exv4w3



 







Exhibit 4.3




 





SECOND AMENDED AND RESTATED

LOAN AND SECURITY AGREEMENT

OMNITURE, INC.



 






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TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page	 
	1	 	 	ACCOUNTING AND OTHER TERMS	 	 	4	 
	 
	 	 	 	 	 	 	 	 	 	 
	2	 	 	LOAN AND TERMS OF PAYMENT	 	 	4	 
	 

	 	 	2.1	 	 	Promise to Pay
	 	 	4	 
	 

	 	 	2.2	 	 	Termination of Commitment to Lend
	 	 	6	 
	 

	 	 	2.3	 	 	Overadvances
	 	 	6	 
	 

	 	 	2.4	 	 	Interest Rate, Payments
	 	 	6	 
	 

	 	 	2.5	 	 	Fees
	 	 	7	 
	 
	 	 	 	 	 	 	 	 	 	 
	3	 	 	CONDITIONS OF LOANS	 	 	8	 
	 

	 	 	3.1	 	 	Conditions Precedent to Initial Credit Extension
	 	 	8	 
	 

	 	 	3.2	 	 	Conditions Precedent to all Credit Extensions
	 	 	8	 
	 
	 	 	 	 	 	 	 	 	 	 
	4	 	 	CREATION OF SECURITY INTEREST	 	 	8	 
	 

	 	 	4.1	 	 	Grant of Security Interest
	 	 	8	 
	 

	 	 	4.2	 	 	Authorization to File
	 	 	8	 
	 
	 	 	 	 	 	 	 	 	 	 
	5	 	 	REPRESENTATIONS AND WARRANTIES	 	 	8	 
	 

	 	 	5.1	 	 	Due Organization and Authorization
	 	 	8	 
	 

	 	 	5.2	 	 	Collateral
	 	 	9	 
	 

	 	 	5.3	 	 	Litigation
	 	 	10	 
	 

	 	 	5.4	 	 	No Material Adverse Change in Financial Statements
	 	 	10	 
	 

	 	 	5.5	 	 	Solvency
	 	 	10	 
	 

	 	 	5.6	 	 	Regulatory Compliance
	 	 	10	 
	 

	 	 	5.7	 	 	Investments in Subsidiaries
	 	 	10	 
	 

	 	 	5.8	 	 	Full Disclosure
	 	 	10	 
	 
	 	 	 	 	 	 	 	 	 	 
	6	 	 	AFFIRMATIVE COVENANTS	 	 	11	 
	 

	 	 	6.1	 	 	Government Compliance
	 	 	11	 
	 

	 	 	6.2	 	 	Financial Statements, Reports, Certificates
	 	 	11	 
	 

	 	 	6.3	 	 	Taxes
	 	 	12	 
	 

	 	 	6.4	 	 	Insurance
	 	 	12	 
	 

	 	 	6.5	 	 	Primary Accounts
	 	 	12	 
	 

	 	 	6.6	 	 	Financial Covenants
	 	 	13	 
	 

	 	 	6.7	 	 	Intellectual Property Rights
	 	 	13	 
	 

	 	 	6.8	 	 	Further Assurances
	 	 	13	 
	 
	 	 	 	 	 	 	 	 	 	 
	7	 	 	NEGATIVE COVENANTS	 	 	13	 
	 

	 	 	7.1	 	 	Dispositions
	 	 	14	 
	 

	 	 	7.2	 	 	Changes in Business, Ownership, Management or Locations of Collateral
	 	 	14	 
	 

	 	 	7.3	 	 	Mergers or Acquisitions
	 	 	14	 
	 

	 	 	7.4	 	 	Indebtedness
	 	 	15	 
	 

	 	 	7.5	 	 	Encumbrance
	 	 	15	 
	 

	 	 	7.6	 	 	Distributions; Investments
	 	 	15	 
	 

	 	 	7.7	 	 	Transactions with Affiliates
	 	 	15	 
	 

	 	 	7.8	 	 	Subordinated Debt
	 	 	15	 
	 

	 	 	7.9	 	 	Compliance
	 	 	15	 
	 
	 	 	 	 	 	 	 	 	 	 
	8	 	 	EVENTS OF DEFAULT	 	 	15	 
	 

	 	 	8.1	 	 	Payment Default
	 	 	16	 
	 

	 	 	8.2	 	 	Covenant Default
	 	 	16	 






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	 	 	 	 	 	 	 	 	Page	 
	 

	 	 	8.3	 	 	Material Adverse Change
	 	 	16	 
	 

	 	 	8.4	 	 	Attachment
	 	 	16	 
	 

	 	 	8.5	 	 	Insolvency
	 	 	16	 
	 

	 	 	8.6	 	 	Other Agreements
	 	 	17	 
	 

	 	 	8.7	 	 	Judgments
	 	 	17	 
	 

	 	 	8.8	 	 	Misrepresentations
	 	 	17	 
	 
	 	 	 	 	 	 	 	 	 	 
	9	 	 	BANK’S RIGHTS AND REMEDIES	 	 	17	 
	 

	 	 	9.1	 	 	Rights and Remedies
	 	 	17	 
	 

	 	 	9.2	 	 	Power of Attorney
	 	 	18	 
	 

	 	 	9.3	 	 	Bank Expenses
	 	 	18	 
	 

	 	 	9.4	 	 	Bank’s Liability for Collateral
	 	 	18	 
	 

	 	 	9.5	 	 	Remedies Cumulative
	 	 	18	 
	 

	 	 	9.6	 	 	Demand Waiver
	 	 	18	 
	 
	 	 	 	 	 	 	 	 	 	 
	10	 	 	NOTICES	 	 	19	 
	 
	 	 	 	 	 	 	 	 	 	 
	11	 	 	CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER	 	 	19	 
	 
	 	 	 	 	 	 	 	 	 	 
	12	 	 	GENERAL PROVISIONS	 	 	19	 
	 

	 	 	12.1	 	 	Successors and Assigns
	 	 	19	 
	 

	 	 	12.2	 	 	Indemnification
	 	 	19	 
	 

	 	 	12.3	 	 	Time of Essence
	 	 	19	 
	 

	 	 	12.4	 	 	Severability of Provision
	 	 	20	 
	 

	 	 	12.5	 	 	Amendments in Writing, Integration
	 	 	20	 
	 

	 	 	12.6	 	 	Counterparts
	 	 	20	 
	 

	 	 	12.7	 	 	Survival
	 	 	20	 
	 

	 	 	12.8	 	 	Confidentiality
	 	 	20	 
	 

	 	 	12.9	 	 	Attorneys’ Fees, Costs and Expenses
	 	 	20	 
	 

	 	 	12.10	 	 	Joint and Several Obligations
	 	 	20	 
	 
	 	 	 	 	 	 	 	 	 	 
	13	 	 	DEFINITIONS	 	 	20	 
	 

	 	 	13.1	 	 	Definitions
	 	 	21	 






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     This SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT dated as of the Effective Date
(this “Agreement”), between SILICON VALLEY BANK (“Bank”), whose address is 3003 Tasman Drive, Santa
Clara, California 95054 and OMNITURE, INC. (“Borrower”), whose address is 550 E. Timpanogos Circle,
Orem, UT 84097, provides the terms on which Bank will lend to Borrower and Borrower will repay
Bank.



RECITALS




     A. Bank and Borrower are parties to that certain Amended and Restated Loan and Security
Agreement, dated as of April 21, 2005 (the “Original Agreement”).



     B. Borrower and Bank desire in this Agreement to set forth their agreement with respect to a
working capital line of credit and equipment lines of credit and to amend and restate in its
entirety without novation the Original Agreement in accordance with the provisions herein.



     C. The Negative Pledge Agreement, Account Control Agreement, UCC financing statements and any
Consent to Removal of Personal Property filed, executed or delivered at or about the time of the
execution and delivery of the Original Agreement or in relation to the Original Agreement remain in
full force and effect among the parties.


The parties agree as follows:




1 ACCOUNTING AND OTHER TERMS




     Accounting terms not defined in this Agreement will be construed following GAAP. Calculations
and determinations must be made following GAAP. The term “financial statements” includes the notes
and schedules. The terms “including” and “includes” always mean “including (or includes) without
limitation,” in this or any Loan Document.



2 LOAN AND TERMS OF PAYMENT



2.1 Promise to Pay.




     Borrower promises to pay Bank the unpaid principal amount of all Credit Extensions and
interest on the unpaid principal amount of the Credit Extensions.



2.1.1 Equipment Facility.




     (a) Bank has made three advances (“Equipment Advance” and, collectively, “Equipment
Advances”). No further Equipment Advances shall be made to Borrower under the Committed Equipment
Line, and the total outstanding principal amount of Equipment Advances as of the date of this
Agreement is $5,328,909.53.



     (b) Interest accrues from the date of each Equipment Advance at the rate in Section 2.4.1.
Each Equipment Advance shall immediately amortize and is payable in 36 equal monthly installments
of principal plus interest, beginning on the first day of each month following the date of the
Equipment Advance and continuing on the first day of each month thereafter (each, a “Payment Date”)
through the end of the thirty-six (36) month term (each, the “Equipment Maturity Date”). Equipment
Advances when repaid may not be reborrowed. The final payment is due on the Equipment Maturity
Date and shall include all outstanding principal plus all accrued unpaid interest. Payments
received after 12:00 noon Pacific Time are considered received at the opening of business on the
next Business Day.



     (c) Equipment Advances may be prepaid in whole or in part at any time. If Borrower prepays
in whole or in part any Equipment Advance on which interest accrues at the Fixed Rate



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Option, then Borrower shall also pay to Bank contemporaneously with such prepayment, the amount of
the Prepayment Fee applicable thereto.




2.1.2 Revolving Advances.




     (a) Bank will make Advances not exceeding the lesser of (i) the Committed Revolving Line; or
(ii) the Borrowing Base. Amounts borrowed under this Section may be repaid and reborrowed during
the term of this Agreement without penalty or premium.



     (b) To obtain an Advance, Borrower must notify Bank by facsimile or telephone by 12:00 p.m.
Pacific Time on the Business Day the Advance is to be made. Borrower must promptly confirm the
notification by delivering to Bank the Payment/Advance Form attached as Exhibit B. Bank will
credit Advances to Borrower’s deposit account. Bank may make Advances under this Agreement based
on instructions from a Responsible Officer or his or her designee or without instructions if the
Advances are necessary to meet Obligations, which have become due. Bank may rely on any telephone
notice given by a person whom Bank believes is a Responsible Officer or designee. Borrower will
indemnify Bank for any loss Bank suffers due to such reliance.



     (c) The Committed Revolving Line terminates on the Revolving Maturity Date, when all Advances
are immediately payable.



2.1.3 Cash Management Services.




     Borrower may use up to $23,000 for Bank’s cash management services (the “Cash Management
Services”), which may include merchant services, identified in various cash management services
agreements related to such services. The amount available for Cash Management Services is not a
sublimit of or deduction from the Committed Equipment Line, Second Committed Equipment Line, or
Committed Revolving Line. The certificate of deposit in the sum of $3,000 that was pledged by
Borrower to secure the Cash Management Services is hereby released.



2.1.4 Second Equipment Facility.




     (a) Through March 31, 2007 (the “Second Equipment Availability End Date”), Bank will make
advances (“Second Equipment Advance” and, collectively, the “Second Equipment Advances”) not
exceeding the Second Committed Equipment Line. The Second Equipment Advances may only be used to
finance or refinance Equipment purchased on or after 90 days before the date of each Second
Equipment Advance, except that the initial Second Equipment Advance, which must be requested by
Borrower and advanced by Bank on or before thirty days after the Effective Date, may be used to
finance or refinance Equipment purchased on or after January 1, 2005. Second Equipment Advances
may not exceed 100% of the equipment invoice excluding taxes, shipping, warranty charges, freight
discounts and installation expense. Software, leasehold improvements, delivery, installation and
other soft costs may constitute up to 25% of the aggregate Second Equipment Advances. Each Second
Equipment Advance must be for a minimum of $100,000. All Equipment financed by Bank shall be
located at all times in the United States.



     (b) Interest accrues from the date of each Second Equipment Advance at the rate in Section
2.4.3. Each Second Equipment Advance shall immediately amortize and is payable in 36 monthly
installments, beginning on the first day of each month following the date of the Second Equipment
Advance and continuing on the first day of each month thereafter (each, a “Second Equipment Advance
Payment Date”) through the end of the thirty-six (36) month term (each, the “Second Equipment
Maturity Date”). The 36 monthly installments shall be paid in equal principal payments each month,
plus accrued interest. Second Equipment Advances when repaid may not be reborrowed. The final
payment is due on the Second Equipment Maturity Date and shall include all outstanding principal
plus all accrued unpaid interest. Payments received after 12:00 noon



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Pacific time are considered received at the opening of business on the next Business Day.
After the Second Equipment Advance has been repaid, it may not be reborrowed.




     c) To obtain a Second Equipment Advance, Borrower must notify Bank (the notice is irrevocable)
by facsimile no later than 12:00 p.m. Pacific Time 1 Business Day before the day on which the
Second Equipment Advance is to be made. The notice in the form of Exhibit B (Payment/Advance Form)
must be signed by a Responsible Officer or designee and include a copy of the invoice for the
Equipment being financed.



     d) Second Equipment Advances may be prepaid in whole or in part at any time. There shall be
no prepayment fee or charge to prepay any Second Equipment Advance on which interest accrues at the
Second Equipment Advance Floating Rate Option. If Borrower prepays in whole or in part any Second
Equipment Advance on which interest accrues at the Second Equipment Advance Fixed Rate Option, then
Borrower shall also pay to Bank contemporaneously with such prepayment, the amount of the
Prepayment Fee applicable thereto.



