BUSINESS LOAN AGREEMENT
EXHIBIT
10.3
- -
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Principal
$767,852.00
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Loan
Date
04-22-2008
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Maturity
05-05-2013
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Loan
No.
323876
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Call
/ Coll
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Account
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Officer
022
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Initials
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References
in the shaded area 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 (TIN: 00-0000000)
XXXX
XXXXXX XXX 0000
XXXXXXXXXX,
XX 00000
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Lender:
FIRST
BANK OF CHARLESTON, INC. 000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
(304)
340-3000
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THIS
BUSINESS LOAN AGREEMENT dated April 22, 2008, is made and executed between
CHAMPION INDUSTRIES INC ("Borrower") and FIRST BANK OF CHARLESTON, INC.
("Lender") on the following terms and conditions. Borrower has received prior
commercial Loans from Lender or has applied to Lender for a commercial loan or
loans or other financial accommodations, including those which may be described
on any exhibit or schedule attached to this Agreement. Borrower understands and
agrees that: (A) in granting, renewing. or extending any Loan, Lender is relying
upon Borrower's representations, warranties, and agreements as set forth in this
Agreement; (B) the granting, renewing, or extending of any Loan by Lender at all
times shall be subject to Lender's sole judgment and discretion; and (C) all
such Loans shall be and remain subject to the terms and conditions of this
Agreement.
TERM. This Agreement shall be
effective as of April 22, 2008, and shall continue in full force and effect
until such time as all of Borrower's Loans in favor of Lender have been paid in
full, including principal, interest, costs, expenses, attorneys' fees, and other
fees and charges, or until May 5, 2013.
CONDITIONS PRECEDENT TO EACH
ADVANCE. Lender's obligation to make the initial Advance and each
subsequent Advance under this Agreement shall be subject to the fulfillment to
Lender's satisfaction of all of the conditions set forth in this Agreement and
in the Related Documents.
Loan Documents. Borrower shall
provide to Lender the following documents for the Loan: (1) the Note; (2)
Security Agreements granting to Lender security interests in the Collateral; (3)
financing statements and all other documents perfecting Lender's Security
Interests; (4) evidence of insurance as required below; (5) together with all
such Related Documents as Lender may require for the Loan; all in form and
substance satisfactory to Lender and Lender's counsel.
Borrower's Authorization.
Borrower shall have provided in form and substance satisfactory to Lender
properly certified resolutions, duly authorizing the execution and delivery of
this Agreement, the Note and the Related Documents. In addition, Borrower shall
have provided such other resolutions, authorizations, documents and instruments
as Lender or its counsel, may require.
Payment of Fees and Expenses.
Borrower shall have paid to Lender all fees, charges, and other expenses which
are then due and payable as specified in this Agreement or any Related
Document.
Representations and
Warranties. The representations and warranties set forth in this
Agreement, in the Related Documents, and in any document or certificate
delivered to Lender under this Agreement are true and correct.
No Event of Default. There
shall not exist at the time of any Advance a condition which would constitute an
Event of Default under this
Agreement
or under any Related Document.
REPRESENTATIONS AND
WARRANTIES. Borrower represents and warrants to Lender, as of the date of
this Agreement, as of the date of each disbursement of Loan proceeds, as of the
date of any renewal, extension or modification of any Loan and at all times any
Indebtedness exists:
Organization. Borrower is a
corporation for profit which is, and at all times shall be, duly organized,
validly existing, and in good standing under and by virtue of the laws of the
State of West Virginia. Borrower is duly authorized to transact business in all
other states in which Borrower is doing business, having obtained all necessary
filings, governmental licenses and approvals for each state in which Borrower is
doing business. Specifically, Borrower is, and at all times shall be, duly
qualified as a foreign corporation in all states in which the failure to so
qualify would have a material adverse effect on its business or financial
condition. Borrower has the full power and authority to own its properties and
to transact the business in which it is presently engaged or presently proposes
to engage. Borrower maintains its principal office at 0000-00 XXXXX XXXXXX,
XXXXXXXXXX, XX 00000. Unless Borrower has designated otherwise in writing, this
is the principal office at which Borrower keeps its books and records including
its records concerning the Collateral. Borrower will notify Lender prior to any
change in the location of Borrower's state of organization or any change in
Borrower's name. Borrower shall do all things necessary to preserve and to keep
in full force and effect its existence, rights and privileges, and shall comply
with all regulations, rules, ordinances, statutes, orders and decrees of any
governmental or quasi-governmental authority or court applicable to Borrower and
Borrower's business activities.
