EXHIBIT 10.4(p)
LOAN DOCUMENTS MODIFICATION AGREEMENT
THIS LOAN DOCUMENTS MODIFICATION AGREEMENT (hereinafter referred to as
this "Amendment") is made and entered into as of the 7th day of November, 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 and to modify all of the
other Loan Documents to increase the sublimit for Letters of Credit to
$1,250,000 and permit the issuance of a Letter of Credit with an expiry date
later than the expiration of the Commitment Period, subject to the terms and
conditions set forth below.
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. Effective 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, the second sentence of Section 2.1(B)(1) of the Loan Agreement is
amended and restated in its entirety as follows:
"The aggregate amount of all outstanding Letters of Credit shall not
exceed $1,250,000, and no Letters of Credit shall have an expiry date of
more than one (1) year from the date of issuance or beyond the expiration
of the Commitment Period, provided that (i) Borrower may request a
$1,000,000 Letter of Credit to be issued for the benefit of Duke Realty
Limited Partnership that has an expiry date of no later than March 31,
2006 (the "Duke LC"), and (ii) in the event that the Duke LC remains
outstanding after the expiration of the Commitment Period, Borrower shall
immediately pledge to Bank cash collateral to secure Borrower's
obligations under the Duke LC in an amount equal to 105% of the undrawn
amount of the Duke LC.
2. 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.
3. 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.
4. NO DEFENSES; RELEASE. For purposes of this Paragraph 4, 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.
5. 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 and affirmed and shall remain valid and in full force and
effect except as may be hereinabove modified and amended.
6. 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
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for the Loan, and that all collateral held by Lender as security to or for the
Loan shall continue to secure the Loan.
7. 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.
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/ Christine A. Herren
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Christine A. Herren, Assistant Secretary
LENDER:
WACHOVIA BANK, NATIONAL ASSOCIATION
successor by merger to South Trust Bank
By:____________________________________________
Catherine Cowan, Director
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