2.1.5 Maximum Amount of Obligations.




     Notwithstanding anything to the contrary in this Agreement, the maximum outstanding principal
amount of the Equipment Advances, Second Equipment Advances and Advances under the Committed
Revolving Line shall not exceed the sum of Fifteen Million Dollars ($15,000,000.00). If the
outstanding principal amount of Borrower’s Obligations exceeds the maximum limitation set forth
herein, Borrower shall immediately pay Bank the excess.



2.2 Termination of Commitment to Lend.




     Bank’s obligation to lend the undisbursed portion of the Obligations will terminate if, in
Bank’s sole discretion, there has been a Material Adverse Change.



2.3 Overadvances.




     If Borrower’s Obligations under Section 2.1.2 exceed the lesser of either (i) the Committed
Revolving Line or (ii) the Borrowing Base, Borrower must immediately pay Bank the excess.



2.4 Interest Rate, Payments.



2.4.1 As to Equipment Advances.




     Borrower elected the fixed interest rates available to Borrower at the time of each Equipment
Advance (the “Fixed Rate Option”) at the following rates of interest: (i) for loan #1100138365-00
the fixed rate is 5% per annum; (ii) for loan #1100140159-00 the fixed rate is 4.81% per annum; and
(iii) for loan #110014096-00 the fixed rate is 5.06% per annum. Any amounts outstanding during the
continuance of an Event of Default shall bear interest at a per annum rate equal to three percent
(3%) above the rate effective immediately before the Event of Default. If any change in the law
increases Bank’s expenses or decreases its return from the Equipment Advances, Borrower will pay
Bank upon request the amount of such increase or decrease. Interest is computed on a 360 day year
for the actual number of days elapsed.



2.4.2 As to Advances.




     (a) Interest Rate. Advances accrue interest on the outstanding principal balance at the
following per annum rates: (i) if the Quick Ratio (Adjusted) is equal to or greater than 2.0 to
1.0, then the interest rate is the Prime Rate; (ii) if the Quick Ratio (Adjusted) is less than 2.0
to 1.0 and equal to or greater than 1.5 to 1.0, then the interest rate is the Prime Rate plus
0.25%; or (iii) if the Quick Ratio (Adjusted) is less than 1.5 to 1.0, then the interest rate is
the Prime Rate plus 0.50%.



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After an Event of Default, Obligations accrue interest at three percent (3.0%) above the rate
effective immediately before the Event of Default. The interest rate increases or decreases when
the Prime Rate changes. Interest is computed on a 360 day year for the actual number of days
elapsed.




     (b) Payments. Interest due on the Committed Revolving Line is payable on the 14th
of each month. Payments received after 12:00 noon Pacific Time are considered received at the
opening of business on the next Business Day. When a payment is due on a day that is not a
Business Day, the payment is due the next Business Day and additional interest shall accrue.



2.4.3 As to Second Equipment Advances.




     Second Equipment Advances accrue interest on the outstanding principal balance at the
following per annum rates of interest: (a) if the Second Equipment Advance Fixed Rate Option is
not elected by Borrower at the time of the Second Equipment Advance, the following variable
interest rates shall apply to the Second Equipment Advance (the “Second Equipment Advance Floating
Rate Option”): (i) if the Quick Ratio (Adjusted) is equal to or greater than 2.0 to 1.0, then the
interest rate is the Prime Rate plus 0.25%; (ii) if the Quick Ratio (Adjusted) is less than 2.0 to
1.0 and equal to or greater than 1.5 to 1.0, then the interest rate is the Prime Rate plus 0.50%;
or (iii) if the Quick Ratio (Adjusted) is less than 1.5 to 1.0, then the interest rate is the Prime
Rate plus 0.75%; or (b) at Borrower’s election at the time of each Second Equipment Advance, the
following fixed interest rates shall apply to the Second Equipment Advance (the “Second Equipment
Advance Fixed Rate Option”): (i) if the Quick Ratio (Adjusted) is equal to or greater than 2.0 to
1.0, then the interest rate is the Treasury Bill Rate plus 3.25%; (ii) if the Quick Ratio
(Adjusted) is less than 2.0 to 1.0 and equal to or greater than 1.5 to 1.0, then the interest rate
is the Treasury Bill Rate plus 3.50%; or (iii) if the Quick Ratio (Adjusted) is less than 1.5 to
1.0, then the interest rate is the Treasury Bill Rate plus 3.75%. Any amounts outstanding during
the continuance of an Event of Default shall bear interest at a per annum rate equal to three
percent (3.0%) above the rate effective immediately before the Event of Default. If any change in
the law increases Bank’s expenses or decreases its return from the Second Equipment Advances,
Borrower will pay Bank upon request the amount of such increase or decrease



2.4.4 Request to Debit Accounts.




     Bank may debit any of Borrower’s deposit accounts including Account Number [REDACTED] for
principal and interest payments or any amounts Borrower owes Bank when due. Bank will notify
Borrower when it debits Borrower’s accounts. Prior to debiting Borrower’s account, Bank will
itemize the amounts (other than principal and interest payments) that will be paid from Borrower’s
accounts; provided however that approval or consent of Borrower shall not be required prior to
paying these amounts from Borrower’s accounts. These debits are not a set-off.



2.5 Fees.




     Borrower will pay:



     (a) Facility Fee. A fully earned, non refundable Facility Fee of $30,000 for the Second
Committed Equipment Line due on the Effective Date;



     (b) Bank Expenses. All Bank Expenses (including reasonable attorneys’ fees and reasonable
expenses) incurred through and after the date of this Agreement, are payable when due. Bank shall
provide in reasonable detail an itemization of such Bank Expenses prior to the due date for payment
of such Bank Expenses; and



     (c) Unused Line Fee. In the event, in any calendar quarter (or portion thereof at the
beginning and end of the term hereof), the average daily principal balance of the Advances



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outstanding during the quarter is less than the Committed Revolving Line, Borrower shall pay
to Bank an unused line fee in an amount equal to 0.375% per annum on the difference between the
Committed Revolving Line and the average daily principal balance of the Advances outstanding during
the quarter, which unused line fee shall be computed and paid quarterly, in arrears, on the first
day of the following quarter.




3 CONDITIONS OF LOANS



3.1 Conditions Precedent to Initial Credit Extension.




     Bank’s obligation to make the initial Credit Extension is subject to the condition precedent
that it receive the agreements, documents and fees that are required under this Agreement,
including without limitation the following:



     (a) Borrower shall execute and deliver this Agreement and this Agreement shall be accepted by
Bank; and



     (b) Borrower shall pay to Bank the Facility Fee and Bank Expenses.



3.2 Conditions Precedent to all Credit Extensions.




     Bank’s obligations to make each Credit Extension, including the initial Credit Extension, is
subject to the following:



     (a) timely receipt of any Payment/Advance Form; and



     (b) the representations and warranties in Section 5 must be materially true on the date of the
Payment/Advance Form and on the effective date of each Credit Extension and no Event of Default may
have occurred and be continuing, or result from the Credit Extension. Each Credit Extension is
Borrower’s representation and warranty on that date that the representations and warranties of
Section 5 remain true in all material respects.



4 CREATION OF SECURITY INTEREST



4.1 Grant of Security Interest.




     Borrower grants Bank a continuing security interest in all presently existing and later
acquired Collateral to secure all Obligations and performance of each of Borrower’s duties under
the Loan Documents. Except for Permitted Liens, any security interest will be a first priority
security interest in the Collateral. If this Agreement is terminated, Bank’s lien and security
interest in the Collateral will continue until Borrower fully satisfies its Obligations.



4.2 Authorization to File.




     Borrower authorizes Bank to file financing statements without notice to Borrower, with all
appropriate jurisdictions, as Bank deems appropriate, in order to perfect or protect Bank’s
interest in the Collateral.



5 REPRESENTATIONS AND WARRANTIES




     Borrower represents and warrants as follows:



5.1 Due Organization and Authorization.




     Borrower and each Subsidiary is duly existing and in good standing in its state of formation
and qualified and licensed to do business in, and in good standing in, any state in which



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the conduct of its business or its ownership of property requires that it be qualified, except
where the failure to do so could not reasonably be expected to cause a Material Adverse Change.
Borrower has not changed its state of formation or its organizational structure or type or any
organizational number (if any) assigned by its jurisdiction of formation since August 31, 1999, at
which time Borrower reincorporated as a Delaware corporation.




     The execution, delivery and performance of the Loan Documents have been duly authorized, and
do not conflict with Borrower’s formation documents, nor constitute an event of default under any
material agreement by which Borrower is bound. Borrower is not in default under any agreement to
which or by which it is bound in which the default could reasonably be expected to cause a Material
Adverse Change.



5.2 Collateral.




     Borrower has good title to the Collateral, free of Liens except Permitted Liens or Borrower
has Rights to each asset that is Collateral. Borrower has no other deposit account, other than the
deposit accounts described in the Schedule. The Accounts are bona fide, existing obligations, and,
except with respect to Deferred Revenue, the service or property has been performed or delivered to
the account debtor or its agent for immediate shipment to and unconditional acceptance by the
account debtor. The Collateral is not in the possession of any third party bailee (such as at a
warehouse), other than co-location facilities in the ordinary course of business, all of which have
been disclosed in writing to Bank. In the event that Borrower, after the date hereof, intends to
store or otherwise deliver the Collateral to such a bailee, then Borrower will receive the prior
written consent of Bank and such bailee must acknowledge in writing that the bailee is holding such
Collateral for the benefit of Bank. Borrower has no notice of any actual or imminent Insolvency
Proceeding of any account debtor whose accounts are an Eligible Account in any Borrowing Base
Certificate. Borrower is the sole owner, or has the right to the use, of the Intellectual
Property, except for licenses granted to its customers in the ordinary course of business that are
otherwise permitted pursuant to Section 7.1. Each Patent is valid and enforceable and no part of
the Intellectual Property has been judged invalid or unenforceable, in whole or in part, and no
claim has been made that any part of the Intellectual Property violates the rights of any third
party, except to the extent such claim could not reasonably be expected to cause a Material Adverse
Change. Certain of Borrower’s source code is on deposit with a source code escrow company pursuant
to agreements now in effect or to be entered into with Borrower’s customers; however if the source
code is released to such customers, the customers shall have the right to use the source code only
for the purpose of maintaining and supporting such customer’s software and shall not have the right
to otherwise license, sell or distribute such source code or software.



     Except as noted on the Schedule to Amended and Restated Loan and Security Agreement, Borrower
is not a party to, nor is bound by, any material license or other material agreement with respect
to which the Borrower is the licensee that prohibits or otherwise restricts Borrower from granting
a security interest in Borrower’s interest in such material license or agreement or any other
property. Borrower will provide written notice to Bank within ten days of entering or becoming
bound by any such license or agreement which is reasonably likely to have a material impact on
Borrower’s business or financial condition (other than over-the-counter software that is
commercially available to the public). Borrower shall take such steps as Bank reasonably requests
to obtain the consent of, authorization by, or waiver by, any person whose consent or waiver is
necessary for all such licenses or contract rights to be deemed “Collateral” and for Bank to have a
security interest in it that might otherwise be restricted or prohibited by law or by the terms of
any such license or agreement (such consent or authorization may include a licensor’s agreement to
a contingent assignment of the license to Bank if the Bank determines that is necessary in its good
faith judgment), whether now existing or entered into in the future.



9









 





5.3 Litigation.




     Except as shown in the Schedule, there are no actions or proceedings pending or, to the
knowledge of Borrower’s Responsible Officers, threatened in writing by or against Borrower or any
Subsidiary in which a likely adverse decision could reasonably be expected to cause a Material
Adverse Change.



5.4 No Material Adverse Change in Financial Statements.




     All consolidated financial statements for Borrower, and any Subsidiary, delivered to Bank
fairly present in all material respects Borrower’s consolidated financial condition and Borrower’s
consolidated results of operations. There has not been any material deterioration in Borrower’s
consolidated financial condition since the date of the most recent financial statements submitted
to Bank.



5.5 Solvency.




     The fair salable value of Borrower’s assets (including goodwill minus disposition costs)
exceeds the fair value of its liabilities; the Borrower is not left with unreasonably small capital
after the transactions in this Agreement; and Borrower is able to pay its debts (including trade
debts) as they mature.



5.6 Regulatory Compliance.




     Borrower is not an “investment company” or a company “controlled” by an “investment company”
under the Investment Company Act. Borrower is not engaged as one of its important activities in
extending credit for margin stock (under Regulations T and U of the Federal Reserve Board of
Governors). Borrower has complied in all material respects with the Federal Fair Labor Standards
Act. Borrower has not violated any laws, ordinances or rules, the violation of which could
reasonably be expected to cause a Material Adverse Change. None of Borrower’s or any Subsidiary’s
properties or assets has been used by Borrower or any Subsidiary or, to the best of Borrower’s
knowledge, by previous Persons, in disposing, producing, storing, treating, or transporting any
hazardous substance other than legally. Borrower and each Subsidiary has timely filed all required
tax returns and paid, or made adequate provision to pay, all material taxes, except those being
contested in good faith with adequate reserves under GAAP. Borrower and each Subsidiary has
obtained all consents, approvals and authorizations of, made all declarations or filings with, and
given all notices to, all government authorities that are necessary to continue its business as
currently conducted, except where the failure to do so could not reasonably be expected to cause a
Material Adverse Change.



