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EXHIBIT 10.14(B)
FIRST AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT ("First Amendment"), made, entered into and effective as of the 29th
day of April, 1999, by and between INNOTRAC CORPORATION, a Georgia corporation
("Borrower"), as borrower, and SOUTHTRUST BANK, N.A., a national banking
association ("Lender"), as lender;
W I T N E S S E T H :
WHEREAS, Borrower and Lender are parties to that certain Amended and
Restated Loan and Security Agreement, dated as of January 25, 1999 (the "Loan
Agreement"), pursuant to which Lender has established for Borrower a line of
credit in the maximum aggregate principal amount of Thirty Five Million Dollars
($35,000,000); and
WHEREAS, Borrower has requested Lender to increase the maximum
aggregate principal amount of such line of credit to Forty Million Dollars
($40,000,000), and subject to the terms and conditions set forth herein, Lender
is willing to do so; and
WHEREAS, Borrowers and Lender wish to enter into this First Amendment
in order to memorialize their mutual understandings in respect to such revolving
line of credit increase and certain other amendments to the Loan Agreement;
NOW, THEREFORE, for and in consideration of the sum of $10.00, the
foregoing premises and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. Capitalized terms not defined herein shall have
the same meanings as used in the Loan Agreement.
2. AMENDMENT OF LOAN AGREEMENT.
(a) Section 1.1 of the Loan Agreement is hereby amended
by deleting the present definitions of the term "Margin" and "Termination Date"
contained therein in its entirety and substituting in lieu thereof the following
new definition in the appropriate alphabetic order:
"Margin" shall mean an amount equal to the sum of (i) eighty
percent (80%) of the face dollar amount, as at the date of
determination, of Eligible Accounts of Borrower, plus (ii) the
lesser of fifty percent (50%) of the net book value of
Eligible Inventory of Borrower or $5,000,000.
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"Termination Date" shall mean June 1, 2002; provided, however,
that, at Lender's election, by the giving of written notice to
Borrower to such effect prior to such
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termination date or, if such termination date is extended
pursuant hereto, any subsequent anniversary of such
termination date, Lender may extend the "Termination Date"
from year-to-year, in which case the "Termination Date" shall
be the termination date then in effect.
(b) Section 2.1(a) of the Loan Agreement is hereby
amended by changing the words and figure "Thirty Five Million
Dollars ($35,000,000)," wherever they appear in the first
sentence of such Section, to the words and figure "Forty
Million Dollars ($40,000,000)."
(c) Section 11.5 of the Loan Agreement is hereby amended
by deleting the present Section 11.5 in its entirety and by
substituting in lieu thereof the following new Section 11.5:
"11.5 Settlement Sheets.
To the extent requested by Lender, by the twentieth (20th) day
of each calendar month for the calendar month just ended, or
more frequently if requested by Lender, Borrower shall prepare
and deliver to Lender a settlement report with respect to
satisfaction of the Margin Requirement as of the date of
report submission (to include a calculation of Eligible
Accounts) to be in the form of Exhibit "F" attached hereto or
such other form as Lender may deliver for such purpose to
Borrower from time to time hereafter, the statements in which,
in each instance, shall be certified as to truth and accuracy
by a duly authorized officer on behalf of Borrower."
3. CONDITIONS PRECEDENT. The amendments to the Loan Agreement set
forth in this First Amendment shall not become effective unless and until each
of the following conditions shall have been fulfilled to the satisfaction of
Lender:
(a) Amended and Restated Revolving Promissory Note, in
form and substance satisfactory to Lender.
(b) Borrower shall have delivered to Lender certified
resolutions and an incumbency certificate regarding its execution and delivery
of this First Amendment, in form and substance satisfactory to Lender.
(c) Lender shall have received such other documents,
certificates, instruments and agreements as Lender or its counsel may reasonably
require in connection herewith.
