FIFTH AMENDMENT TO LOAN AGREEMENT
Exhibit 10.2
FIFTH AMENDMENT
THIS FIFTH
AMENDMENT TO LOAN AGREEMENT ("Fifth Amendment"), dated as of
June 28, 2017, is made and entered into by and between 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, and that certain Fourth
Amendment dated June 1, 2016 (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 maturity dates of Borrower’s
Revolving Loan and Standby L/C Sublimit. Bank is willing to amend
the Agreement, subject, however, to the terms and conditions of
this Fifth 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)
Section 1.1.1 of the Agreement, which relates to the Revolving Loan, is hereby amended by
substituting the new maturity date of “January 5, 2021”
for the existing maturity date of “April 30, 2018”
appearing in line eight thereof.
(c)
Section 1.1.1.1 of the Agreement, which relates to the Standby L/C Sublimit, is hereby amended
by substituting the new maturity date of “January 5,
2022” for the existing maturity date of “April 30,
2019” appearing in line twelve thereof.
3.
Effectiveness of
this Fifth Amendment. This Fifth 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 Fifth Amendment, duly executed by
Borrower;
(b)
A replacement Revolving Note superseding and
replacing the existing Commercial Promissory Note dated May 5,
2015, which existing note 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 Fifth 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 Fifth 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 Fifth
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;
(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 March 31, 2017, together with supporting schedule, and an
income statement for the three (3) months ended March 31, 2017,
have heretofore been furnished to Bank, are true and complete, and
fairly represent Borrower’s financial condition for the
period covered thereby. Since March 31, 2017, there has been no
material adverse change in Borrower’s financial condition or
operations.
(b)
The execution, delivery and performance of this Fifth 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 Fifth 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 Fifth 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 Fifth 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”
AUTOBYTEL,
INC.
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By:
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/s/ Xxxx Xxxxx
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Xxxx
Xxxxx
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Chief
Executive Officer
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By:
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/s/ Xxxxx X.
Xxxxxx
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Xxxxx
X. Xxxxxx
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Executive Vice
President, Chief Legal and Administrative Officer and
Secretary
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“Bank”
MUFG
UNION BANK, N.A.
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By:
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/s/ Xxxxxxx
Xxxxxxxxx
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Xxxxxxx
Xxxxxxxxx
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Vice
President
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Exhibit A
Borrower
Affiliates
Autobytel
Dealer Services, Inc.
Dealix
Corporation
Xxx.xxx,
Inc.
Autotegrity,
Inc.
Autoweb,
Inc.
AW GUA
USA, Inc.
AW GUA,
Sociedad de Responsabilidad Limitada
