exv10w5






Exhibit 10.5




SECURITY AGREEMENT




     This SECURITY AGREEMENT (this “Agreement”), dated as of
December 24, 2008, among Grantors listed on the signature pages hereof and those additional
entities that hereafter become parties hereto by executing the form of Supplement attached hereto
as Annex 1 (collectively, jointly and severally, the “Grantors” and each,
individually, a “Grantor”), and WELLS FARGO FOOTHILL, LLC, a Delaware limited liability
company, in its capacity as the arranger and administrative agent for the Lender Group and the Bank
Product Providers (together with its successors and assigns in such capacity, the “Agent”).



WITNESSETH:




     WHEREAS, pursuant to that certain Credit Agreement of even date herewith (as amended,
restated, supplemented, or otherwise modified from time to time, including all schedules thereto,
the “Credit Agreement”) among OMNITURE, INC., Delaware corporation, as borrower
(“Borrower”), the lenders party thereto, and Agent, the Lender Group has agreed to make
certain financial accommodations available to Borrower from time to time pursuant to the terms and
conditions thereof, and



     WHEREAS, Agent has agreed to act as agent for the benefit of the Lender Group and the Bank
Product Providers in connection with the transactions contemplated by the Credit Agreement and this
Agreement, and



     WHEREAS, in order to induce the Lender Group to enter into the Credit Agreement and the other
Loan Documents and to induce the Lender Group to make financial accommodations to Borrower as
provided for in the Credit Agreement, Grantors have agreed to grant a continuing security interest
in and to the Collateral in order to secure the prompt and complete payment, observance and
performance of, among other things, the Secured Obligations, and



     NOW, THEREFORE, for and in consideration of the recitals made above and other good and
valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:



     1. Defined Terms. All capitalized terms used herein (including in the preamble and
recitals hereof) without definition shall have the meanings ascribed thereto in the Credit
Agreement. Any terms used in this Agreement that are defined in the Code shall be construed and
defined as set forth in the Code unless otherwise defined herein or in the Credit Agreement;
provided, however, that to the extent that the Code is used to define any term
herein and if such term is defined differently in different articles of the Code, the definition of
such term contained in Article 9 of the Code shall govern. In addition to those terms defined
elsewhere in this Agreement, as used in this Agreement, the following terms shall have the
following meanings:



          (a) “Account” means an account (as that term is defined in Article 9 of the Code).




          (b) “Account Debtor” means an account debtor (as that term is defined in the Code).




          (c) “Activation Instruction” has the meaning specified therefor in Section
6(l).




          (d) “Agent” has the meaning specified therefore in the preamble to this Agreement.




          (e) “Agent’s Lien” has the meaning specified therefor in the Credit Agreement.




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          (f) “Bank Product Obligations” has the meaning specified therefor in the Credit
Agreement.




          (g) “Bank Product Provider” has the meaning specified therefor in the Credit
Agreement.




          (h) “Books” means books and records (including each Grantor’s Records indicating,
summarizing, or evidencing such Grantor’s assets (including the Collateral) or liabilities, each
Grantor’s Records relating to such Grantor’s business operations or financial condition, and each
Grantor’s goods or General Intangibles related to such information).




          (i) “Borrower” has the meaning specified therefor in the recitals to this Agreement.




          (j) “Cash Equivalents” has the meaning specified therefor in the Credit Agreement.




          (k) “Chattel Paper” means chattel paper (as that term is defined in the Code) and
includes tangible chattel paper and electronic chattel paper.




          (l) “Code” means the California Uniform Commercial Code, as in effect from time to
time; provided, however, that in the event that, by reason of mandatory provisions
of law, any or all of the attachment, perfection, priority, or remedies with respect to Agent’s
Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a
jurisdiction other than the State of California, the term “Code” shall mean the Uniform Commercial
Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions
thereof relating to such attachment, perfection, priority, or remedies.




          (m) “Collateral” has the meaning specified therefor in Section 2.




          (n) “Collections” has the meaning specified therefor in the Credit Agreement.




          (o) “Commercial Tort Claims” means commercial tort claims (as that term is defined in
the Code), and includes those commercial tort claims listed on Schedule 1 to the Disclosure
Letter.




          (p) “Controlled Account” has the meaning specified therefor in Section 6(l).




          (q) “Controlled Account Agreements” means those certain cash management agreements, in
form and substance reasonably satisfactory to Agent, each of which is among Borrower or one of its
Subsidiaries, Agent, and one of the Controlled Account Banks.




