Exhibit



Exhibit 10.1



FOURTH AMENDMENT
TO 
LOAN AND SECURITY AGREEMENT


This Fourth Amendment to Loan and Security Agreement (this “Amendment”) is entered into this 22nd day of March, 2017, by and between SILICON VALLEY BANK (“Bank”) and MAXPOINT INTERACTIVE, INC., a Delaware corporation (“Borrower”) whose address is 3020 Carrington Mill Boulevard, Suite 300, Morrisville, North Carolina 27560.
RECITALS
A.    Bank and Borrower have entered into that certain Loan and Security Agreement dated as of June 12, 2014, as amended by that certain First Amendment to Loan and Security Agreement by and between Borrower and Bank dated as of February 12, 2015, as further amended by that certain Second Amendment to Loan and Security Agreement by and between Borrower and Bank dated as of March 8, 2016 (the “Second Amendment”), and as further amended by that certain Third Amendment to Loan and Security Agreement by and between Borrower and Bank dated as of September 30, 2016 (as the same has been and may from time to time be further amended, modified, supplemented or restated, the “Loan Agreement”).  
B.    Bank has extended credit to Borrower for the purposes permitted in the Loan Agreement.  
C.    Borrower has requested that Bank amend the Loan Agreement to (i) extend the maturity date, (ii) revise a financial covenant, and (iii) make certain other revisions to the Loan Agreement as more fully set forth herein.
D.    Bank has agreed to so amend certain provisions of the Loan Agreement, but only to the extent, in accordance with the terms, subject to the conditions and in reliance upon the representations and warranties set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:
1.    Definitions.  Capitalized terms used but not defined in this Amendment shall have the meanings given to them in the Loan Agreement.
2.    Amendments to Loan Agreement.
2.1    Section 6.9(c) (Minimum Adjusted EBITDA/Maximum Adjusted EBITDA Loss).  Section 6.9(c) is amended in its entirety and replaced with the following:









(c)    Minimum Adjusted EBITDA/Maximum Adjusted EBITDA Loss.  Achieve minimum Adjusted EBITDA/maximum Adjusted EBITDA losses, subject to reporting as of the last day of each period set forth below, measured monthly on a trailing twelve (12) month basis, of at least the following:


	
		
	Trailing Twelve (12) Month Period Ending
	Minimum Adjusted EBITDA/ Maximum Adjusted EBITDA Loss

	September 30, 2016
	($22,200,000.00)

	December 31, 2016
	($19,000,000.00)

	March 31, 2017
	($12,000,000.00)

	June 30, 2017
	($8,000,000.00)

	September 30, 2017
	($3,000,000.00)

	December 31, 2017
	$1.00

	March 31, 2018
	$1.00








2.2    Section 13.1 (Definitions).  Effective as of December 31, 2017, the following term and its respective definition set forth in Section 13.1 is amended in its entirety and replaced with the following:
“Revolving Line Maturity Date” is March 31, 2018.


2.3    Exhibit B (Compliance Certificate).  The Compliance Certificate is amended in its entirety and replaced with the Compliance Certificate in the form of Schedule 1 attached hereto.
3.    Limitation of Amendments.
3.1    The amendments set forth in Section 2 above are effective for the purposes set forth herein and shall be limited precisely as written and shall not be deemed to (a) be a consent to any amendment, waiver or modification of any other term or condition of any Loan Document, or (b) otherwise prejudice any right or remedy which Bank may now have or may have in the future under or in connection with any Loan Document.
3.2    This Amendment shall be construed in connection with and as part of the Loan Documents and all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan Documents, except as herein amended, are hereby ratified and confirmed and shall remain in full force and effect.
4.    Representations and Warranties.  To induce Bank to enter into this Amendment, Borrower hereby represents and warrants to Bank as follows:
4.1    Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material 









respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Event of Default has occurred and is continuing;
4.2    Borrower has the power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
4.3    The organizational documents of Borrower delivered to Bank on the Effective Date and in connection with this Amendment and/or as filed with the SEC and available at www.sec.gov (or any successor site maintained by the SEC for similar purposes); remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect;
4.4    The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized;
4.5    The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not and will not contravene (a) any law or regulation binding on or affecting Borrower, (b) any contractual restriction with a Person binding on Borrower, (c) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (d) the organizational documents of Borrower; 
4.6    The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on Borrower, except as already has been obtained or made; and
4.7    This Amendment has been duly executed and delivered by Borrower and is the binding obligation of Borrower, enforceable against Borrower in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights.
5.    Ratification of Intellectual Property Security Agreement.  Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of a certain Intellectual Property Security Agreement dated as of June 12, 2014 between Borrower and Bank, and acknowledges, confirms and agrees that said Intellectual Property Security Agreement (a) contains an accurate and complete listing of all Intellectual Property Collateral, as defined in said Intellectual Property Security Agreement, and (b) shall remain in full force and effect.









6.    Ratification of Perfection Certificate.  Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in a certain Perfection Certificate dated as of June 12, 2014, as amended by that certain Schedule 2 to the Second Amendment, between Borrower and Bank, and acknowledges, confirms and agrees the disclosures and information Borrower provided to Bank in said Perfection Certificate have not changed in any material respect, as of the date hereof.
7.    Integration.  This Amendment and the Loan Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements.  All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter of this Amendment and the Loan Documents merge into this Amendment and the Loan Documents.
8.    Counterparts.  This Amendment may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.
9.    Effectiveness.  This Amendment shall be deemed effective upon (a) the due execution and delivery to Bank of this Amendment by each party hereto and (b) Borrower’s payment to Bank of (i) a fully earned, non-refundable amendment fee in an amount equal to Thirty-Five Thousand Dollars ($35,000.00), and (ii) Bank’s legal fees and expenses incurred in connection with this Amendment.
[Signature page follows.]












IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first written above.




	
					
	BANK
	 
	BORROWER

	SILICON VALLEY BANK
	 
	MAXPOINT INTERACTIVE, INC.

	 
	 
	 
	 
	 

	By:
	/s/ Will Deevy
	 
	By:
	/s/ Brad Schomber

	Name:
	Will Deevy
	 
	Name:
	Brad Schomber

	Title:
	Vice President
	 
	Title:
	CFO




















SCHEDULE 1


EXHIBIT B


COMPLIANCE CERTIFICATE


	
				
	TO:
	SILICON VALLEY BANK
	Date:
	 

	FROM:
	MAXPOINT INTERACTIVE, INC.
	 
	 






The undersigned authorized officer of MaxPoint Interactive, Inc., a Delaware corporation (“Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Borrower and Bank (as amended, the “Agreement”), (1) Borrower is in complete compliance for the period ending _______________ with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries, if any, relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.  Attached are the required documents supporting the certification.  The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes.  The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered.  Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement.













	
			
	Please indicate compliance status by circling Yes/No under “Complies” column.

	 

	Reporting Covenant
	Required
	Complies

	 
	 
	 

	Monthly financial statements
	Monthly within 30 days
	Yes   No

	Compliance Certificate
	Monthly within 30 days
	Yes   No

	Annual financial statement (CPA Audited)
	FYE within 180 days


	Yes   No

	10‐Q, 10‐K and 8-K
	Within 10 days after filing with
SEC


	Yes   No

	A/R & A/P Agings
	Monthly within 30 days


	Yes   No

	Deferred Revenue reports
	Monthly within 30 days
	Yes   No

	Annual Operating Budget
	With 10 days after Board 
approval, but at least annually


	Yes   No

	Transaction Reports
	(i) with each request for an Advance, and (ii) within five (5) days of (A) the 15th day  and (B) the last Business Day of each month 


	Yes   No

	 

	

The following Intellectual Property was registered after the Effective Date (if no registrations, state “None”)
____________________________________________________________________________








	
				
	Financial Covenant 


	Required
	Actual
	Complies

	 
	 
	 
	 

	Maintain as indicated:
	 
	 
	 

	Adjusted Quick Ratio, commencing with the month ending September 30, 2016 and for each month thereafter
	1.00 : 1.00
	_____: 1.0
	Yes   No

	Minimum Adjusted EBITDA/Maximum Adjusted EBITDA Loss
	*
	

$________
	Yes   No






*     As set forth in Section 6.9(c) of the Agreement    


The following financial covenant analyses and information set forth in Schedule 1 attached hereto are true and accurate as of the date of this Certificate.















