FIRST AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit 4.3B
THIS FIRST AMENDMENT to Third Amended and Restated Loan and Security Agreement (this
“Amendment”) is entered into this 7th day of August, 2008, 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 Third Amended and Restated Loan and
Security Agreement with an Effective Date of August 17, 2007 (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) extend the Revolving Line
Maturity Date and (ii) waive the Fixed Charge Coverage covenant violation that occurred as of June
30, 2008, and the reporting requirements that were triggered by the covenant violation.
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 13.1 (Definitions). The following term and its definition is amended by deleting
the existing definition and replacing it with the following:
““Revolving Line Maturity Date” is October 16, 2008.”
3. Waiver of Covenant Violation. Bank waives Borrower’s existing default under the Loan
Agreement consisting of Borrower’s failure to comply with the Fixed Charge Coverage covenant as of
June 30, 2008. To the extent Borrower was required to provide to Bank a Borrowing Base
Certificate, aged listings of accounts receivable and
accounts payable and a list of all Deferred Revenue due to such failure to comply with the
Fixed Charge Coverage covenant, Bank also waives such requirement due to the failure to comply with
the Fixed Charge Covenant as of June 30, 2008. As of September 30, 2008, Borrower shall be
required to comply with the Fixed Charge Coverage covenant and the other financial covenants set
forth in the Loan Agreement.
Bank’s agreement to waive the default (1) is not 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 The organizational documents of Borrower delivered to Bank as of 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 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 an amendment
fee in the sum of $2,500 and Bank’s out-of-pocket expenses.
[Signature page follows.]
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/ Xxxxxxxx X. Xxxxxx | By: | /s/ Xxxxxxx X. Xxxxxxx | |||||||
Name:
|
Xxxxxxxx X. Xxxxxx | Name: | Xxxxxxx X. Xxxxxxx | |||||||
Title:
|
Relationship Manager | Title: | CFO | |||||||
