this Note within the preceding twelve (12)
months, it may be cured if Borrower, after receiving written notice
from Lender demanding cure of such default: (1) cures the default
within ten (10) days; or (2) if the cure requires more than ten
(10) days, immediately initiates steps which Lender deems in
Lender's sole discretion to be sufficient to cure the default and
thereafter continues and completes all reasonable and necessary
steps sufficient to produce compliance as soon as reasonably
practical.
LENDER'S
RIGHTS. Upon default, Lender may declare the entire unpaid
principal balance under this Note and all accrued unpaid interest
immediately due, and then Borrower will pay that amount,
ATTORNEYS'
FEES; EXPENSES. Lender may hire or pay someone else to help collect
this Note if Borrower does not pay. Borrower will pay Lender that
amount. This includes, subject to any limits under applicable law,
Lender's attorneys' fees and Lender's legal expenses, whether or
not there is a lawsuit, including attorneys' fees, expenses for
bankruptcy proceedings (including efforts to modify or vacate any
automatic stay or injunction), and appeals. If not prohibited by
applicable law, Borrower also will pay any court costs, in addition
to all other sums provided by law.
GOVERNING LAW.
This Note will be governed by federal law applicable to Lender and,
to the extent not preempted by federal law, the laws Of the State
of West Virginia without regard to its conflicts of law provisions.
This Note has been accepted by Lender in the State of West
Virginia.
CHOICE OF
VENUE. if there is a lawsuit, Borrower agrees upon Lender's request
to submit to the jurisdiction of the courts Of CABELL County, State
of West Virginia.
RIGHT OF
SETOFF. To the extent permitted by applicable law, Lender reserves
a right of setoff in all Borrower's accounts with Lender (whether
checking, savings, or some other account). This includes all
accounts Borrower holds jointly with someone else and all accounts
Borrower may open in the future. However, this does not include any
IRA or Keogh accounts, or any trust accounts for which setoff would
be prohibited by law. Borrower authorizes Lender, to the extent
permitted by applicable law, to charge or setoff all sums owing on
the indebtedness against any and all such accounts.
SUCCESSOR
INTERESTS. The terms of this Note shall be binding upon Borrower,
and upon Borrower's heirs, personal representatives, successors and
assigns, and shall inure to the benefit of Lender and its
successors and assigns.
NOTIFY US OF
INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES.
Please notify us if we report any inaccurate information about your
account(s) to a consumer reporting agency. Your written notice
describing the specific inaccuracy(ies) should be sent to us at the
following address: FIRST SENTRY BANK P. 0.BOX 2107 HUNTINGTON, WV
25721.
GENERAL
PROVISIONS. if any part of this Note cannot be enforced, this fact
will not affect the rest of the Note. Lender may delay or forgo
enforcing any of its rights or remedies under this Note without
losing them. Borrower and any other person who signs, guarantees or
endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, and notice of dishonor. Upon any
change in the terms of this Note, and unless otherwise expressly
stated in writing, no party who signs this Note, whether as maker,
guarantor, accommodation maker or endorser, shall be released from
liability. All such parties agree that Lender may renew or extend
(repeatedly and for any length of time) this loan or release any
party or guarantor or collateral; or impair, fail to realize upon
or perfect Lender's security interest in the collateral; and take
any other action deemed necessary by Lender without the consent of
or notice to anyone. All such parties also agree that Lender may
modify this loan without the consent of or notice to anyone other
than the party with whom the modification is made. The obligations
under this Note are joint and several.
