FIRST AMENDMENT TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This First Amendment to Amended and Restated Loan and Security Agreement,
is entered into as of April 7, 1999, (the "Amendment"), by and between
Venture Banking Group, (f/k/a Venture Lending), a division of Cupertino
National Bank ("Bank") and Viant Corporation (f/k/a Silicon Valley Internet
Partners) ("Borrower"). Capitalized terms used herein without definition shall
have the same meanings as is given to them in the Agreement (defined below).
RECITALS
A. The Borrower and the Bank have entered into that certain Amended and
Restated Loan and Security Agreement dated as of March 25, 1998, (as amended
or modified from time to time, the "Agreement") pursuant to which the Bank
has agreed to extend and make available to the Borrower certain advances of
money.
B. The Revolving Facility Maturity Date having passed and Borrower has
informed Bank of a breach of Section 6.10, entitled Maximum Quarterly Losses
for the fiscal quarter ending December 31, 1998. Borrower desires that the
Bank amend the Agreement upon the terms and conditions more fully set forth
herein.
C. Subject to the representations and warranties of the Borrower herein
and upon the terms and conditions set forth in this Amendment, the Bank is
willing to amend the Agreement.
AGREEMENT
NOW, THEREFORE, In consideration of the foregoing Recitals and intending
to be legally bound, the parties hereto agree as follows:
SECTION 1. THE BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants that:
(a) the execution, delivery, and performance of the Loan Documents
are within Borrower's powers, have been duly authorized, and are not in
conflict with nor constitute a breach of any provision contained in
Borrower's Amended and Restated Articles of Incorporation or Bylaws, nor will
they constitute an event of default under any material agreement to which
Borrower is a party or by which Borrower is bound. Borrower is not in default
under any agreement to which it is a party or by which it is bound, which
default could have a Material Adverse Effect; and
(b) immediately before and immediately after giving effect to this
Amendment, no event shall have occurred and be continuing which constitutes
an Event of Default that has not be disclosed to Bank.
SECTION 2. AMENDMENTS TO THE LOAN AND SECURITY AGREEMENT.
2.1 Section 1, entitled Definitions and Construction, is hereby
amended by deleting "Revolving Facility Maturity Date" and replacing it with
the following:
"Revolving Facility Maturity Date" means July 3, 1999.
2.2 Bank hereby waives Borrower's breach of Section 6.10,
entitled Maximum Quarterly Losses of the Agreement, for the fiscal quarter
ending December 31, 1998. Any further breach of this covenant is not waived.
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2.3 Section 6.9, entitled Debt-Net Worth Ratio, is hereby amended
to read as follows:
6.9 Debt-Net Worth Ratio. Borrower shall maintain, as of the last
day of each fiscal month, a ratio of Total Liabilities to Tangible Net Worth
of not more than 1.25 to 1.0.
2.4 Section 6.10, entitled Maximum Quarterly Losses, is hereby
amended to read as follows:
6.10 Maximum Quarterly Losses. Borrower may suffer a loss not to
exceed Two Million Five Hundred Thousand Dollars ($2,500,000) for the fiscal
quarters ending March 31, 1999 and June 30, 1999.
Except as waived hereby, the Agreement, as the same may have previously
been waived, shall remain unaltered and in full force and effect. This
Amendment shall not be a waiver of any existing default or breach of a
covenant unless specified herein.
Section 3. LIMITATION, The amendments and waivers set forth in this
Amendment shall be limited precisely as written and shall not be deemed (a)
to be a modification of any other term or condition of the Agreement or of
any other instrument or agreement referred to therein or to prejudice any
right or remedy which the Bank may now have or may have in the future under
or in connection with the Agreement or any instrument or agreement referred
to therein; or (b) to be a consent to any future amendment or waiver to any
instrument or agreement the execution and delivery of which is consented to
hereby, or to any waiver of any of the provisions thereof. Except as
expressly amended hereby, the Agreement shall continue in full force and
effect.
SECTION 4. EFFECTIVENESS. This Amendment shall become effective upon:
(1) The execution and delivery of a copy hereof by Borrower to the
Bank:
(2) The execution and delivery of a certificate of the Secretary
of Borrower with respect to incumbency and resolutions authorizing the
execution and delivery of this Amendment;
(3) Borrower shall pay to Bank an amendment fee in an amount equal
to Three Thousand One Hundred Twenty Five Dollars ($3,125) payable upon the
date hereof, plus all Bank Expenses incurred in connection with this
Amendment;
(4) Receipt by Bank of a completed Year 2000 Survey; and
(5) Bank shall have received, in form and substance satisfactory to
Bank, such other documents, and completion of such other matters, as Bank may
reasonably deem necessary or appropriate.
SECTION 5. RELEASE AND WAIVER. BORROWER HEREBY REPRESENTS AND WARRANTS TO
THE BANK THAT IT HAS NO KNOWLEDGE OF ANY FACTS THAT WOULD SUPPORT A CLAIM,
COUNTERCLAIM, DEFENSE OR RIGHT OF SET-OFF, AND HEREBY RELEASES BANK FROM ALL
LIABILITY ARISING UNDER OR WITH RESPECT TO AND WAIVES ANY AND ALL CLAIMS,
COUNTERCLAIMS, DEFENSES AND RIGHTS OF SET-OFF, AT LAW OR IN EQUITY, THAT
BORROWER MAY HAVE AGAINST BANK EXISTING AS OF THE DATE OF THIS AMENDMENT
ARISING UNDER OR RELATED TO THIS AMENDMENT, THE AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO THE LOANS CONTEMPLATED HEREBY OR THEREBY OR TO ANY ACT
OR OMISSION TO ACT BY THE BANK WITH RESPECT HERETO OR THERETO.
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SECTION 6. COUNTERPARTS. This Amendment may be signed in any number of
counterparts, and by different parties hereto in separate counterparts, with
the same effect as if the signatures to each such counterpart were upon a
single instrument. All counterparts shall be deemed an original of this
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
BORROWER VIANT CORPORATION
By: [cad 157]ILLEGIBLE[cad 179]
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Title [cad 157]ILLEGIBLE[cad 179]
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BANK VENTURE BANKING GROUP, a division of
Cupertino National Bank
By: [cad 157]ILLEGIBLE[cad 179]
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Title [cad 157]ILLEGIBLE[cad 179]
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