Exhibit 10.1


 


FIRST AMENDMENT

TO

THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT


 


This First Amendment
to Third Amended and Restated Loan and Security Agreement (this “Amendment”) is entered into as of November 30, 2015,
by and between Silicon Valley Bank (“Bank”) and Digital Turbine Media, Inc. (f/k/a Appia, Inc., f/k/a PocketGear, Inc.),
a Delaware corporation (“Borrower”) whose address is 320 Blackwell Street, 4th Floor, Durham, NC 27701.


 


Recitals


 


A.Bank and
Borrower have entered into that certain Third Amended and Restated Loan and Security Agreement dated as of June 11, 2015 (as the
same may from time to time be 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) modify the financial covenant, and (ii) 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.


 


2.1Section 6.2
(Financial Statements, Reports, Certificates). Section 6.2(c) is amended in its entirety and replaced with the following:


 


(c)as
soon as available, but no later than thirty (30) days after the last day of each month, company prepared consolidated and consolidating
balance sheets, income statements and cash flow statements covering Parent’s consolidated operations and Parent’s and
each of its Subsidiaries’ operations for such month certified by a Responsible Officer and in a form acceptable to Bank (the
“Monthly Financial Statements”);


 



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2.2Section 6.8
(Financial Covenants). Section 6.8 is amended in its entirety and replaced with the following:


 


6.8Financial
Covenants. Maintain at all times, subject to periodic reporting as of the last day of each month, unless either (x) no Advances
are outstanding or (y) the aggregate amount of Parent’s and Borrower’s combined unrestricted cash and Cash Equivalents
on deposit with Bank or Bank’s Affiliates (including cash and Cash Equivalents subject to Control Agreements), measured at
the time such covenant is (or is required to be) reported to Bank (but in any case not later than the date the applicable Compliance
Certificate is due in accordance with Section 6.2(d) above), is greater than or equal to Fifteen Million Dollars ($15,000,000):


 


(a)Adjusted
Quick Ratio. An Adjusted Quick Ratio of not less than 0.90 to 1.00.


 


2.3Section 13
(Definitions). The following term and its definition set forth in Section 13.1 are amended in their entirety and replaced with
the following:


 


“Streamline
Period” means that Borrower has achieved, during the trailing three (3) month period most recently ended, revenue during
such period of not less than (a) eighty percent (80%) for the three months ending June 30 and July 31, 2015, (b) eighty-five percent
(85%) for the three months ending August 31, 2015 through November 30, 2015, and (c) seventy-five percent (75%) for the three months
ending December 31, 2015 and thereafter, of Borrower’s projected revenue for such three (3) month period as set forth in
the operating budget of Parent delivered to and accepted by Bank on October 20, 2015.


 


2.4Exhibit D (Compliance
Certificate). The Compliance Certificate is amended in its entirety and replaced with the Compliance Certificate in the form
of Exhibit A attached hereto.


 


3.Limitation
of Amendments.


 


3.1The 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.


 


3.2This 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.


 



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4.Representations
and Warranties. To induce Bank to enter into this Amendment, Borrower hereby represents and warrants to Bank as follows:


 


4.1Immediately
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;


 


4.2Borrower
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;


 


4.3The organizational
documents of Borrower most recently delivered to Bank remain true, accurate and complete and have not been amended, supplemented
or restated and are and continue to be in full force and effect;


 


4.4The 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;


 


4.5The 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 material law or regulation binding on or affecting Borrower, (b) any
material 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;


 


4.6The 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


 


4.7This 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.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.


 


6.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.


 






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7.Effectiveness.
This Amendment shall be deemed effective upon (a) the due execution and delivery to Bank of this Amendment by each party hereto,
(b) Borrower’s payment of an amendment fee in an amount equal to Seven Thousand Five Hundred Dollars ($7,500), and (c) payment
of Bank’s legal fees and expenses in connection with the negotiation and preparation of this Amendment.


 


[Signature page follows.]


 


 


 


 


 


 




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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	Digital turbine Media, Inc.
	 	 
	 	 
	By: /s/ Victor Le                                                                                      	By: /s/ Andrew Schleimer                                                                 
	Name:  Victor Le                                                                                     	Name: Andrew Schleimer                                                                  
	Title: VP                                                                                                   	Title: CFO                                                                                            


 


 


 


 


 


 


 





[Signature Page to First Amendment to


 


Third Amended and Restated Loan and Security
Agreement]







 




     

     


    

 


EXHIBIT B


 


COMPLIANCE CERTIFICATE


 


	TO:	 	SILICON VALLEY BANK	 	Date:______________
	FROM:	 	DIGITAL TURBINE MEDIA, INC.	 	 