Assumed Business Names.
Borrower has filed or recorded all documents or filings required by law relating
to all assumed business names used by Borrower. Excluding the name of Borrower,
the following is a complete list of all assumed business names under which
Borrower does business:
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Borrower
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Assumed
Business
Name
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Filing
Location
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Date
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CHAMPION INDUSTRIES,
INC
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WV SECRETARY OF
STATE
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Authorization. Borrower's
execution, delivery, and performance of this Agreement and all the Related
Documents have been duly authorized by all necessary action by Borrower and do
not conflict with, result in a violation of, or constitute a default under (1)
any provision of (a) Borrower's articles of incorporation or organization, or
bylaws, or (b) any agreement or other instrument binding upon Borrower or (2)
any law, governmental regulation, court decree, or order applicable to Borrower
or to Borrower's properties.
Financial Information. Each of
Borrower's financial statements supplied to Lender truly and completely
disclosed Borrower's financial condition as of the date of the statement, and
there has been no material adverse change in Borrower's financial condition
subsequent to the date of the most recent financial statement supplied to
Lender. Borrower has no material contingent obligations except as disclosed in
such financial statements.
Legal Effect. This Agreement
constitutes, and any instrument or agreement Borrower is required to give under
this Agreement when delivered will constitute legal, valid, and binding
obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
Properties. Except as
contemplated by this Agreement or as previously disclosed in Borrower's
financial statements or in writing to Lender and as accepted by Lender, and
except for property tax liens for taxes not presently due and payable, Borrower
owns and has good title to all of Borrower's properties free and clear of all
Security Interests, and has not executed any security documents or financing
statements relating to such properties. All of Borrower's properties are titled
in Borrower's legal name, and Borrower has not used or filed a financing
statement under any other name for at least the last five (5)
years.
Hazardous Substances. Except
as disclosed to and acknowledged by Lender in writing, Borrower represents and
warrants that: (1) During the period of Borrower's ownership of the Collateral,
there has been no use, generation, manufacture, storage, treatment, disposal,
release or threatened release of any Hazardous Substance by any person on,
under, about or from any of the Collateral. (2) Borrower has no knowledge of, or
reason to believe that there has been (a) any breach or violation of any
Environmental laws; (b) any use, generation, manufacture, storage, treatment,
disposal, release or threatened release of any Hazardous Substance on, under,
about or from the Collateral by any prior owners or occupants of any of the
Collateral; or (c) any actual or threatened litigation or claims of any kind by
any person relating to such matters. (3) Neither Borrower nor any tenant,
contractor, agent or other authorized user of any of the Collateral shall use,
generate, manufacture, store, treat, dispose of or release any Hazardous
Substance on, under, about or from any of the Collateral; and any such activity
shall be conducted in compliance with all applicable federal, state, and local
laws, regulations, and ordinances, including without limitation all
Environmental laws. Borrower authorizes Lender and its agents to enter upon the
Collateral to make such inspections and tests as Lender may deem appropriate to
determine compliance of the Collateral with this section of the Agreement. Any
inspections or tests made by Lender shall be at Borrower's expense and for
Lender's purposes only and shall not be construed to create any responsibility
or liability on the part of Lender to Borrower or to any other person. The
representations and warranties contained herein are based on Borrower's due
diligence in investigating the Collateral for hazardous waste and Hazardous
Substances. Borrower hereby (1) releases and waives any future claims against
Lender for indemnity or contribution in the event Borrower becomes liable for
cleanup or other costs under any such laws, and (2) agrees to indemnify and hold
harmless Lender against any and all claims, losses, liabilities, damages,
penalties, and expenses which Lender may directly or indirectly sustain or
suffer resulting from a breach of this section of the Agreement or as a
consequence of any use, generation, manufacture, storage, disposal, release or
threatened release of a hazardous waste or substance on the Collateral. The
provisions of this section of the Agreement, including the obligation to
indemnify, and defend, shall survive the payment of the Indebtedness
and the termination, expiration or satisfaction of this Agreement and shall not
be affected by Lender's acquisition of any interest in any of the Collateral,
whether by foreclosure or otherwise.
