UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) June 28,
2017
Autobytel Inc.
(Exact name of registrant as specified in its charter)
Delaware
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1-34761
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33-0711569
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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18872 MacArthur Boulevard, Suite 200, Irvine,
California
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92612-1400
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code (949)
225-4500
Not Applicable
(Former name or former address, if changed since last
report.)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
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☐
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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☐
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
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Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of
1934 (§240.12b-2 of this chapter).
Emerging
growth company
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☐
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange
Act.
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Item 1.01
Entry into a Material Definitive Agreement
On June 28, 2017, Autobytel
Inc.,
a Delaware corporation (“
Autobytel
” or
“
Company
”),
entered into a Fifth Amendment to Loan Agreement
(“
Credit Facility 5th
Amendment
”)
with MUFG
Union Bank, N.A.,
formerly Union Bank, N.A. (“
Union Bank
”), amending the
Company’s existing Loan Agreement with Union Bank initially
entered into on February 26, 2013, as amended on September 10,
2013, January 13, 2014, May 20, 2015 and June 1, 2016 (the existing
Loan Agreement, as amended to date, is referred to herein
collectively as the “
Credit
Facility Agreement
”). The Credit Facility 5th
Amendment amends (i) Section 1.1.1 of the Credit Facility Agreement
to extend the maturity date of the Revolving Loan under the Credit
Facility Agreement from April 30, 2018 to January 5, 2021; and (ii)
Section 1.1.1.1 of the Credit Facility Agreement to extend the
maturity date of the Standby L/C Sublimit under the Revolving Loan
from April 30, 2019 to January 5, 2022. The Revolving Loan is
evidenced by a Commercial Promissory Note dated as of June 28, 2017
(“
Revolving Loan
Note
”).
Borrowings under
the Revolving Loan will bear interest at either: (i) the LIBOR plus
2.5%; or (ii) the bank’s Reference Rate (prime rate) minus
0.5%, at the option of the Company. Interest under the Revolving
Loan adjusts: (i) at the end of each LIBOR rate period (1, 2, 3, 6
or 12 months terms) selected by the Company, if the LIBOR rate is
selected; or (ii) with changes in Union Bank’s Reference
Rate, if the Reference Rate is selected. Borrowings under the
Revolving Loan are secured by a first priority security interest on
all of the Company’s personal property (including, but not
limited to, accounts receivable) and proceeds thereof. Borrowings
under the Revolving Loan may be used as a source to finance working
capital, capital expenditures, acquisitions and stock buybacks and
for other general corporate purposes. As of June 1, 2017, there was
$8.0 million in borrowings outstanding under the Revolving
Loan.
The
foregoing description of the Credit Facility Agreement, Credit
Facility 5th Amendment, Revolving Loan Note and related documents
is not complete and is qualified in its entirety by reference to
(i) Loan Agreement dated as of February 26, 2013 by and between
Autobytel Inc., a Delaware corporation, and Union Bank, N.A., a
national banking association, as amended by First Amendment to Loan
Agreement dated as of September 10, 2013, Second Amendment to Loan
Agreement dated as of January 13, 2014, Security Agreement dated
January 13, 2014, Commercial Promissory Note dated January 13, 2014
($9,000,000 Term Loan), and Commercial Promissory Note dated
January 13, 2014 ($8,000,000 Revolving Loan), which are
incorporated herein by reference to Exhibit 10.4 to the Current
Report on Form 8-K as filed with the SEC on
January 17, 2014 (SEC File No.
001-34761);
(ii) the Third Amendment to the Credit Facility
Agreement, the Commercial Promissory Note dated May 20, 2015
($15,000,000 Term Loan) and the Commercial Promissory Note dated
May 20, 2015 ($8,000,000 Revolving Loan), which is incorporated
herein by reference
to Exhibits 10.1,
10.2 and 10.3 to the Current Report on Form 8-K filed with the SEC
on May 27, 2015 (SEC File No. 001-34761)
; (iii) the Fourth
Amendment to the Credit Facility Agreement dated June 1, 2016
($8,000,000 Revolving Loan), which is incorporated herein by
reference
to Exhibit 10.5 to the
Quarterly Report on Form 10-Q filed with the SEC on August 4, 2016
(SEC File No. 001-34761)
; and (iv) the Fifth Amendment to
Credit Facility Agreement and the Revolving Loan Note, copies of
which are filed as exhibits to this Current Report on Form
8-K.