 


The undersigned authorized
officer of Digital Turbine Media, Inc. (“Borrower”) certifies that under the terms and conditions of the Third Amended
and Restated Loan and Security Agreement between Borrower and Bank (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) except as noted before. 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 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 of Parent with Compliance Certificate	Monthly within 30 days	Yes No
	Annual financial statement (CPA Audited) + CC	Earlier of (i) 90 days of FYE or (ii) 5 days of filing with SEC	Yes No
	10-Q, 10-K and 8-K	Within 5 days after filing with SEC	Yes No
	Transaction Report, A/R & A/P Agings	(i) by Friday of each week during any Non-Streamline Period, and (ii) monthly within 20 days during any Streamline Period	Yes No
	Annual Financial Projections	FYE within 45 days	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 Monthly Basis*:	 	 	 
	Minimum Adjusted Quick Ratio:	0.90:1.00	___:1.00	Yes No


 


* Not required if either (i) no Advances
are outstanding, or (ii) the aggregate amount of Parent’s and Borrower’s combined unrestricted cash and Cash Equivalents
on deposit with Bank or Bank’s Affiliates (including cash and Cash Equivalents subject to Control Agreements), measured as
of the reporting date (i.e. the date hereof), is greater than or equal to $15,000,000.


 





	Performance Pricing	Applies
	AQR > 1.00:1.00	Prime + 1.75%	Yes No
	AQR < 1.00:1.00	Prime + 2.75%	Yes No





 


	Streamline Period	Applies
	Trailing 3-Month Revenue > 80% of projected revenue**	Streamline Period	Yes No
	Trailing 3-Month Revenue < 80% of projected revenue**	Non-Streamline Period	Yes No


 





** 85% for the 3 months ending 8/31/15
through 11/30/15; 75% for the 3 months ending 12/31/15 and thereafter, of Borrower’s projected revenue for such three (3)
month period as set forth in the operating budget of Parent delivered to and accepted by Bank on October 20,2015.


 


The following financial
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.”)


 




















 






 






 






 








 


	Digital Turbine Media, Inc.	BANK USE ONLY
	 	 
	 	Received by:__________________________________
	By:                                                                      	AUTHORIZED SIGNER
	Name:                                                                 	Date:________________________________________
	Title:                                                                   	 
	 	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 Loan Agreement, the terms of the Loan Agreement shall govern.


 


Dated: _____________


 


I.Adjusted Quick Ratio


 


		Required:	0.90:1.00* (for financial covenant)

1.00:1.00 (for performance pricing)



 


* The financial covenant is not tested
if either (i) no Advances are outstanding, or (ii) the aggregate amount of Parent’s and Borrower’s combined
unrestricted cash and Cash Equivalents on deposit with Bank or Bank’s Affiliates (including cash and Cash Equivalents subject
to Control Agreements), measured as of the reporting date (i.e. the date hereof), is greater than or equal to $15,000,000. However,
the Adjusted Quick Ratio will still be tested to determine pricing.


 


Actual:


 


	A.	Aggregate value of the unrestricted cash and Cash Equivalents of Parent (on a consolidated basis)	$_____
	B.	Aggregate value of the net billed accounts receivable of Parent (on a consolidated basis)	$_____
	C.	Quick Assets (the sum of lines A and B)	$_____
	D.	Aggregate value of Obligations to Bank	$_____
	E.	Aggregate value of liabilities that should, under GAAP, be classified as liabilities on Parent’s consolidated balance sheet, including all Indebtedness, and not otherwise reflected in line D above that matures within one (1) year	$_____
	F.	Current Liabilities (the sum of lines D and E)	$_____
	G.	Aggregate value of all amounts received or invoiced in advance of performance under contracts and not yet recognized as revenue	$_____
	H.	Aggregate value of all non-cash liabilities of Parent (on a consolidated basis)	$_____
	I.	Line F minus line G minus line H	$_____
	J.	Adjusted Quick Ratio (line C divided by line I)	___:1.00


 



     

     


    




 


Is line J equal to or greater than 0.90:1.00
(or has one of the two tests above been met)?


 





	_______ No, not in compliance	_______ Yes, in compliance







 


Was line J equal to or greater than 1.00:1:00
at all times during the applicable Testing Month?


 





	_______ No, Prime + 2.75%	_______ Yes, Prime + 1.75%