Loan No:
323876
BUSINESS
LOAN AGREEMENT (Continued)
Litigation and Claims. No
litigation, claim, investigation, administrative proceeding or similar action
(including those for unpaid taxes) against Borrower is pending or threatened,
and no other event has occurred which may materially adversely affect Borrower's
financial condition or properties, other than litigation, claims, or other
events, if any, that have been disclosed to and acknowledged by Lender in
writing.
Taxes. To the best of
Borrower's knowledge, all of Borrower's tax returns and reports that are or were
required to be filed, have been filed, and all taxes, assessments and other
governmental charges have been paid in full, except those presently being or to
be contested by Borrower in good faith in the ordinary course of business and
for which adequate reserves have been provided.
Lien Priority. Unless
otherwise previously disclosed to Lender in writing, Borrower has not entered
into or granted any Security Agreements, or permitted the filing or attachment
of any Security Interests on or affecting any of the Collateral directly or
indirectly securing repayment of Borrower's Loan and Note, that would be prior
or that may in any way be superior to Lender's Security Interests and rights in
and to such Collateral.
Binding Effect. This
Agreement, the Note, all Security Agreements (if any), and all Related Documents
are binding upon the signers thereof, as well as upon their successors,
representatives and assigns, and are legally enforceable in accordance with
their respective terms.
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AFFIRMATIVE COVENANTS.
Borrower covenants and agrees with Lender that, so long as this Agreement
remains in effect, Borrower will:
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Notices of Claims and
Litigation. Promptly inform Lender in writing of (1) all material adverse
changes in Borrower's financial condition, and (2) all existing and all
threatened litigation, claims, investigations, administrative proceedings or
similar actions affecting Borrower or any Guarantor which could materially
affect the financial condition of Borrower or the financial condition of any
Guarantor.
Financial Records. Maintain
its books and records in accordance with GAAP, applied on a consistent basis,
and permit Lender to examine and audit Borrower's books and records at all
reasonable times.
Financial Statements. Furnish
Lender with the following:
Annual Statements. As soon as
available, but in no event later than thirty (30) days after the end of each
fiscal year, Borrower's balance sheet and income statement for the year ended,
compiled by a certified public accountant satisfactory to Lender.
Tax Returns. As soon as
available, but in no event later than thirty (30) days after the applicable
filing date for the tax reporting period ended,
Federal and other governmental tax returns, prepared by a certified public
accountant satisfactory to Lender.
All
financial reports required to be provided under this Agreement shall be prepared
in accordance with GAAP, applied on a consistent basis, and certified by
Borrower as being true and correct.
Additional Information.
Furnish such additional information and statements, as Lender may request from
time to time.
Insurance. Maintain fire and
other risk insurance, public liability insurance, and such other insurance as
Lender may require with respect to Borrower's properties and operations, in
form, amounts, coverages and with insurance companies acceptable to Lender.
Borrower, upon request of Lender, will deliver to Lender from time to time the
policies or certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without at least
thirty (30) days prior written notice to Lender. Each insurance policy also
shall include an endorsement providing that coverage in favor of Lender will not
be impaired in any way by any act, omission or default of Borrower or any other
person. In connection with all policies covering assets in which Lender holds or
is offered a security interest for the Loans, Borrower will provide Lender with
such Lender's loss payable or other endorsements as Lender may
require.
Insurance Reports. Furnish to
Lender, upon request of Lender, reports on each existing insurance policy
showing such information as Lender may reasonably request, including without
limitation the following: (1) the name of the insurer; (2) the risks insured;
(3) the amount of the policy; (4) the properties insured; (5) the then current
property values on the basis of which insurance has been obtained, and the
manner of determining those values; and (6) the expiration date of the policy.
In addition, upon request of Lender (however not more often than annually).
Borrower will have an independent appraiser satisfactory to Lender determine, as
applicable, the actual cash value or replacement cost of any Collateral. The
cost of such appraisal shall be paid by Borrower.