Item 9.01
Financial Statements and Exhibits.
10.1
Loan
Agreement dated as of February 26, 2013 by and between Autobytel
Inc., a Delaware corporation, and Union Bank, N.A., a national
banking association, as amended by First Amendment to Loan
Agreement dated as of September 10, 2013, Second Amendment to Loan
Agreement dated as of January 13, 2014, Security Agreement dated
January 13, 2014, Commercial Promissory Note dated January 13, 2014
($9,000,000 Term Loan), and Commercial Promissory Note dated
January 13, 2014 ($8,000,000 Revolving Loan), which are
incorporated herein by reference to Exhibit 10.4 to the Current
Report on Form 8-K as filed with the SEC on
January 17, 2014 (SEC File No. 001-34761);
and amended by Third Amendment to Loan Agreement dated as of May
20, 2015, Commercial Promissory Note dated May 20, 2015
($15,000,000 Term Loan), and Commercial Promissory Note dated May
20, 2015 ($8,000,000 Revolving Loan), which are incorporated herein
by reference to Exhibits 10.1, 10.2 and 10.3
to the Current Report on Form 8-K filed with the
SEC on May 27, 2015 (SEC File No. 001-34761); and amended by Fourth
Amendment to Loan Agreement dated as of June 1, 2016, incorporated
by reference to Exhibit 10.5 to the Quarterly Report on Form 10-Q
filed with the SEC on August 4, 2016 (SEC File No.
001-34761)
10.2
Fifth
Amendment to Loan Agreement dated as of June 28, 2017
10.3
Commercial
Promissory Note dated June 28, 2017 ($8,000,000 Revolving
Loan)
SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date:
June 29, 2017
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AUTOBYTEL
INC.
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By:
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/s/ Glenn E.
Fuller
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Glenn
E. Fuller, Executive Vice President, Chief Legal and Administrative
Officer and Secretary
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INDEX OF EXHIBITS
Exhibit
No.
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Description of Document
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10.1
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Loan
Agreement dated as of February 26, 2013 by and between Autobytel
Inc., a Delaware corporation, and Union Bank, N.A., a national
banking association, as amended by First Amendment to Loan
Agreement dated as of September 10, 2013, Second Amendment to Loan
Agreement dated as of January 13, 2014, Security Agreement dated
January 13, 2014, Commercial Promissory Note dated January 13, 2014
($9,000,000 Term Loan), and Commercial Promissory Note dated
January 13, 2014 ($8,000,000 Revolving Loan), which are
incorporated herein by reference to Exhibit 10.4 to the Current
Report on Form 8-K as filed with the SEC on
January 17, 2014 (SEC File No. 001-34761);
and amended by Third Amendment to Loan Agreement dated as of May
20, 2015, Commercial Promissory Note dated May 20, 2015
($15,000,000 Term Loan), and Commercial Promissory Note dated May
20, 2015 ($8,000,000 Revolving Loan), which are incorporated herein
by reference to Exhibits 10.1, 10.2 and 10.3
to the Current Report on Form 8-K filed with the
SEC on May 27, 2015 (SEC File No. 001-34761); and amended by Fourth
Amendment to Loan Agreement dated as of June 1, 2016, incorporated
by reference to Exhibit 10.5 to the Quarterly Report on Form 10-Q
filed with the SEC on August 4, 2016 (SEC File No.
001-34761)
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10.2
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Fifth
Amendment to Loan Agreement dated as of June 28, 2017
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10.3
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Commercial
Promissory Note dated June 28, 2017 ($8,000,000 Revolving
Loan)
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Exhibit 10.2
FIFTH AMENDMENT
TO LOAN AGREEMENT
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.
By:
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/s/ Jeff Coats
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Jeff
Coats
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Chief
Executive Officer
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By:
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/s/ Glenn E.
Fuller
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Glenn
E. Fuller
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Executive Vice
President, Chief Legal and Administrative Officer and
Secretary
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“Bank”
MUFG
UNION BANK, N.A.
By:
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/s/ Gregory
Dubnansky
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Gregory
Dubnansky
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Vice
President
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Exhibit A
Borrower
Affiliates
Autobytel
Dealer Services, Inc.
Dealix
Corporation
Car.com,
Inc.
Autotegrity,
Inc.
Autoweb,
Inc.
AW GUA
USA, Inc.
AW GUA,
Sociedad de Responsabilidad Limitada