Exhibit 10.58
SECOND AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$2,800,000 April 11, 2003
----------
For value received, ImageMax, Inc., a Pennsylvania corporation,
together with its wholly owned subsidiary, ImageMAX of Delaware, Inc., a
Delaware corporation (together, the "Borrowers") hereby jointly and severally
promise to pay to the order of FIRSTRUST BANK (the "Lender") the lesser of Two
Million Eight Hundred Thousand ($2,800,000) Dollars, or the aggregate unpaid
principal amount of all Revolving Credit Facility Loans made by the Lender to
the Borrowers pursuant to the Credit Agreement (as hereinafter defined), in
immediately available funds at the office of the Agent as set forth in the
Credit Agreement, together with interest on the unpaid principal amount hereof
at the rates and on the dates set forth in the Credit Agreement. The Borrowers
shall jointly and severally pay the principal of, and accrued and unpaid
interest on, the Revolving Credit Loans in full on the Revolving Credit
Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date, amount and interest rate of each Revolving Credit Loan and the date
and amount of each principal payment hereunder.
This Second Amended and Restated Revolving Credit Note ("Second Amended
Note") is one of the Revolving Credit Notes issued pursuant to, and is entitled
to the benefits of, the Amended and Restated Credit Agreement dated as of June
13, 2002, as amended by the First Amendment to Amended and Restated Credit
Agreement dated December 23, 2002, as further amended by the Second Amendment to
Amended and Restated Credit Agreement of even date herewith, by and among the
Borrowers, the Lenders party thereto from time to time, and COMMERCE BANK, N.A.,
as Agent (as the same may be amended, supplemented or otherwise modified from
time to time, collectively the "Credit Agreement"), to which Credit Agreement
reference is hereby made for a statement of the terms and conditions governing
this Second Amended Note, including the terms and conditions under which this
Second Amended Note may be prepaid or its maturity date accelerated.
This Second Amended Note amends and restates in its entirety the First
Amended and Restated Revolving Credit Note dated December 23, 2002 of the
Borrowers in favor of the Lender, and shall be entitled to the benefits of the
rights and benefits of the Agent and the Lender as set forth in the Credit
Agreement. All initially capitalized terms used herein and not otherwise defined
herein are used with the meanings attributed to them in the Credit Agreement.
CONFESSION OF JUDGMENT - THE FOLLOWING SETS FORTH A WARRANT OF
ATTORNEY TO CONFESS JUDGMENT AGAINST EACH OF THE BORROWERS. IN GRANTING THIS
WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST EACH OF THE BORROWERS, EACH OF
THE BORROWERS, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT WITH)
SEPARATE COUNSEL FOR THE BORROWERS, AND WITH KNOWLEDGE OF THE LEGAL EFFECT
HEREOF, HEREBY WAIVES ANY AND ALL RIGHTS SUCH XXXXXXXX HAS, OR MAY HAVE TO PRIOR
NOTICE AND AN OPPORTUNITY TO BE HEARD UNDER THE CONSTITUTIONS AND LAWS OF THE
UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA. EACH OF THE BORROWERS
SPECIFICALLY ACKNOWLEDGES THAT THE AGENT AND EACH OF THE LENDERS HAVE RELIED ON
THIS WARRANT OF ATTORNEY IN GRANTING THE FINANCIAL ACCOMMODATIONS DESCRIBED
HEREIN.
EACH OF THE BORROWERS IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR SUCH BORROWER IN ANY AND ALL
ACTIONS, AND UPON THE OCCURRENCE OF A DEFAULT TO: (I) ENTER JUDGMENT AGAINST
SUCH BORROWER FOR THE PRINCIPAL SUM DUE HEREUNDER OR UNDER ANY OTHER LOAN
DOCUMENTS; OR (II) SIGN FOR SUCH BORROWER AN AGREEMENT FOR ENTERING IN ANY
COMPETENT COURT AN AMICABLE ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST SUCH
BORROWER FOR ALL OR ANY PART OF THE INDEBTEDNESS; AND IN EITHER CASE FOR
INTEREST AND COSTS TOGETHER WITH A REASONABLE COLLECTION FEE. EACH OF THE
BORROWERS FURTHER IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT
OF RECORD TO APPEAR FOR AND ENTER JUDGMENT AGAINST SUCH XXXXXXXX AND IN FAVOR OF
ANY HOLDER HEREOF WITH RESPECT TO AN AMICABLE ACTION OF REPLEVIN OR ANY OTHER
ACTION WITH RESPECT TO THE COLLATERAL GRANTED TO THE AGENT AND THE LENDERS
PURSUANT TO ANY OF THE LOAN DOCUMENTS. EACH OF THE BORROWERS WAIVES ALL RELIEF
FROM ANY AND ALL APPRAISEMENT OR EXEMPTION LAWS NOW IN FORCE OR HEREAFTER
ENACTED. IF A COPY OF THIS NOTE, VERIFIED BY AFFIDAVIT OF AN OFFICER OF THE
AGENT OR ANY OTHER HOLDER HEREOF, SHALL BE FILED IN ANY PROCEEDING OR ACTION
WHEREIN JUDGMENT IS TO BE CONFESSED, IT SHALL NOT BE NECESSARY TO FILE THE
ORIGINAL HEREOF AND SUCH VERIFIED COPY SHALL BE SUFFICIENT WARRANT FOR ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND CONFESS JUDGMENT AGAINST SUCH
XXXXXXXX AS PROVIDED HEREIN. JUDGMENT MAY BE CONFESSED FROM TIME TO TIME UNDER
THE AFORESAID POWERS WHICH SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF.