Other Agreements. Comply with
all terms and conditions of all other agreements, whether now or hereafter
existing, between Borrower and any other party and notify Lender immediately in
writing of any default in connection with any other such
agreements.
Loan Proceeds. Use all Loan
proceeds solely for Borrower's business operations, unless specifically
consented to the contrary by Lender in writing.
Taxes, Charges and Liens. Pay
and discharge when due all of its indebtedness and obligations, including
without limitation all assessments, taxes, governmental charges, levies and
liens, of every kind and nature, imposed upon Borrower or its properties,
income, or profits, prior to the date on which penalties would attach, and all
lawful claims that, if unpaid, might become a lien or charge upon any of
Borrower's properties, income, or profits. Provided, however, Borrower will not
be required to pay and discharge an such assessment, tax, charge, levy, lien, or
claim so long as (1) the legality of the same shall be contested in good faith
by appropriate proceedings, and (2) Borrower shall have established on
Borrower's books adequate reserves with respect to such contested assessment,
tax, charge, levy, lien, or claim in accorrdance with GAAP.
Performance. Perform and
comply, in a timely manner, with all terms, conditions, and provisions set forth
in this Agreement, in the Related Documents, and in all other instruments and
agreements between Borrower and Lender. Borrower shall notify Lender immediately
in writing of any default in connection with any agreement.
Operations. Maintain executive
and management personnel with substantially the same qualifications and
experience as the present executive and management personnel; provide written
notice to Lender of any change in executive and management personnel; conduct
its business affairs in a reasonable and prudent manner.
Environmental Studies.
Promptly conduct and complete, at Borrower's expense, all such investigations,
studies, samplings and testings as may be requested by Lender or any
governmental authority relative to any substance, or any waste or by-product of
any substance defined as toxic or a hazardous substance under applicable
federal, state, or local law, rule, regulation, order or directive, at or
affecting any property or any facility owned, leased or used by
Borrower.
Compliance with Governmental
Requirements. Comply with all laws, ordinances, and regulations, now or
hereafter in effect, of all governmental authorities applicable to the conduct
of Borrower's properties, businesses and operations, and to the use or occupancy
of the Collateral, including without limitation, the Americans With Disabilities
Act. Borrower may contest in good faith any such law, ordinance, or regulation
and withhold compliance during any proceeding, including appropriate appeals, so
long as Borrower has notified Lender in writing prior to doing so and so long
as, in Lender's sole opinion, Lender's interests in the Collateral are not
jeopardized. Lender may require Borrower to post adequate security or a surety
bond, reasonably satisfactory to Lender, to protect Lender's
interest.
Inspection. Permit employees
or agents of Lender at any reasonable time to inspect any and all Collateral for
the Loan or Loans and Borrower's other properties and to examine or audit
Borrower's books, accounts, and records and to make copies and memoranda of
Borrower's books, accounts, and records. If Borrower now or at any time
hereafter maintains any records (including without limitation computer generated
records and computer software programs for the generation of such records) in
the possession of a third party, Borrower, upon request of Lender, shall notify
such party to permit Lender free access to such records at all reasonable times
and to provide Lender with copies of any records it may request, all at
Borrower's expense.
Environmental Compliance and
Reports. Borrower shall comply in all respects with any and all
Environmental laws; not cause or permit to exist, as a result of an intentional
or unintentional action or omission on Borrower's part or on the part of any
third party, on property owned and/or occupied by Borrower, any environmental
activity where damage may result to the environment, unless such environmental
activity is pursuant to and in compliance with the conditions of a permit issued
by the appropriate federal, state or local governmental authorities; shall
furnish to Lender promptly and in any event within thirty (30) days after
receipt thereof a copy of any notice, summons, lien, citation, directive, letter
or other communication from any governmental agency or instrumentality
concerning any intentional or unintentional action or omission on Borrower's
part in connection with any environmental activity whether or not there is
damage to the environment and/or other natural resources.
Additional Assurances. Make,
execute and deliver to Lender such promissory notes, mortgages, deeds of trust,
security agreements, assignments, financing statements, instruments, documents
and other agreements as Lender or its attorneys may reasonably request to
evidence and secure the Loans and to perfect all Security
Interests.
