ex10-4cc.htm


    
      

    

    Exhibit
10.4(c)(c)

     

     

    
      SEVENTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT

      


      THIS SEVENTH AMENDMENT TO LOAN AND
SECURITY AGREEMENT (hereinafter referred to as this “Amendment”) is made
and entered into as of March 1, 2009, by and between INNOTRAC CORPORATION, a
Georgia corporation (“Borrower”), and WACHOVIA BANK, NATIONAL
ASSOCIATION (“Bank”).

      


      BACKGROUND
STATEMENT

      


      A.    Borrower and
Bank are parties to the Third Amended and Restated Loan and Security Agreement,
dated March 28, 2006, as amended by the First Amendment Agreement, dated as of
July 24, 2006, the Waiver and Amendment Agreement, dated as of November 14,
2006, the Second Waiver and Amendment Agreement, dated as of April 16, 2007, the
Fourth Amendment Agreement, dated as of June 29, 2007, the Fifth Amendment
to Loan and Security Agreement, dated as of September 28, 2007, and the
Sixth Amendment to Loan and Security Agreement, dated as of October 22, 2008 (as
the same now exists and may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced, the “Loan Agreement”) and the other
agreements, documents and instruments referred to therein or any time executed
and/or delivered in connection therewith or related thereto, including this
Amendment (all of the foregoing, together with the Loan Agreement, as the same
now exist or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, being collectively referred to herein as the
“Loan Documents”).

      


      B.    Borrower has
requested that the Bank amend certain provisions of the Loan Agreement as
hereinafter set forth, and the Bank has agreed to make such amendments, subject
to the terms and conditions set forth below.

      


      AGREEMENT

      


      NOW,
THEREFORE, in consideration of the premises and covenants set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Borrower and Bank agree as follows:

      


      1.    Definitions.

      


      (a)    Amendment to Definition of
Termination Date. The definition of “Termination Date” set forth in the
Loan Agreement is hereby amended by deleting such definition in its entirety and
replacing it with the following:

      


      “ ‘Termination Date’
means the earliest of (i) March 31, 2009, (ii) the date on which Borrower
terminates this Agreement and the credit facilities provided hereunder pursuant
to Section 2.13 hereof, and (iii) the date on which Bank terminates its
obligation to make Loans and other extensions of credit to Borrower pursuant to
Section 8.2(a) hereof.”

       

      (b)    Interpretation.  Capitalized
terms used herein, unless otherwise defined, shall have the meanings ascribed to
them in the Loan Agreement.

      


      2.    Conditions
Precedent.  This Amendment shall become effective only upon the
satisfaction of each of the following conditions precedent, in a manner
satisfactory to Bank:

      


      (a)    Borrower
shall have reimbursed Bank for all of Bank’s outstanding legal fees and expenses
incurred in connection with this Amendment in immediately available
funds;

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      (b)    Bank shall
have received, in form and substance satisfactory to Bank, all consents,
waivers, acknowledgments and other agreements from third persons which Bank may
reasonably deem necessary or desirable in order to permit, protect and perfect
its security interests in and liens upon the Collateral or to effectuate the
provisions or purposes of this Amendment and the other Loan Documents;
and

      


      (c)    Bank shall
have received this Amendment, duly authorized, executed and delivered by
Borrower and Obligor.

      


      3.    Representations and
Warranties.  Borrower hereby represents and warrants to Bank as
follows, which representations and warranties are continuing and shall survive
the execution and delivery hereof, and the truth and accuracy of, or compliance
with each, together with the representations, warranties and covenants in the
other Loan Documents, being a continuing condition of the making of Loans by
Bank to Borrower:

      


      (a)    as of the
date of this Amendment and after giving effect hereto, no Default or Event of
Default exists under the Loan Documents;

      


      (b)    the
representations and warranties of Borrower contained in the Loan Documents were
true and correct in all material respects when made and continue to be true and
correct in all material respects on the date hereof;

      


      (c)    the
execution, delivery, and performance by Borrower of this Amendment and the
consummation of the transactions contemplated hereby are within the corporate
power and authority of Borrower and have been duly authorized by all necessary
corporate action on the part of Borrower, do not require any governmental
approvals, do not violate any provisions of any applicable law or any provision
of the organizational documents of Borrower, and do not result in a breach of or
constitute a default under any agreement or instrument to which Borrower are
parties or by which they or any of their properties are bound;

      


      (d)    this
Amendment constitutes the legal, valid, and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms (subject to
bankruptcy, insolvency, reorganization, arrangement moratorium or other similar
laws relating to or affecting the rights of creditors generally and general
principles of equity); and

      


      (e)    Borrower has
freely and voluntarily agreed to the releases and undertakings set forth in this
Amendment.