          (r) “Controlled Account Bank” has the meaning specified therefor in Section
6(l).




          (s) “Copyrights” means any and all copyrights and copyright registrations, including,
(i) the copyright registrations and recordings thereof and all applications in connection therewith
listed on Schedule 2 to the Disclosure Letter and made a part hereof, (ii) all reissues,
continuations, extensions or renewals thereof, (iii) all income, royalties, damages and payments
now and hereafter due or payable under and with respect thereto, including payments under all
licenses entered into in connection therewith and damages and payments for past or future
infringements or dilutions thereof, (iv) the right to sue for past, present and future
infringements and dilutions thereof, (v) the goodwill of each Grantor’s business symbolized by the
foregoing or connected therewith, and (vi) all of each Grantor’s rights corresponding thereto
throughout the world.




          (t) “Copyright Security Agreement” means each Copyright Security Agreement among
Grantors, or any of them, and Agent, for the benefit of the Lender Group and the Bank Product
Providers, in substantially the form of Exhibit A attached hereto, pursuant to which
Grantors have granted to Agent, for the benefit of the Lender Group and the Bank Product Providers, a security interest in all their
respective Copyrights.




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          (u) “Credit Agreement” has the meaning specified therefor in the recitals to this
Agreement.




          (v) “Deposit Account” means a deposit account (as that term is defined in the Code).




          (w) “Equipment” means equipment (as that term is defined in the Code).




          (x) “Event of Default” has the meaning specified therefor in the Credit Agreement.




          (y) “General Intangibles” means general intangibles (as that term is defined in the
Code) and includes payment intangibles, contract rights, rights to payment, rights arising under
common law, statutes, or regulations, choses or things in action, goodwill (including the goodwill
associated with any Trademark, Patent, or Copyright), Patents, Trademarks, Copyrights, URLs and
domain names, industrial designs, other industrial or Intellectual Property or rights therein or
applications therefor, whether under license or otherwise, programs, programming materials,
blueprints, drawings, purchase orders, customer lists, monies due or recoverable from pension
funds, route lists, rights to payment and other rights under any royalty or licensing agreements,
including Intellectual Property Licenses, infringement claims, computer programs, information
contained on computer disks or tapes, software, literature, reports, catalogs, pension plan
refunds, pension plan refund claims, insurance premium rebates, tax refunds, and tax refund claims,
interests in a partnership or limited liability company which do not constitute a security under
Article 8 of the Code, and any other personal property other than Commercial Tort Claims, money,
Accounts, Chattel Paper, Deposit Accounts, goods, Investment Related Property, Negotiable
Collateral, and oil, gas, or other minerals before extraction.




          (z) “Grantor” and “Grantors” have the respective meanings specified therefor
in the preamble to this Agreement.




          (aa) “Guaranty” has the meaning specified therefor in the Credit Agreement.




          (bb) “Insolvency Proceeding” has the meaning specified therefor in the Credit
Agreement.




          (cc) “Intellectual Property” means any and all Intellectual Property Licenses,
Patents, Copyrights, Trademarks, the goodwill associated with such Trademarks, trade secrets and
customer lists.




          (dd) “Intellectual Property Licenses” means rights under or interests in any patent,
trademark, copyright or other intellectual property, including software license agreements with any
other party, whether the applicable Grantor is a licensee or licensor under any such license
agreement (but excluding any (i) off-the-shelf software license agreement, (ii) open source codes,
(iii) end-user agreements with Grantors’ customers, partners, distributors, resellers and end users
of such customers, partners, distributors and resellers), including the license agreements listed
on Schedule 3 to the Disclosure Letter and made a part hereof, and the right to use the
foregoing in connection with the enforcement of the Lender Group’s rights under the Loan Documents,
including the right to prepare for sale and sell any and all Inventory and Equipment now or
hereafter owned by any Grantor and now or hereafter covered by such licenses.




          (ee) “Inventory” means inventory (as that term is defined in the Code).




          (ff) “Investment Related Property” means (i) any and all investment property (as that
term is defined in the Code), and (ii) any and all of the following (regardless of whether
classified as investment property under the Code): all Pledged Interests, Pledged Operating Agreements, and
Pledged Partnership Agreements.



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          (gg) “Lender Group” has the meaning specified therefor in the Credit Agreement.




          (hh) “Loan Document” has the meaning specified therefor in the Credit Agreement.




          (ii) “Loan Party” has the meaning specified therefor in the Credit Agreement.