LENDER'S EXPENDITURES. If any
action or proceeding is commenced that would materially affect Lender's interest
in the Collateral or if Borrower fails to comply with any provision of this
Agreement or any Related Documents, including but not limited to Borrower's
failure to discharge or pay when due any amounts Borrower is required to
discharge or pay under this Agreement or any Related Documents, Lender on
Borrower's behalf may (but shall not be obligated to) take any action that
Lender deems appropriate, including but not limited to discharging or paying all
taxes, liens, security interests, encumbrances and other claims, at any time
levied or placed on any Collateral and paying all costs for insuring,
maintaining and preserving any Collateral. All such expenditures incurred or
paid by Lender for such purposes will then bear interest at the rate charged
under the Note from the date incurred or paid by Lender to the date of repayment
by Borrower. All such expenses will become a part of the indebtedness and, at
Lender's option, will (A) be payable on demand; (B) be added to the balance of
the Note and be apportioned among and be payable with any installment payments
to become due during either (1) the term of any applicable insurance policy; or
(2) the remaining term of the Note; or (C) be treated as a balloon payment which
will be due and payable at the Note's maturity.
BUSINESS
LOAN AGREEMENT (Continued)
Loan No:
323876
CESSATION OF ADVANCES. If
Lender has made any commitment to make any Loan to Borrower, whether under this
Agreement or under any other agreement, Lender shall have no obligation to make
Loan Advances or to disburse Loan proceeds if: (A) Borrower or any Guarantor is
in default under the terms of this Agreement or any of the Related Documents or
any other agreement that Borrower or any Guarantor has with Lender; (B) Borrower
or any Guarantor dies, becomes incompetent or becomes insolvent, files a
petition in bankruptcy or similar proceedings, or is adjudged a bankrupt; (C)
there occurs a material adverse change in Borrower's financial condition, in the
financial condition of any Guarantor, or in the value of any Collateral securing
any Loan; or (D) any Guarantor seeks, claims or otherwise attempts to
limit, modify or revoke such Guarantor's guaranty of the Loan or any other Loan
with Lender; or (E) Lender in good xxxxx xxxxx itself insecure, even though no
Event of Default shall have occurred.
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 XXX or Xxxxx
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,
and, at Lender's option, to administratively freeze all such accounts to allow
Lender to protect Lender's charge and setoff rights provided in this
paragraph.
DEFAULT. Each of the following
shall constitute an Event of Default under this Agreement:
Payment Default. Borrower
fails to make any payment when due under the Loan.
Other Defaults. Borrower fails
to comply with or to perform any other term, obligation, covenant or condition
contained in this Agreement 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.
Default in Favor of Third
Parties. Borrower or any Grantor defaults under any Loan, extension of
credit, security agreement, purchase or sales agreement, or any other agreement,
in favor of any other creditor or person that may materially affect any of
Borrower's or any Grantor's property or Borrower's or any Grantor's ability to
repay the Loans or perform their respective obligations under this Agreement or
any of the Related Documents.
False Statements. Any
warranty, representation or statement made or furnished to Lender by Borrower or
on Borrower's behalf under this Agreement 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.
Defective Collateralization.
This Agreement or any of the Related Documents ceases to be in full force and
effect (including failure of any collateral document to create a valid and
perfected security interest or lien) at any time and for any
reason.
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 of any of the
Indebtedness or any Guarantor dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any Guaranty of the Indebtedness.
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 the Loan is impaired.
Insecurity. Lender in good
faith believes itself insecure.
Right to Cure. If any default,
other than a default on Indebtedness, is curable and if Borrower or Grantor, as
the case may be, has not been given a notice of a similar default within the
preceding twelve (12) months, it may be cured if Borrower or Grantor, as the
case may be, after receiving written notice from Lender demanding cure of such
default: (1) cure the default within ten (10) days; or (2) if the cure requires
more than ten (10) days, immediately initiate steps which Lender deems in
Lender's sole discretion to be sufficient to cure the default and thereafter
continue and complete all reasonable and necessary steps sufficient to produce
compliance as soon as reasonably practical.
EFFECT OF AN EVENT OF DEFAULT.
