Amendment No. 4 to Loan and Security Agreement



 Exhibit 10.76 
 AMENDMENT NO. 4 TO 
 LOAN AND SECURITY AGREEMENT 

THIS AMENDMENT NO. 4 TO LOAN AND
SECURITY AGREEMENT (this “Amendment”) is entered into this 23rd day of March, 2012, by and among SILICON VALLEY BANK, a California banking corporation (“Bank”), U.S. AUTO
PARTS NETWORK, INC., a Delaware corporation (“USAPN”), AUTOMOTIVE SPECIALTY ACCESSORIES AND PARTS, INC., a Delaware corporation (“ASAP”), GO FIDO, INC., a Delaware corporation (“Go
Fido”), PARTS BIN, INC., a Delaware corporation (“Parts Bin”), LOBO MARKETING, INC., a Texas corporation (“Lobo”), WHITNEY AUTOMOTIVE GROUP, INC., a Delaware corporation
(“Whitney”), PRIVATE LABEL PARTS, INC., a Delaware corporation (“Private Label”), PACIFIC 3PL, INC., a Delaware corporation (“Pacific”), AUTOMD, INC., a Delaware corporation
(“AutoMD”), and LOCAL BODY SHOPS, INC., a Delaware corporation (“Local Body Shops” and with USAPN, ASAP, Go Fido, Parts Bin, Lobo, Whitney, Private Label, Pacific, and AutoMD, each a
“Borrower” and collectively, the “Borrower”). Capitalized terms used herein without definition shall have the same meanings given them in the Loan Agreement (as defined below). 

RECITALS 
 A. Borrower and Bank entered into that certain Loan and Security Agreement dated as of August 13, 2010, as amended by that certain Amendment No. 1 to Loan and Security Agreement and
Limited Waiver dated as of February 28, 2011, as amended by that certain Amendment No. 2 to Loan and Security Agreement and Limited Waiver dated as of November 7, 2011, as amended by that certain Amendment No. 3 to Loan and
Security Agreement dated as of December 29, 2011 (as amended, restated, or otherwise modified from time to time, the “Loan Agreement”), pursuant to which the Bank agreed to extend and make available to Borrower certain advances
of money. 
 B. Borrower desires that Bank amend the Loan Agreement upon the terms and conditions more fully set forth
herein. 
 C. Subject to the representations and warranties of Borrower herein and upon the terms and conditions set
forth in this Amendment, Bank is willing to so amend the Loan Agreement. 
 AGREEMENT 

NOW, THEREFORE, in consideration of the foregoing Recitals and intending to be legally bound, the parties hereto agree as follows:

 1. AMENDMENT TO LOAN AGREEMENT. 

1.1 Section 6.7 (Financial Covenants). Subsection (c) of Section 6.7 of the Loan Agreement is amended and
restated in its entirety as follows: 







 “(c) Consolidated Fixed Charge Coverage Ratio. A Consolidated Fixed Charge
Coverage Ratio, measured as of the last day of each fiscal quarter, for the period set forth below of not less than the ratio set forth below opposite such period: 
  

			
	Period	  	Fixed Charge Coverage Ratio
		
	 For the one quarter period ending March 31, 2012
	  	1.00:1.00
		
	 For the one quarter period ending each fiscal quarter thereafter
	  	1.25:1.00

 Notwithstanding the forgoing, the covenants in this Section 6.7 are subject to adjustment should the
Initial Audit reveal material adverse derivations in Borrower’s financial position as compared to Borrower’s financial position based on information provided to Bank on or before the Effective Date.” 

1.2 Exhibit D (Compliance Certificate). Exhibit D to the Loan Agreement is amended and restated in its entirety and
replaced with Exhibit A hereto. 
 2. BORROWER’S
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that: 
 (a) immediately upon giving effect to this Amendment (i) 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 in all material respects as of such date), and (ii) no Event of Default has occurred and is continuing;

 (b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its
obligations under the Loan Agreement, as amended by this Amendment; 
 (c) the certificate of incorporation, bylaws and
other organizational documents of Borrower delivered to Bank on the Effective Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect; 

(d) 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 by all necessary corporate action on the part of Borrower; 

(e) this Amendment has been duly executed and delivered by Borrower and is the binding obligation of Borrower, enforceable against
it 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; and 
 (f) as of the date hereof, Borrower has no defenses against the obligations to pay any
amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and 







 
has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. 

Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the
above representations and warranties, and agrees that such reliance is reasonable and appropriate. 
 3.
LIMITATION. The amendments set forth in Section 1 of this Amendment shall be limited precisely as written and shall not be deemed (a) to be a waiver of, or consent under, any term or condition of
any instrument or agreement, (b) to be a modification of any other term or condition of the Loan Agreement or of any other instrument or agreement, (c) to prejudice any right or remedy which Bank may now have or may have in the future
under or in connection with the Loan Agreement, the other Loan Documents or any other instrument or agreement or (d) to be a consent to any future amendment, modification, or waiver to any instrument or agreement. Except as expressly amended
hereby, the Loan Agreement shall continue in full force and effect. 
 4.
EFFECTIVENESS. This Amendment shall become effective upon (i) the due execution and delivery of this Amendment by each party hereto and delivery of same to Bank and (ii) payment by Borrower of an
amendment fee in the amount equal to $50,000. 
 5. EXPENSES. Borrower agrees to pay Bank Expenses
(including the fees and expenses of Bank’s counsel, advisors and consultants) accrued and incurred in connection with the transactions contemplated by this Amendment and all other Bank Expenses (including the fees and expenses of Bank’s
counsel, advisors and consultants) payable in accordance with the Loan Agreement. 
 6.
COUNTERPARTS. This Amendment may be signed in any number of counterparts, and by different parties hereto in separate counterparts, with the same effect as if the signatures to each such counterpart were upon a
single instrument. All counterparts shall be deemed an original of this Amendment. 
 7.
INTEGRATION. This Amendment and any documents executed in connection herewith or pursuant hereto contain the entire agreement between the parties with respect to the subject matter hereof and supersede all prior
agreements, understandings, offers and negotiations, oral or written, with respect thereto and no extrinsic evidence whatsoever may be introduced in any judicial or arbitration proceeding, if any, involving this Amendment; except that any financing
statements or other agreements or instruments filed by Bank with respect to Borrower shall remain in full force and effect. 

8. GOVERNING LAW; VENUE. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. Borrower and Bank each submit to the exclusive jurisdiction of the State and Federal courts in Santa Clara County, California. 

[signature page follows] 







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

			
	 BORROWER:
  

U.S. AUTO PARTS NETWORK, INC.

		
	By	 	/s/ Shane Evangelist
	Name:	 	Shane Evangelist
	Title:	 	Chief Executive Officer

  

			
	PARTS BIN, INC.
		
	By	 	/s/ Shane Evangelist
	Name:	 	Shane Evangelist
	Title:	 	President

  

			
	LOBO MARKETING, INC.
		
	By	 	/s/ Brian Hafer
	Name:	 	Brian Hafer
	Title:	 	President

  

			
	AUTOMOTIVE SPECIALTY ACCESSORIES AND PARTS, INC.
		
	By	 	/s/ David Spangler
	Name:	 	David Spangler
	Title:	 	President

  

			
	GO FIDO, INC.
		
	By	 	/s/ Michael Buca
	Name:	 	Michael Buca
	Title:	 	President

  

			
	WHITNEY AUTOMOTIVE GROUP, INC.
		
	By	 	/s/ Tony Savasta
	Name:	 	Tony Savasta
	Title:	 	President

  

			
	PRIVATE LABEL PARTS, INC.
		
	By	 	/s/ Shannon Logan
	Name:	 	Shannon Logan
	Title:	 	Secretary

 -Signature Page- 
 Amendment No. 4 to 
 Loan and Security Agreement 








			
	PACIFIC 3PL, INC.
		
	By	 	/s/ Rick Ellis
	Name:	 	Rick Ellis
	Title:	 	President

  

			
	AUTOMD, INC.
		
	By	 	/s/ Anton Reut
	Name:	 	Anton Reut
	Title:	 	President

  

			
	LOCAL BODY SHOPS, INC.
		
	By	 	/s/ David Hernandez
	Name:	 	David Hernandez
	Title:	 	President

 -Signature Page- 
 Amendment No. 4 to 
 Loan and Security Agreement 








			
	 BANK:
  

SILICON VALLEY BANK

		
	By	 	/s/ Jack Garza
	Name:	 	Jack Garza
	Title:	 	Relationship Manager

 -Signature Page- 
 Amendment No. 4 to 
 Loan and Security Agreement 







 EXHIBIT D 

COMPLIANCE CERTIFICATE 
  

							
	TO:	 	SILICON VALLEY BANK	  	Date:	  	  

	FROM:	 	U.S. AUTO PARTS NETWORK, INC.	  		  	