          (jj) “Minor Release” means any new version or release of a software program that
consists of only functionality updates, bug fixes, patches, or defect corrections or any “a.0.x”
releases.




          (kk) “Negotiable Collateral” means letters of credit, letter-of-credit rights,
instruments, promissory notes, drafts and documents (as that term is defined in the Code).




          (ll) “Obligations” has the meaning specified therefor in the Credit Agreement.




          (mm) “Patents” means patents and patent applications, including, (i) the patents and
patent applications listed on Schedule 4 to the Disclosure Letter and made a part hereof,
(ii) all renewals thereof, (iii) all income, royalties, damages and payments now and hereafter due
or payable under and with respect thereto, including payments under all licenses entered into in
connection therewith and damages and payments for past or future infringements or dilutions
thereof, (iv) the right to sue for past, present and future infringements and dilutions thereof,
and (v) all of each Grantor’s rights corresponding thereto throughout the world.




          (nn) “Patent Security Agreement” means each Patent Security Agreement among Grantors,
or any of them, and Agent, for the benefit of the Lender Group and the Bank Product Providers, in
substantially the form of Exhibit B attached hereto, pursuant to which Grantors have
granted to Agent, for the benefit of the Lender Group and the Bank Product Providers, a security
interest in all their respective Patents.




          (oo) “Permitted Liens” has the meaning specified therefor in the Credit Agreement.




          (pp) “Person” has the meaning specified therefor in the Credit Agreement.




          (qq) “Pledged Companies” means, each Person listed on Schedule 5 to the
Disclosure Letter as a “Pledged Company”, together with each other Person, all or a portion of
whose Stock, is acquired or otherwise owned by a Grantor after the Closing Date.




          (rr) “Pledged Interests” means all of each Grantor’s right, title and interest in and
to all of the Stock now or hereafter owned by such Grantor, regardless of class or designation,
including, in each of the Pledged Companies, and all substitutions therefor and replacements
thereof, all proceeds thereof and all rights relating thereto, also including any certificates
representing the Stock, the right to receive any certificates representing any of the Stock, all
warrants, options, share appreciation rights and other rights, contractual or otherwise, in respect
thereof and the right to receive all dividends, distributions of income, profits, surplus, or other
compensation by way of income or liquidating distributions, in cash or in kind, and all cash,
instruments, and other property from time to time received, receivable, or otherwise distributed in
respect of or in addition to, in substitution of, on account of, or in exchange for any or all of
the foregoing.




          (ss) “Pledged Interests Addendum” means a Pledged Interests Addendum substantially in
the form of Exhibit C to this Agreement.




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          (tt) “Pledged Operating Agreements” means all of each Grantor’s rights, powers, and
remedies under the limited liability company operating agreements of each of the Pledged Companies
that are limited liability companies.




          (uu) “Pledged Partnership Agreements” means all of each Grantor’s rights, powers, and
remedies under the partnership agreements of each of the Pledged Companies that are partnerships.




          (vv) “Proceeds” has the meaning specified therefor in Section 2.




          (ww) “Real Property” means any estates or interests in real property now owned or
hereafter acquired by any Grantor or any Subsidiary of any Grantor and the improvements thereto.




          (xx) “Records” means information that is inscribed on a tangible medium or which is
stored in an electronic or other medium and is retrievable in perceivable form.




          (yy) “Rescission” has the meaning specified therefor in Section 6(l).




          (zz) “Required Library” means, as of any date of determination, the Copyrights of
Borrower and its Subsidiaries that are based on or derived from those computer software programs or
other technology of Borrower or its Subsidiaries that at the time directly or indirectly account
for or support product lines of Borrower and its Subsidiaries that generate not less than 80% of
the aggregate amount of Subscription Revenues of Borrower and its Subsidiaries for the immediately
preceding fiscal quarter.




          (aaa) “Secured Obligations” means each and all of the following: (a) all of the
present and future obligations of Grantors arising from this Agreement, the Credit Agreement, or
the other Loan Documents (including any Guaranty), (b) all Bank Product Obligations, and (c) all
Obligations of Borrower, including, in the case of each of clauses (a), (b) and (c), reasonable
attorneys fees and expenses and any interest, fees, or expenses that accrue after the filing of an
Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in
any Insolvency Proceeding.




          (bbb) “Securities Account” means a securities account (as that term is defined in the
Code).




          (ccc) “Security Interest” has the meaning specified therefor in Section 2.




          (ddd) “Source Code Escrow Agreement” means that certain source code escrow agreement,
in form and substance reasonably satisfactory to Agent, which is among the applicable Grantor(s),
Agent and such escrow agreement who is reasonably acceptable to Agent.