If any Event of Default shall occur, except where otherwise provided in this
Agreement or the Related Documents, all commitments and obligations of Lender
under this Agreement or the Related Documents or any other agreement immediately
will terminate (including any obligation to make further Loan Advances or
disbursements), and, at Lender's option, all Indebtedness immediately will
become due and payable, all without notice of any kind to Borrower, except that
in the case of an Event of Default of the type described in the "Insolvency"
subsection above, such acceleration shall be automatic and not optional. In
addition, Lender shall have all the rights and remedies provided in the Related
Documents or available at law, in equity, or otherwise. Except as may be
prohibited by applicable law, all of Lender's rights and remedies shall be
cumulative and may be exercised singularly or concurrently. Election by Lender
to pursue any remedy shall not exclude pursuit of any other remedy, and an
election to make expenditures or to take action to perform an obligation of
Borrower or of any Grantor shall not affect Lender's right to declare a default
and to exercise its rights and remedies.
MISCELLANEOUS PROVISIONS. The
following miscellaneous provisions are a part of this Agreement:
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Amendments. This
Agreement, together with any Related Documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in
this Agreement. No alteration of or amendment to this Agreement shall be
effective unless given in writing and signed by the party or parties
sought to be charged or bound by the alteration or
amendment.
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Attorneys' Fees; Expenses.
Borrower agrees to pay upon demand all of Lender's costs and expenses, including
Lender's attorneys' fees and Lender's legal expenses, incurred in connection
with the enforcement of this Agreement. Lender may hire or pay someone else to
help enforce this Agreement, and Borrower shall pay the costs and expenses of
such enforcement. Costs and expenses include Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and legal
expenses for bankruptcy proceedings (including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-judgment
collection services. Borrower also shall pay all court costs and such additional
fees as may be directed by the court.
Caption Headings. Caption
headings in this Agreement are for convenience purposes only and are not to be
used to interpret or define the provisions of this Agreement.
Consent to Loan Participation.
Borrower agrees and consents to Lender's sale or transfer, whether now or later,
of one or more participation interests in the Loan to one or more purchasers,
whether related or unrelated to Lender. Lender may provide, without
any
limitation
whatsoever, to anyone or more purchasers, or potential purchasers, any
information or knowledge Lender may have about Borrower or about any other
matter relating to the Loan, and Borrower hereby waives any rights to privacy
Borrower may have with respect to such matters. Borrower additionally waives any
and all notices of sale of participation interests, as well as all notices of
any repurchase of such participation interests. Borrower also agrees that the
purchasers of any such participation interests will be considered as the
absolute owners of such interests in the Loan and will have all the rights
granted under the participation agreement or agreements governing the sale of
such participation interests. Borrower further waives all rights of offset or
counterclaim that it may have now or later against Lender or against any
purchaser of such a participation interest and unconditionally agrees that
either Lender or such purchaser may enforce Borrower's obligation under the Loan
irrespective of the failure or insolvency of any holder of any interest in the
Loan. Borrower further agrees that the purchaser of any such participation
interests may enforce its interests irrespective of any personal claims or
defenses that Borrower may have against Lender.
Governing
Law. This Agreement 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 Agreement has been
accepted by Lender in the State of West Virginia.
No Waiver by Lender. Lender
shall not be deemed to have waived any rights under this Agreement unless such
waiver is given in writing
Loan No:
323876
BUSINESS
LOAN AGREEMENT (Continued)
and
signed by Lender. No delay or omission on the part of Lender in exercising any
right shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by Lender,
nor any course of dealing between Lender and Borrower. or between Lender and any
Grantor, shall constitute a waiver of any of Lender's rights or of any of
Borrower's or any Grantor's obligations as to any future transactions. Whenever
the consent of Lender is required under this Agreement, the granting of such
consent by Lender in any instance shall not constitute continuing consent to
subsequent instances where such consent is required and in all cases such
consent may be granted or withheld in the sole discretion of
Lender.