WEST VIRGINIA
INSURANCE NOTICE. Unless Borrower provides Lender with evidence of
the insurance coverage required by Borrower's agreement with
Lender, Lender may purchase insurance at Borrower's expense to
protect Lender's interests in the collateral. This insurance may,
but need not, protect Borrower's interests. The coverage that
Lender purchases may not pay any claim that Borrower makes or any
claim that is made against Borrower in connection with the
collateral. Borrower may later cancel any insurance purchased by
Lender, but only after providing Lender with evidence that Borrower
has obtained insurance as required by their agreement. If Lender
purchases insurance for the collateral, Borrower will be
responsible for the costs of that insurance, including interest and
any other charges Lender may impose in connection with the
placement of the insurance, until the effective date of the
cancellation or expiration of the insurance. The costs of the
insurance may be added to Borrower's total outstanding balance or
obligation. The costs of the insurance may be more than the cost of
insurance Borrower may be able to obtain on Borrower's
own.
PRIOR TO
SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS.
BORROWER AGREES TO THE TERMS OF THE NOTE.
BORROWER
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY
NOTE.
CHAMPION
INDUSTRIES, INC.
By:
COPY /s/ Toney K.
Adkins
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TONEY K.
ADKINS, President of Champion Industries, Inc.
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COMMERCIAL SECURITY
AGREEMENT
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Principal
$600,000.00
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Loan Date
06-10-2009
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Maturity
06-10-2014
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Loan No
1764000
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Call/Coll
23
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Account
|
Officer
GSS
|
Initials
|
|
References in the boxes above are
for Lender's use only and do not limit the applicability of this
document to any particular loan or item.
Any item above containing "'""has
been omitted due to text length limitations
|
Grantor:
Champion Industries, Inc.
Lender: FIRST SENTRY
BANK
2450 1st Avenue
P. 0.BOX 2107
Huntington, WV
25703 823 8TH STREET
HUNTINGTON, WV 25721
_______________________________________________________________________________________________________________________________________________________
THIS COMMERCIAL
SECURITY AGREEMENT dated June 10, 2009, is made and executed
between Champion Industries, Inc. ("Grantor") and FIRST SENTRY BANK
("Lender").
GRANT OF
SECURITY INTEREST. For valuable consideration, Grantor grants to
Lender a security interest in the Collateral to secure the
Indebtedness and agrees that Lender shall have the rights stated in
this Agreement with respect to the Collateral, in addition to all
other rights which Lender may have by law.
COLLATERAL
DESCRIPTION. The word "Collateral" as used in this Agreement means
the following described property, whether now owned or hereafter
acquired, whether now existing or hereafter arising, and wherever
located, in which Grantor is giving to Lender a security interest
for the Payment of the Indebtedness and performance of all other
obligations under the Note and this Agreement:
Purchase Money
Security Interest in Specific Equipment further described as ROP
Marathon 10 Color Press SIN NP-1215 as further described in the
addendum attached hereto and made a part of hereof
In addition,
the word "Collateral" also includes all the following, whether now
owned or hereafter acquired, whether now existing or hereafter
arising, and wherever located:
(A) All
accessions, attachments, accessories, tools, parts, supplies,
replacements of and additions to any of the collateral described
herein, whether added now or later.
(B) All
products and produce of any of the property described in this
Collateral section.
(C) All
accounts, general intangibles, instruments, rents, monies,
payments, and all other rights, arising out of a sale, lease,
consignment or other disposition of any of the property described
in this Collateral section.
(D) All
proceeds (including insurance proceeds) from the sale, destruction,
loss, or other disposition of any of the property described in this
Collateral section, and sums due from a third party who has damaged
or destroyed the Collateral or from that party's insurer, whether
due to judgment, settlement or other process.
(E) All records
and data relating to any of the property described in this
Collateral section, whether in the form of a writing, photograph,
microfilm, microfiche, or electronic media, together with all of
Grantor's right, title, and interest in and to all computer
software required to utilize, create, maintain, and process any
such records or data on electronic media.