          (eee) “Stock” has the meaning specified therefor in the Credit Agreement




          (fff) “Supporting Obligations” means supporting obligations (as such term is defined
in the Code) and includes letters of credit and guaranties issued in support of Accounts, Chattel
Paper, documents, General Intangibles, instruments or Investment Related Property.




          (ggg) “Trademarks” means any and all trademarks, trade names, registered trademarks,
trademark applications, service marks, registered service marks and service mark applications,
including (i) the trade names, registered trademarks, trademark applications, registered service
marks and service mark applications listed on Schedule 6 to the Disclosure Letter and made
a part hereof, (ii) all renewals thereof, (iii) all income, royalties, damages and payments now and
hereafter due or payable under and with respect thereto, including payments under all licenses
entered into in connection therewith and damages and payments for past or future infringements or
dilutions thereof, (iv) the right to sue for past, present and future infringements and
dilutions thereof, (v) the goodwill of each Grantor’s business symbolized by the foregoing or
connected therewith, and (vi) all of each Grantor’s rights corresponding thereto throughout the
world.




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          (hhh) “Trademark Security Agreement” means each Trademark Security Agreement among
Grantors, or any of them, and Agent, for the benefit of the Lender Group and the Bank Product
Providers, in substantially the form of Exhibit D attached hereto, pursuant to which
Grantors have granted to Agent, for the benefit of the Lender Group and the Bank Product Providers,
a security interest in all their respective Trademarks.




          (iii) “Triggering Event” means, as of any date of determination, the occurrence of an
Event of Default.




          (jjj) “URL” means “uniform resource locator,” an internet web address.




     2. Grant of Security. Each Grantor hereby unconditionally grants, collaterally
assigns, and pledges to Agent, for the benefit of the Lender Group and the Bank Product Providers,
to secure the Secured Obligations, a continuing security interest hereinafter referred to as the
“Security Interest” in all personal property of such Grantor whether now owned or hereafter
acquired or arising and wherever located, including such Grantor’s right, title, and interest in
and to the following, whether now owned or hereafter acquired or arising and wherever located (the
“Collateral”):



          (a) all of such Grantor’s Accounts;




          (b) all of such Grantor’s Books;




          (c) all of such Grantor’s Chattel Paper;




          (d) all of such Grantor’s interest with respect to any Deposit Account;




          (e) all of such Grantor’s Equipment and fixtures;




          (f) all of such Grantor’s General Intangibles;




          (g) all of such Grantor’s Inventory;




          (h) all of such Grantor’s Investment Related Property;




          (i) all of such Grantor’s Negotiable Collateral;




          (j) all of such Grantor’s rights in respect of Supporting Obligations;




          (k) all of such Grantor’s interest with respect to any Commercial Tort Claims;




          (l) all of such Grantor’s money, Cash Equivalents, or other assets of each such Grantor that
now or hereafter come into the possession, custody, or control of Agent or any other member of the
Lender Group;





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          (m) all of the proceeds (as that term is defined in the Code) and products, whether tangible
or intangible, of any of the foregoing, including proceeds of insurance or Commercial Tort Claims
covering or relating to any or all of the foregoing, and any and all Accounts, Books, Chattel
Paper, Deposit Accounts, Equipment, General Intangibles, Inventory, Investment Related Property,
Negotiable Collateral, Supporting Obligations, money, or other tangible or intangible property
resulting from the sale, lease, license, exchange, collection, or other disposition of any of the foregoing, whatever is collected on,
or distributed on account of any of the foregoing, any and all rights arising out of the foregoing,
the proceeds of any award in condemnation with respect to any of the foregoing, any rebates or
refunds, whether for taxes or otherwise, and all proceeds of any such proceeds, or any portion
thereof or interest therein, and the proceeds thereof, claims arising out of the loss,
non-conformity, or interference with the use of, defects, or infringement of rights in, or damage
to, any of the foregoing, and all proceeds of any loss of, damage to, or destruction of the above,
whether insured or not insured, and, to the extent not otherwise included, any indemnity, warranty,
insurance, or guaranty payable by reason of loss or non-conformity of, defects or infringement of
rights in, or damage to, or otherwise with respect to any of the foregoing (the
“Proceeds”). Without limiting the generality of the foregoing, the term “Proceeds”
includes whatever is receivable or received when Investment Related Property or proceeds are sold,
exchanged, collected, or otherwise disposed of, whether such disposition is voluntary or
involuntary, and includes proceeds of any indemnity or guaranty payable to any Grantor or Agent
from time to time with respect to any of the Investment Related Property.




