SECOND AMENDMENT TO AND CONSENT UNDER LOAN, SECURITY AND GUARANTEE AGREEMENT
Exhibit
10.1
SECOND AMENDMENT TO AND CONSENT UNDER LOAN, SECURITY AND GUARANTEE
AGREEMENT
This SECOND AMENDMENT TO AND CONSENT UNDER LOAN,
SECURITY AND GUARANTEE AGREEMENT (this “Amendment”), dated as of
July 30, 2021 (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 by that certain First
Amendment to Loan, Security and Guarantee Agreement dated as of May
18, 2020 and as the same may be further amended, restated,
supplemented, or otherwise modified from time to time, the
“Loan
Agreement”);
WHEREAS, the Borrower has advised Agent
that (a) the Borrower has formed a new wholly-owned Subsidiary,
Tradein Expert, Inc., a Delaware corporation (“Tradein Expert”), (b) the
Borrower desires that Tradein Expert acquire certain assets of Car
Acquisition, LLC, a Texas limited liability company, dba CarZeus
(“CarZeus”; such
acquisition, the “CarZeus Acquisition”),
and (c) that proceeds of the Revolver Loans be used to pay the
purchase price for the CarZeus Acquisition and fund the ongoing
business needs of Tradein Expert;
WHEREAS, in connection with the
foregoing, the Borrower has requested that the Agent and Lenders
(a) consent to the formation of Tradein Expert and the CarZeus
Acquisition and (b) amend certain provisions of the Loan Agreement
as set forth herein; and
WHEREAS, the Agent and Lenders have
agreed to such consent and amendments subject to the terms and
conditions set forth herein.
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. Consent.
Reference is hereby made to the Asset Purchase Agreement to be
dated on or about July 31, 2021 (the “CarZeus Purchase
Agreement”), by and among the Borrower, Tradein
Expert, CarZeus, and the other parties thereto. Notwithstanding
anything contained in the Loan Agreement or any other Loan Document
to the contrary, (a) Agent and the undersigned Lenders hereby (i)
consent to the consummation of the CarZeus Acquisition for a
purchase price (excluding any post-closing adjustments) not to
exceed $400,000, subject to the satisfaction of the
conditions to Permitted Acquisitions set forth in clause (b) of the
definition of “Permitted Acquisition” in the Loan
Agreement (other than (x) the conditions specified in clauses
(b)(iv) and
(b)(v) thereof and
(y) the requirement that the Acquisition be made by the Borrower),
and provided that the CarZeus Acquisition is completed in all
material respects in accordance with the terms of the CarZeus
Purchase Agreement, and (ii) agree that, subject to the conditions
set forth in Sections
2.1.1 and 6.2 of the Loan Agreement,
proceeds of Revolving Loans in an aggregate amount not to exceed
$400,000 may be used by the Borrower to pay the purchase price for
the CarZeus Acquisition, and (b) the Borrower, Agent and the
undersigned Lenders hereby agree that the CarZeus Acquisition shall
be deemed to be a Permitted Acquisition under the Loan Agreement.
In addition, Agent and the undersigned Lenders hereby consent to
the formation of Tradein Expert without concurrent compliance with
the requirements set forth in Section 10.1.9 of the Loan
Agreement; provided, that all such
requirements are satisfied within ten (10) Business Days after the
date hereof (or such longer period as approved by
Agent).
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Section
3. Amendments. Subject
to the satisfaction of the conditions set forth herein, effective
as of the Amendment Date, the terms of the Loan Agreement are
hereby amended as follows:
3.1 Section 1.1 of the Loan
Agreement is hereby amended by inserting the following new
definitions in their proper alphabetical order:
CarZeus: Car Acquisition, LLC,
a Texas limited liability company, dba CarZeus.
CarZeus Acquisition: the
purchase by Tradein Expert of certain assets of CarZeus, pursuant
to the CarZeus Purchase Agreement.
CarZeus Purchase Agreement:
that certain Asset Purchase Agreement dated on or about July 31,
2021, by and among AutoWeb, Tradein Expert, CarZeus, and the other
parties thereto.
Eligible Tradein Account: an
Account owing to Tradein Expert that arises in the Ordinary Course
of Business from the sale of used motor vehicles, is payable in
Dollars and is deemed by Agent, in its Permitted Discretion, to be
an Eligible Tradein Account. Without limiting the foregoing, no
Account shall be an Eligible Tradein Account if (i) it is unpaid
for more than 30 days after the date on which such Account is
created or (ii) it would not be an Eligible Account pursuant to any
requirement set forth in clauses (d) through (o) of the definition
of Eligible Account.