4. REPRESENTATIONS AND WARRANTIES. To induce Lender to enter into
this First Amendment and to make advances under the Loan Agreement as amended by
this First Amendment, Borrower represents and warrants that, as of the date of
this First Amendment and after giving effect to the consummation of the
transactions contemplated by this First Amendment and the other agreements
executed in connection herewith:
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(a) Borrower has the right and power and is duly
authorized to enter into this First Amendment and all other agreements executed
in connection herewith;
(b) Except to the extent previously disclosed to and
expressly waived by Lender, the representations and warranties of Borrower
contained in the Loan Agreement remain true and correct as of the date hereof;
(c) No Event of Default or an event or condition which
upon notice, lapse of time or both will constitute an Event of Default has
occurred and is continuing;
(d) The execution, delivery and performance by Borrower
of this First Amendment and the other agreements to which Borrower is a party
(i) have been duly authorized by all necessary action on its part; (ii) do not
and will not, by the lapse of time, the giving of notice or otherwise, violate
the provisions of the terms of its Articles of Incorporation or Bylaws, or of
any mortgage, indenture, security agreement, contract, undertaking or other
agreement to which Borrower is a party, or which purports to be binding on
Borrower or any of its properties; (iii) do not and will not, by lapse of time,
the giving of notice or otherwise, contravene any governmental restriction to
which Borrower or any of its properties may be subject; and (iv) do not and will
not, except as contemplated in the Loan Agreement, result in the imposition of
any lien, charge, security interest or encumbrance upon Borrower's properties
under any indenture, mortgage, deed of trust, loan or credit agreement or other
agreement or instrument to which Borrower is a party or which purports to be
binding on Borrower or any of its properties;
(e) No consent, license, registration or approval of any
governmental authority, bureau or agency is required in connection with the
execution, delivery, performance, validity or enforceability of the First
Amendment and the other agreements executed by Borrower in connection herewith;
and
(f) This First Amendment and the other agreements
executed by Borrower in connection herewith have been duly executed and
delivered by Borrower, are the legal, valid and binding obligations of Borrower
and are enforceable against Borrower in accordance with their respective terms,
except as the same may be limited by (i) applicable bankruptcy, reorganization,
insolvency, moratorium and other similar laws affecting creditors' rights
generally, and (ii) general principles of equity.
5. FEES AND EXPENSES. The Borrower, agrees to pay all fees and
other expenses incurred by Lender in connection with this First Amendment and
the transactions contemplated hereby.
6. LOAN AGREEMENT REMAINS IN FORCE. As specifically amended by
this First Amendment, the terms and conditions of the Loan Agreement shall
remain in full force and effect and this First Amendment shall not be a waiver
of any rights or remedies which Lender has provided for in the Loan Agreement or
any of the other Loan Documents and all such terms and conditions are herewith
ratified, adopted, approved and accepted.
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7. NO NOVATION. This First Amendment and all other agreements
executed by the Borrower on the date hereof are not intended to nor shall be
construed to create a novation or accord and satisfaction, and shall only be a
modification and extension of the existing Obligations of the Borrower to
Lender.
8. SECURITY INTERESTS EXTENDED. It is the express intent of
Lender and the Borrower that the security interests granted to Lender in the
Collateral pursuant to the Loan Agreement and the other Loan Documents extend to
and secure (among other things) the repayment of all amounts advanced to the
Borrower hereunder and all other Obligations.
9. ADDITIONAL DOCUMENTS. Upon the request of Lender, the Borrower
will cause to be done, executed, acknowledged and delivered all such further
acts, conveyances and assurances as Lender from time to time may reasonably
request for accomplishing the transactions referred to herein.
10. ENTIRE AGREEMENT. This First Amendment and the other documents
it refers to comprise the entire agreement relating to the subject matter they
cover and supersede any and all prior written or oral agreements between or
among Lender and the Borrower relating thereto.
11. SEVERABILITY. Any provision of this First Amendment that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or effecting the validity or
enforceability of such provisions in any other jurisdiction.
12. AMENDMENT. No amendment hereto shall be valid unless contained
in a writing duly executed by the party or parties to be bound by it.
13. GOVERNING LAW. THIS FIRST AMENDMENT HAS BEEN DELIVERED AND
SUBMITTED TO LENDER FOR ACCEPTANCE IN ATLANTA, GEORGIA, AND THIS First AMENDMENT
SHALL NOT BE BINDING UPON LENDER OR EFFECTIVE UNTIL ACCEPTED BY LENDER AND SHALL
BE CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH, AND GOVERNED BY, ALL OF THE
PROVISIONS OF THE CODE AND BY THE OTHER LAWS OF THE STATE OF GEORGIA.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto in Atlanta, Georgia as of the date first written above.
Attest: INNOTRAC CORPORATION
/s/ John Nichols By: /s/ Scott Dorfman
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Name: John Nichols Scott Dorfman, President
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Title: VP & CFO
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[CORPORATE SEAL]
SOUTHTRUST BANK, N.A.
By: /s/ Noble Jones
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Noble Jones, Vice President
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