5.7 Investments in Subsidiaries.




     Borrower does not own any stock, partnership interest or other equity securities except for
Permitted Investments.



5.8 Full Disclosure.




     No written representation, warranty or other statement of Borrower in any certificate or
written statement given to Bank (taken together with all such written certificates and written
statements to Bank) contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained in the certificates or statements not misleading.
It being recognized by Bank that the projections and forecasts provided by Borrower in good faith
and based upon reasonable assumptions are not viewed as facts and that actual results during the
period or periods covered by such projections and forecasts may differ from the projected and
forecasted results.



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6 AFFIRMATIVE COVENANTS




     Borrower will do all of the following for so long as Bank has an obligation to lend, or there
are outstanding Obligations (other than Inchoate Indemnity Obligations):



6.1 Government Compliance.




     Except as otherwise permitted pursuant to Section 7.3, Borrower will maintain its and all
Subsidiaries’ legal existence and good standing in its jurisdiction of formation and maintain
qualification in each jurisdiction in which the failure to so qualify would reasonably be expected
to cause a material adverse effect on Borrower’s business or operations. Borrower will comply, and
have each Subsidiary comply, with all laws, ordinances and regulations to which it is subject,
noncompliance with which could have a material adverse effect on Borrower’s business or operations
or would reasonably be expected to cause a Material Adverse Change.



6.2 Financial Statements, Reports, Certificates.




     (a) Borrower will deliver to Bank: (i) until Borrower meets the IPO and EBITDA Conditions and
continues to have as of the last day of each month EBITDA that is equal to or greater than zero
dollars ($0.00), as soon as available, but no later than 30 days after the last day of each month,
a company prepared consolidated balance sheet and income statement covering Borrower’s consolidated
operations during the period certified by a Responsible Officer and in a form reasonably acceptable
to Bank; (ii) until Borrower meets the IPO and EBITDA Conditions and continues to have as of the
last day of each month EBITDA that is equal to or greater than zero dollars ($0.00), within the
earlier of 5 days after receipt of its audited consolidated financial statements or 180 days after
the last day of Borrower’s fiscal year, audited consolidated financial statements prepared under
GAAP, consistently applied, together with an unqualified opinion on the financial statements from
an independent certified public accounting firm reasonably acceptable to Bank; (iii) a prompt
report of any legal actions pending or threatened against Borrower or any Subsidiary that could
result in damages or costs to Borrower or any Subsidiary of $250,000 or more; (iv) budgets, sales
projections, operating plans or other financial information Bank reasonably requests; and (v)
prompt notice of any material change in the composition of the Intellectual Property, including any
subsequent ownership right of Borrower in or to any Copyright, Patent or Trademark or knowledge of
an event that materially adversely affects the value of the Intellectual Property. So long as
Borrower meets the IPO and EBITDA Conditions and continues to have as of the last day of each month
EBITDA that is equal to or greater than zero dollars ($0.00), within 5 days of filing, Borrower
shall deliver to Bank: (i) Borrower’s Form 10-K filed with the Securities and Exchange Commission;
and (ii) Borrower’s Form 10-Q filed with the Securities and Exchange Commission after the end of
each of the first three fiscal quarters of Borrower.



     (b) Within 30 days after the last day of each month, Borrower will deliver to Bank a Borrowing
Base Certificate signed by a Responsible Officer in the form of Exhibit C, with aged listings of
accounts receivable and accounts payable and a list of all Deferred Revenue by client.



     (c) Until Borrower meets the IPO and EBITDA Conditions and continues to have as of the last
day of each month EBITDA that is equal to or greater than zero dollars ($0.00), within 30 days
after the last day of each month, Borrower will deliver to Bank with the monthly financial
statements a Compliance Certificate signed by a Responsible Officer in the form of Exhibit D
(provided that upon compliance by Borrower with the Fixed Charge Coverage ratio set forth in
Section 6.6(iii) for four consecutive quarterly periods, then within thirty (30) days after the
last day of each month, Borrower will deliver to Bank with the monthly financial statements a
Compliance Certificate signed by a Responsible Officer in the form of Exhibit D-1). From and after
such time as Borrower meets the IPO and EBITDA Conditions and continues to have as of the last day
of each month EBITDA that is equal to or greater than zero dollars ($0.00), concurrent with the
delivery of Borrower’s Form 10-Q or 10-K filed with the Securities and Exchange Commission,
Borrower shall deliver a Compliance Certificate signed by a Responsible Officer in the form of
Exhibit D



11









 




(provided that upon compliance by Borrower with the Fixed Charge Coverage ratio set forth in
Section 6.6(iii) for four consecutive quarterly periods, then concurrent with the delivery of
Borrower’s Form 10-Q or 10-K filed with the Securities and Exchange Commission, Borrower will
deliver to Bank a Compliance Certificate signed by a Responsible Officer in the form of Exhibit
D-1)




     (d) Allow Bank to audit Borrower’s Collateral at Borrower’s expense. Such audits will be
conducted no more often than every year unless an Event of Default has occurred and is continuing.



6.3 Taxes.




     Borrower will make, and cause each Subsidiary to make, timely payment of all material federal,
state, and local taxes or assessments and will deliver to Bank, on demand, appropriate certificates
attesting to the payment.



6.4 Insurance.




     Borrower will keep its business and the Collateral insured for risks and in amounts, as Bank
may reasonably request. Insurance policies will be in a form, with companies, and in amounts that
are satisfactory to Bank in Bank’s reasonable discretion. All property policies will have a
lender’s loss payable endorsement showing Bank as an additional loss payee and all liability
policies will show the Bank as an additional insured and provide that the insurer must give Bank at
least 20 days notice before canceling its policy. At Bank’s request, Borrower will deliver
certified copies of policies and evidence of all premium payments. During the existence of an
Event of Default or if all of the insurance proceeds related to such loss or claim are equal to or
greater than $1,000,000.00, proceeds payable under any policy will, at Bank’s option, be payable to
Bank on account of the Obligations. At all times that no Event of Default exists and if the all of
the insurance proceeds related to the loss or claim are less than $1,000,000.00, proceeds payable
under any policy will be payable to Borrower to repair or replace property subject to a casualty
claim or to otherwise acquire assets useful in the business of Borrower.



WARNING




          Unless you provide us with evidence of the insurance coverage as required by our contract or
loan agreement, we may purchase insurance at your expense to protect our interest. This insurance
may, but need not, also protect your interest. If the collateral becomes damaged, the coverage we
purchase may not pay any claim you make or any claim made against you. You may later cancel this
coverage by providing evidence that you have obtained property coverage elsewhere.




          You are responsible for the cost of any insurance purchased by us. The cost of this insurance
may be added to your contract or loan balance. If the cost is added to your contract or loan
balance, the interest rate on the underlying contract or loan will apply to this added amount. The
effective date of coverage may be the date your prior coverage lapsed or the date you failed to
provide proof of coverage.




          This coverage we purchased may be considerably more expensive than insurance you can obtain on
your own and may not satisfy any need for property damage coverage or any mandatory liability
insurance requirements imposed by applicable law.




6.5 Primary Accounts.




     Borrower will maintain its primary depository and operating accounts with Bank.



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6.6 Financial Covenants.




     Until Borrower meets the IPO and EBITDA Conditions and continues to have as of the last day of
each month EBITDA that is equal to or greater than zero dollars ($0.00), Borrower will maintain as
of the last day of each month (provided that at all times that Borrower meets the IPO and EBITDA
Conditions and continues to have as of the last day of each month EBITDA that is equal to or
greater than zero dollars ($0.00), Borrower will maintain as of the last day of each fiscal
quarter):



     (i) Tangible Net Worth. Tangible Net Worth of at least $20,000,000, plus 50% of all equity or
capital contributed to Borrower after the Effective Date, and 50% of all positive quarterly net
income from and after the Effective Date.



     (ii) Unfunded Capital Expenditures. The cumulative amount of Equipment purchased from and
after January 1, 2006, less (a) the cumulative original principal amount of any loan, financing
lease or other financing incurred by Borrower from and after January 1, 2006 from a party other
than the Bank to finance the lease or purchase of the Equipment described above, and less (b) the
total original principal amount of Second Equipment Advances, shall not exceed $10,000,000.


If Borrower complies with the Fixed Charge Coverage ratio set forth in subpart (iii) below for four
(4) consecutive quarters from and after the Effective Date, then until Borrower meets the IPO and
EBITDA Conditions and continues to have as of the last day of each month EBITDA that is equal to or
greater than zero dollars ($0.00), Borrower shall thereafter maintain as of the last day of each
month (provided that at all times that Borrower meets the IPO and EBITDA Conditions and continues
to have as of the last day of each month EBITDA that is equal to or greater than zero dollars
($0.00), Borrower will maintain as of the last day of each fiscal quarter), in lieu of compliance
with the ratio and covenant set forth in subparts (i) and (ii) above, the following:




     (iii) Fixed Charge Coverage. A ratio of EBITDA less unfunded capital expenditures and less
capitalized software development costs to the sum of interest, taxes, current principal maturities
of long term debt, dividends and stock redemption payments of at least 1.50 to 1.00.



     (iv) Quick Ratio (Adjusted). A ratio of Quick Assets to Current Liabilities minus Deferred
Revenue of at least 1.00 to 1.00.



6.7 Intellectual Property Rights.




     Borrower will (i) protect, defend and maintain the validity and enforceability of the material
Intellectual Property and promptly advise Bank in writing of material third party infringements
known to Borrower or of which Borrower becomes aware; (ii) not allow any material Intellectual
Property to be abandoned, forfeited or dedicated to the public without Bank’s written consent; and
(iii) will provide annually to Bank a list of all customers with whom Borrower has source code
escrow agreements and, if requested by Bank, shall provide the source code escrow agreements and
related documents requested by Bank, subject to confidentiality obligations.



6.8 Further Assurances.




     Borrower will execute any further instruments and take further action as Bank reasonably
requests to perfect or continue Bank’s security interest in the Collateral or to effect the
purposes of this Agreement.



7 NEGATIVE COVENANTS




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     For so long as Bank has an obligation to lend or there are any outstanding Obligations (other
than Inchoate Indemnity Obligations), Borrower shall not, without Bank’s prior written consent
(which shall not be unreasonably withheld), do any of the following:



7.1 Dispositions.




     Convey, sell, lease, transfer or otherwise dispose of (collectively “Transfer”), or permit any
of its Subsidiaries to Transfer, all or any part of its business or property, except
for Transfers (i) of Inventory in the ordinary course of business; (ii) of non-exclusive
licenses and similar arrangements for the use of the property of Borrower or its Subsidiaries in
the ordinary course of business; (iii) exclusive licenses in the ordinary course of business,
provided that such exclusive licenses are limited to specified fields of use, or specific
geographic regions, or custom products developed for the exclusive use of a particular customer,
(iv) Transfers otherwise explicitly permitted pursuant to Section 7, (v) of worn-out or obsolete
Equipment or (vi) other Transfers in an aggregate amount not to exceed the Threshold Amount in any
fiscal year.



7.2 Changes in Business, Ownership, Management or Locations of Collateral.




     Engage in or permit any of its Subsidiaries to engage in any business other than the
businesses currently engaged in by Borrower or reasonably related thereto or if the current Chief
Executive Officer or Chief Financial Officer ceases to be an employee of Borrower and a replacement
is not made within ninety days. Until Borrower meets the IPO and EBITDA Conditions and continues
to have as of the last day of each month EBITDA that is equal to or greater than zero dollars
($0.00), have a material change in its ownership of greater than 25% (other than by the sale of
Borrower’s equity securities in a public offering or to venture capital investors so long as
Borrower identifies the venture capital investors prior to the closing of the investment). After
such time as Borrower meets the IPO and EBITDA Conditions and continues to have as of the last day
of each month EBITDA that is equal to or greater than zero dollars ($0.00), Borrower shall not
cause a Change of Control to occur. Borrower will not, without at least 30 days prior written
notice, relocate its chief executive office, change its state of formation (including
reincorporation), change its organizational number or name or add any new offices or business
locations (such as warehouses) in which Borrower maintains or stores over $100,000 in Collateral.



7.3 Mergers or Acquisitions.




     Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with any
other Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of
the capital stock or property of another Person except where (i) such acquisitions do not in the
aggregate exceed $1,000,000.00 over the term of the Committed Revolving Line and (ii) no Event of
Default has occurred and is continuing or would exist after giving effect to the acquisitions. So
long as Borrower meets the IPO and EBITDA Conditions and continues to have as of the last day of
each month EBITDA that is equal to or greater than zero dollars ($0.00), Borrower shall not merge
or consolidate, or permit any of its Subsidiaries to merge or consolidate, with any other Person,
or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital
stock or property of another Person except if (i) no Default or Event of Default exists or would
result as a result of such transaction and (ii) Borrower on a consolidated basis is in compliance
on a Pro-Forma Basis, with the applicable financial covenants in Section 6.6, recomputed as of the
last day of the most recently ended fiscal quarter. For purposes of this Agreement, the term “Pro
Forma Basis” means, for any acquisition that occurs subsequent to the commencement of a period for
which the financial effect of such transaction is being calculated, and giving effect to the
transaction for which such calculation is being made, such calculation as shall give pro forma
effect to such acquisition (and any related incurrence or repayment of Indebtedness) as if it
occurred on the first day of the fiscal quarter period for which such calculation is being made
(including cost savings to the extent such cost savings would be permitted to be reflected in pro



14









 




forma financial information complying with the requirements of GAAP and Article XI of Regulation
S-X under the Securities and Exchange Act of 1934, as amended). A Subsidiary may merge or
consolidate into another Subsidiary or into Borrower.