RIGHT OF
SETOFF. To the extent permitted by applicable law, Lender reserves
a right of setoff in all Grantor's accounts with Lender (whether
checking, savings, or some other account). This includes all
accounts Grantor holds jointly with someone else and all accounts
Grantor may open in the future. However, this does not include any
IRA or Keogh accounts, or any trust accounts for which setoff would
be prohibited by law. Grantor authorizes Lender, to the extent
permitted by applicable law, to charge or setoff all sums owing on
the Indebtedness against any and all such accounts.
GRANTOR'S
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. With
respect to the Collateral, Grantor represents and promises to
Lender that:
Perfection of
Security Interest. Grantor agrees to take whatever actions are
requested by Lender to perfect and continue Lender's security
interest in the Collateral. Upon request of Lender, Grantor will
deliver to Lender any and all of the documents evidencing or
constituting the Collateral, and Grantor will note Lender's
interest upon any and all chattel paper and instruments if not
delivered to Lender for possession by Lender.
Notices to
Lender. Grantor will promptly notify Lender in writing at Lender's
address shown above (or such other addresses as Lender may
designate from time to time) prior to any (1) change in Grantor's
name; (2) change in Grantor's assumed business name(s); (3) change
in the management of the Corporation Grantor; (4) change in the
authorized signer (s); (5) change in Grantor's principal office
address; (6) change in Grantor's state of organization; (7)
conversion of Grantor to a new or different type of business
entity; or (8) change in any other aspect of Grantor that directly
or indirectly relates to any agreements between Grantor and Lender.
No change in Grantor's name or state of organization will take
effect until after Lender has received notice.
No Violation.
The execution and delivery of this Agreement will not violate any
law or agreement governing Grantor or to which Grantor is a party,
and its certificate or articles of incorporation and bylaws do not
prohibit any term or condition of this Agreement.
Enforceability
of Collateral. To the extent the Collateral consists of accounts,
chattel paper, or general intangibles, as defined by the Uniform
Commercial Code, the Collateral is enforceable in accordance with
its terms, is genuine, and fully complies with all applicable laws
and regulations concerning form, content and manner of preparation
and execution, and all persons appearing to be obligated on the
Collateral have authority and capacity to contract and are in fact
obligated as they appear to be on the Collateral. There shall be no
setoffs or counterclaims against any of the Collateral, and no
agreement shall have been made under which any deductions or
discounts may be claimed concerning the Collateral except those
disclosed to Lender in writing.
Location of the
Collateral. Except in the ordinary course of Grantor's business.
Grantor agrees to keep the Collateral at Grantor's address shown
above or at such other locations as are acceptable to Lender. Upon
Lender's request, Grantor will deliver to Lender in form
satisfactory to Lender a schedule of real properties and Collateral
locations relating to Grantor's operations, including without
limitation the following: (1) all real property Grantor owns or is
purchasing; (2) all real property Grantor is renting
or leasing; (3) all storage facilities Grantor owns, rents, leases,
or uses; and (4) all other properties where Collateral is or may be
located.
Removal of the
Collateral. Except in the ordinary course of Grantor's business,
Grantor shall not remove the Collateral from its existing location
without the Lender's prior written consent To the extent that the
Collateral consists of vehicles, or other titled property. Grantor
shall not take or permit any action which would require application
for certificates of title for the vehicles outside the State of
West Virginia, without Lender's prior written consent. Grantor
shall, whenever requested, advise Lender of the exact location of
the Collateral.
Transactions
Involving Collateral. Except for inventory sold or accounts
collected in the ordinary course of Grantor's business, or as
otherwise provided for in this Agreement, Grantor shall not sell,
offer to sell, or otherwise transfer or dispose of the Collateral.
Grantor shall not pledge, mortgage, encumber or otherwise permit
the Collateral to be subject to any lien, security interest,
encumbrance, or charge, other than the security interest provided
for in this Agreement, without the prior written consent of Lender.
This includes security interests even if junior in right to the
security interests granted under this Agreement. Unless waived by
Lender, all proceeds from any disposition of the Collateral (for
whatever reason) shall be held in trust for Lender and shall not be
commingled with an