      


      4.    Acknowledgments and
Stipulations.  Borrower hereby acknowledges, stipulates, and
agrees: (a) that (i) the total outstanding principal balance of the Revolver
Loans on the date of this Amendment is due and owing, in accordance with the
terms of the Loan Agreement and the Revolver Note, without any defense,
counterclaim, deduction, recoupment or offset and (ii) to the extent that
Borrower has any defense, counterclaim, deduction, recoupment or offset with
respect to the payment by the Borrower of the Obligations or the payment or
performance of Borrower of its obligations under the terms of any Loan Agreement
to which it is a party, the same is hereby waived; and (b) the Loan Documents
executed by Borrower are legal, valid, and binding obligations enforceable
against Borrower in accordance with their respective terms (subject to
bankruptcy, insolvency, reorganization, arrangement, moratorium, or other
similar laws relating to or affecting the rights of creditors generally and
general principles of equity).

       

      
        
           

        

        
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      5.     No Novation.  This
Amendment is not intended to be, nor shall it be construed to create, a novation
or accord and satisfaction, and the Loan Agreement and the other Loan Documents
are hereby ratified and affirmed and remain in full force and
effect.  Notwithstanding any prior mutual temporary disregard of any
of the terms of any of the Loan Documents, the parties agree that the terms of
each of the Loan Documents shall be strictly adhered to on and after the date
hereof, except as expressly modified by this Amendment.

      


      6.     Release.  To induce
the Bank to enter into this Amendment, Borrower hereby releases, acquits, and
forever discharges Bank and its respective officers, directors, attorneys,
agents, employees, successors, and assigns, from all liabilities, claims,
demands, actions, or causes of action of any kind (if there be any), whether
absolute or contingent, due or to become due, disputed or undisputed, liquidated
or unliquidated, at law or in equity, or known or unknown, that any one or more
of them now have or, prior to the date hereof, ever have had against Bank,
whether arising under or in connection with any of the Loan Documents or
otherwise, and Borrower covenants not to sue at law or at equity Bank with
respect to any of the foregoing liabilities, claims, demands, actions, or causes
of action (if there be any).  Borrower hereby acknowledges and agrees
that the execution of this Amendment by Bank shall not constitute an
acknowledgment of or admission by Bank of the existence of any claims or of
liability for any matter or precedent upon which any claim or liability may be
asserted.  Borrower further acknowledges and agrees that, to the
extent any such claims may exist, they are of a speculative nature so as to be
incapable of objective valuation and that, in any event, the value to Borrower
of the agreements of Bank contained in this Amendment and any other documents
executed and delivered in connection with this Amendment substantially and
materially exceeds any and all value of any kind or nature whatsoever of any
such claims. Borrower further acknowledges and agrees Bank is in no way
responsible or liable for the previous, current or future condition or
deterioration of the business operations and/or financial condition of Borrower
and that Bank has not breached any agreement or commitment to loan money or
otherwise make financial accommodations available to Borrower or to fund any
operations of Borrower at any time.  Borrower represents and warrants
to Bank that Borrower has not transferred or assigned to any Person any claim,
demand, action or cause of action that Borrower has or ever had against
Bank.

      


      7.     Miscellaneous.  This
Amendment constitutes the entire understanding of the parties with respect to
the subject matter hereof; shall be governed by and construed in accordance with
the internal laws of the State of Georgia; shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns;
and may be executed and then delivered via facsimile transmission, via the
sending of .pdf or other copies thereof via email and in one or more
counterparts, each of which shall be an original but all of which taken together
shall constitute one and the same instrument.  A default by Borrower
under this Amendment shall constitute an Event of Default under the Loan
Agreement and the other Loan Documents.

       

       

      [signatures
set forth on the next page]

      
        
           

        

        
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      IN WITNESS WHEREOF, this Amendment has
been duly executed by Borrower and Bank as of the day and year first above
written.

      


      
        	 
      	BORROWER:	 
      
	 
      	 
      	 
      	 
      
	 
      	INNOTRAC
      CORPORATION	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Scott D. Dorfman

              	 
      
	 
      	
                Name:

              	
                 
      Scott D. Dorfman

              	 
      
	 
      	
                Title:

              	
                 
      President

              	 
      
	 
      	 
      	 
      	 
      
	 
      	BANK:	 
      
	 
      	 
      	 
      	 
      
	 
      	WACHOVIA
      BANK, NATIONAL ASSOCIATION
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Jeanette Childress

              	 
      
	 
      	
                Name:

              	
                 
      Jeanette Childress

              	 
      
	 
      	
                Title:

              	
                 
      Director

              	 
      


      

       

       

      CONSENT
AND REAFFIRMATION OF OBLIGOR

      


      The undersigned (i) acknowledges
receipt of the foregoing Amendment (the “Amendment”), (ii) consents to the
execution and delivery of the Amendment by the parties thereto and (iii)
reaffirms all of his obligations under the Security Agreement dated as of April
16, 2007, as heretofore amended, executed by him in favor of the Bank, and
agrees that none of such obligations shall be affected by the execution and
delivery of the Amendment.

      


      
        	 
      	
                /s/ Scott D. Dorfman

              	 
      
	 
      	
                Scott
      D. Dorfman

              	 
      


      

       

       

       

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