7.4 Indebtedness.




     Create, incur, assume, or be liable for any Indebtedness, or permit any Subsidiary to do so,
other than Permitted Indebtedness.



7.5 Encumbrance.




     Create, incur, or allow any Lien on any of its property, or assign or convey any right to
receive income, including the sale of any Accounts, or permit any of its Subsidiaries to do so,
except for Permitted Liens, or permit any Collateral not to be subject to the first priority
security interest granted here, subject to Permitted Liens.



7.6 Distributions; Investments.




     Directly or indirectly acquire or own any Person, or make any Investment in any Person, other
than Permitted Investments, or permit any of its Subsidiaries to do so. Pay any dividends or make
any distribution or payment or redeem, retire or purchase any capital stock, except for (i)
repurchases of stock from former employees, consultants, officers or directors of Borrower under
the terms of applicable repurchase agreements in an aggregate amount not to exceed $250,000 in any
fiscal year, provided that no Event of Default has occurred, is continuing or would exist after
giving effect to the repurchase, and (ii) dividends or distributions of capital stock.



7.7 Transactions with Affiliates.




     Directly or indirectly enter into or permit to exist any material transaction with any
Affiliate of Borrower except for (a) transactions that are in the ordinary course of Borrower’s
business, upon fair and reasonable terms that are no less favorable to Borrower than would be
obtained in an arm’s length transaction with a non-affiliated Person; (b) transactions that are
approved by a majority of the disinterested members of the Borrower’s Board of Directors; or (c)
transactions with Subsidiaries that (i) are not otherwise prohibited under this Agreement, (ii)
would not be an Event of Default hereunder and (iii) would not, with the passage of time or
otherwise, constitute an Event of Default.



7.8 Subordinated Debt.




     Make or permit any payment on any Subordinated Debt, except under the terms of the
Subordinated Debt, or amend any provision in any document relating to the Subordinated Debt without
Bank’s prior written consent.



7.9 Compliance.




     Become an “investment company” or a company controlled by an “investment company,” under the
Investment Company Act of 1940 or undertake as one of its important activities extending credit to
purchase or carry margin stock, or use the proceeds of any Credit Extension for that purpose; fail
to meet the minimum funding requirements of ERISA, permit a Reportable Event or Prohibited
Transaction, as defined in ERISA, to occur; fail to comply with the Federal Fair Labor Standards
Act or violate any other law or regulation, if the violation could reasonably be expected to have a
material adverse effect on Borrower’s business or operations or would reasonably be expected to
cause a Material Adverse Change, or permit any of its Subsidiaries to do so.



8 EVENTS OF DEFAULT




15









 








     Any one of the following is an Event of Default:



8.1 Payment Default.




     If Borrower fails to pay any of the Obligations within 3 days after their due date (other than
Bank Expenses, which must be paid within 15 days after invoicing), however, during such period no
Credit Extensions will be made;



8.2 Covenant Default.




     (a) If Borrower fails to perform any obligation under Sections 6.2 or 6.6 or violates any of
the covenants contained in Section 7 of this Agreement, or



     (b) If Borrower fails or neglects to perform, keep, or observe any other material term,
provision, condition, covenant, or agreement contained in this Agreement, in any of the Loan
Documents, or in any other present or future agreement between Borrower and Bank and as to any
default under such other term, provision, condition, covenant or agreement that can be cured, has
failed to cure such default within ten (10) days after the occurrence thereof; provided, however,
that if the default cannot by its nature be cured within the ten (10) day period or cannot after
diligent attempts by Borrower be cured within such ten (10) day period, and such default is likely
to be cured within a reasonable time, then Borrower shall have an additional reasonable period
(which shall not in any case exceed thirty (30) days) to attempt to cure such default, and within
such reasonable time period the failure to have cured such default shall not be deemed an Event of
Default (provided that no Credit Extensions will be made during such cure period);



8.3 Material Adverse Change.




     (i) A material impairment in the perfection or priority of Bank’s security interest in the
Collateral or in the value of such Collateral which is not covered by adequate insurance occurs; or
(ii) Bank determines, based upon information available to it and in its reasonable judgment, that
there is a reasonable likelihood that Borrower will fail to comply with one or more of the
financial covenants in Section 6 during the next succeeding financial reporting period (the
foregoing being defined as a “Material Adverse Change”); provided however that if Borrower meets
the IPO and EBITDA Conditions and so long as it continues to have as of the last day of each month
EBITDA that is equal to or greater than zero dollars ($0.00), then a Material Adverse Change under
this Section 8.3 shall not constitute an Event of Default;



8.4 Attachment.




     If any material portion of Borrower’s assets is attached, seized, levied on, or comes into
possession of a trustee or receiver and the attachment, seizure or levy is not removed in 10 days,
or if Borrower is enjoined, restrained, or prevented by court order from conducting a material part
of its business or if a judgment or other claim becomes a Lien on a material portion of Borrower’s
assets, or if a notice of lien, levy, or assessment is filed against any of Borrower’s assets by
any government agency and not paid within 10 days after Borrower receives notice. These are not
Events of Default if stayed or if a bond is posted pending contest by Borrower (but no Credit
Extensions will be made during the cure period);



8.5 Insolvency.




     If Borrower becomes insolvent or if Borrower begins an Insolvency Proceeding or an Insolvency
Proceeding is begun against Borrower and not dismissed or stayed within 45 days (but no Credit
Extensions will be made before any Insolvency Proceeding is dismissed);



16









 





8.6 Other Agreements.




     If there is a default in any agreement between Borrower and a third party that gives the third
party the right to accelerate any Indebtedness exceeding the Threshold Amount;



8.7 Judgments.




     If a money judgment(s) (not covered by insurance, provided that if the judgment is covered by
insurance, Borrower must provide proof of such insurance coverage satisfactory to Bank without any
qualifications or reservation of rights by the insurer) in the aggregate of at least the Threshold
Amount is rendered against Borrower and is unsatisfied and unstayed for 10 days (but no Credit
Extensions will be made before the judgment is stayed or satisfied);



8.8 Misrepresentations.




     If Borrower or any Person acting for Borrower makes any material misrepresentation or material
misstatement now or later in any warranty or representation in this Agreement or in any writing
delivered to Bank or to induce Bank to enter this Agreement or any Loan Document; or



9 BANK’S RIGHTS AND REMEDIES



9.1 Rights and Remedies.




     When an Event of Default occurs and continues Bank may, without notice or demand, do any or
all of the following:



     (a) Declare all Obligations immediately due and payable (but if an Event of Default described
in Section 8.5 occurs all Obligations are immediately due and payable without any action by Bank);



     (b) Stop advancing money or extending credit for Borrower’s benefit under this Agreement or
under any other agreement between Borrower and Bank;



     (c) Settle or adjust disputes and claims directly with account debtors for amounts, on terms
and in any order that Bank considers advisable; notify any Person owing Borrower money of Bank’s
security interest in the funds and verify the amount of the Account. Borrower must collect all
payments in trust for Bank and, if requested by Bank, immediately deliver the payments to Bank in
the form received from the account debtor, with proper endorsements for deposit;



     (d) Make any payments and do any acts it considers necessary or reasonable to protect its
security interest in the Collateral. Borrower will assemble the Collateral if Bank requires and
make it available as Bank designates. Bank may enter premises where the Collateral is located,
take and maintain possession of any part of the Collateral, and pay, purchase, contest, or
compromise any Lien which appears to be prior or superior to its security interest and pay all
expenses incurred. Borrower grants Bank a license to enter and occupy any of its premises, without
charge, to exercise any of Bank’s rights or remedies;



     (e) Bank may place a ‘hold’ on any account maintained with Bank and deliver a notice of
exclusive control, any entitlement order, or other directions or instructions pursuant to any
control agreement or similar agreements providing control of any Collateral. Bank may also apply
to the Obligations (i) any balances and deposits of Borrower it holds, or (ii) any amount held by
Bank owing to or for the credit or the account of Borrower;



     (f) Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for
sale, and sell the Collateral. Bank is granted a non-exclusive, royalty-free license or other
right to use, without charge, Borrower’s labels, Patents, Copyrights, Mask Works, rights of use of
any



17









 




name, trade secrets, trade names, Trademarks, service marks, and advertising matter, or any
similar property as it pertains to the Collateral, in completing production of, advertising for
sale, and selling any Collateral and, in connection with Bank’s exercise of its rights under this
Section, Borrower’s rights under all licenses and all franchise agreements inure to Bank’s benefit;
and




     (g) Dispose of the Collateral according to the Code.



9.2 Power of Attorney.




     Effective only when an Event of Default occurs and continues, Borrower irrevocably appoints
Bank as its lawful attorney to: (i) endorse Borrower’s name on any checks or other forms of payment
or security; (ii) sign Borrower’s name on any invoice or bill of lading for any Account or drafts
against account debtors, (iii) make, settle, and adjust all claims under Borrower’s insurance
policies; (iv) settle and adjust disputes and claims about the Accounts directly with account
debtors, for amounts and on terms Bank determines reasonable; and (v) transfer the Collateral into
the name of Bank or a third party as the Code permits. Bank may exercise the power of attorney to
sign Borrower’s name on any documents necessary to perfect or continue the perfection of any
security interest regardless of whether an Event of Default has occurred. Bank’s appointment as
Borrower’s attorney in fact, and all of Bank’s rights and powers, coupled with an interest, are
irrevocable until all Obligations (other than Inchoate Indemnity Obligations) have been fully
repaid and performed and Bank’s obligation to provide Credit Extensions terminates.



9.3 Bank Expenses.




     If Borrower fails to pay any amount or furnish any required proof of payment to third persons,
Bank may make all or part of the payment or obtain insurance policies required in Section 6.4, and
take any action under the policies Bank deems prudent. Any amounts paid by Bank are Bank Expenses
due and payable within 15 days of invoicing by Bank, bearing interest at the then applicable rate
and secured by the Collateral. No payments by Bank are deemed an agreement to make similar
payments in the future or Bank’s waiver of any Event of Default.



9.4 Bank’s Liability for Collateral.




     If Bank complies with reasonable banking practices and Section 9-207 of the Code, it is not
liable for: (a) the safekeeping of the Collateral; (b) any loss or damage to the Collateral; (c)
any diminution in the value of the Collateral; or (d) any act or default of any carrier,
warehouseman, bailee, or other person. Except as provided above, Borrower bears all risk of loss,
damage or destruction of the Collateral.



9.5 Remedies Cumulative.




     Bank’s rights and remedies under this Agreement, the Loan Documents, and all other agreements
are cumulative. Bank has all rights and remedies provided under the Code, by law, or in equity.
Bank’s exercise of one right or remedy is not an election, and Bank’s waiver of any Event of
Default is not a continuing waiver. Bank’s delay is not a waiver, election, or acquiescence. No
waiver is effective unless signed by Bank and then is only effective for the specific instance and
purpose for which it was given.



9.6 Demand Waiver.




     Except as expressly set forth in this Agreement, Borrower waives demand, notice of default or
dishonor, notice of payment and nonpayment, notice of any default, nonpayment at maturity, release,
compromise, settlement, extension, or renewal of accounts, documents, instruments, chattel paper,
and guarantees held by Bank on which Borrower is liable.



18









 





10 NOTICES




     All notices or demands by any party about this Agreement or any other related agreement must
be in writing and be personally delivered or sent by an overnight delivery service, by certified
mail, postage prepaid, return receipt requested, or by telefacsimile to the addresses set forth at
the beginning of this Agreement. A party may change its notice address by giving the other party
written notice.



11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER




     California law governs the Loan Documents without regard to principles of conflicts of law.
Borrower and Bank each submit to the exclusive jurisdiction of the State and Federal courts in
Santa Clara County, California.


BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING
OUT OF ANY OF THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH
OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO
THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.




12 GENERAL PROVISIONS



12.1 Successors and Assigns.




     This Agreement binds and is for the benefit of the successors and permitted assigns of each
party. Borrower may not assign this Agreement or any rights under it without Bank’s prior written
consent, which may be granted or withheld in Bank’s discretion. Bank has the right, without the
consent of or notice to Borrower, to sell, transfer, negotiate, or grant participation in all or
any part of, or any interest in, Bank’s obligations, rights and benefits under this Agreement.



12.2 Indemnification.




     Borrower will indemnify, defend and hold harmless Bank and its officers, employees, and agents
against: (a) all obligations, demands, claims, and liabilities asserted by any other party in
connection with the transactions contemplated by the Loan Documents; and (b) all losses or Bank
Expenses incurred, or paid by Bank from, following, or consequential to transactions between Bank
and Borrower (including reasonable attorneys fees and expenses), except, in the case of clause (a)
and clause (b), for losses caused by Bank’s gross negligence or willful misconduct. Bank will
promptly notify Borrower of any claim giving rise to liability under this Section 12.2; provided
however that no failure by Bank to provide the notice specified in this Section 12.2 shall relieve
Borrower of any liability hereunder, except to the extent the Borrower has suffered actual
prejudice due to such failure. Upon providing notice of such claim to Borrower, Borrower shall
defend such claim with counsel reasonably satisfactory to Bank and Borrower shall have sole control
of the defense and settlement of such claim; provided that Borrower will not settle any claim
without Bank’s prior written consent, which shall not be unreasonably withheld or delayed, and
provided further that Bank shall have sole control of settlement in the event Borrower has not
acknowledged its indemnification liability for the claim. Bank shall provide such assistance as
Borrower may reasonably request in connection with defending such claim.



