FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.4
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is dated as of
September 18, 2007 (the “Amendment Effective Date”), and is by and between SILICON VALLEY BANK
(“Bank”) and VISUAL SCIENCES, INC., a Delaware corporation formerly known as WebSideStory, Inc.
(“Borrower”).
RECITALS
A. Bank and Borrower have entered into that certain Loan and Security Agreement dated as of
February 23, 2007 (as 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 and the Loan Documents in
accordance with the terms hereof.
D. Bank has agreed to so amend certain provisions of the Loan Agreement and the Loan
Documents, 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.
2.1 The definition of “Guarantor” in Section 13.1 of the Loan Agreement is hereby
amended in its entirety and replaced with the following:
“Guarantor” is any present or future Domestic Subsidiary of Borrower,
including Visual Sciences Technologies, LLC, a Delaware limited liability
company formerly known as Visual Sciences, LLC.
2.2 Section 8.11 of the Loan Agreement is amended in its entirety and replaced with
the following:
“8.11 Conditions Subsequent to Closing. Borrower fails:
(a) within ten Business Days of the Effective Date, to provide evidence
satisfactory to Bank that all indebtedness under the Existing Notes is paid in full;
or
(b) to deliver duly executed Control Agreements with respect to all of
Borrower’s and Guarantors’ deposit accounts and securities accounts on or
before October 31, 2007.”
2.3 All references to “WebSideStory, Inc.” in the Loan Agreement and all other Loan Documents
shall be amended and replaced with “Visual Sciences, Inc.”.
2.4 All references to “Visual Sciences, LLC” in the Loan Agreement and all other Loan
Documents shall be amended and replaced with “Visual Sciences Technologies, LLC”.
3. Waiver. Bank hereby waives any default or Event of Default that may have occurred as a
result of the failure of Borrower to comply with Section 8.11 (other than subsection (a) thereof)
from and after the Effective Date through the Amendment Effective Date.
4. Limitation of Amendments and Waiver.
4.1 The amendments set forth in Section 2 above and the waiver set forth in Section 3 above
are effective for the purposes set forth herein and shall be limited precisely as written and shall
not otherwise be deemed to (a) be a consent to any amendment, waiver or modification of any other
term or condition of the Loan Agreement or 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 the Loan
Agreement or 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 Except in connection with the change in Borrower’s name from WebSideStory, Inc. to Visual
Sciences, Inc. the organizational documents of Borrower delivered
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to Bank on or about 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;
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 (a) contravene,
conflict with, constitute a default under or violate any material Requirement of Law, (b)
constitute an event of default under any material agreement by which Borrower is bound, (c)
contravene, conflict with or violate any applicable order, writ, judgment, injunction, decree,
determination or award of any Governmental Authority by which Borrower or any of its Subsidiaries
or any of their property or assets may be bound or affected, or (d) conflict with any of Borrower’s
organizational documents;
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
action by, filing, registration or qualification with, or Governmental Approval from, any
Governmental Authority (except such Governmental Approvals which have already been obtained and are
in full force and effect); 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 the satisfaction of the
conditions set forth in Section 8.
8. Conditions. The effectiveness of this Amendment is conditioned upon execution and delivery
to Bank of a fully executed copy 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 | VISUAL SCIENCES,
INC., a Delaware corporation |
|||||||||||||
| By: | /s/ Xxxx Xxxxxxx | By: | /s/ Xxxxxx Xxxx | |||||||||||
| Name: Title: |
Xxxx Xxxxxxx SRM |
Name: Title: |
Xxxxxx Xxxx CFO |
|||||||||||
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First Amendment to Loan and Security Agreement
First Amendment to Loan and Security Agreement
