FIRST AMENDMENT TO LOAN, SECURITY AND GUARANTEE AGREEMENT
Exhibit 10.1
FIRST AMENDMENT
This
FIRST AMENDMENT TO LOAN, SECURITY
AND GUARANTEE AGREEMENT (this “Amendment”), dated as of
May 18, 2020 (the “Amendment Date”), is
entered into by and among AUTOWEB,
INC., a Delaware corporation, (the “Borrower”), THE OTHER OBLIGORS PARTY HERETO,
THE LENDERS PARTY HERETO,
and CIT NORTHBRIDGE CREDIT
LLC, a Delaware limited liability company, as agent for the
Lenders (in such capacity, together with its successors and
assigns, “Agent”).
WHEREAS, the Borrower, the other
Obligors party thereto, the financial institutions from time to
time party thereto as lenders (collectively, the
“Lenders”)
and the Agent are parties to that certain Loan, Security and
Guarantee Agreement dated as of March 26, 2020 (as amended, restated,
supplemented, or otherwise modified from time to time, the
“Loan
Agreement”);
WHEREAS, as a result of the economic
impact of the coronavirus disease (also referred to as COVID-19),
the Borrower incurred an SBA PPP Loan, which incurrence was
consented to in advance by the Lenders and, in connection
therewith, the Borrower has requested that the Agent and Lenders
agree, and the Agent and Lenders have agreed, to amend certain
provisions of the Loan Agreement as set forth herein;
and
WHEREAS, each Obligor expects to realize
substantial direct and indirect benefits as a result of this
Amendment becoming effective, and agrees to reaffirm its
obligations under the Loan Agreement and the other Loan Documents
to which it is a party.
NOW, THEREFORE, in consideration of the
premises and agreements, provisions and covenants herein contained,
the parties hereto agree as follows:
Section
1. Defined
Terms. Capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Loan Agreement (as
amended hereby).
Section
2. Amendments. Subject
to the satisfaction of the conditions set forth herein, effective
as of April 16, 2020 (notwithstanding the actual date of execution
and delivery hereof), the terms of the Loan Agreement are hereby
amended as follows:
2.1 Section 1.1 of the Loan
Agreement is hereby amended by inserting the following new
definitions in their proper alphabetical order:
CARES Act: the Coronavirus Aid,
Relief, and Economic Security Act, as in effect from time to time
and any applicable rules, regulations, and guidelines issued or
enacted by a Governmental Authority in connection
therewith.
SBA PPP Loan: a loan incurred
by the Borrower under 15 U.S.C. 636(a)(36) (as added to the Small
Business Act by Section 1102 of the CARES Act).
Small Business Act: means the
Small Business Act (15 U.S. Code Chapter 14A – Aid to Small
Business), as in effect from time to time.
2.2 The definition of
“EBITDA” in Section 1.1 of the Loan
Agreement is hereby amended by adding the following sentence at the
end thereof:
It is
hereby understood and agreed that the incurrence of the SBA PPP
Loan and any forgiveness of the SBA PPP Loan shall be disregarded
for calculations of net income and/or EBITDA under the Loan
Documents.
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2.3 The definition of
“Qualified Cash” in Section 1.1 of the Loan
Agreement is hereby amended and restated to read as
follows:
Qualified Cash: unrestricted
domestic cash of the Borrowers in which Agent has a first priority
perfected Lien; provided, that, Qualified Cash shall not
include proceeds from any SBA PPP Loan.
2.4 The last paragraph
in Section 3.6.2 of
the Loan Agreement is hereby amended and restated to read as
follows:
If no
LIBOR Successor Rate has been determined and the circumstances
under clause (a)
above exist or the Scheduled Unavailability Date has occurred (as
applicable), Agent will
promptly so notify Borrower Agent and each Lender.
Thereafter, (x) the obligation of Lenders to make or
maintain LIBOR Loans shall be suspended (to the extent of the
affected LIBOR Loans or Interest Periods), and (y) the LIBO
Base Rate component shall no longer be utilized in determining the
Base Rate. Upon receipt of such notice, Borrower Agent may
revoke any pending request for a Borrowing of LIBOR Loans (to the
extent of the affected LIBOR Loans or Interest Periods) or, failing
that, will be deemed to have converted such request into a request
for a Borrowing of Loans bearing interest at the Base Rate plus the
Applicable Margin (subject to the foregoing clause (y)) in the amount
specified therein. Notwithstanding anything else herein, any
definition of LIBOR Successor Rate shall provide that in no event
shall such LIBOR Successor Rate be less than 1.75% for purposes of
this Agreement.