12.3 Time of Essence.




     Time is of the essence for the performance of all obligations in this Agreement.



19









 





12.4 Severability of Provision.




     Each provision of this Agreement is severable from every other provision in determining the
enforceability of any provision.



12.5 Amendments in Writing, Integration.




     All amendments to this Agreement must be in writing and signed by Borrower and Bank. This
Agreement represents the entire agreement about this subject matter, and supersedes prior
negotiations or agreements. All prior agreements, understandings, representations, warranties, and
negotiations between the parties about the subject matter of this Agreement merge into this
Agreement and the Loan Documents.



12.6 Counterparts.




     This Agreement may be executed in any number of counterparts and by different parties on
separate counterparts, each of which, when executed and delivered, are an original, and all taken
together, constitute one Agreement.



12.7 Survival.




     All covenants, representations and warranties made in this Agreement continue in full force
while any Obligations (other than Inchoate Indemnity Obligations) remain outstanding. The
obligations of Borrower in Section 12.2 to indemnify Bank will survive until all statutes of
limitations for actions that may be brought against Bank have run.



12.8 Confidentiality.




     In handling any confidential information, Bank will exercise the same degree of care that it
exercises for its own proprietary information, but disclosure of information may be made (i) to
Bank’s subsidiaries or affiliates, (ii) to prospective transferees or purchasers of any interest in
the loans (provided, however, Bank shall use commercially reasonable efforts in obtaining such
prospective transferee or purchasers agreement of the terms of this provision), (iii) as required
by law, regulation, subpoena, or other order, (iv) as required in connection with Bank’s
examination or audit and (v) as Bank considers appropriate exercising remedies under this
Agreement. Confidential information does not include information that either: (a) is in the public
domain or in Bank’s possession when disclosed to Bank, or becomes part of the public domain after
disclosure to Bank; or (b) is disclosed to Bank by a third party, if Bank does not know that the
third party is prohibited from disclosing the information.



12.9 Attorneys’ Fees, Costs and Expenses.




     In any action or proceeding between Borrower and Bank arising out of the Loan Documents, the
prevailing party will be entitled to recover its reasonable attorneys’ fees and other reasonable
costs and expenses incurred at trial, on appeal and in any arbitration or bankruptcy proceeding, in
addition to any other relief to which it may be entitled.



12.10 Joint and Several Obligations.




     If Borrower consists of more than one person or entity, all Obligations of Borrower under this
Agreement shall be joint and several, and all references to Borrower shall mean each and every
Borrower.



13 DEFINITIONS




20









 







13.1 Definitions.




     In this Agreement:



     “Accounts” are all existing and later arising accounts, contract rights, and other obligations
owed Borrower in connection with its sale or lease of goods (including licensing software and other
technology) or provision of services, all credit insurance, guaranties, other security and all
merchandise returned or reclaimed by Borrower and Borrower’s Books relating to any of the
foregoing, as such definition may be amended from time to time according to the Code.



     “Advance” or “Advances” is a loan advance (or advances) under the Committed Revolving Line.



     “Affiliate” of a Person is a Person that owns or controls directly or indirectly the Person,
any Person that controls or is controlled by or is under common control with the Person, and each
of that Person’s senior executive officers, directors, partners and, for any Person that is a
limited liability company, that Person’s managers and members.



     “Bank Expenses” are all audit fees and expenses and reasonable costs and expenses (including
reasonable attorneys’ fees and expenses) for preparing, negotiating, administering, defending and
enforcing the Loan Documents (including appeals or Insolvency Proceedings).



     “Borrower’s Books” are all Borrower’s books and records including ledgers, records regarding
Borrower’s assets or liabilities, the Collateral, business operations or financial condition and
all computer programs or discs or any equipment containing the information.



     “Borrowing Base” is (i) 80% of Eligible Accounts plus (ii) 100% of unrestricted cash (and
equivalents) deposited with Bank or invested through Bank’s affiliate; provided,
however, that Bank may lower the percentage of the Borrowing Base after performing an audit
of Borrower’s Collateral.



     “Business Day” is any day that is not a Saturday, Sunday or a day on which the Bank is closed.



     “Cash Management Services” are defined in Section 2.1.3.



     “Change of Control” means any event, transaction, or occurrence as a result of which any
“person” or “group” (within the meaning of Section 3(a)(9), Section 13(d) or Section 14(d)(2) of
the Securities and Exchange Act of 1934, as amended) becomes the “beneficial owner” (as defined in
Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act), directly or
indirectly, of securities of Borrower, representing forty percent (40%) or more of the combined
voting power of Borrower’s then outstanding securities.



     “Code” is the California Uniform Commercial Code, as applicable.



     “Collateral” is the property described on Exhibit A.



     “Committed Equipment Line” is a Credit Extension of up to the principal amount of Equipment
Advances disbursed to Borrower in the original principal sum of $7,352,105.53.



     “Committed Revolving Line” is an Advance of up to $5,000,000.



     “Contingent Obligation” is, for any Person, any direct or indirect liability, contingent or
not, of that Person for (i) any indebtedness, lease, dividend, letter of credit or other obligation
of another such as an obligation directly or indirectly guaranteed, endorsed, co-made, discounted
or



21









 




sold with recourse by that Person, or for which that Person is directly or indirectly liable; (ii)
any obligations for undrawn letters of credit for the account of that Person; and (iii) all
obligations from any interest rate, currency or commodity swap agreement, interest rate cap or
collar agreement, or other agreement or arrangement designated to protect a Person against
fluctuation in interest rates, currency exchange rates or commodity prices; but “Contingent
Obligation” does not include endorsements in the ordinary course of business. The amount of a
Contingent Obligation is the stated or determined amount of the primary obligation for which the
Contingent Obligation is made or, if not determinable, the maximum reasonably anticipated liability
for it determined by the Person in good faith; but the amount may not exceed the maximum of the
obligations under the guarantee or other support arrangement.




     “Copyrights” are all copyright rights, applications or registrations and like protections in
each work of authorship or derivative work, whether published or not (whether or not it is a trade
secret) now or later existing, created, acquired or held.



     “Credit Extension” is each Advance, Equipment Advance, Second Equipment Advance or any other
extension of credit by Bank for Borrower’s benefit.



     “Current Liabilities” are the aggregate amount of Borrower’s Total Liabilities that mature
within one (1) year.



     “Deferred Revenue” is all amounts received in advance of performance under maintenance,
service or other contracts and not yet recognized as revenue.



     “EBITDA” means (a) Net Income, plus (b) Interest Expense, plus (c) to the extent deducted in
the calculation of Net Income, depreciation expense and amortization expense, plus (d) income tax
expense.



     “Effective Date” is the date Bank executes this Agreement.



     “Eligible Accounts” are Accounts in the ordinary course of Borrower’s business that meet all
Borrower’s representations and warranties in Section 5; but Bank may change eligibility
standards by giving Borrower notice. Unless Bank agrees otherwise in writing, Eligible Accounts
will not include:




(a) Accounts that the account debtor has not paid within 90 days of invoice date;




(b) Accounts for an account debtor, 50% or more of whose Accounts have not been paid within
90 days of invoice date;




(c) Credit balances over 90 days from invoice date;




(d) Accounts for an account debtor, including Affiliates, whose total obligations to
Borrower exceed 25% of all Accounts, for the amounts that exceed that percentage, unless
the Bank approves in writing;




(e) Accounts for which the account debtor does not have its principal place of business in
the United States except for Eligible Foreign Accounts or other foreign accounts that do
not exceed the Foreign/Government Account Basket;




(f) Accounts for which the account debtor is a federal, state or local government entity or
any department, agency, or instrumentality, except for Accounts of the United States if the
payee has assigned its payment rights to Bank and the assignment has been acknowledged
under the Assignment of Claims Act of 1940 (31 U.S.C. 3727) or other government accounts
that do not exceed the Foreign/Government Account Basket;



22









 






(g) Accounts for which Borrower owes the account debtor, but only up to the amount owed
(sometimes called “contra” accounts, accounts payable, customer deposits or credit
accounts); provided however that Deferred Revenue shall not be considered amounts owed by
Borrower to the account debtor;




(h) Accounts for demonstration or promotional equipment, or in which goods are consigned,
sales guaranteed, sale or return, sale on approval, bill and hold, or other terms if
account debtor’s payment may be conditional;




(i) Accounts for which the account debtor is Borrower’s Affiliate, officer, employee, or
agent; and




(j) Accounts in which the account debtor disputes liability or makes any claim and Bank
believes there may be a basis for dispute (but only up to the disputed or claimed amount),
or if the Account Debtor is subject to an Insolvency Proceeding, or becomes insolvent, or
goes out of business.



     “Eligible Foreign Accounts” are Accounts for which the account debtor does not have its
principal place of business in the United States but are: (1) covered by credit insurance
satisfactory to Bank, less any deductible; or (2) supported by letter(s) of credit advised and
negotiated by Bank or (3) that Bank approves in writing.



     “Equipment” is all present and future machinery, equipment, tenant improvements, furniture,
fixtures, vehicles, tools, parts and attachments in which Borrower has any interest.



     “Equipment Advance” is defined in Section 2.1.1.



     “Equipment Maturity Date” is defined in Section 2.1.1.



     “ERISA” is the Employment Retirement Income Security Act of 1974, and its regulations.



     “Fixed Rate Option” is defined in Section 2.4.1.



     “Foreign/Government Account Basket” means the unpaid total face amount of foreign and
government Accounts in the sum of not more than $1,000,000, which are (a) Accounts for which the
account debtor does not have its principal place of business in the United States and which are not
Eligible Foreign Accounts; and/or (b) Accounts for which the account debtor is a federal, state or
local government entity or any department, agency, or instrumentality and which are not Accounts of
the United States under which the payee has assigned its payment rights to Bank and the assignment
has been acknowledged under the Assignment of Claims Act of 1940.



     “GAAP” is generally accepted accounting principles.



     “Inchoate Indemnity Obligations” are contingent indemnity obligations under Section 12.2
hereof with respect to which (a) no claim or demand has been made or threatened for which Borrower
may be obligated to indemnify Bank; and (b) neither Bank nor Borrower has any notice or knowledge
of any act or omission that could form the basis for an indemnification claim.



     “Indebtedness” is (a) indebtedness for borrowed money or the deferred price of property or
services, such as reimbursement and other obligations for surety bonds and letters of credit, (b)
obligations evidenced by notes, bonds, debentures or similar instruments, (c) capital lease
obligations and (d) Contingent Obligations.



     “Insolvency Proceeding” are proceedings by or against any Person under the United States
Bankruptcy Code, or any other bankruptcy or insolvency law, including assignments for



23









 




the benefit of creditors, compositions, extensions generally with its creditors, or proceedings
seeking reorganization, arrangement, or other relief.




     “Intellectual Property” is all of Borrower’s:



     (a) Copyrights, Trademarks, Patents, and Mask Works including amendments, renewals,
extensions, and all licenses or other rights to use and all license fees and royalties from the
use;



     (b) Any trade secrets and any intellectual property rights in computer software and computer
software products now or later existing, created, acquired or held;



     (c) All design rights that may be available to Borrower now or later created, acquired or
held;



     (d) Any claims for damages (past, present or future) for infringement of any of the rights
above, with the right, but not the obligation, to sue and collect damages for use or infringement
of the intellectual property rights above;



     All proceeds and products of the foregoing, including all insurance, indemnity or warranty
payments.



     “Interest Expense” means for any fiscal period, interest expense (whether cash or non-cash)
determined in accordance with GAAP for the relevant period ending on such date, including, in any
event, interest expense with respect to any Credit Extension and other Indebtedness of Borrower
[and its Subsidiaries], including, without limitation or duplication, all commissions, discounts,
or related amortization and other fees and charges with respect to letters of credit and bankers’
acceptance financing and the net costs associated with interest rate swap, cap, and similar
arrangements, and the interest portion of any deferred payment obligation (including leases of all
types).



     “Inventory” is present and future inventory in which Borrower has any interest, including
merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and
finished products intended for sale or lease or to be furnished under a contract of service, of
every kind and description now or later owned by or in the custody or possession, actual or
constructive, of Borrower, including inventory temporarily out of its custody or possession or in
transit and including returns on any accounts or other proceeds (including insurance proceeds) from
the sale or disposition of any of the foregoing and any documents of title.



     “Investment” is any beneficial ownership of (including stock, partnership interest or other
securities) any Person, or any loan, advance or capital contribution to any Person.



     “IPO and EBITDA Conditions” means (a) that Borrower has closed an initial public offering of
its common stock in which the aggregate public offering price (before deduction of underwriter
discounts and commissions) equals or exceeds $50,000,000.00, and (b) that as of the last day of the
month in which the initial public offering was closed or subsequent thereto, Borrower has EBITDA
that is equal to or greater than zero dollars ($0.00).



     “Lien” is a mortgage, lien, deed of trust, charge, pledge, security interest or other
encumbrance.



     “Loan Documents” are, collectively, this Agreement, any note, or notes or guaranties executed
by Borrower, and any other present or future agreement between Borrower and/or for the benefit of
Bank in connection with this Agreement, all as amended, extended or restated.



24









 





     “Mask Works” are all mask works or similar rights available for the protection of
semiconductor chips, now owned or later acquired.



     “Material Adverse Change” is defined in Section 8.3.



