EXHIBIT 10.2
LOAN DOCUMENTS MODIFICATION AGREEMENT
(November 13, 2002)
THIS LOAN DOCUMENTS MODIFICATION AGREEMENT (hereinafter referred to as
this "Amendment") is made and entered into as of the 13th day of November,
2002, by and among INNOTRAC CORPORATION, a Georgia corporation (hereinafter
referred to as "Borrower"), SOUTHTRUST BANK, an Alabama banking corporation,
successor by conversion to SouthTrust Bank, N.A., a national banking
association (hereinafter referred to as "Lender"), and: iFULFILLMENT, INC. a
Georgia corporation (hereinafter referred to as "Guarantor").
BACKGROUND STATEMENT
Borrower and Lender are parties to that certain Amended and Restated
Loan and Security Agreement dated January 25, 1999, as previously amended
pursuant to that certain First Amendment to Amended and Restated Loan and
Security Agreement dated April 29, 1999, that certain letter (the "2000
Letter") from Lender to Borrower dated August 9, 2000, that certain letter (the
"2001 Letter") from Lender to Borrower dated September 10, 2001, and that
certain Loan Documents Modification Agreement dated May 31, 2002 (hereinafter
collectively referred to as the "Agreement"). All capitalized terms used herein
shall have the same meanings as are ascribed to them in the Agreement unless
otherwise herein defined. Borrower and Lender are also parties to that certain
Amended and Restated Revolving Credit Note dated April 29, 1999, made by
Borrower to the order of Lender in the original principal amount of Forty
Million and No/100 Dollars ($40,000,000.00), which evidences the indebtedness
of the Revolving Line of Credit (hereinafter referred to as the "Revolving
Note"). Payment of certain obligations of Borrower provided for in the Loan
Documents is guaranteed by Guarantor pursuant to that certain Guaranty dated
May 31, 2002 (hereinafter referred to as the "Guaranty"). Borrower and Lender
have agreed to amend the Agreement, Guarantor has agreed to reaffirm its
Guaranty, and the parties are entering into this Amendment to evidence their
agreement.
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, Lender and
Guarantors do hereby agree as follows:
1. LOAN BALANCES. The foregoing recitals are true and correct
and are incorporated herein by reference. Borrower and Lender acknowledge and
agree that as of November 12, 2002, the outstanding principal balance of the
Revolving Note is Seventeen Million One Hundred Fifty Thousand and No/100
Dollars ($17,150,000.00).
2. MODIFICATION OF AGREEMENT. The Agreement is hereby modified
and amended, effective as of the date hereof, as follows:
(a) By deleting the definition of "Net Income" contained in
Section 1.1 of the Agreement and substituting in lieu thereof the following new
definition of "Net Income":
"Net Income" shall mean, for any fiscal period of any Person,
the net income (or loss), after provisions for taxes (either actual, accrued
or deemed, in the case of a pass-through entity, determined as if the highest
marginal individual income tax rate were applicable), of such Person on a
consolidated basis for such period (taken as a single accounting period)
determined in conformity with GAAP."
(b) By deleting the pricing matrix contained in Section 2.2 (a) of
the Agreement and used to calculate the LIBOR Margin and substituting in lieu
thereof the following new pricing matrix to calculate the LIBOR Margin:
If Leverage Ratio Is: Then the LIBOR Margin Is:
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Greater than 1.50 to 1.0 200 basis points
Greater than 1.25 to 1.0 but not greater than 1.50 to 1.0 150 basis points
Greater than 0.75 to 1.0 but not greater than 1.25 to 1.0 125 basis points
Less than 0.75 to 1.0 100 basis points
(c) By deleting the text of Section 12.1 of the Agreement, which
presently states "Borrower shall have at all times a Leverage Ratio of not more
than 2.0:1," and replacing it with the following:
"Borrower shall have at all times a Leverage Ratio of not more
than 1.5 : 1."
(d) By deleting the text of Section 12.2 of the Agreement, which
presently states "The Tangible Net Worth of Borrower shall be at least
Thirty-Five Million Dollars ($35,000,000), all as determined under GAAP and as
adjusted with respect to any repurchase by Borrower of its equity securities
approved by Lender, and shall annually increase over the amount as of the end of
the prior Fiscal year," and replacing it with the following:
"The Tangible Net Worth of Borrower shall at all times be at
least Thirty-Four Million Dollars ($34,000,000), all as
determined under GAAP, and, commencing with the December 31,
2003 measurement of Tangible Net Worth, shall annually
increase over the amount as of the end of the prior Fiscal
Year."