Notices. Any notice required
to be given under this Agreement shall be given in writing, and shall be
effective when actually delivered, when actually received by telefacsimile
(unless otherwise required by law), when deposited with a nationally recognized
overnight courier, or, if mailed, when deposited in the United States mail, as
first class, certified or registered mail postage prepaid, directed to the
addresses shown near the beginning of this Agreement. Any party may change its
address for notices under this Agreement by giving formal written notice to the
other parties, specifying that the purpose of the notice is to change the
party's address. For notice purposes, Borrower agrees to keep Lender informed at
all times of Borrower's current address. Unless otherwise provided or required
by law, if there is more than one Borrower, any notice given by Lender to any
Borrower is deemed to be notice given to all Borrowers.
Severability. If a court of
competent jurisdiction finds any provision of this Agreement to be illegal,
invalid, or unenforceable as to any circumstance, that finding shall not make
the offending provision illegal, invalid, or unenforceable as to any other
circumstance. If feasible, the offending provision shall be considered modified
so that it becomes legal, valid and enforceable. If the offending provision
cannot be so modified, it shall be considered deleted from this Agreement.
Unless otherwise required by law, the illegality, invalidity, or
unenforceability of any provision of this Agreement shall not affect the
legality, validity or enforceability of any other provision of this
Agreement.
Subsidiaries and Affiliates of
Borrower. To the extent the context of any provisions of this Agreement
makes it appropriate, including without limitation any representation, warranty
or covenant, the word "Borrower" as used in this Agreement shall include all of
Borrower's subsidiaries and affiliates. Notwithstanding the foregoing however,
under no circumstances shall this Agreement be construed to require Lender to
make any Loan or other financial accommodation to any of Borrower's subsidiaries
or affiliates.
Successors and Assigns. All
covenants and agreements by or on behalf of Borrower contained in this Agreement
or any Related Documents shall bind Borrower's successors and assigns and shall
inure to the benefit of Lender and its successors and assigns. Borrower shall
not, however, have the right to assign Borrower's rights under this Agreement or
any interest therein, without the prior written consent of Lender.
Survival of Representations and
Warranties. Borrower understands and agrees that in making the Loan,
Lender is relying on all representations, warranties, and covenants made by
Borrower in this Agreement or in any certificate or other instrument delivered
by Borrower to Lender under this Agreement or the Related Documents. Borrower
further agrees that regardless of any investigation made by Lender. all such
representations, warranties and covenants will survive the making of the Loan
and delivery to Lender of the Related Documents, shall be continuing in nature,
and shall remain in full force and effect until such time as Borrower's
Indebtedness shall be paid in full, or until this Agreement shall be terminated
in the manner provided above, whichever is the last to occur.
Time is of the Essence. Time
is of the essence in the performance of this Agreement.
Waive
Jury. All parties to this Agreement hereby waive the right to any jury trial in
any action, proceeding, or counterclaim brought by any party against any other
party.
DEFINITIONS. The following
capitalized words and terms shall have the following meanings when used in this
Agreement. Unless specifically stated to the contrary, all references to dollar
amounts shall mean amounts in lawful money of the United States of America.
Words and terms used in the singular shall include the plural, and the plural
shall include the singular, as the context may require. Words and terms not
otherwise defined in this Agreement shall have the meanings attributed to such
terms in the Uniform Commercial Code. Accounting words and terms not otherwise
defined in this Agreement shall have the meanings assigned to them in accordance
with generally accepted accounting principles as in effect on the date of this
Agreement:
Advance. The word "Advance"
means a disbursement of Loan funds made, or to be made, to Borrower or on
Borrower's behalf on a line of credit or multiple advance basis under the terms
and conditions of this Agreement.
Agreement. The word"
Agreement" means this Business Loan Agreement, as this Business Loan Agreement
may be amended or modified from time to time, together with all exhibits and
schedules attached to this Business Loan Agreement from time to
time.
Borrower. The word "Borrower"
means CHAMPION INDUSTRIES INC and includes all co-signers and co-makers signing
the Note and all their successors and assigns.
Collateral. The word
"Collateral" means all property and assets granted as collateral security for a
Loan, whether real or personal property, whether granted directly or indirectly,
whether granted now or in the future, and whether granted in the form of a
security interest, mortgage, collateral mortgage, deed of trust, assignment,
pledge, crop pledge, chattel mortgage, collateral chattel mortgage, chattel
trust, factor's lien, equipment trust, conditional sale, trust receipt, lien,
charge, lien or title retention contract, lease or consignment intended as a
security device, or any other security or lien interest whatsoever, whether
created by law, contract, or otherwise.