 The undersigned authorized officer of U.S. AUTO PARTS NETWORK,
INC. (“Administrative Borrower”) certifies that under the terms and conditions of the Loan and Security Agreement between Administrative Borrower, AUTOMOTIVE SPECIALTY
ACCESSORIES AND PARTS, INC. (“ASAP”), GO FIDO, INC. (“Go
Fido”), PARTS BIN, INC. (“Parts Bin”), LOBO MARKETING, INC. (“Lobo”),
WHITNEY AUTOMOTIVE GROUP, INC. (“Whitney”), PRIVATE LABEL PARTS, INC. (“Private
Label”), PACIFIC 3PL, INC. (“Pacific”), AUTOMD, INC. (“AutoMD”) and LOCAL BODY
SHOPS, INC. (“Local Body Shops”, and with Administrative Borrower, ASAP, Go Fido, Parts Bin Lobo, Whitney, Private Label, Pacific and AutoMD, each a “Borrower” and
collectively, the “Borrower”) and Bank (the “Agreement”): 
 (1) Each Borrower is in
complete compliance for the period ending _______________ with all required covenants except as noted below; (2) there are no Events of Default, except as noted below; (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) Each Borrower, and each of its Subsidiaries, have
timely filed, or have obtained extensions for filing, all required tax returns and reports, and each Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by each Borrower except as
otherwise permitted pursuant to the terms of Section 5.8 of the Agreement; and (5) no Liens have been levied or claims made against any Borrower or any of its Subsidiaries 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
			
	Quarterly consolidated and consolidating financial statements with Compliance Certificate; A/R & A/P Agings	  	 Quarterly within 45 days (first three
 quarters of fiscal year)
	  	        Yes    No        
	 Annual consolidated and consolidating financial
 statements (CPA Audited) + CC
	  	FYE within 90 days	  	Yes    No
	10-Q, 10-K and 8-K	  	Within 5 days after filing with SEC	  	Yes    No
	Board approved financial projections	  	 Not later than January 30 of each
 calendar year
	  	Yes    No
	
	 The following Intellectual Property was registered (or a registration application submitted) after the Effective Date (if no
registrations, state “None”)


  
  

 
  








											
	 Financial Covenant
	  	 Required
	 	  	 Actual
	 	  	 Complies

				
	 Maintain on a Quarterly Basis:
	  				  				  	
	 Maximum Funded Debt to TTM Consolidated EBITDA:
	  				  				  	
	 Effective Date through October 1, 2010
	  	 	2.25:1.00	  	  	 	___:1.00	  	  	        Yes    No        
	 January 1, 2011 through July 2, 2011
	  	 	2.00:1.00	  	  				  	
	 October 1, 2011 through July 1, 2012
	  	 	1.50:1.00	  	  	 	___:1.00	  	  	Yes    No
	 Thereafter
	  	 	1.00:1.00	  	  	 	___:1.00	  	  	Yes    No
				
	 Liquidity
	  	$	7,500,000	  	  	$	________	  	  	Yes    No
				
	 Consolidated Fixed Charge Coverage Ratio:
	  				  				  	
	 One quarter period ending March 31, 2012
	  	 	1.00:1.00	  	  	 	___:1.00	  	  	Yes    No
	 One quarter period ending each fiscal quarter thereafter
	  	 	1.25:1.00	  	  	 	___:1.00	  	  	

 The following financial covenant analys[is][es] 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.”) 
  

 
  

 
  

 
  

															
	ADMINISTRATIVE BORROWER:	 	BANK USE ONLY	  	
				
	U.S. AUTO PARTS NETWORK, INC.	 	Received by:	  	 	  	
		  		  		 		 		  		  	AUTHORIZED SIGNER	  	
		  		  		 	Date:	 	 	  	
	By:	  	 	  		 		 		  		  		  	
	Name:	  	 	  		 	Verified:	  	 	  	
	Title:	  	 	  		 		 		  		  	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 Loan Agreement, the terms of the Loan Agreement shall govern. 
 Dated: ____________________ 
  

	I.	Maximum Funded Debt to Consolidated EBITDA (Section 6.7(a)) 

 Required:    See chart below 
  

			
	Period	  	Maximum Funded Debt to EBITDA
		
	 Effective Date through October 1, 2010
	  	2.25:1.00
		
	 January 1, 2011 through July 2, 2011
	  	2.0:1.00
		
	 October 1, 2011 through July 1, 2012
	  	1.5:1.00
		
	 Thereafter
	  	1.0:1.00

 Actual: 
  

							
	 A.
	  		  			
