exv10w1



 





Exhibit 10.1




SECOND AMENDMENT

TO

LOAN AND SECURITY AGREEMENT




     THIS SECOND AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into this
31st day of December, 2007 (the “Second Amendment Effective Date”), 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 by that certain First Amendment to the Loan and Security Agreement,
by and between Bank and Borrower dated as of September 18, 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 make certain other revisions
to the Loan Agreement, and to waive certain covenant violations, as more fully set forth herein.



     D.     Bank has agreed to so amend certain provisions and waive certain covenants 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 6.7 (Financial Covenants). Section 6.7 is amended in its entirety and replaced
with the following:




               (a)     Minimum Adjusted Quick Ratio.     Borrower shall maintain, on a quarterly basis,
measured as of the last day of each such quarter, on a consolidated basis with respect to Borrower
and its Subsidiaries, an Adjusted Quick Ratio of at least 1.50:1:00.



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               (b)     Minimum EBSTDA. Borrower shall maintain, on a quarterly basis, measured as of the
last day of each such calendar quarter, on a consolidated basis with respect to Borrower and its
Subsidiaries, EBSTDA of at least the following for the three month period immediately prior to the
date of determination:



	 	 	 	 	 	 	 	 
	 
	 	Quarter Ending	Minimum EBSTDA	 
	 	December 31, 2007 through December 31, 2008

	$0	 
	 





     ; provided however, that Borrower may incur, on a quarterly basis, in an
amount up to $1,250,000 per quarter, Acquisition Related Expenses, which amount (up to $1,250,000)
shall be added back into the calculation of EBSTDA for the purposes of determining compliance with
this covenant.



          2.2     Section 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:




               (a)     The following terms and their respective definitions are added into Section 13.1 in their
entirety:



                    “Acquisition Related Expenses” shall mean all costs and expenses incurred by Borrower in
connection with its acquisition of any company or business or the acquisition of Borrower (whether
by merger, stock purchase, asset purchase or otherwise), including all costs and expenses
(including travel expenses, and reasonable attorneys’ fees and expenses), incurred by Borrower in
preparing and negotiating acquisition related documents.



                    “Adjusted Quick Ratio” shall mean a ratio of Quick Assets to Current Liabilities minus
Deferred Revenue.



     3.     Waiver.



          3.1     Bank hereby ratifies, confirms and approves the waiver previously provided to Borrower
with respect to the Event of Default under Section 8.2 of the Loan Agreement resulting from
Borrower’s failure to comply with Section 6.7(b) of the Loan Agreement solely with respect to the
three month period ended September 30, 2007.




          3.2     The waiver in this Section 3 does not allow for any other or further departure from the
terms and conditions of the Loan Agreement, as amended hereby, or any of the other Loan Documents,
which terms and conditions shall remain in full force and effect.




     4.     Limitation of Amendments and Waiver.



          4.1     The amendments and waiver set forth in Section 2 and 3 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.




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          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 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 (a) the due execution and
delivery to Bank of this Amendment and Confirmation of Guarantors by each party hereto,



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(b) Borrower’s payment of an amendment fee equal to $12,500; and (c) Borrower’s payment of Bank’s
costs and expenses incurred in connection with this Amendment.



     In Witness Whereof, the parties hereto have caused this Amendment to be duly executed
and delivered as of the date first set forth above.



	 	 	 	 	 	 	 	 	 
	BANK	 	BORROWER	 	 
	 
	 	 	 	 	 	 	 	 
	Silicon Valley Bank	 	Visual Sciences, Inc.	 	 
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Fred Kreppel
	 	By:
	 	/s/ Claire Long
	 	 
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	Fred Kreppel
	 	Name:
	 	Claire Long	 	 
	 

	 	 
	 	 	 	 	 	 
	Title:

	 	SRM
	 	Title:
	 	CFO	 	 
	 

	 	 
	 	 	 	 	 	 






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CONFIRMATION OF GUARANTOR



The undersigned hereby confirms the continued effectiveness of its guaranty of the Obligations of
Borrower in light of the foregoing Amendment.




Visual Sciences Technologies, LLC (formerly known as Visual Sciences, LLC)




	 	 	 
	By: /s/ Claire Long
 


	 	  
	Name: Claire Long
 


	 	 
	Title: CFO