     “Net Income” means, as calculated on a consolidated basis for Borrower and its Subsidiaries
for any period as at any date of determination, the net profit (or loss), after provision for
taxes, of Borrower and its Subsidiaries for such period taken as a single accounting period.



     “Obligations” are debts, principal, interest, Bank Expenses and other amounts Borrower owes
Bank now or later, including cash management services, letters of credit and foreign exchange
contracts, if any and including interest accruing after Insolvency Proceedings begin and debts,
liabilities, or obligations of Borrower assigned to Bank. Notwithstanding the foregoing, in no
event shall any of Borrower’s obligations with respect to any warrants issued to Bank be deemed
“Obligations” hereunder.



     “Patents” are patents, patent applications and like protections, including improvements,
divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same.



     “Permitted Indebtedness” is:



     (a) Borrower’s indebtedness to Bank under this Agreement or any other Loan Document;



     (b) Indebtedness existing on the Effective Date and shown on the Schedule;



     (c) Subordinated Debt;



     (d) Indebtedness to trade creditors incurred in the ordinary course of business;



     (e) Indebtedness secured by Permitted Liens;



     (f) Indebtedness of Borrower to any Subsidiary and Contingent Obligations of any Subsidiary
with respect to obligations of Borrower (provided that the primary obligations are not prohibited
hereby), Indebtedness of any Subsidiary to any other Subsidiary and Contingent Obligations of any
Subsidiary with respect to the obligations of any other Subsidiary (provided that the primary
obligations are not prohibited hereby), and Indebtedness of any Subsidiary to Borrower and
Contingent Obligations of Borrower with respect to the obligations of another Subsidiary (provided
that the primary obligations are not prohibited hereby) that are permitted under clause (c) of the
definition of Permitted Investments; provided however, that the amount of Indebtedness from any
Subsidiary to Borrower shall not exceed the Threshold Amount unless such Subsidiary is a
co-borrower or guarantor of the Borrower’s Obligations to Bank;



     (g) obligations (contingent or otherwise) of Borrower or any Subsidiary existing or arising
under any Swap Contract; provided that such obligations are (or were) entered into by such Person
in the ordinary course of business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets or property held or reasonably anticipated by such
Person, or changes in the value of securities issued by such Person and not for the purposes of
speculation;



     (h) Indebtedness consisting of reimbursement obligations under letters of credit issued for
the benefit of any landlord or other Person or guarantees required to secure rental payments on any
real estate lease;



     (i) Indebtedness of any Person existing at the time such Person is merged with or into
Borrower or becomes a Subsidiary as otherwise permitted hereby, provided that such



25









 




Indebtedness is not incurred in connection with, or in contemplation of, such Person merging
with and into the Borrower or becoming a Subsidiary of the Borrower; and




     (j) Extensions, refinancings, modifications, amendments and restatements of any items of
Permitted Indebtedness (a) through (j) above, provided that the principal amount thereof is
not increased or the terms thereof are not modified to impose more burdensome terms upon Borrower
or its Subsidiary, as the case may be.



     “Permitted Investments” are:



     (a) Investments shown on the Schedule and existing on the Effective Date;



     (b) (i) marketable direct obligations issued or unconditionally guaranteed by the United
States or its agency or any State maturing within 1 year from its acquisition, (ii) commercial
paper maturing no more than 1 year after its creation and having the highest rating from either
Standard & Poor’s Corporation or Moody’s Investors Service, Inc., and (iii) certificates of deposit
issued maturing no more than 1 year after issue;



     (c) Investments in, or equity contributions or asset transfers to Borrower’s Subsidiaries to
finance the operating expenses of such Subsidiaries; provided however, that the amount of
Investments in, or equity contributions or asset transfers to Borrower’s Subsidiaries shall not
exceed the Threshold Amount unless such Subsidiary is a co-borrower or guarantor of the Borrower’s
Obligations to Bank;



     (d) Investments permitted by Borrower’s investment policy that has been approved by its board
of directors (or a committee thereof) and Bank;



     (e) Investments consisting of deposit and investment accounts;



     (f) Investments consisting of extensions of credit to Borrower’s or its Subsidiaries’
customers in the nature of accounts receivable, prepaid royalties or notes receivable from
customers who are not Affiliates arising from the sale or lease of goods, provision of services or
licensing activities of Borrower in the ordinary course of business;



     (g) Investments (including debt obligations) received in connection with the bankruptcy or
reorganization of customers or suppliers and in settlement of delinquent obligations of, and other
disputes with, customers or suppliers arising in the ordinary course of business;



     (h) Deposits, repayments and other credits to suppliers who are not Affiliates made in the
ordinary course of business;



     (i) Investments received in a transaction permitted under Section 7.3;



     (j) Investments consisting of (i) travel advances and employee relocation loans and other
employee loans and advances in the ordinary course of business and (ii) loans to employees relating
to the purchase of equity securities of Borrower or its Subsidiaries pursuant to employee stock
purchase plan agreements approved by Borrower’s Board of Directors as long as no cash proceeds are
distributed in connection therewith.



     “Permitted Liens” are:



     (a) Liens existing on the Effective Date and shown on the Schedule or arising under this
Agreement or other Loan Documents;



26









 





     (b) Liens for taxes, fees, assessments or other government charges or levies, either not
delinquent or being contested in good faith and for which Borrower maintains adequate reserves on
its Books, if they have no priority over any of Bank’s security interests;



     (c) Purchase money Liens (i) on Equipment acquired or held by Borrower or its Subsidiaries
incurred for financing the acquisition of the Equipment, or (ii) existing on equipment when
acquired, if the Lien is confined to the property and improvements and the proceeds of the
equipment;



     (d) Licenses or sublicenses granted in the ordinary course of Borrower’s business and any
interest or title of a licensor or under any license or sublicense, if the licenses and
sublicenses permit granting Bank a security interest;



     (e) Leases or subleases granted in the ordinary course of Borrower’s business, including in
connection with Borrower’s leased premises or leased property;



     (f) Liens incurred in the extension, renewal or refinancing of the indebtedness secured by
Liens described in (a) through (c), but any extension, renewal or replacement Lien must be
limited to the property encumbered by the existing Lien and the principal amount of the
indebtedness may not increase; or



     (g) Liens arising by operation of law, such as landlords, mechanics, materialmen, carriers
and warehousemen liens, incurred in the ordinary course of business where the claim secured by such
Lien is not due and payable or an adequate cash reserve has been deposited with Bank or an adequate
bond has been posted pending a good faith contest by Borrower.



     (h) Liens arising from judgments, decrees or attachments in circumstances not constituting an
Event of Default under Section 8.4 or 8.7;



     (i) Liens in favor of other financial institutions arising in connection with deposit
accounts or securities accounts held at such institutions, provided that Bank has a perfected
security interest in the amounts held in such deposit and/or securities accounts;



     (j) Liens to secure payment of workers’ compensation, employment insurance, old age pensions,
social security or other like obligations incurred in the ordinary course of business, provided,
they have no priority over any of Bank’s Liens and the aggregate amount of the Indebtedness secured
by such Liens does not at any time exceed the Threshold Amount;



     (k) Easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which do not in any case materially detract from the value of the property subject thereto
or materially interfere with the ordinary conduct of the business of the applicable Person and
which do not represent or secure an obligation for borrowed money; and



     (l) Liens on cash deposits made in the ordinary course of business relating to Borrower’s
real property leases.



     (m) Deposits to secure the performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, and other obligations of a like nature, in each case,
incurred in the ordinary course of business and not representing an obligation for borrowed money;



     (n) Liens in favor of customs or revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods; and



     (o) Liens on insurance proceeds in favor of insurance companies granted solely to secure
financed insurance premiums.



27









 





     “Person” is any individual, sole proprietorship, partnership, limited liability company, joint
venture, company association, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, firm, joint stock company, estate, entity or government
agency.



     “Prepayment Fee” is a fee on any portion of the Obligations with a fixed interest rate (the
“Fixed Obligations”) paid before the payment due date. “Base Interest Rate” means Bank’s initial
cost of funding the Fixed Obligations. The Prepayment Fee is calculated as follows: First, Bank
determines a “Current Market Rate” based on what the Bank would receive if it loaned the remaining
amount on the prepayment date in a wholesale funding market matching maturity, remaining principal
and interest amounts and principal and interest payment dates (the aggregate payments received are
the “Current Market Rate Amount”). Bank may select any wholesale funding market rate as the
Current Market Rate. Second, Bank will take the prepayment amount and calculate the present value
of each remaining principal and interest payment which, without prepayment, the Bank would have
received during the term of the Fixed Obligations using the Base Interest Rate. The sum of the
present value calculations is the “Mark to Market Amount.” Third, the Bank will subtract the
Current Market Rate Amount from the Mark to Market Amount. Any amount greater than zero is the
Prepayment Fee.



     “Prime Rate” is Bank’s most recently announced “prime rate,” even if it is not Bank’s lowest
rate.



     “Quick Assets” is, on any date, the Borrower’s consolidated, unrestricted cash and cash
equivalents deposited with or invested through Bank or its affiliates and net-billed accounts
receivable determined according to GAAP.



     “Quick Ratio (Adjusted)” is defined in Section 6.6; however for purposes of calculating the
Quick Ratio (Adjusted) under Section 2.4, the definition of Current Liabilities shall include the
long term portion of the Obligations due to Bank determined according to GAAP.



     “Responsible Officer” is each of the Chief Executive Officer, the President, the Chief
Financial Officer and the Controller of Borrower.



     “Revolving Maturity Date” is December 29, 2007.



     “Rights”, as applied to the Collateral, means the Borrower’s rights and interests in, and
powers with respect to, that Collateral, whatever the nature of those rights, interests and powers
and, in any event, including Borrower’s power to transfer rights in such Collateral to Bank.



     “Second Committed Equipment Line” is a Credit Extension of up to $10,000,000.



     “Second Equipment Availability End Date” is defined in Section 2.1.4



     “Second Equipment Advance” is defined in Section 2.1.4.



     “Second Equipment Advance Floating Rate Option” is defined in Section 2.4.3.



     “Second Equipment Advance Fixed Rate Option” is defined in Section 2.4.3.



     “Second Equipment Maturity Date” is defined in Section 2.1.4.



     “Second Equipment Advance Payment Date” is defined in Section 2.1.4.



     “Schedule” is any attached schedule of exceptions.



28









 





     “Subordinated Debt” is debt incurred by Borrower subordinated to Borrower’s indebtedness owed
to Bank and which is reflected in a written agreement in a manner and form acceptable to Bank and
approved by Bank in writing.



     “Subsidiary” is for any Person, or any other business entity of which more than 50% of the
voting stock or other equity interests is owned or controlled, directly or indirectly, by the
Person or one or more Affiliates of the Person.



     “Swap Contract” is any agreement or instrument described under clause (iii) of the definition
of Contingent Obligation.



     “Tangible Net Worth” is, on any date, the consolidated total assets of Borrower and its
Subsidiaries minus, (i) any amounts attributable to (a) goodwill, (b) intangible items such
as unamortized debt discount and expense, patents, trade and service marks and names, copyrights
and research and development expenses except prepaid expenses, and (c) reserves not already
deducted from assets, and (ii) Total Liabilities.



     “Threshold Amount” means (i) $250,000.00, prior to Borrower meeting the IPO and EBITDA
Conditions or if Borrower fails to have as of the last day of each month thereafter EBITDA that is
equal to or greater than zero dollars ($0.00), and (ii) $1,000,000.00, if Borrower meets the IPO
and EBITDA Conditions and if Borrower has as of the last day of each month thereafter EBITDA that
is equal to or greater than zero dollars ($0.00).



     “Total Liabilities” is on any day, obligations that should, under GAAP, be classified as
liabilities on Borrower’s consolidated balance sheet, including all Indebtedness, and current
portion Subordinated Debt allowed to be paid, but excluding all other Subordinated Debt.



     “Trademarks” are trademark and servicemark rights, registered or not, applications to register
and registrations and like protections, and the entire goodwill of the business of Borrower
connected with the trademarks.



     “Treasury Rate” is the average weekly yield (of the week ending figures) in the most recent
Federal Reserve Statistical Release on actively traded U. S. Treasury obligations of three-year
maturity or if a Statistical Release is not published, the arithmetic average (to the nearest .01%)
of the per annum yields to maturity for each Business Day during the week (ending at least two
Business Days before the determination is made) of all actively traded marketable United States
Treasury fixed interest rate securities with a constant maturity of, or not more than 30 days
longer or shorter than the average life of the principal and interest payments that are being
prepaid (excluding securities that can be surrendered at face value to pay Federal estate tax, or
which provide for tax benefits to the holder).”


UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY BANK CONCERNING LOANS AND
OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY
BY THE BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE
ENFORCEABLE.