Second Amendment Effective
Date: July 30, 2021.
Tradein Expert: Tradein Expert,
Inc., a Delaware corporation.
Tradein Obligor Date: the date
on which Tradein Expert is joined as a Guarantor, an Obligor, and a
Pledgor under this Agreement and the other Loan Documents upon the
satisfaction of the following conditions, with all documentation to
be in form and substance reasonably satisfactory to the
Agent:
(a) execution
and delivery of (i) a joinder agreement with respect to this
Agreement and the other Loan Documents, (ii) a Pledge Supplement
(as defined in the Pledge Agreement) and (iii) such other Security
Documents necessary to evidence or perfect Agent’s Lien under
the UCC on any Collateral acquired pursuant to the CarZeus
Acquisition, together with all instruments, documents,
certificates, supplements and agreements executed or delivered
pursuant thereto (including pledged Collateral, with undated
irrevocable transfer powers executed in blank, as
applicable);
(b) delivery
of (i) acknowledgments of all filings or recordations necessary to
perfect Agent’s Liens in the Collateral of Tradein Expert
(including, without limitation, (A) UCC financing statements to be
filed with the applicable filing office and (B) the recording of
any IP Assignments to be filed with the United States Patent and
Trademark Office) and
(ii) UCC and
Lien searches and other evidence satisfactory to Agent that
there are no Liens upon the Collateral of Tradein
Expert other than Permitted Liens;
(c) delivery
of a certificate of a duly authorized officer of Tradein Expert,
certifying (i) that attached copies of Tradein Expert’s
charter, certificate or articles of incorporation, bylaws or
similar agreement or instrument governing the formation of Tradein
Expert are true and complete, and in full force and effect, without
amendment except as shown; (ii) that an attached copy of
resolutions authorizing execution and delivery of the Loan
Documents is true and complete, and that such resolutions are in
full force and effect, were duly adopted, have not been amended,
modified or revoked, and constitute all resolutions adopted with
respect to this credit facility; and (iii) to the title, name and
signature of each Person authorized to sign the Loan
Documents;
(d) delivery
of a written opinion of ▇▇▇▇▇ Day in a form customary for
transactions of this kind;
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(e) delivery
of (i) copies of the charter documents of Tradein Expert, certified
by the Secretary of State or other appropriate official of Tradein
Expert’s jurisdiction of organization and (ii) good standing
certificates for Tradein Expert, issued by the Secretary of State
or other appropriate official of Tradein Expert’s
jurisdiction of organization and each jurisdiction where Tradein
Expert maintains offices;
(f) delivery
of updated copies of policies or certificates of insurance and
related endorsements for the insurance policies carried by Tradein
Expert, all in compliance with the Loan Documents (including the
requirements of Section
8.6.2);
(g) Agent
shall have received an executed copy of the CarZeus Purchase
Agreement and any other material documents and instruments executed
and delivered in connection therewith; and
(h) delivery
of satisfactory evidence that Tradein Expert has received its motor
vehicle dealer license.
3.2 The following
definitions in Section
1.1 of the Loan Agreement are hereby and restated to read in
their entirety as follows:
Accounts Formula Amount: the
sum of (a) up to 85% of the Value of Eligible Accounts (other than
Eligible Tradein Accounts) plus (b) on and after the Tradein
Obligor Date, the lesser of (i) 85% of the Value of Eligible
Tradein Accounts and (ii) $3,000,000, in each case, subject to
Agent’s discretion; provided, however, that, in each case,
such percentage shall be reduced by 1.0% for each percentage point
(or portion thereof) that the Dilution Percent exceeds
5.0%.
Restricted Investment: any
Investment by an Obligor or Subsidiary, other than (a) Investments
in an Obligor (other than Investments in Tradein Expert); (b)
Investments in a Subsidiary of an Obligor not exceeding $300,000 in
the aggregate after the Closing Date (other than Investments in
Tradein Expert); (c) Cash Equivalents that are subject to
Agent’s Lien and control, pursuant to documentation in form
and substance satisfactory to Agent; (d) advances to an officer or
employee for salary, travel expenses, commissions and similar items
in the Ordinary Course of Business; (e) prepaid expenses and
extensions of trade credit made in the Ordinary Course of Business;
(f) deposits with financial institutions permitted hereunder; (g)
Investments received with respect to Collateral other than Eligible
Accounts or Eligible Unbilled Accounts in satisfaction or partial
satisfaction of Accounts owing by financially troubled account
debtors to the extent reasonably necessary to prevent or limit
loss; (h) Permitted Acquisitions; (i) Investments by AutoWeb in
Tradein Expert (i) not exceeding $400,000 in the aggregate used to
pay the purchase price for the CarZeus Acquisition and (ii) in
amounts that, after giving effect to Upstream Payments by Tradein
Expert to AutoWeb with respect to such Investments, do not exceed
(A) $1,500,000 during the period from the Second Amendment
Effective Date until the Tradein Obligor Date and (B) $3,000,000 at
any time on or after later of (x) the Tradein Obligor Date and (y)
the date on which Borrower shall have caused the cash management
and deposit account structure of Tradein Expert to comply with the
terms of the Loan Agreement; and (j) other Investments not
exceeding $100,000 in the aggregate after the Closing
Date.
