Exhibit 10.4
FIRST AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$2,400,000 December 23, 2002
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 Four Hundred Thousand ($2,400,000) 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 First Amended and Restated Revolving Credit 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 that
First Amendment thereto of even date herewith, by and among the Borrowers, the
Lenders party thereto from time to time, and COMMERCE BANK, NA, as Agent (as the
same may be amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), to which Credit Agreement reference is hereby made for a
statement of the terms and conditions governing this First Amended and Restated
Revolving Credit Note, including the terms and conditions under which this First
Amended and Restated Revolving Credit Note may be prepaid or its maturity date
accelerated.
This First Amended and Restated Revolving Credit Note amends and
restates in its entirety the Amended and Restated Revolving Credit Note dated
June 13, 2002 of the Borrowers and certain predecessors-in-interest to 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 BORROWER 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.
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IN WITNESS WHEREOF, intending to be legally bound hereby, the undersigned
Borrowers have caused this First 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