Environmental Laws. The words
"Environmental Laws" mean any and all state, federal and local statutes,
regulations and ordinances relating to the protection of human health or the
environment, including without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended. 42 U.S.C. Section
9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of
1986, Pub. L. No. 99-499 ("XXXX"), the Hazardous Materials Transportation Act.
49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., or other applicable state or federal law, rules,
or regulations adopted pursuant thereto.
Event of Default. The words
"Event of Default" mean any of the events of default set forth in this Agreement
in the default section of this Agreement.
GAAP. The word "GAAP" means
generally accepted accounting principles.
Grantor. The word "Grantor"
means each and all of the persons or entities granting a Security Interest in
any Collateral for the Loan, including without limitation all Borrowers granting
such a Security Interest.
Guarantor. The word
"Guarantor" means any guarantor, surety, or accommodation party of any or all of
the Loan.
Guaranty. The word "Guaranty"
means the guaranty from Guarantor to Lender, including without limitation a
guaranty of all or part of the Note.
Hazardous Substances. The
words "Hazardous Substances" mean materials that, because of their quantity,
concentration or physical, chemical or infectious characteristics, may cause or
pose a present or potential hazard to human health or the environment when
improperly used, treated, stored, disposed of, generated, manufactured,
transported or otherwise handled. The words "Hazardous Substances" are used in
their very broadest sense and include without limitation any and all hazardous
or toxic substances, materials or waste as defined by or listed under the
Environmental Laws. The term "Hazardous Substances" also includes, without
limitation, petroleum and petroleum by-products or any fraction thereof and
asbestos.
Indebtedness. The word
"Indebtedness" means the indebtedness evidenced by the Note or Related
Documents, including all principal and interest together with all other
indebtedness and costs and expenses for which Borrower is responsible under this
Agreement or under any of the Related Documents.
Lender. The word "Lender"
means FIRST BANK OF CHARLESTON, INC. its successors and assigns.
Loan. The word "Loan" means
any and all Loans and financial accommodations from Lender to Borrower whether
now or hereafter existing, and however evidenced, including without limitation
those Loans and financial accommodations described herein or described on any
exhibit or schedule attached to this Agreement from time to time.
Note. The word "Note" means
the Note executed by CHAMPION INDUSTRIES INC in the principal amount of
$767,852.00 dated April 22, 2008, together with all renewals of, extensions of,
modifications of, refinancings of, consolidations of, and substitutions for the
note or credit agreement.
Related Documents. The words
"Related Documents" mean all promissory notes, credit agreements, Loan
agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral mortgages, and all other
instruments, agreements and documents, whether now or hereafter existing,
executed in connection with the Loan.
Security Agreement. The words
"Security Agreement" mean and include without limitation any agreements,
promises, covenants, arrangements, understandings or other agreements, whether
created by law, contract, or otherwise, evidencing, governing, representing, or
creating a. Security Interest.
Loan No:
323876
BUSINESS
LOAN AGREEMENT (Continued)
Security Interest. The words
"Security Interest" mean, without limitation, any and all types of collateral
security, present and future, whether in the form of a lien, charge,
encumbrance, mortgage, deed of trust, security deed, assignment, pledge, crop
pledge, chattel mortgage, collateral chattel mortgage, chattel trust, factor's
lien, equipment trust, conditional sale, trust receipt, lien or title retention
contract, lease or consignment intended as a security device, or any other
security or lien interest whatsoever whether created by law, contract, or
otherwise.
BORROWER
ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN AGREEMENT AND
BORROWER AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS DATED APRIL 22,
2008.
|
By: /s/Xxxxx X.
Xxxxxx
|
By:
/s/Xxxxxx
Xxxxxx
|
| XXXXX X. XXXXXX, | XXXXXX XXXXXX |
| President of CHAMPION INDUSTRIES INC | Secretary of CHAMPION INDUSTRIES INC |
|
FIRST
BANK OF CHARLESTON, INC
By:___________________________________
Authorized
Signer
|