2.5 Section 10.1.2 of the Loan
Agreement is hereby amended by adding the following new clause (j)
thereto in proper alphabetical order:
(j) (i)
promptly upon any Obligor’s receipt thereof, copies of any
filings (and any responses thereto) made under the CARES Act for a
SBA PPP Loan, and (ii) if such Obligor is approved for and incurs
such SBA PPP Loan, and so long as any obligations remain
outstanding pursuant to such SBA PPP Loan, monthly accounting of
the usage of the SBA PPP Loan.
2.6 Section 10.1 of the Loan
Agreement is hereby amended by adding the following new
Section 10.1.14
thereto in proper numerical order:
10.1.14 SBA
PPP Loan.
(a) Comply
in all material respects with the requirements of the CARES Act
with respect to the SBA PPP Loan, (ii) take reasonable requisite
actions for the full forgiveness the entire SBA PPP Loan, (iii) use
SBA PPP Loan proceeds only for permitted purposes under the CARES
Act, (iv) apply for forgiveness of the maximum permitted portion of
the SBA PPP Loan in accordance with the terms of the SBA PPP Loan
and provide Agent a copy of such application, and (v) maintain all
records required to be submitted in connection with the forgiveness
of the SBA PPP Loan and, if requested, deliver to Agent a copy of
any application for forgiveness and all supporting documentation
required by the U.S. Small Business Administration or the SBA PPP
Loan lender in connection with the forgiveness of the SBA PPP
Loan.
(b) Promptly
deposit all proceeds of the SBA PPP Loan into a Deposit Account
subject to a Deposit Account Control Agreement.
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2.7 Section 10.2.1 of the Loan
Agreement is hereby amended by adding the following new clause (m)
thereto in proper alphabetical order:
(m) additional
Debt in the form of an unsecured SBA PPP Loan in an aggregate
amount not to exceed $1,383,990; provided, the applicable
Obligor shall provide Agent with copies of the application for such
SBA PPP Loan and any related documentation which may not be
modified without Agent’s prior written consent. Except as
expressly permitted hereunder with respect to the SBA PPP Loan,
Obligors shall obtain Agent’s written consent prior to
incurring any otherwise prohibited Debt pursuant to any loan
programs under the CARES Act.
2.8 Section 10.2.4 of the Loan
Agreement is hereby amended by adding the following clause at the
end of such Section:
;
provided,
however,
that, any
Distributions under this Section 10.2.4 may not be paid as long as
the SBA PPP Loan is outstanding without the prior written consent
of Agent.
2.9 Clause (b) of
Section 10.2.8 of
the Loan Agreement is hereby amended and restated to read as
follows:
(b)
Borrowed Money (other than the Obligations) prior to its due date
under the agreements evidencing such Debt as in effect on the
Closing Date or, with respect to the SBA PPP Loan, on the date that
such Debt was incurred (or, in each case, as amended thereafter
with the consent of Agent); provided that (i) Borrowers may
make unscheduled term debt repayments (other than repayments of any
portion of the SBA PPP Loan not forgiven pursuant to Section 1106
of the CARES Act) so long as the Payment Conditions have been
satisfied and (ii) for the avoidance of doubt, Borrowers may make
regularly scheduled payments of principal and interest on any
portion of the SBA PPP Loan not forgiven pursuant to Section 1106
of the CARES Act.
2.10 Section
10.2.14 of the Loan Agreement is hereby amended by adding
the following new clause (d) thereto in proper alphabetical
order:
(d)
entered into in connection with SBA PPP Loan in accordance with
Section 10.2.1(m), so long
as such agreement would not prohibit the existence of the
Obligations or the Liens securing, or purportedly securing, the
Obligations.
2.11 Section
11.1(c) of the Loan Agreement is hereby amended and restated
to read as follows:
(c) An
Obligor breaches or fails to perform any covenant contained in
Section 7.2, 7.3, 7.6, 8.1, 8.2, 8.5, 8.6.1, 8.6.2, 10.1.1, 10.1.2, 10.1.3, 10.1.13, 10.1.14, or 10.2;
Section
3. Conditions to
Effectiveness. This Amendment
shall be effective as of the Amendment Date (with the amendments
set forth in Section
2 being effective as of April 16, 2020) upon the
satisfaction of each of the following conditions, and in case of
any documentation to be delivered to the Agent, such documentation
shall be in form and substance reasonably satisfactory to the
Agent:
(a) This Amendment
shall have been duly executed and delivered by the Borrower, the
other Obligors, the Agent and the Required Lenders.
