Exhibit 10.27
CONSENT AND AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
This Consent and Amendment to Loan
and Security Agreement is entered into as of March 12, 2009
(the “Amendment”), by and between BRIDGE BANK, N.A.
(“Bank”), MIVA, INC., a Delaware corporation
(“MIVA”), and MIVA DIRECT, INC., a Delaware corporation
(“MIVA Direct”).
RECITALS
MIVA and Bank are parties to that
certain Loan and Security Agreement dated as of November 7,
2008, as amended from time to time (collectively, the
“Agreement”). MIVA desires to dispose of certain
of its assets pursuant to the Asset Purchase Agreement dated as of
March 12, 2009, between MIVA, certain of MIVA’s
affiliates and Buyers (as defined therein) (the “Purchase
Agreement”), and seeks Bank’s consent to the
disposition of such assets. In addition, MIVA and Bank wish
to add MIVA Direct, a wholly owned subsidiary to MIVA, as a
“Borrower” under the Agreement, and terminate that
certain unconditional guaranty entered into by MIVA Direct on
November 7, 2008 for the benefit of Bank
(“Guaranty”). Each of the parties hereto desires
to amend the Agreement in accordance with the terms of this
Amendment.
NOW, THEREFORE, the parties agree as
follows:
1.
MIVA Direct is hereby deemed a
Borrower under the Agreement. Each reference to
“Borrower” in the Agreement shall mean and refer to
each of MIVA and MIVA Direct, both individually and
collectively. MIVA and MIVA Direct, collectively, shall also
be referred to as Borrowers. Without limiting the generality of the
foregoing, MIVA Direct grants Bank a security interest in the
Collateral described on Exhibit A attached hereto, to secure
performance and payment of all Obligations under the
Agreement. Bank and MIVA Direct acknowledge and agree that
the Guaranty is hereby terminated and shall be of no further force
or effect.
2.
Bank consents to the disposition of
assets in accordance with the terms of the Purchase Agreement and
such agreement(s) as MIVA may enter into in connection with
such disposition (the “Disposition”), provided that
(a) out of the first proceeds of the Disposition, MIVA shall
immediately repay all outstanding Advances plus any accrued
interest under the Agreement in the amount of $4,377,200.11 (the
“Repayment”), and (b) no further Advances shall be
made available to Borrowers until Bank and Borrowers have agreed
upon new terms and conditions for borrowing based upon
Borrowers’ operations and financial condition after the
Disposition. Effective upon the Closing (as defined in the
Purchase Agreement), Bank releases its security interests, rights
and liens in the U.S. Media Assets (as defined in the Purchase
Agreement). Bank retains a security interest in any rights
that MIVA or its affiliates retain or acquire in the U.S. Media
Assets, as well as a security interest in any proceeds arising out
of the transfer of the U.S. Media Assets in which a Borrower may
now or hereafter acquire any interest. Bank shall file such
amendment to financing statement, and take such other actions, as
MIVA reasonably requests to evidence this release. The
Disposition will not be a default under the Agreement. MIVA and any
Person acquiring the assets set forth in the Purchase Agreement may
rely on this consent.
3.
Pursuant to
Section 2.1(b) of the Agreement, Bank has issued a Letter
of Credit for the benefit of Perot Systems, Ltd. in an aggregate
outstanding face amount of $693,628 (the “Perot Letter of
Credit”). The Perot Letter of Credit shall be secured
by a cash deposit at Bank, which shall be governed by a standby
letter of credit agreement for the benefit of Bank. No
further Letters of Credit may be issued under
Section 2.1(b) until Bank and Borrowers agree upon new
terms and conditions for this credit facility based upon
Borrowers’ operations and financial condition after the
Disposition.
4.
A new Article 13 is hereby
added to the Agreement to read as follows:
13.
CO-BORROWERS.
13.1
Co-Borrowers. Borrowers are jointly and severally liable for
the Obligations and Bank may proceed against one Borrower to
enforce the Obligations
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