     Notwithstanding anything contained in this Agreement to the contrary, the term “Collateral”
shall not include: (i) voting Stock of any CFC, solely to the extent that such Stock represents
more than 65% of the outstanding voting Stock of such CFC; (ii) any rights or interest in any
contract, lease, permit, license, charter or license agreement covering real or personal property
of any Grantor if under the terms of such contract, lease, permit, license, charter or license
agreement, or applicable law with respect thereto, the grant of a security interest or lien therein
is prohibited as a matter of law or under the terms of such contract, lease, permit, license,
charter or license agreement and such prohibition has not been waived or the consent of the other
party to such contract, lease, permit, license, charter or license agreement has not been obtained
(provided, that, the foregoing exclusions of this clause (ii) shall in no way be construed (A) to
apply to the extent that any described prohibition is unenforceable under Section 9-406, 9-407,
9-408, or 9-409 of the Code or other applicable law, (B) to limit, impair, or otherwise affect the
Lender Group’s continuing security interests in and liens upon any rights or interests of any
Grantor in or to (x) monies due or to become due under any described contract, lease, permit,
license, charter or license agreement (including any Accounts), or (y) any proceeds from the sale,
license, lease, or other dispositions of any such contract, lease, permit, license, charter,
license agreement, or Stock, or (C) apply to the extent that any consent or waiver has been
obtained that would permit the security interest of lien notwithstanding the prohibition), (iii)
any application for a trademark (including, without limitation, intent to use trademark
applications and any goodwill associated therewith) that would otherwise be deemed invalidated,
cancelled or abandoned due to the granting of a Lien thereon unless and until such time as the
granting of such Lien will not affect the validity of such trademark; or (iv) property that is
subject to a Lien that is otherwise permitted by clauses (d), (f), (q), (r) and (s) of the
definition of Permitted Liens; provided, that the governing documents granting such Liens prohibit
the granting of Liens securing the Obligations on such property and upon the release of any such
liens such property shall automatically become part of the Collateral.



     3. Security for Obligations. The Security Interest created hereby secures the payment
and performance of the Secured Obligations, whether now existing or arising hereafter. Without
limiting the generality of the foregoing, this Agreement secures the payment of all amounts which
constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Agent,
the Lender Group, the Bank Product Providers or any of them, but for the fact that they are
unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any
Grantor.



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     4. Grantors Remain Liable. Anything herein to the contrary notwithstanding, (a) each
of the Grantors shall remain liable under the contracts and agreements included in the Collateral,
including the Pledged Operating Agreements and the Pledged Partnership Agreements, to perform all
of the duties and obligations thereunder to the same extent as if this Agreement had not been
executed, (b) the exercise by Agent or any other member of the Lender Group of any of the rights
hereunder shall not release any Grantor from any of its duties or obligations under such contracts
and agreements included in the Collateral, and (c) none of the members of the Lender Group shall
have any obligation or liability under such contracts and agreements included in the Collateral by reason of this Agreement, nor shall any of the members of the
Lender Group be obligated to perform any of the obligations or duties of any Grantors thereunder or
to take any action to collect or enforce any claim for payment assigned hereunder. Until an Event
of Default shall occur and be continuing, except as otherwise provided in this Agreement, the
Credit Agreement, or other Loan Documents, Grantors shall have the right to possession and
enjoyment of the Collateral for the purpose of conducting the ordinary course of their respective
businesses, subject to and upon the terms hereof and of the Credit Agreement and the other Loan
Documents. Without limiting the generality of the foregoing, it is the intention of the parties
hereto that record and beneficial ownership of the Pledged Interests, including all voting,
consensual, and dividend rights, shall remain in the applicable Grantor until the occurrence of an
Event of Default and until Agent shall notify the applicable Grantor of Agent’s exercise of voting,
consensual, or dividend rights with respect to the Pledged Interests pursuant to Section 15
hereof.



     5. Representations and Warranties. Each Grantor hereby represents and warrants as
follows:



          (a) The exact legal name of each of the Grantors is set forth on the signature pages of this
Agreement or a written notice provided to Agent pursuant to Section 6.5 of the Credit
Agreement.




          (b) Schedule 7 to the Disclosure Letter sets forth all Real Property owned by Grantors
as of the Closing Date.




