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:
(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 re
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