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(b) The representations
and warranties of each Obligor set forth in Section 4 of this
Amendment shall be true and correct in all material respects on and
as of the Amendment Date; provided that, to the extent
that such representations and warranties specifically refer to an
earlier date, they shall be true and correct in all material
respects as of such earlier date; provided further that any representation
and warranty that is qualified as to “materiality,”
“Material Adverse Effect” or similar language shall be
true and correct in all respects on the date of such credit
extension or on such earlier date, as the case may be.
(c) No Default or Event
of Default shall exist or would result from the execution of this
Amendment or the transactions contemplated hereby.
(d) The Agent shall
have received satisfactory evidence that all fees, expenses and
disbursements required to be paid in connection with this Amendment
(including fees, disbursements and other charges of counsel to the
Agent) have been paid in full.
Section
4. Representations and
Warranties. Each
Obligor hereby represents and warrants, on and as of the Amendment
Date, that:
(a) The representations
and warranties of each Obligor set forth in Section 9 of the Loan
Agreement and in each other Loan Document are true and correct in
all material respects on and as of the Amendment Date; provided that, to the extent
that such representations and warranties specifically refer to an
earlier date, they are true and correct in all material respects as
of such earlier date; provided further that any representation
and warranty that is qualified as to “materiality,”
“Material Adverse Effect” or similar language is true
and correct in all respects on the date of such credit extension or
on such earlier date, as the case may be.
(b) No Default or Event
of Default exists or will result from the execution of this
Amendment.
(c) Each Obligor has
all requisite power and authority to execute, deliver and perform
its obligations under this Amendment. The execution, delivery and
performance of this Amendment (i) are within such Obligor’s
corporate or other powers, (ii) have been duly authorized by all
necessary corporate or other organizational action, and (iii) do
not (a) require any consent or approval of any holders of Equity
Interests of any Obligor, except those already obtained; (b)
contravene the Organic Documents of any Obligor; (c) violate or
cause a default under any Applicable Law or Material Contract
except where the violation or default would not reasonably be
expected to result in a Material Adverse Effect; or (d) result in
or require imposition of a Lien (other than Permitted Liens) on any
Obligor’s Property.
(d) The Amendment has
been duly executed and delivered by each Obligor that is a party
thereto and constitutes a legal, valid and binding obligation of
such Obligor, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors’ rights
generally.
Section
5. Effect on Loan
Documents.
(a) On and after the
Amendment Date, each reference in any Loan Document, and in any
other document or instrument incidental thereto, to the Loan
Agreement shall mean and be a reference to the Loan Agreement as
amended by this Amendment, and each reference in the Loan Agreement
to “this Agreement”, “herein”,
“hereinafter”, “hereto”,
“hereof”, and words of similar import shall mean, from
and after the Amendment Date, the Loan Agreement as amended by this
Amendment.
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(b) Except as expressly
amended hereby, the provisions of the Loan Documents are and shall
continue to be in full force and effect and are hereby in all
respects ratified and confirmed.
(c) The execution,
delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of any Lender or any Agent
under any of the Loan Documents, nor constitute a waiver of any
provision of the Loan Documents or in any way limit, impair or
otherwise affect the rights and remedies of the Agent or the
Lenders under the Loan Documents.
(d) Each party hereto
acknowledges and agrees that, on and after the Amendment Date, this
Amendment shall constitute a Loan Document for all purposes under
the Amended Loan Documents.
Section
6. Non-Reliance on
Agent. Each Lender acknowledges that it has, independently
and without reliance upon the Agent or any other Lender and based
on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this
Amendment. Each Lender also acknowledges that it will, without
reliance upon the Agent or any other Lender and based on such
documents and information as it shall from time to time deem
appropriate, continue to make its own credit decisions in taking or
not taking action under or based upon this Amendment, the Loan
Agreement, any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
Section
7. Reaffirmation;
Other Agreements. Subject to any limitations on its
obligations expressly stated in the Loan Documents to which it is a
party, each Obligor (a) acknowledges and agrees, as of the
Amendment Date, that all of its obligations under the Loan
Documents to which it is a party are reaffirmed and remain in full
force and effect on a continuous basis and (b) reaffirms each Lien
granted by each Obligor pursuant to the Collateral Documents, all
of which obligations and Liens remain in full force and effect
after giving effect to this Amendment. Further, each Obligor
acknowledges and agrees that the amendments set forth herein do not
constitute any course of dealing between the Agent, the Lenders,
and the Obligors. Nothing contained in this Amendment shall be
construed as substitution or novation of the obligations
outstanding under the Loan Agreement or the other Loan
Documents.
