EXHIBIT 10.4(n)
LOAN DOCUMENTS MODIFICATION AGREEMENT
THIS LOAN DOCUMENTS MODIFICATION AGREEMENT (hereinafter referred to as
this "Amendment") is made and entered into as of the 19th day of August, 2005,
by and among INNOTRAC CORPORATION, a Georgia corporation and successor by merger
to iFULFILLMENT, Inc., a Georgia corporation (hereinafter referred to as
"Borrower"), and WACHOVIA BANK, NATIONAL ASSOCIATION, successor by merger to
SOUTHTRUST BANK, (hereinafter referred to as "Lender").
BACKGROUND STATEMENT
Borrower and Lender are parties to that certain Third Amended and Restated
Line of Credit Note dated May 10, 2004, made by Borrower (and iFulfillment,
Inc.) to the order of Lender in the original principal amount of Twenty Five
Million and No/100 Dollars ($25,000,000.00), as modified by the parties from
time to time (hereinafter referred to as the "Note", and the loan evidenced
thereby as the "Loan"). The Note is secured by that certain (a) Second Amended
and Restated Loan and Security Agreement by and between Borrower and Lender
dated as of April 3, 2003, as subsequently modified by the parties from time to
time (the "Loan Agreement"), and (b) any and all other documents related to the
aforementioned documents, as subsequently modified by the parties from time to
time (hereinafter collectively referred to as the "Loan Documents"). Borrower
and Lender have agreed to amend the Loan Agreement, to modify all of the other
Loan Documents to reflect the same, and to waive a technical default under the
Loan Agreement, and the parties hereto are entering into this Amendment to
evidence their agreements.
AGREEMENT
FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00),
the foregoing recitals, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Borrower and Lender do hereby
agree as follows:
1. MODIFICATION OF LOAN AGREEMENT. As of the date hereof, the
representations and warranties set forth in the Loan Agreement are hereby
affirmed to be true and correct as of the date hereof. Effective as of the date
hereof, Section 1.1 of the Loan Agreement is amended by deleting the definition
of "Commitment Period" in its entirety and replacing the same with the following
substitute definition:
"Commitment Period - shall mean that period during which Bank is obligated
to make advances under the Line of Credit Loan hereunder, as provided in Section
2.1 hereof. The Commitment Period shall commence upon satisfaction of the
conditions to lending set forth in Article III and shall continue until November
1, 2005, unless sooner terminated according to the provisions hereof."
2. MODIFICATION OF NOTE. Effective as of the date hereof, the paragraph on
page 2 of the Note starting with the words "Interest only at said rates..." is
hereby amended by deleting the second sentence of such paragraph and replacing
such sentence with the following substitute sentence:
"On November 1, 2005, all unpaid principal, plus accrued and unpaid
interest, shall be due and payable in full."
3. MODIFICATION OF LOAN DOCUMENTS. As of the date hereof, Borrower hereby
reaffirms and restates each and every warranty and representation set forth in
the Loan Documents. The terms of the Loan Documents are hereby modified and
amended, effective as of the date hereof, so that any reference in any of the
Loan Documents to the Loan Agreement or the Note shall refer to the Loan
Agreement and Note as herein amended.
4. RATIFICATION; EXPENSES. Except as herein expressly modified or amended,
all the terms and conditions of the Note, the Loan Agreement and the other Loan
Documents are hereby ratified, affirmed, and approved. In consideration of
Lender agreeing to modify the Loan Agreement, Borrower agrees to pay all fees
and expenses incurred in connection with this Amendment, including Lender's
attorneys' fees and expenses.