29









 








	 	 	 	 	 
	BORROWER:	 	 
	 
	 	 	 	 
	OMNITURE, INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ Michael S. Herring	 	 
	Title:

	 	 

CFO
	 	 
	 
	 	 	 	 
	BANK:	 	 
	 
	 	 	 	 
	SILICON VALLEY BANK	 	 
	 
	 	 	 	 
	By:

	 	/s/ illegible	 	 
	Title:

	 	 

SRM
	 	 
	 
	Effective Date: 1-10-06	 	 






30









 






EXHIBIT A




     The Collateral consists of all of Borrower’s right, title and interest in and to the following
whether owned now or hereafter arising and whether the Borrower has rights now or hereafter has
rights therein and wherever located:



     All goods and equipment now owned or hereafter acquired, including, without limitation, all
machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of
the foregoing, and all attachments, accessories, accessions, replacements, substitutions,
additions, and improvements to any of the foregoing, wherever located;



     All inventory, now owned or hereafter acquired, including, without limitation, all
merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and
finished products including such inventory as is temporarily out of Borrower’s custody or
possession or in transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the foregoing and any
documents of title representing any of the above;



     All contract rights and general intangibles (as such definitions may be amended from time to
time according to the Code), now owned or hereafter acquired, including, without limitation, but
subject to the applicable provisions below regarding Intellectual Property, goodwill, trademarks,
servicemarks, trade styles, trade names, patents, patent applications, leases, license agreements,
franchise agreements, blueprints, drawings, purchase orders, customer lists, route lists,
infringements, claims, computer programs, computer discs, computer tapes, literature, reports,
catalogs, design rights, income tax refunds, payments of insurance and rights to payment of any
kind;



     All now existing and hereafter arising accounts, contract rights, royalties, license rights
and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the
licensing of technology or the rendering of services by Borrower (as such definitions may be
amended from time to time according to the Code) whether or not earned by performance, and any and
all credit insurance, insurance (including refund) claims and proceeds, guaranties, and other
security thereof, as well as all merchandise returned to or reclaimed by Borrower;



     All documents, cash, deposit accounts, securities, securities entitlements, securities
accounts, investment property, financial assets, letters of credit, letter of credit rights,
certificates of deposit, instruments and chattel paper and electronic chattel paper now owned or
hereafter acquired and Borrower’s Books relating to the foregoing;



     All copyright rights, copyright applications, copyright registrations and like protections in
each work of authorship and derivative work thereof, whether published or unpublished, now owned or
hereafter acquired; all trade secret rights, including all rights to unpatented inventions,
know-how, operating manuals, license rights and agreements and confidential information, now owned
or hereafter acquired; all mask work or similar rights available for the protection of
semiconductor chips, now owned or hereafter acquired; all claims for damages by way of any past,
present and future infringement of any of the foregoing; and



     All Borrower’s Books relating to the foregoing and any and all claims, rights and interests in
any of the above and all substitutions for, additions and accessions to and proceeds thereof.



     Notwithstanding the foregoing, the Collateral shall not be deemed to include any copyrights,
copyright applications, copyright registrations and like protection in each work of authorship and
derivative work thereof, whether published or unpublished, now owned or hereafter acquired; any
patents, patent applications and like protections including without limitation improvements,
divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same,
trademarks, servicemarks and applications therefor, whether registered or not, and the goodwill of
the business of Borrower connected with and symbolized by such trademarks, any proprietary
software, including all source code and object code, all design rights, any trade secret rights,
including any rights to unpatented inventions, know-how, operating manuals, license rights and
agreements and confidential information,



 









 




now owned or hereafter acquired; or any claims for damage by way of any past, present and future
infringement of any of the foregoing (collectively, the “Intellectual Property”), except that the
Collateral shall include the proceeds of all the Intellectual Property that are accounts, (i.e.
accounts receivable) of Borrower, or general intangibles consisting of rights to payment, if a
judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the
underlying Intellectual Property is necessary to have a security interest in such accounts and
general intangibles of Borrower that are proceeds of the Intellectual Property, then the Collateral
shall automatically, and effective as of the Closing Date, include the Intellectual Property to the
extent necessary to permit perfection of Bank’s security interest in such accounts and general
intangibles of Borrower that are proceeds of the Intellectual Property.




     Borrower and Bank are parties to that certain Negative Pledge Agreement, whereby Borrower, in
connection with Bank’s loan or loans to Borrower, has agreed, among other things, not to sell,
transfer, assign, mortgage, pledge, lease grant a security interest in, or encumber any of its
Intellectual Property, without Bank’s prior written consent.




 










 







EXHIBIT B




	 	 	 	 	 	 
	Loan Payment/Advance Request Form
	 	 	 	 	 
	Deadline for same day processing is 12:00 P.S.T.
	 	 	 	 	 
	Fax To:

	 	Date:
	 	 
	 










	 	 	 
	o

	 	Loan Payment:






OMNITURE, INC. (Borrower)




	 	 	 	 	 	 	 	 	 	 	 
	 

	 	From Account #
	 	 	 	To Account #	 	 	 	 
	 

	 	 	 	(Deposit Account #)
	 	 	 	(Loan Account #)	 	 






	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Principal $
	 
	 	and/or Interest $
	 
	 	 






	 	 	 
	 

	 	All Borrower’s representation and warranties in the Amended and Restated Loan and Security
Agreement are true, correct and complete in all material respects up to and including the date of
the transfer request for a loan payment, but those representations and warranties expressly
referring to another date shall be true, correct and complete in all material respects as of that
date:






	 	 	 	 	 	 	 	 	 	 
	 

	 	Authorized Signature:
	 	 
	 	Phone Number:
	 	 	 






 





	 	 	 
	o

	 	Loan Advance:
	 
	 	 
	 

	 	Complete Outgoing Wire Request section below if all or a portion of the funds from this loan
advance are for an outgoing wire.






	 	 	 	 	 	 	 	 	 	 
	 

	 	From Account #
	 
	 	To Account #
	 	 	 
	 

	 	 	 	(Loan Account #)
	 	 	(Deposit Account #)	 






	 	 	 	 	 	 	 
	 

	Amount of Advance $
	 	 
	 	 






	 	 	 
	 

	 	All Borrower’s representation and warranties in the Amended and Restated Loan and Security
Agreement are true, correct and complete in all material respects up to and including
the date of the transfer request for an advance, but those representations and warranties
expressly referring to another date shall be true, correct and complete in all material respects
as of that date:





	 	 	 	 	 	 	 	 	 	 
	 

	 	Authorized Signature:
	 	 
	 	Phone Number:
	 	 







 





	 	 	 
	 

	 	Outgoing Wire Request
	 
	 	 
	 

	 	Complete only if all or a portion of funds from the loan advance above are to be wired.






Deadline for same day processing is 12:00pm, P.S.T.




	 	 	 	 	 	 	 	 	 	 
	 

	 	Beneficiary Name:
	 	 	 	Amount of Wire: $
	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 

	 	Beneficiary Bank:
	 	 	 	Account Number:
	 	 	 






	 	 	 	 	 	 
	 

	 	City and State:
	 	 	 






	 	 	 	 	 	 	 	 	 
	 

	 	Beneficiary Bank Transit (ABA) #:
	 	 	 	Beneficiary Bank Code (Swift, Sort, Chip, etc.):
	 	 
	 

	 	 	 	 	(For International Wire Only)	 	 






	 	 	 	 	 	 	 	 	 
	 	 	Intermediary Bank: 	 	 	Transit (ABA) #: 	 	 	 






	 	 	 	 	 	 	 
	 

	 	For Further Credit to:
	 	 	 







	 	 	 	 	 	 	 
	 

	 	Special Instruction:
	 	 






	 	 	 
	 

	 	By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be
processed in accordance with and subject to the terms and conditions set forth in the
agreements(s) covering funds transfer service(s), which agreements(s) were previously received and
executed by me (us).






	 	 	 	 	 	 	 	 
	 

	 	Authorized Signature:
	 	 	 	2nd Signature (If Required):
	 






	 	 	 	 	 	 	 	 	 
	 

	 	Print Name/Title:
	 	 	 	Print Name/Title:
	 






	 	 	 	 	 	 	 	 	 
	 

	 	Telephone #
	 	 	 	Telephone #
	 





















 







Schedule to Second Amended and Restated Loan and Security Agreement




	 	 	 
	The exact correct corporate name of Borrower is
(attach a copy of the formation
documents, e.g., articles, partnership agreement):
	 







	 	 	 
	Borrower’s State of formation:
	 	 
	 






Borrower has operated under only the following other names (if none, so state):




 





	 	 	 
	All other address at which the Borrower does business are as follows (attach
additional sheets if necessary and include all warehouse addresses):
	 







 





Borrower has deposit accounts and/or investment accounts located only at the following institutions:




	 	 	 
	 
	List Acct. Numbers:
	 	 
	 






Liens existing on the Effective Date and disclosed to and accepted by Bank in writing:




 





 





 




Investments existing on the Effective Date and disclosed to and accepted by Bank in
writing:




 





 





 





	 	 	 
	Subordinated Debt:
	 	 
	 







 





 




Indebtedness on the Effective Date and disclosed to and consented to by Bank in
writing:




 





 





 





	 	 	 
	The following is a list of the Borrower’s copyrights (including copyrights of
software) that are registered with the United States Copyright Office. (Please
include name of the copyright and registration number and attach a copy of the
registration):
	 







 





 





	 	 	 
	The following is a list of all software that the Borrower sells, distributes or
licenses to others, which is not registered with the United States Copyright
Office. (Please include versions that are not registered:
	 







 




	 	 	 
	
The following is a list of all of the Borrower’s patents that are registered with the
United States Patent Office. (Please include name of the patent and registration
number and attach a copy of the registration.):


	 










 





 





	 	 	 
	The following is a list of all of the Borrower’s patents which are pending with the
United States Patent Office. (Please include name of the patent and a copy of the
application.):
	 







 





 







 









 








	 	 	 
	The following is a list of all of the Borrower’s registered trademarks. (Please
include name of the trademark and a copy of the registration.):
	 
	 


	 
	 










	 	 	 
	Borrower is not subject to litigation that would have a material adverse effect on the
Borrower’s financial condition, except the following (attach additional comments, if
needed):
	 


	 
	 


	 
	 









	 	 	 
	Tax ID Number
	 	 
	 

	 





	 	 	 
	Organizational Number, if any:
	 	 
	 

	 






 









 







EXHIBIT C



BORROWING BASE CERTIFICATE




	 	 	 	 	 	 	 
	Borrower:

	 	Omniture, Inc.
	 	Bank:
	 	Silicon Valley Bank
	 

	 	550 E. Timpanogos Circle
	 	 	 	3003 Tasman Drive
	 

	 	Orem, UT 84097
	 	 	 	Santa Clara, CA 95054
	Commitment Amount: $5,000,000	 	 	 	 






	 	 	 	 	 	 	 	 	 
	CASH AND CASH EQUIVALENT BALANCE
	 	 	 	 	 	 	 	 
	1. Cash & Cash Equivalent Book Value as of ______
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	2. Less: Restricted Cash & Cash Equivalent Balance
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	3. Less: Cash & Cash Equivalent Balances held at third
party institutions
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	ACCOUNTS RECEIVABLE
	 	 	 	 	 	 	 	 
	4. Accounts Receivable Book Value as of ______
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	5. Additions (please explain on reverse)
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	6. TOTAL ACCOUNTS RECEIVABLE
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	ACCOUNTS RECEIVABLE DEDUCTIONS (without duplication)
	 	 	 	 	 	 	 	 
	7. Amounts over 90 days due
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	8. Balance of 50% over 90 day accounts
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	9. Credit balances over 90 days
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	10. Concentration Limits
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	11. Foreign Accounts*
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	12. Governmental Accounts*
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	13. Contra Accounts
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	14. Promotion or Demo Accounts
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	15. Intercompany/Employee Accounts
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	16. Other (please explain on reverse)
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	17. TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	18. Eligible Accounts (#6 minus #17)
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	19. LOAN VALUE OF ACCOUNTS (80% of #18)
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	*Up to $1,000,000 of the total unpaid face amount
of Foreign Accounts that do not meet the Eligible
Foreign Accounts definition and/or Government
Accounts that are not assigned under the Assignment
of Claims Act may be included as Eligible Accounts
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	FOREIGN ACCOUNTS RECEIVABLE DEDUCTIONS
	 	 	 	 	 	 	 	 
	20. Accounts Receivable Book Value as of ______
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	21. Additions (please explain on reverse)
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	22. TOTAL FOREIGN ACCOUNTS RECEIVABLE
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	a.   Amounts over 90 days due
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	b.   Balance of 50% over 90 day accounts
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	c.   Concentration Limits
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	d.   Governmental Accounts
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	e.   Contra Accounts
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	f.   Promotion or Demo Accounts
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	g.   Intercompany/Employee Accounts
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	h.   Other (please explain on reverse)
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	23. TOTAL FOREIGN ACCOUNTS RECEIVABLE
DEDUCTIONS
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	24. Eligible Accounts (#22 minus #23)
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	25. LOAN VALUE OF FOREIGN ACCOUNTS (80% of #24)
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 















 






	 	 	 	 	 	 	 	 	 
	26. COLLATERAL VALUE OF CASH ON ACCOUNT
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	27. COLLATERAL VALUE OF ACCOUNTS AND CASH ON ACCOUNT
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	BALANCES
	 	 	 	 	 	 	 	 
	28. **Maximum Loan Amount
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	29. Total Funds Available (Lesser of #28 or #27)
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 
	30. Present balance owing on Line of Credit
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	31. RESERVE POSITION (#29 minus #30)
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 




**The Maximum Loan Amount is the lesser of the Committed Revolving Line or the $15,000,000 minus the outstanding
principal balance of the Equipment Advances and Second Equipment Advances.



The undersigned represents and warrants that this is true, complete and correct, and that the information in this
Borrowing Base Certificate complies with the representations and warranties in the Amended and Restated Loan and Security
Agreement between the undersigned and Silicon Valley Bank.