			
		  	 1.           Advances outstanding
	  	$	                	  
			
		  	 2.           Amount of Term Loan outstanding
	  	$	                	  
			
		  	 3.           Credit Extensions outstanding (line A.1 plus line
A.2)
	  	$	                	  
			
	 B.
	  	Net Income	  	$	                	  
			
	 C.
	  	To the extent included in the determination of Net Income	  			
			
		  	 1.           Depreciation expense
	  	$	                	  
			
		  	 2.           Amortization expense
	  	$	                	  
			
		  	 3.           Income tax expense
	  	$	                	  
			
		  	 4.           Stock-based compensation
	  	$	                	  
			
		  	 5.           Impairment of intangible assets
	  	$	                	  
			
		  	 6.           Restructuring costs and transaction fees and expenses
related to Whitney Stock Purchase to the extent paid in the fiscal quarters ending January 1, 2011, April 2, 2011, July 2, 2011 or October 1, 2011
	  	$	                	  

  








									
			
		  	 7.           The sum of lines 1 through 6
	  	$	_______	  
			
	 D.
	  	Consolidated Interest Expense	  	$	_______	  
			
	 E.
	  	Consolidated EBITDA (line B plus line C.7 plus line D)	  	$	_______	  
			
	 F.
	  	Maximum Funded Debt to Consolidated Adjusted EBITDA (line A.3 divided by line E)	  	 	_______	  
		
	 Is line F equal to or less than ______:1.00?
	  			
				
		  	______ No, not in compliance	  	______ Yes, in compliance	  			
		  		  		  			
			
	 II.
	  	Liquidity (Section 6.7(b))	  			
		
	 Required:
                $7,500,000
	  			
		
	 Actual:
	  			
			
	 A.
	  	Unrestricted cash and Cash Equivalents	  	$	_______	  
			
	 B.
	  	Advances outstanding	  	$	_______	  
			
	 C.
	  	Liquidity (line A minus line B)	  	$	_______	  
	
	 Is line C equal to or greater than $7,500,000?
	   

				
		  	______ No, not in compliance	  	______ Yes, in compliance	  			
		  		  		  			
			
	 III.
	  	Consolidated Fixed Charge Coverage Ratio (Section 6.7(c))	  			
		
	 Required: See chart below
	  			
				
		  	Period	  	Fixed Charge Coverage Ratio	  			
				
		  	For the one quarter period ending March 31, 2012	  	1.00:1.00	  			
				
		  	For the one quarter period ending each fiscal quarter thereafter	  	1.25:1.00	  			
		  		  		  			
		
	 Actual:
	  			
			
	 A.
	  	Net Income	  	$	_______	  
			
	 B.
	  	To the extent included in the determination of Net Income	  			
			
		  	 1.           Depreciation expense
	  	$	_______	  
			
		  	 2.           Amortization expense
	  	$	_______	  

  








							
			
		  	 3.           Income tax expense
	  	$	                	  
			
		  	 4.           Stock-based compensation
	  	$	                	  
			
		  	 5.           Impairment of intangible assets
	  	$	                	  
			
		  	 6.           Restructuring costs and transaction fees and expenses
related to Whitney Stock Purchase to the extent paid in the fiscal quarters ending January 1, 2011, April 2, 2011, July 2, 2011 or October 1, 2011
	  	$	                	  
			
		  	 7.           Integration capital expenditures related to the Whitney
Stock Purchase to the extent paid in the fiscal quarters ending January 1, 2011, April 2, 2011, July 2, 2011 or October 1, 2011
	  	$	                	  
			
		  	 8.           The sum of lines 1 through 7
	  	$	                	  
			
	 C.
	  	Consolidated Interest Expense	  	$	                	  
			
	 D.
	  	Consolidated EBITDA (line A plus line B.8 plus line C)	  	$	                	  
			
	 E.
	  	Taxes based on income actually paid in cash (excluding income tax refunds received in cash during such period as a result of an over-payment of taxes actually paid in such
period)	  	$	                	  
			
	 F.
	  	Consolidated Capital Expenditures	  	$	                	  
			
	 G.
	  		  			
			
		  	 1.           Consolidated Interest Expense
	  	$	                	  
			
		  	 2.           Payments made on account of principal of Indebtedness of
Borrower and its Subsidiaries (including principal payments in respect of the Term Loan)
	  	$	                	  
			
		  	 3.           Cash dividends, distributions, repurchases and redemptions
in respect of stock of Administrative Borrower
	  	$	                	  
			
	 H.
	  	Consolidated Fixed Charges (line G.1 plus G.2 plus G.3)	  	$	                	  
			
	 I.
	  	Consolidated Fixed Charge Coverage Ratio ((line D minus line E minus line F) divided by line H)	  	$	                	  

 Is line I equal to or greater than
                :1.00? 
  

					
			
		  	                 No, not in compliance	  	                 Yes, in compliance