Exhibit 10.1


 


THIRD Amendment


to



THIRD
AMENDED AND RESTATED Loan and security agreement


 


This Third Amendment
to Third Amended and Restated Loan and Security Agreement (this “Amendment”) is entered into as of June 28,
2016, 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 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, 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 6.8
(Financial Covenants). Section 6.8 is amended in its entirety and replaced with the following:


 


6.8Financial
Covenants. Maintain at all times:


 


(a)Minimum
Cash at Bank. A balance of unrestricted cash and Cash Equivalents on deposit with Bank or Bank’s Affiliates of not less
than the sum of (i) the aggregate amount of outstanding Obligations under the Revolving Line, plus (ii) One Million Dollars ($1,000,000).


 






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2.2Section 13
(Definitions). The following terms and their respective definitions set forth in Section 13.1 are amended in their
entirety and replaced with the following:


 


“Revolving
Line” is an aggregate principal amount equal to Three Million Three Hundred Thousand Dollars ($3,300,000).


 


“Revolving
Line Maturity Date” is August 14, 2016.


 


2.3Exhibit B
(Compliance Certificate). Exhibit B to the Loan Agreement is amended in its entirety and replaced with Exhibit B
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.


 


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 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;


 






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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.


 


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 extension fee in an amount equal to Fifteen Thousand Dollars ($15,000), (c) Bank’s
receipt of the Acknowledgment of Amendment and Reaffirmation of Guaranty substantially in the form attached hereto as Schedule
1, duly executed and delivered by Parent, (d) Bank’s receipt of the Acknowledgment of Amendment and Reaffirmation of Guaranty
substantially in the form attached hereto as Schedule 2, duly executed and delivered by DT USA, and (e) 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/ Jonathan Wolfert	 	By:	/s/ Andrew Schleimer
	Name: 	Jonathan Wolfert	 	Name: 	Andrew Schleimer
	Title:	Vice President	 	Title:	CFO










 




    
[Signature Page to Third 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 at All Times:	 	 	 	 	 	 
	Minimum Cash at Bank:	 	$________*	 	$________	 	Yes  No












* An amount equal to the outstanding Obligations
under the Revolving Line plus $1,000,000.


 






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	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 Calculations 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:1.00:1.00 (for performance 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 (but, prior to 7/1/16 (or such later date as consented to in writing by Bank in its sole and absolute discretion), specifically excluding Indebtedness owing to North Atlantic)	
         

        $______

	 	 	 
	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







 


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%
















 






     


     


    

 


Schedule 1


 


ACKNOWLEDGMENT OF AMENDMENT


AND REAFFIRMATION OF GUARANTY





 


Section
1.Guarantor hereby acknowledges and confirms that it has reviewed the terms and conditions of the Third Amendment
to Third Amended and Restated Loan and Security Agreement dated as of even date herewith (the “Amendment”).


 


Section
2.Guarantor hereby agrees that the Unconditional Secured Guaranty and Pledge Agreement (the “Guaranty”)
relating to the Obligations of Borrower under the Third Amended and Restated Loan and Security Agreement, as amended, shall continue
in full force and effect, shall be valid and enforceable and shall not be impaired or otherwise affected by the execution of the
Amendment or any other document or instrument delivered in connection herewith.


 


Section
3.Guarantor represents and warrants that, after giving effect to the Amendment, all representations and warranties
contained in the Guaranty are true, accurate and complete as if made the date hereof.


 


Dated as of June __, 2016


 





	GUARANTOR	DIGITAL TURBINE, INC.
	 	 	 
	 	 	 
	 	By:	/s/ Andrew Schleimer
	 	Name: 	Andrew Schleimer
	 	Title:	CFO







 




     


     


    

 


Schedule 2


 


ACKNOWLEDGMENT OF AMENDMENT


AND REAFFIRMATION OF GUARANTY


 


 


Section
1.Guarantor hereby acknowledges and confirms that it has reviewed the terms and conditions of the Third Amendment
to Third Amended and Restated Loan and Security Agreement dated as of even date herewith (the “Amendment”).


 


Section
2.Guarantor hereby agrees that the Unconditional Secured Guaranty and Pledge Agreement (the “Guaranty”)
relating to the Obligations of Borrower under the Third Amended and Restated Loan and Security Agreement, as amended, shall continue
in full force and effect, shall be valid and enforceable and shall not be impaired or otherwise affected by the execution of the
Amendment or any other document or instrument delivered in connection herewith.


 


Section
3.Guarantor represents and warrants that, after giving effect to the Amendment, all representations and warranties
contained in the Guaranty are true, accurate and complete as if made the date hereof.


 


Dated as of June __, 2016


 





	GUARANTOR	DIGITAL TURBINE, INC.
	 	 	 
	 	 	 
	 	By:	/s/ Andrew Schleimer
	 	Name: 	Andrew Schleimer
	 	Title:	CFO