The following are the exceptions with respect to the certification above: (If no exceptions exist, state “No exceptions to note.”)


---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


	
						
	MAXPOINT INTERACTIVE, INC.
	 
	BANK USE ONLY

	 
	 
	 

	 
	 
	 
	 
	 
	 

	By:
	 
	 
	Received by:
	 
	 

	Name:
	 
	 
	 
	 
	AUTHORIZED SIGNER

	Title:
	 
	 
	Date:
	 
	 

	 
	 
	 
	 
	 
	 

	 
	 
	 
	Verified:
	 
	 

	 
	 
	 
	 
	 
	AUTHORIZED SIGNER

	 
	 
	 
	Date:
	 
	 

	 
	 
	 
	 
	 
	 

	 
	 
	 
	Compliance Status:
	 
	Yes        No























Schedule 1 to Compliance Certificate


Financial Covenants of Borrower


In the event of a conflict between this Schedule and the Agreement, the terms of the Agreement shall govern.


Dated:    _______________


I.    Adjusted Quick Ratio.  (Section 6.9(b))


		
	Required: 
	1.00 to 1.00.




	
			
	A.
	Aggregate value of Borrower’s consolidated unrestricted cash and Cash Equivalents maintained with Bank
	$______

	B.
	Aggregate value of Borrower’s consolidated net billed accounts receivable, determined according to GAAP
	$______

	C.
	Quick Assets (the sum of lines A and B)
	$______

	D.
	Aggregate value of obligations and liabilities of Borrower to Bank
	$______

	E.
	Aggregate value of liabilities that should, under GAAP, be classified as liabilities on Borrower’s consolidated balance sheet, including all Indebtedness, not otherwise reflected in line D above, that mature within one (1) year
	$______

	F.
	Current Liabilities (the sum of lines D and E)   
	$______

	G.
	Aggregate value of current portion of all amounts received or invoiced by Borrower in advance
of performance under contracts and not yet recognized as revenue
	$______

	H.
	Line F minus G
	$_______

	I.
	Adjusted Quick Ratio (line C divided by line H)
	______








Is line I greater than or equal to 1.0 to 1.0?


	
					
	 
	Yes, in compliance
	 
	 
	No, not in compliance






[continued on next page]

















		
	II.
	Minimum Adjusted EBITDA/Maximum EBITDA Loss.  (Section 6.9(c))


		
	Required:
	See chart below




	
		
	Trailing Twelve (12) Month Period Ending
	Minimum Adjusted EBITDA/ Maximum Adjusted EBITDA Loss

	September 30, 2016
	($22,200,000.00)

	December 31, 2016
	($19,000,000.00)

	March 31, 2017
	($12,000,000.00)

	June 30, 2017
	($8,000,000.00)

	September 30, 2017
	($3,000,000.00)

	December 31, 2017
	$1.00

	March 31, 2018
	$1.00




Actual:
	
			
	A.
	Net Income
	$   



	B.
	Interest Expense
	$



	C.
	To the extent included in the determination of Net Income:


	 

	 
	1.   depreciation expense
	$   



	 
	2.   amortization expense
	$   



	 
	3.   income tax expense
	$



	 
	4.   change in Deferred Revenue (positive or negative, as applicable)


	$

	 
	5.   capitalized software expenses
	$



	 
	6.   non-cash stock compensation expenses
	$   



	 
	7.   all other non-cash and/or non-recurring expenses approved by Bank in writing in its sole discretion
	$   



	 
	8.   The sum of lines 1 through 4 plus the sum of lines 6 through 7 minus line 5
	$   



	D.
	Adjusted EBITDA (line A plus line B plus line C.8)
	$   








	
					
	 
	Yes, in compliance
	 
	 
	No, not in compliance