5. NO DEFENSES; RELEASE. For purposes of this Paragraph 5, the terms
"Borrower Parties" and "Lender Parties" shall mean and include Borrower and
Lender, respectively, and each of their respective predecessors, successors, and
assigns, and each past and present, direct and indirect, parent, subsidiary and
affiliated entity of each of the foregoing, and each past and present employee,
agent, attorney-in-fact, attorney-at-law, representative, officer, director,
shareholder, partner, and joint venturer of each of the foregoing, and each
heir, executor, administrator, successor and assign of each of the foregoing;
references in this paragraph to "any" of such parties shall be deemed to mean
"any one or more" of such parties: and references in this sentence to "each of
the foregoing" shall mean and refer cumulatively to each party referred to in
this sentence up to the point of such reference. Borrower hereby acknowledges,
represents and agrees: that Borrower has no defenses, setoffs, claims,
counterclaims, recoupments or causes of action of any kind or nature whatsoever
with respect to the Loan, the Note and the other Loan Documents or the
indebtedness evidence and secured thereby, or with respect to any other
documents or instruments now or heretofore evidencing, securing or in any way
relating to the Loan, or with respect to any other administration or funding of
the Loan, or with respect to any other transaction, matter of occurrence between
any of the Borrower Parties and any Lender Parties or with respect to any acts
or omissions of any Lender Parties, with respect to each of the same, limited
only to the extent that such acts, claims or actions exist on or prior to the
date hereof (all of said defenses, setoffs, claims, counterclaims, recoupments
or causes of action being hereinafter referred to as "Loan Related Claims");
that, to the extent that Borrower may be deemed to have any Loan Related Claims,
Borrower does hereby expressly waive, release and relinquish any and such Loan
Related Claims, whether or not known to or suspected by Borrower; that Borrower
shall not institute or cause to be instituted any legal action or proceeding of
any kind based upon any Loan Related Claims and any and all losses, damages,
liabilities, costs and expenses suffered or incurred by any Lender Parties as a
result of any assertion by any Borrower Parties of any Loan Related Claims or as
a result of any legal action related thereto.
6. NO NOVATION. Borrower and Lender hereby acknowledge and agree that this
Amendment shall not constitute a novation of the indebtedness evidenced by the
Loan Documents, and further that the terms and provisions of the Loan Documents
are hereby ratified
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and affirmed and shall remain valid and in full force and effect except as may
be hereinabove modified and amended.
7. WAIVER OF TECHNICAL DEFAULT; NO OTHER WAIVER OR IMPLICATION. Borrower
has (i) informed Lender that Borrower merged with iFulfillment, Inc., on January
1, 2005, which merger is a default under Section 7.8 of the Loan Agreement and
(ii) requested that Lender waive such default by Borrower. Lender hereby waives
such default under Section 7.8 and Borrower agrees to strictly comply with
Section 7.8 hereafter. Borrower hereby agrees that nothing herein shall
constitute a waiver by Lender of any default (except as expressly provided in
this paragraph 7), whether known or unknown, which may exist under the Note or
any other Loan Document. Borrower hereby further agrees that no action, inaction
or agreement by Lender, including, without limitation, any extension,
indulgence, waiver, consent or agreement of modification which may have occurred
or have been granted or entered into (or which may be occurring or be granted or
entered into hereunder or otherwise) with respect to nonpayment of the Loan or
any portion thereof, or with respect to matters involving security for the Loan,
or with respect to any other matter relating to the Loan, shall require or imply
any further extension, indulgence, waiver, consent or agreement by Lender.
Except as expressly provided in this paragraph 7, Borrower hereby acknowledges
and agrees that Lender has made no agreement, and is in no way obligated, to
grant any further extension, indulgence, waiver or consent with respect to the
Loan or any matter relating to the Loan.
8. NO RELEASE OF COLLATERAL. Borrower further acknowledges and agrees that
this Amendment shall in no way occasion a release of any collateral held by
Lender as security to or for the Loan, and that all collateral held by Lender as
security to or for the Loan shall continue to secure the Loan.
9. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and inure
to the benefit of Borrower and Lender and their respective successors and
assigns, whether voluntary by act of the parties or involuntary by operation of
law.
[Signatures on Following Page]
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IN WITNESS WHEREOF, this Amendment has been duly executed and under seal
by Borrower and Lender, as of the day and year first above written.
BORROWER:
INNOTRAC CORPORATION, a Georgia corporation (SEAL)
By: /s/ Scott D. Dorfman
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Scott D. Dorfman, Chairman, President and
Chief Executive Officer
Attest: /s/ Scott D. Dorfman
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Scott D. Dorfman, Secretary
LENDER:
WACHOVIA BANK, NATIONAL ASSOCIATION
successor by merger to SouthTrust Bank
By:_______________________________________________
Catherine Cowan, Director
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