3.3 Section 3.6.2 of the Loan
Agreement is hereby amended by adding the following new sentence at
the end of such Section:
The
parties hereto hereby acknowledge and agree that (i) pursuant to
the public statement by the Financial Conduct Authority, the
regulatory supervisor of LIBOR’s administrator, on March 5,
2021, the Scheduled Unavailability Date is expected to occur on
June 30, 2023, and (ii) subject to the occurrence after the date
hereof of any additional circumstances set forth in clauses (a)
through (c) above, Agent and Borrowers shall endeavor to establish
the LIBOR Successor Rate, together with any proposed LIBOR
Successor Rate Conforming Changes as set forth in this Section 3.6.2, prior to June 30,
2023.
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3.4 Section 5.6.3 of the Loan
Agreement is hereby amended by adding the following new sentence at
the end of such Section:
Notwithstanding the
foregoing, with respect to any payment that Agent makes to any
Lender or other Secured Party as to which Agent determines (in its
sole and absolute discretion) that any of the following applies
(such payment referred to as the “Rescindable Amount”): (i)
Borrowers have not in fact made the corresponding payment to Agent;
(ii) Agent has made a payment in excess of the amount(s) received
by it from Borrowers either individually or in the aggregate
(whether or not then owed); or (iii) Agent has for any reason
otherwise erroneously made such payment; then each of the Secured
Parties severally agrees to repay to Agent forthwith on demand the
Rescindable Amount so distributed to such Secured Party, in
immediately available funds with interest thereon, for each day
from and including the date such amount is distributed to it to but
excluding the date of payment to Agent, at the greater of the
Federal Funds Rate and a rate determined by Agent in accordance
with banking industry rules on interbank compensation.
3.5 Section 12 of the Loan
Agreement is hereby amended by adding the following new
Section 12.17
thereto in proper numerical order:
12.17
Recovery of
Erroneous Payments.
Notwithstanding anything to the contrary in this Agreement, if at
any time Agent determines (in its sole and absolute discretion)
that it has made a payment hereunder in error to any Lender or
other Secured Party, whether or not in respect of an Obligation due
and owing by Borrowers at such time, where such payment is a
Rescindable Amount, then in any such event, each such Person
receiving a Rescindable Amount severally agrees to repay to Agent
forthwith on demand the Rescindable Amount received by such Person
in immediately available funds in the currency so received, with
interest thereon, for each day from and including the date such
Rescindable Amount is received by it to but excluding the date of
payment to Agent, at the greater of the Federal Funds Rate and a
rate determined by Agent in accordance with banking industry rules
on interbank compensation. Each Lender and each other Secured Party
irrevocably waives any and all defenses, including any
“discharge for value” (under which a creditor might
otherwise claim a right to retain funds mistakenly paid by a third
party in respect of a debt owed by another), “good
consideration”, “change of position” or similar
defenses (whether at law or in equity) to its obligation to return
any Rescindable Amount. Agent shall inform each Lender or other
Secured Party that received a Rescindable Amount promptly upon
determining that any payment made to such Person comprised, in
whole or in part, a Rescindable Amount. Each Person’s
obligations, agreements and waivers under this Section 12.17 shall survive the
resignation or replacement of the Agent, any transfer of rights or
obligations by, or the replacement of, a Lender, the termination of
the Commitments and/or the repayment, satisfaction or discharge of
all Obligations (or any portion thereof) under any Loan
Document.
Section
4. Conditions to
Effectiveness. This Amendment
shall be effective as of the Amendment Date 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 Lenders.
(b) The representations
and warranties of each Obligor set forth in Section 5(a) 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.
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(d) The Borrower shall
have paid to the Agent a non-refundable amendment fee in the amount
of $20,000, which shall be earned, due, and payable on the
Amendment Date in immediately available funds and (ii) the
reasonable and documented costs and expenses of the Agent incurred
by it in connection with the transactions contemplated
hereby.
Section
5. Representations and
Warranties.
(a) Each
Obligor hereby represents and warrants, on and as of the Amendment
Date, that:
(i)
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.