Section
8. No Actions, Claims,
Etc.. As of the date hereof, each of the Obligors hereby
acknowledges and confirms that it has no knowledge of any actions,
causes of action, claims, demands, damages and liabilities of
whatever kind or nature, in law or in equity, against the Agent,
the Lenders, or the Agent’s or the Lenders’ respective
officers, employees, representatives, agents, advisors,
consultants, counsel or directors arising from any action by such
Persons, or failure of such Persons to act on or prior to the date
hereof.
Section
9. Release of
Claims. In consideration of the Lenders’ and the
Agent’s agreements contained in this Amendment, each Obligor
hereby irrevocably releases and forever discharges the Lenders and
the Agent and their respective affiliates, subsidiaries,
successors, assigns, directors, officers, employees,
representatives, agents, advisors, consultants and counsel (each, a
“Released
Person”) of and from any and all claims, suits,
actions, investigations, proceedings, demands or damages, whether
based in contract, tort, implied or express warranty, strict
liability, criminal or civil statute, common law or otherwise of
any kind or character, known or unknown, which such Obligor ever
had or now has against the Agent, any Lender or any other Released
Person which relates, directly or indirectly, to any acts or
omissions of Agent, any Lender or any other Released Person on or
prior to the date hereof.
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Section
10. Governing
Law. THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
Section
11. Miscellaneous.
(a) This Amendment is
binding and enforceable as of the date hereof against each party
hereto and its successors and permitted assigns.
(b) This Amendment may
be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument. Delivery of an executed signature page
counterpart hereof by telecopy, emailed pdf. or any other
electronic means that reproduces an image of the actual executed
signature page shall be effective as delivery of a manually
executed counterpart hereof. The words “execution,”
“signed,” “signature,”
“delivery,” and words of like import in or relating to
any document to be signed in connection with this Amendment and the
transactions contemplated hereby shall be deemed to include
electronic signatures, the electronic association of signatures and
records on electronic platforms, deliveries or the keeping of
records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed
signature, physical delivery thereof or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New
York State Electronic Signatures and Records Act, any other similar
state laws based on the Uniform Electronic Transactions Act or the
Uniform Commercial Code, each as amended, and the parties hereto
hereby waive any objection to the contrary, provided that (x) nothing
herein shall require the Agent to accept electronic signature
counterparts in any form or format and (y) Agent reserves the right
to require, at any time and at its sole discretion, the delivery of
manually executed counterpart signature pages to this Amendment and
the parties hereto agree to promptly deliver such manually executed
counterpart signature pages.
(c) If any provision of
this Amendment is held to be illegal, invalid or unenforceable, (i)
the legality, validity and enforceability of the remaining
provisions of this Amendment shall not be affected or impaired
thereby and (ii) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes
as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a
particular jurisdiction shall not invalidate or render
unenforceable such provision in any other
jurisdiction.
(d) Borrower shall pay
all out of pocket costs and expenses of Agent incurred in
connection with this Amendment including, without limitation,
reasonable attorneys’ fees and expenses.
Section
12. No Agent or Lender
Guidance; Indemnity.
(a) The Obligors hereby
acknowledge and agree that neither Agent nor any Lender has
provided any Obligor with any guidance or advice regarding the
CARES Act, the SBA PPP Loan (including without limitation the
authority of the Obligors to qualify for SBA PPP Loan, and the
conditions for forgiveness of SBA PPP Loan) or any related matters;
and
(b) The Obligors shall,
jointly and severally, indemnify Agent and each Lender against, and
hold Agent and each Lender harmless from, any and all losses,
claims, damages, penalties, incremental taxes, liabilities and
related expenses, including costs or out-of-pocket expenses
(including reasonable attorney costs), incurred by or asserted
against Agent or any Lender arising out of, in connection with, or
as a result of the incurrence of the SBA PPP Loan and all related
matters, subject in each case to the limitations on indemnification
expressly set forth in Section 12.6 of the Loan
Agreement.
[Remainder of page intentionally left blank; signature pages
follow]
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IN WITNESS WHEREOF, the parties hereto,
by their officers thereunto duly authorized, have executed this
Amendment as of the day and year first above written.
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BORROWER:
By: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Executive Vice President, Chief Legal Officer and
Secretary
GUARANTORS:
AUTOBYTEL,
INC.
By: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Title:
Executive Vice President, Chief Legal Officer and
Secretary
AW
GUA USA, INC.
By: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Executive Vice President, Chief Legal Officer and
Secretary
▇▇▇.▇▇▇,
INC.
By: /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Title:
Executive Vice President, Chief Legal Officer and
Secretary
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AGENT AND LENDERS:
CIT NORTHBRIDGE CREDIT LLC,
as
Agent
By:
/s/ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Authorized Signatory
CIT NORTHBRIDGE FUNDING I LLC,
as a
Lender
By:
/s/ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Authorized Signatory
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