3. WAIVER OF FINANCIAL COVENANTS DEFAULT. Absent the occurrence under
the Agreement or any of the other Loan Documents of any other intervening Event
of Default, Lender hereby grants to Borrower a one-time only waiver of the
following financial covenant Events of Defaults, at which time Lender shall
again review and measure the following financial covenants (hereinafter
referred to as the "Measurement Date"): (a) Tangible Net Worth Covenant (as set
forth in Section 12.2 of the Agreement): through the period ending September
30, 2002, and (b) Fixed Charge Coverage Ratio Covenant (as set forth in Section
12.3 of the Agreement): through the period ending September 30, 2003. Borrower
and Guarantor acknowledge and agree that a future Event of Default arising or
occurring in connection with any financial covenant set forth in the Agreement,
including but not limited to those set forth in this Paragraph 3, on or after
the applicable Measurement Date shall, henceforth, not be waived by Lender,
shall not be subject to any notice, grace or cure right otherwise set forth in
the Agreement of other Loan Documents, and Lender may avail itself of any and
all legal remedies available to Lender under the Loan Documents or applicable
law without any additional notice whatsoever.
4. MODIFICATION OF LOAN DOCUMENT. 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 (including, without limitation, the Agreement) to the
Agreement shall refer to the Agreement as herein amended.
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5. GUARANTORS' REAFFIRMATION. Guarantor hereby acknowledges and
consents to the foregoing amendments to the Agreement and all of the other Loan
Documents. Guarantor hereby ratifies, confirms, reaffirms and covenants that
the Guaranty which it has executed is validly existing and binding against it
under the terms of such Guaranty and guarantees the repayment of all the
"Guaranteed Obligations," as therein defined. Guarantor hereby reaffirms and
restates, as of the date hereof, all covenants, representations and warranties
set forth in the Guaranty.
6. RATIFICATION; FEES AND EXPENSES. Except as herein expressly
modified or amended, all the terms and conditions of the Agreement and the
other Loan Documents are hereby ratified, affirmed, and approved. In
consideration of Lender agreeing to this Amendment as herein provided
(including the waiver of certain financial covenant breaches), Borrower agrees
to pay Lender a loan covenant waiver fee in the amount of Fifty Thousand and
No/100 Dollars ($50,000.00) and further agrees to pay all fees and expenses
incurred in connection with this Amendment. Borrower acknowledges and agrees
that once paid, the loan covenant waiver fee shall be fully earned and shall
not be refundable or rebatable in whole or in part.
7. NO DEFENSES; RELEASE. For purposes of this Paragraph 7, 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 or causes of action of any kind or nature
whatsoever with respect to the Agreement, the other Loan documents or the
Obligations, or with respect to any other documents or instruments now or
heretofore evidencing, securing or in any way relating to the Obligations or
with respect to any other transaction, matter or occurrence between any of the
Borrower Parties and any Lender Parties or with respect to any acts or
omissions of any Lender Parties (all of said defenses, setoffs, claims,
counterclaims 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 all 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 that Borrower shall indemnify, hold harmless and defend all
Lender Parties from and against any and all 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 or allegation by any Borrower
Parties of any Loan Related Claims or as a result of any legal action related
thereto. Borrower hereby reaffirms and restates, as of the date hereof, all
covenants, representations and warranties set forth in the Agreement.
8. NO NOVATION. Borrower hereby acknowledges and agrees that this
Amendment shall not constitute a novation of the indebtedness evidenced by the
Revolving Note.
9. NO WAIVER OR IMPLICATION. Borrower hereby agrees that nothing
herein shall constitute a waiver by Lender of any default, whether known or
unknown, which may exist under the Agreement or any other Loan Document.
Borrower hereby further agrees that no action,
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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
Obligations or any portion thereof, or with respect to matters involving
security for the Obligations, or with respect to any other matter relating to
the Obligations, shall require or imply any future extension, indulgence,
waiver, consent or agreement by Lender. Borrower hereby acknowledges and agrees
that Lender has made no agreement, and is in no way obligated, to grant any
future extension, indulgence, waiver or consent with respect to the Obligations
or any matter relating to the Obligations.
10. NO RELEASE OF COLLATERAL. Borrower further agrees that this
Amendment shall in no way occasion a release of any collateral held by Lender
as security to or for the Obligations, and that all collateral held by Lender
as security to or for the Obligations shall continue to secure the Obligations.
11. 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.
12. AUTHORITY. By executing this Amendment as hereinafter
provided, Xxxxx Xxxxxxx hereby certifies that he is the President of Borrower
and is duly authorized to execute this Amendment on behalf of Borrower.
IN WITNESS WHEREOF, this Amendment has been duly executed under seal
by Borrower, Lender, and Guarantor as of the day and year first above written.
BORROWER:
INNOTRAC CORPORATION, a Georgia
corporation
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Xxxxx Xxxxxxx
President
[CORPORATE SEAL]
LENDER:
SOUTHTRUST BANK, an Alabama banking
corporation
By: /s/ Noble X. Xxxxx
--------------------------------------
Noble X. Xxxxx
Vice President
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GUARANTOR:
iFULFILLMENT, INC., a Georgia corporation
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Xxxxx Xxxxxx
President
[CORPORATE SEAL]
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