(ii)
No Default or Event
of Default exists or will result from the execution of this
Amendment.
(iii)
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 (A) are within such Obligor’s
corporate or other powers, (B) have been duly authorized by all
necessary corporate or other organizational action, and (C) do not
(1) require any consent or approval of any holders of Equity
Interests of any Obligor, except those already obtained, (2)
contravene the Organic Documents of any Obligor, (3) 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 (4) result in
or require imposition of a Lien (other than Permitted Liens) on any
Obligor’s Property.
(iv)
This Amendment has
been duly executed and delivered by each Obligor that is a party
thereto.
(v)
This Amendment
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.
(b) Each
Obligor hereby represents and warrants, upon the consummation of
the CarZeus Acquisition, that:
(i) After
giving pro forma effect to the CarZeus Acquisition and the use of
Revolver Loan proceeds in connection therewith, the Borrower is
Solvent, and the Borrower and its Subsidiaries, taken as a whole,
are Solvent.
(ii)
Each of the representations and warranties contained in the CarZeus
Purchase Agreement made by an Obligor or Subsidiary is true and
correct in all material respects.
(iii)
(A) Borrower and Tradein Expert have duly taken all necessary
organizational action to authorize the execution, delivery and
performance of the CarZeus Purchase Agreement and the consummation
of transactions contemplated thereby; (B) the CarZeus Acquisition
has been consummated in accordance with the terms of the CarZeus
Purchase Agreement; (C) the CarZeus Acquisition complied with all
applicable material legal requirements, and all necessary
governmental, regulatory, creditor, shareholder, partner and other
material consents, approvals and exemptions required to be obtained
by Borrower and Tradein Expert have been duly obtained and will be
in full force and effect; and (D) the execution and delivery of the
CarZeus Purchase Agreement did not, and the consummation of the
CarZeus Acquisition will not, violate any material statute or
regulation of the United States (including any securities law) or
of any state or other applicable jurisdiction, or any material
order, judgment or decree of any court or governmental body binding
on Borrower or Tradein Expert or result in a breach of, or
constitute a default under, any material agreement, indenture,
instrument or other document, or any judgment, order or decree, to
which Borrower or Tradein Expert is a party or by which Borrower or
Tradein Expert is bound.
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Section
6. Post-Closing
Covenants.
(a) Within
thirty (30) days after the Tradein Obligor Date (or such longer
period as approved by the Agent), Borrower shall have used
commercially reasonable efforts to obtain a duly executed Lien
Waiver in form and substance reasonably acceptable to Agent from the
lessor of its facility located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇.
(b) Within
thirty (30) days after the Tradein Obligor Date (or such longer
period as approved by the Agent), Borrower shall have used
commercially reasonable efforts to obtain an acknowledgement of the
Agent’s Lien on Tradein Expert’s assets, in form and
substance reasonably acceptable to Agent, from each auction house
utilized by Tradein Expert.
(c) Within
ten (10) Business Days after the Tradein Obligor Date (or such
longer period as approved by the Agent), Borrower shall have caused
the cash management and deposit account structure of Tradein Expert
to comply with the terms of the Loan Agreement, which shall
include, without limitation, (i) the establishment of Deposit
Accounts with automatic sweeps to Borrower’s Dominion Account
and (ii) the delivery of duly executed blocked or springing (as
determined by Agent) Deposit Account Control Agreements with
respect to all of Tradein Expert’s Deposit Accounts (other
than Excluded Accounts), in each case, with financial institutions
reasonably satisfactory to Agent and otherwise in form and
substance acceptable to Agent; provided, that from and after
the Tradein Obligor Date until the above requirements are
satisfied, Tradein Expert shall instruct each applicable financial
institution to provide for a daily manual sweep from each of
Tradein Expert’s Deposit Accounts to Borrower’s
Dominion Account.
(d) The
failure of Borrower to comply with paragraph (a), (b) or (c) above
shall constitute an immediate Event of Default under the Loan
Agreement.
Section
7. 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.
(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
8. 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.
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Section
9. 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 and consent 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.
The consent set forth herein shall not apply to any other past,
present, or future noncompliance with any provision of the Loan
Agreement or the other Loan Documents or any circumstances other
than those described herein.
Section
10. 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
11. 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.
Section
12. Governing
Law. THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
Section
13. 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.
[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.
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
-8-
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AGENT AND
LENDERS:
CIT NORTHBRIDGE CREDIT LLC,
as
Agent
By:
/s/ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Authorized Signatory
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CIT NORTHBRIDGE FUNDING I LLC,
as a
Lender
By:
/s/ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Authorized Signatory
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-9-