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 
	COMMENTS:	 	 	 	 	BANK USE ONLY
	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	Rec’d By:	 	 	 	 	 
	 

	 	 	 	 	 	 	 
	 	 	 
	OMNITURE, INC.	 	 	 	 	 	 	Auth. Signer	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	Date:	 	 	 	 	 
	 

	 	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	Verified:	 	 	 	 	 
	 

	 	 	 	 	 	 	 
	 	 	 
	 

	 	 	 	 	 	 	 	 	Auth. Signer	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	 	Date:	 	 	 	 	 
	 

	 	 	 	 	 	 	 
	 	 	 
	 

	 	Authorized Signer	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 
















 







EXHIBIT D

COMPLIANCE CERTIFICATE





			
	TO:	 	SILICON VALLEY BANK

3003 Tasman Drive

Santa Clara, CA 95054







			
	FROM:	 	OMNITURE, INC.





     The undersigned Responsible Officer of OMNITURE, INC. (“Borrower”) certifies that under the
terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and
Bank (the “Agreement”), (i) Borrower is in complete compliance for the period ending
                     with all required covenants except as noted below and (ii) all representations and
warranties in the Agreement are true and correct in all material respects on this date. In
addition, the undersigned certifies that (i) Borrower and each Subsidiary has timely filed all
required tax returns and paid, or made adequate provision to pay, all material taxes, except those
being contested in good faith with adequate reserves under GAAP and (ii) no liens has been levied
or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or
benefits which Borrower has not previously notified in writing to Bank. Attached are the required
documents supporting the certification. The Officer certifies that these are prepared in
accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one
period to the next except as explained in an accompanying letter or footnotes. The Responsible
Officer 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.



     Please indicate compliance status by circling Yes/No under “Complies” column.



	 	 	 	 	 	 	 
	Reporting Covenant	 	Required	 	Complies
	Monthly financial statements + CC*

	 	Monthly within 30 days
	 	Yes
	 	No
	Annual (Audited)*

	 	FYE within 180 days or 5 days after receipt
	 	Yes
	 	No
	A/R & A/P Agings

	 	Monthly within 30 days
	 	Yes
	 	No
	Deferred Revenue by Client

	 	Monthly within 30 days
	 	Yes
	 	No
	A/R Audit

	 	Annual
	 	Yes
	 	No
	Borrowing Base Certificate

	 	Monthly within 30 days
	 	Yes
	 	No
	10-Q and 10-K**

	 	Within 5 days after filing with SEC
	 	Yes
	 	No








 




			
	*	 	Borrower is required to comply with this reporting covenant until Borrower meets the IPO and
EBITDA Conditions and continues to have as of the last day of each month EBITDA that is equal to or
greater than zero dollars ($0.00).
	 
	**	 	When Borrower meets the IPO and EBITDA Conditions and so long as it continues to have as of the
last day of each month EBITDA that is equal to or greater than zero dollars ($0.00), it will
provide the 10-Q and 10-K reports in lieu of providing monthly financial statements and the annual
audited financial statement (which annual audited financial statement will be provided with the
10-K).





	 	 	 	 	 	 	 	 	 
	Financial Covenant	 	Required	 	Actual	 	Complies
	Maintain on a [Monthly/Quarterly]*** Basis:
	 	 	 	 	 	 	 	 
	Minimum Tangible Net Worth
	 	$20,000,000****	 	$                    	 	Yes	 	No
	Maximum Unfunded Capital Expenditures
	 	$10,000,000	 	$                    	 	Yes	 	No








 




			
	***	 	If Borrower meets the IPO and EBITDA Conditions and continues to have as of the last day of each
month EBITDA that is equal to or greater than zero dollars ($0.00), then Borrower must comply with
the financial covenants on a quarterly basis. Otherwise, Borrower must comply with the financial
covenants on a monthly basis.
	 
	****	 	plus 50% of all equity contributed to Borrower after the Effective Date, and 50% of all
positive quarterly net income from and after the Effective Date.





 









 




Have there been updates to Borrower’s intellectual property?                          Yes / No

Borrower only has deposit accounts located at the following institutions:                                        .






	 	 	 	 	 	 	 
	Comments Regarding Exceptions: See Attached.
	 
	 	 	 	 	 	 
	Sincerely,
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	OMNITURE, INC.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Signature
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Title
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	Date
	 	 	 	 	 	 














	 	 	 	 	 	 	 	 	 
	BANK USE ONLY

	 
	 	 	 	 	 	 	 	 
	Received by:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	authorized signer	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Verified:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	authorized signer	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Compliance Status:
	 	Yes     No	 	 















 









 





EXHIBIT D-1

COMPLIANCE CERTIFICATE





			
	TO:	 	SILICON VALLEY BANK

3003 Tasman Drive

Santa Clara, CA 95054






			
	FROM:	 	OMNITURE, INC.





     The undersigned Responsible Officer of OMNITURE, INC. (“Borrower”) certifies that under the
terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and
Bank (the “Agreement”), (i) Borrower is in complete compliance for the period ending
                     with all required covenants except as noted below and (ii) all representations and
warranties in the Agreement are true and correct in all material respects on this date. In
addition, the undersigned certifies that (i) Borrower and each Subsidiary has timely filed all
required tax returns and paid, or made adequate provision to pay, all material taxes, except those
being contested in good faith with adequate reserves under GAAP and (ii) no liens has been levied
or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or
benefits which Borrower has not previously notified in writing to Bank. Attached are the required
documents supporting the certification. The Officer certifies that these are prepared in
accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one
period to the next except as explained in an accompanying letter or footnotes. The Responsible
Officer 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.



Please indicate compliance status by circling Yes/No under “Complies” column.




	 	 	 	 	 	 	 
	Reporting Covenant	 	Required	 	Complies
	Monthly financial statements + CC*

	 	Monthly within 30 days
	 	Yes
	 	No
	Annual (Audited)*

	 	FYE within 180 days or 5 days after receipt
	 	Yes
	 	No
	A/R & A/P Agings

	 	Monthly within 30 days
	 	Yes
	 	No
	Deferred Revenue by Client

	 	Monthly within 30 days
	 	Yes
	 	No
	A/R Audit

	 	Annual
	 	Yes
	 	No
	Borrowing Base Certificate

	 	Monthly within 30 days
	 	Yes
	 	No
	10-Q and 10-K***

	 	Within 5 days after filing with SEC
	 	Yes
	 	No








 




			
	*	 	Borrower is required to comply with this reporting covenant until Borrower meets the IPO and
EBITDA Conditions and continues to have as of the last day of each month EBITDA that is equal to or
greater than zero dollars ($0.00).
	 
	**	 	When Borrower meets the IPO and EBITDA Conditions and so long as it continues to have as of the
last day of each month EBITDA that is equal to or greater than zero dollars ($0.00), it will
provide the 10-Q and 10-K reports in lieu of providing monthly financial statements and the annual
audited financial statement (which annual audited financial statement will be provided with the
10-K).





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Financial Covenant Required	 	Actual	 	 	 	 	 	 	Complies	 
	Maintain on a [Monthly/Quarterly]*** Basis:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Minimum Quick Ratio (Adjusted)
	 	 	1.00:1.00	 	 	 	_____:1.00	 	 	Yes	 	No
	Minimum Fixed Charge Coverage
	 	 	1.50:1.00	 	 	 	_____:1.00	 	 	Yes	 	No








 




			
	***	 	If Borrower meets the IPO and EBITDA Conditions and continues to have as of the last day of each
month EBITDA that is equal to or greater than zero dollars ($0.00), then Borrower must comply with
the financial covenants on a quarterly basis. Otherwise, Borrower must comply with the financial
covenants on a monthly basis.




Have there been updates to Borrower’s intellectual property?                          Yes / No

Borrower only has deposit accounts located at the following institutions:                                        .




 









 










	 	 	 	 	 	 	 
	Comments Regarding Exceptions: See Attached.
	 
	 	 	 	 	 	 
	Sincerely,
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	OMNITURE, INC.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	Signature
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	Title
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	Date
	 	 	 	 	 	 














	 	 	 	 	 	 	 	 	 
	BANK USE ONLY

	 
	 	 	 	 	 	 	 	 
	Received by:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	authorized signer	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Verified:	 	 	 	 	 	 
	 	 	 
	 	 
	 

	 	 	 	authorized signer	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Compliance Status:
	 	Yes     No	 	 

















 









 







AMENDMENT

TO

SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT




     THIS AMENDMENT to Second Amended and Restated Loan and Security Agreement (this “Amendment”)
is entered into this 5th day of May, 2006, by and between Silicon Valley Bank (“Bank”) and
Omniture, Inc., a Delaware corporation (“Borrower”) whose address is 550 E. Timpanogos Circle,
Orem, UT 84097.



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 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 violations that occurred as of
February 28, 2006, March 31, 2006 and April 30, 2006.



     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 May 1, 2006:




     “(i) Tangible Net Worth. Tangible Net Worth of at least $15,000,000, plus
50% of all equity or capital contributed to Borrower after the Effective Date, and
50% of all positive quarterly net income from and after the Effective Date.”



Page 1 — Amendment to Second Amended and Restated Loan and Security Agreement









 





          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 waives Borrower’s existing default under the Loan
Agreement consisting of Borrower’s failure to comply with the Tangible Net Worth covenant as of
February 28, 2006, March 31, 2006 and April 30, 2006. For the month ending May 31, 2006, 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.



     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;



Page 2 —Amendment to Second Amended and Restated Loan and Security Agreement









 





     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 an amount equal to $7,500.00 and Bank’s out-of-pocket expenses.



[Signature page follows.]




Page 3 —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/ Scott Fournier

 

	 	 	 	By:
	 	/s/ Michael S. Herring
 

	Name:

	 	Scott Fournier

 

	 	 	 	Name:
	 	Michael Herring

 

	Title:

	 	Relationship Manager

 

	 	 	 	Title:
	 	 CFO

 







Page 4 —Amendment to Second Amended and Restated Loan and Security Agreement









 





EXHIBIT D

COMPLIANCE CERTIFICATE





			
	TO:	 	SILICON VALLEY BANK

3003 Tasman Drive

Santa Clara, CA 95054






FROM: OMNITURE, INC.




     The undersigned Responsible Officer of OMNITURE, INC. (“Borrower”) certifies that under the
terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and
Bank (the “Agreement”), (i) Borrower is in complete compliance for the period ending
                     with all required covenants except as noted below and (ii) all representations and
warranties in the Agreement are true and correct in all material respects on this date. In
addition, the undersigned certifies that (i) Borrower and each Subsidiary has timely filed all
required tax returns and paid, or made adequate provision to pay, all material taxes, except those
being contested in good faith with adequate reserves under GAAP and (ii) no liens has been levied
or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or
benefits which Borrower has not previously notified in writing to Bank. Attached are the required
documents supporting the certification. The Officer certifies that these are prepared in
accordance with Generally Accepted Accounting Principles (GAAP) consistently applied from one
period to the next except as explained in an accompanying letter or footnotes. The Responsible
Officer 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.



     Please indicate compliance status by circling Yes/No under “Complies” column.



	 	 	 	 	 
	Reporting Covenant	 	Required	 	Complies
	 
	 	 	 	 
	Monthly financial statements + CC*

	 	Monthly within 30 days
	 	Yes     No
	Annual (Audited)*

	 	FYE within 180 days or 5 days after receipt
	 	Yes     No
	A/R & A/P Agings

	 	Monthly within 30 days
	 	Yes     No
	Deferred Revenue by Client

	 	Monthly within 30 days
	 	Yes     No
	A/R Audit

	 	Annual
	 	Yes     No
	Borrowing Base Certificate

	 	Monthly within 30 days
	 	Yes     No
	10-Q and 10-K**

	 	Within 5 days after filing with SEC
	 	Yes     No








 




			
	*	 	Borrower is required to comply with this reporting covenant until Borrower meets the IPO and
EBITDA Conditions and continues to have as of the last day of each month EBITDA that is equal to or
greater than zero dollars ($0.00).
	 
	**	 	When Borrower meets the IPO and EBITDA Conditions and so long as it continues to have as of the
last day of each month EBITDA that is equal to or greater than zero dollars ($0.00), it will
provide the 10-Q and 10-K reports in lieu of providing monthly financial statements and the annual
audited financial statement (which annual audited financial statement will be provided with the
10-K).





	 	 	 	 	 	 	 	 	 
	Financial Covenant	 	Required	 	Actual	 	Complies
	 
	 	 	 	 	 	 	 	 
	Maintain on a [Monthly/Quarterly]*** Basis:
	 	 	 	 	 	 	 	 
	Minimum Tangible Net Worth

	 	$	15,000,000****	 	 	$___
	 	Yes     No
	Maximum Unfunded Capital Expenditures

	 	$	10,000,000	 	 	$___
	 	Yes     No








 




			
	***	 	If Borrower meets the IPO and EBITDA Conditions and continues to have as of the last day of each
month EBITDA that is equal to or greater than zero dollars ($0.00), then Borrower must comply with
the financial covenants on a quarterly basis. Otherwise, Borrower must comply with the financial
covenants on a monthly basis.
	 
	****	 	plus 50% of all equity contributed to Borrower after the Effective Date, and 50% of all
positive quarterly net income from and after the Effective Date.





Page 5 —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:                                        .




Comments Regarding Exceptions: See Attached.




Sincerely,




OMNITURE, INC.



 




Signature



 




Title



 




Date








BANK USE ONLY





			
	Received by:	 	
 
authorized signer






			
	Date:	 	
 







			
	Verified:	 	
 
authorized signer






			
	Date:	 	
 






Compliance Status: Yes     No










Page 6 —Amendment to Second Amended and Restated Loan and Security Agreement