[balance of page intentionally left blank]
2
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Borrowers have caused this Second Amended and Restated Revolving
Credit Note to be executed under seal by their duly authorized officers, all as
of the day and year first written above.
IMAGEMAX, INC.
IMAGEMAX OF DELAWARE, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Xxxxx X. Xxxxx, Chief Financial Officer of
each of the Borrowers
3
EXPLANATION AND WAIVER OF RIGHTS
REGARDING CONFESSION OF JUDGMENT
1. On the date hereof, each of the undersigned (the "Obligors"), is
signing and delivering to Firstrust Bank ("Bank") an amended and restated
revolving line of credit note in the principal sum of Two Million Eight Hundred
Thousand ($2,800,000) Dollars (as the same may be renewed, modified, amended,
extended, restated or replaced, the "Obligation"). Obligors have been advised by
Bank and by Xxxxxxxx' legal counsel that the Obligation contains a clause that
provides that Bank may confess judgment against Obligors. Obligors have read the
Obligation and clearly and specifically understands that by signing the
Obligation which contains such confession of judgment clauses, each Obligor:
1.1. Is authorizing Bank to enter a judgment against Xxxxxxxx
and in favor of Bank, which will give Bank a lien upon any real estate which
Obligors may own in any county where the judgment is entered;
1.2. Is giving up an important right to any notice or
opportunity for a hearing before the entry of this judgment on the records of
the court;
1.3. Is agreeing that Bank may enter this judgment and
understands that Xxxxxxxx will be unable to contest the validity of the
judgment, should Bank enter it, unless Xxxxxxxx successfully challenges entry of
the judgment through a petition to open or strike the judgment, which will
require Obligors to retain counsel at Obligors' expense;
1.4. May be giving up an important right to any notice or
opportunity for a hearing before Bank may request and use the power of the state
government to deprive each Obligor of its property pursuant to the judgment by
seizing or having the sheriff or other official seize such Xxxxxxx's bank
accounts, inventory, equipment, furnishings, or any other personal property that
such Obligor may own, to satisfy the Obligation; and
1.5. May be immediately deprived of the use of any property
that is seized by Bank pursuant to the judgment without notice or a hearing, and
the procedural rules of Pennsylvania's court system do not guarantee that
Obligors will receive a prompt hearing after Xxxxxxxx' property is seized.
2. Each Obligor knows and understands that it is the confession of
judgment clauses in the Obligation which gives Bank the rights described in
Sections 1.1 through 1.5 above.
3. Fully and completely understanding the rights which are being given
up if Obligors sign the Obligation containing the confessions of judgment, each
Obligor nevertheless freely, knowingly and voluntarily waives such rights and
chooses to sign the Obligation.
4. Obligors acknowledge that the proceeds of the Obligation are to be
used for business purposes.
4
EACH OBLIGOR HAS READ THIS EXPLANATION AND WAIVER PRIOR TO
SIGNING THE OBLIGATIONS AND FULLY UNDERSTANDS THE CONTENTS HEREOF AND THEREOF.
OBLIGORS:
WITNESSED BY: IMAGEMAX, INC.
Xxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxx
-------------- ---------------------------------------
Date: April 11, 2003 Xxxxx X. Xxxxx, Chief Financial Officer
Date: April 11, 2003
WITNESSED BY: IMAGEMAX OF DELAWARE, INC.
Xxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxx
-------------- ---------------------------------------
Date: April 11, 2003 Xxxxx X. Xxxxx, Chief Financial Officer
Date: April 11, 2003
5
