SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit 10.1
THIS SECOND AMENDMENT to Second Amended and Restated Loan and Security Agreement (this
“Amendment”) is entered into this 14th day of May, 2007, by and between Silicon Valley Bank
(“Bank”) and Omniture, Inc., a Delaware corporation (“Borrower”) whose address is 000 X. Xxxxxxxxxx
Xxxxxx, Xxxx, XX 00000.
Recitals
A. Bank and Borrower have entered into that certain Second Amended and Restated Loan and
Security Agreement with an Effective Date of January 10, 2006, as amended by that certain Amendment
to Loan and Security Agreement by and between Bank and Borrower dated as of May 5, 2006 (as the
same 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) amend the Tangible Net
Worth covenant and (ii) waive the Tangible Net Worth covenant violation that occurred as of March
31, 2007.
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 6.6(i) (Financial Covenants). Sub-section 6.6(i) is amended by deleting the
existing sub-section and replacing it with the following, effective as of April 1, 2007:
”(i) Tangible Net Worth. Tangible Net Worth of at least $30,000,000, plus
50% of all equity or capital contributed to Borrower from and after April 1, 2007,
and 50% of all positive quarterly net income from and after April 1, 2007;
provided however, that all equity or capital
contributed to Borrower in order to fund the deferred consideration due for
the Touch Clarity Ltd. acquisition shall be excluded.”
2.2 Exhibit D to the Loan Agreement is amended by deleting the existing Exhibit D and
replacing it with the Exhibit D attached to this Amendment.
3. Waiver of Covenant Violation. Bank acknowledges that it has waived Borrower’s default
under the Loan Agreement consisting of Borrower’s failure to comply with the Tangible Net Worth
covenant as of March 31, 2007. As of April 1, 2007, Borrower shall be required to comply with the
Tangible Net Worth covenant set forth in Section 2.1 of this Amendment and the other financial
covenants set forth in the Loan Agreement.
Borrower acknowledges that Bank’s agreement to waive the default (1) does not serve as an
agreement to waive Borrower’s compliance with the covenants for other dates and (2) will not limit
or impair the Bank’s right to demand strict performance of these covenants as of all other dates
and (3) does not limit or impair the Bank’s right to demand strict performance of all other
covenants as of any date.
4. Limitation of Amendments.
4.1 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.
4.2 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.
5. Representations and Warranties. To induce Bank to enter into this Amendment, Borrower
hereby represents and warrants to Bank as follows:
5.1 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;
5.2 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;
5.3 Borrower has delivered to Bank copies of its Certificate of Incorporation and Bylaws as
currently in effect, which remain true, accurate and complete and have not
Page 2 —Second Amendment to Second Amended and Restated Loan and Security Agreement
been amended, supplemented or restated and are and continue to be in full force and effect;
5.4 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;
5.5 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;
5.6 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 either Borrower, except as already has been obtained or made; and
5.7 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.
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, and (b) Borrower’s payment of Bank’s
out-of-pocket expenses.
[Signature page follows.]
Page 3 —Second Amendment to Second Amended and Restated Loan and Security Agreement
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 | Omniture, Inc. | |||||
By:
|
/s/ Xxxx Xxxxx | By: | /s/ Xxxxxxx X. Xxxxxxx | |||
Name:
|
Xxxx Xxxxx | Name: | Xxxxxxx X. Xxxxxxx | |||
Title:
|
Relationship Manager | Title: | CFO | |||
Page 4 —Second Amendment to Second Amended and Restated Loan and Security Agreement
Have there been updates to Borrower’s intellectual property?
|
Yes / No |
|
Borrower only has deposit accounts located at the following institutions:
|
. |
BANK USE ONLY
Received by: |
||
Date: |
||
Verified: |
||
Date: |
||
| Compliance Status: | Yes No |
Page 6 —Second Amendment to Second Amended and Restated Loan and Security Agreement
