SIXTH AMENDMENT TO LOAN AGREEMENT
Exhibit 10.1
SIXTH AMENDMENT
THIS SIXTH AMENDMENT TO LOAN AGREEMENT
("Sixth Amendment"), dated as of December 27, 2017, is made and
entered into by and between AUTOWEB, INC. (formerly AUTOBYTEL INC.), a Delaware corporation
("Borrower"), and MUFG UNION BANK,
N.A., formerly Union Bank, N.A. ("Bank").
RECITALS:
A.
Borrower and Bank
are parties to that certain Loan Agreement dated as of February 26,
2013, that certain Consent dated July 29, 2013, that certain First
Amendment dated September 10, 2013, that certain Second Amendment
dated January 13, 2014, that certain Third Amendment dated as of
May 20, 2015, that certain Fourth Amendment dated June 1, 2016, and
that certain Fifth Amendment dated as of June 28, 2017
(collectively the “Agreement”), pursuant to which Bank
agreed to extend credit to Borrower in the form of a revolving line
of credit and two term loans.
B.
Borrower has
requested that Bank agree to amend the Agreement in certain
respects related to the loan covenants, term loans, and the change
in Borrower’s legal name to AutoWeb, Inc. Bank is willing to
amend the Agreement, subject, however, to the terms and conditions
of this Sixth Amendment.
AGREEMENT:
In
consideration of the above recitals and of the mutual covenants and
conditions contained herein, Borrower and Bank hereby agree as
follows:
1.
Defined
Terms. Initially capitalized terms used herein which are not
otherwise defined shall have the meanings assigned thereto in the
Agreement.
2.
Amendments to the
Agreement.
(a)
The definition of
“Borrower” is hereby amended by substituting the name
of “AutoWeb, Inc.” for the existing name of
“Autobytel Inc.” appearing at the beginning of the
Agreement.
(b)
Section 1.1.3 of
the Agreement, which relates to the Term Loan 2, is hereby deleted in its
entirety.
(c)
Section 4.8 of the
Agreement, which relates to the Quarterly EBITDA, is hereby deleted in
its entirety and replaced with the following:
“4.8 Quarterly EBITDA. Borrower will
maintain a minimum quarterly EBITDA of at least the following
amounts for each of the following fiscal quarters thereafter, with
no minimum quarterly EBITDA requirement for the fiscal quarter
ending December 31st each
year:
|
Minimum Amount
|
Quarter
|
|
|
|
|
One Million Five
Hundred Thousand Dollars ($1,500,000)
|
ending March
31st
|
|
One Million Seven
Hundred Fifty Thousand Dollars ($1,750,000)
|
ending June
30th
|
|
Two Million Two
Hundred Fifty Thousand Dollars ($2,250,000)
|
ending Sept.
30th
|
3.
Effectiveness of
this Sixth Amendment. This Sixth Amendment shall become
effective as of the date hereof when, and only when, Bank shall
have received all of the following, in form and substance
satisfactory to Bank:
(a)
A counterpart of
this Sixth Amendment, duly executed by Borrower;
(b)
The
repayment, in full,
of all principal and interest related to Term Loan 2, as defined in
the Agreement upon which repayment that certain Commercial
Promissory Note (Base Rate) dated as of May 20, 2015 and
representing Term Loan 2 is hereby cancelled and shall have no
further force or effect; and
(c)
Such other
documents, instruments or agreements as Bank may reasonably deem
necessary in order to effect fully the purposes of this Sixth
Amendment.
4.
Ratification.
(a)
Except as
specifically amended hereinabove, the Agreement shall remain in
full force and effect and is hereby ratified and confirmed;
and
(b)
Upon the
effectiveness of this Sixth Amendment, each reference in the
Agreement to "this Agreement", "hereunder", "herein", "hereof" or
words of like import referring to the Agreement shall mean and be a
reference to the Agreement as amended by this Sixth
Amendment,
5.
Representations and
Warranties. Borrower represents and warrants as
follows:
(a)
Each of the
representations and warranties contained in Section 3 of the
Agreement, as amended hereby, is hereby reaffirmed as of the date
hereof, each as if set forth herein; provided, however, that the
following representations and warranties are amended or
supplemented and updated as follows:
(i)
Section
3.2.
For the purposes of Section 3.2 of the Agreement, Exhibit A
attached hereto constitutes the current schedule of
Borrower’s Affiliates delivered to Bank.
(ii)
Section
3.8.
Section 3.8 of the Agreement is hereby amended in its entirety to
read as follows:
3.8
Financial Statements.
Borrower’s financial statements, including both a balance
sheet at September 30, 2017, together with supporting schedule, and
an income statement for the nine (9) months ended September 30,
2017, have heretofore been furnished to Bank, are true and
complete, and fairly represent Borrower’s financial condition
for the period covered thereby.
(b)
The
execution, delivery
and performance of this Sixth Amendment are within Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, have received all necessary approvals, if any,
and do not contravene any law or any contractual restriction
binding on Borrower; and
(c)
Except as
previously disclosed to Bank, no event has occurred and is
continuing or would result from this Sixth Amendment which
constitutes an Event of Default under the Agreement, or would
constitute an Event of Default but for the requirement that notice
be given or time elapse or both.
6.
Governing
Law. This Sixth Amendment shall be deemed a contract under
and subject to, and shall be construed for all purposes and in
accordance with, the laws of the State of California.
7.
Counterparts.
This Sixth Amendment may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together
shall constitute one and the same instrument.
WITNESS the due execution hereof as of
the date first above written.
“Borrower”
By: /s/ Xxxxxxx X.
Xxxxx
Xxxxxxx X. Xxxxx
President and Chief Executive Officer
By: /s/ Xxxxx X.
Xxxxxx
Xxxxx X. Xxxxxx
Administrative Officer and Secretary
“Bank”
MUFG
UNION BANK, N.A.
By: /s/ Xxxxxxx
Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
Vice President
Exhibit A
Borrower Affiliates
Autobytel Dealer Services, Inc.
Dealix Corporation
Xxx.xxx, Inc.
Autotegrity, Inc.
Autobytel, Inc.
AW GUA USA, Inc.
AW GUA, Sociedad de Responsabilidad Limitada