          (c) As of the Closing Date, no Grantor has any interest in, or title to, any material
Intellectual Property Licenses, Copyrights, Patents, or Trademarks except as set forth on
Schedules 2, 3, 4, and 6, respectively, to the Disclosure Letter. This Agreement is
effective to create a valid and continuing Lien on material Intellectual Property Licenses,
Copyrights, Patents and Trademarks and, upon filing of the Copyright Security Agreement with the
United States Copyright Office and filing of the Patent Security Agreement and the Trademark
Security Agreement with the United States Patent and Trademark Office, and the filing of
appropriate financing statements in the jurisdictions listed on Schedule 8 to the
Disclosure Letter, all action necessary or desirable to protect and perfect the Security Interest
in and to each of Grantor’s material Patents, Trademarks, or Copyrights has been taken and such
perfected Security Interest is enforceable as such as against any and all creditors of and
purchasers from any Grantor. No Grantor has any interest in any material Copyright that is
necessary in connection with the operation of such Grantor’s business, except for those Copyrights
identified on Schedule 2 to the Disclosure Letter and, with respect to any such Copyrights
constituting the Required Library, which have been (or will be, within the time permitted under
this Agreement) registered with the United States Copyright Office.




          (d) This Agreement creates a valid security interest in the Collateral of each of Grantors, to
the extent a security interest therein can be created under the Code, securing the payment of the
Secured Obligations. Except to the extent a security interest in the Collateral cannot be
perfected by the filing of a financing statement under the Code, all filings and other actions
necessary or desirable to perfect and protect such security interest have been duly taken or will
have been taken upon the filing of financing statements listing each applicable Grantor, as a
debtor, and Agent, as secured party, in the jurisdictions listed next to such Grantor’s name on
Schedule 8 to the Disclosure Letter. Upon the making of such filings, Agent shall have a
first priority perfected security interest in the Collateral, subject to Permitted Liens, of each
Grantor to the extent such security interest can be perfected by the filing of a financing
statement. All action by any Grantor requested by Agent to protect and perfect such security
interest on each item of Collateral has been duly taken.




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          (e) Except for the Security Interest created hereby, (i) each Grantor is and will at all times
be the sole holder of record and the legal and beneficial owner, free and clear of all Liens other
than Permitted Liens, of the Pledged Interests indicated on Schedule 5 to the Disclosure
Letter as being owned by such Grantor and, when acquired by such Grantor, any Pledged Interests
acquired after the Closing Date; (ii) all of the Pledged Interests are duly authorized, validly
issued, fully paid and non-assessable and the Pledged Interests constitute or will constitute the
percentage of the issued and outstanding Stock of the Pledged Companies of such Grantor identified on Schedule 5 to the Disclosure Letter as
supplemented or modified by any Pledged Interests Addendum or any Supplement to this Agreement;
(iii) such Grantor has the right and requisite authority to pledge, the Investment Related Property
pledged by such Grantor to Agent as provided herein; (iv) all actions requested by Agent to
perfect, establish the first priority of, or otherwise protect, Agent’s Liens in the Investment
Related Property, and the proceeds thereof, have been duly taken, (A) upon the execution and
delivery of this Agreement; (B) upon the taking of possession by Agent of any certificates
constituting the Pledged Interests, to the extent such Pledged Interests are represented by
certificates, together with undated powers endorsed in blank by the applicable Grantor; (C) upon
the filing of financing statements in the applicable jurisdiction set forth on Schedule 8
to the Disclosure Letter for such Grantor with respect to the Pledged Interests of such Grantor
that are not represented by certificates, and (D) with respect to any Securities Accounts, upon the
delivery of Controlled Account Agreements with respect thereto; and (v) each Grantor has delivered
to and deposited with Agent (or, with respect to any Pledged Interests created or obtained after
the Closing Date, will deliver and deposit in accordance with Sections 6(a) and 8
hereof) all certificates representing the Pledged Interests owned by such Grantor to the extent
such Pledged Interests are represented by certificates, and undated powers endorsed in blank with
respect to such certificates. None of the Pledged Interests owned or held by such Grantor has been
issued or transferred in violation of any securities registration, securities disclosure, or
similar laws of any jurisdiction to which such issuance or transfer may be subject.




          (f) No consent, approval, authorization, or other order or other action by, and no notice to
or filing with, any Governmental Authority or any other Person is required (i) for the grant of a
Security Interest by such Grantor in and to the Collateral pursuant to this Agreement or for the
execution, delivery, or performance of this Agreement by such Grantor, or (ii) for the exercise by
Agent of the voting or other rights provided for in this Agreement with respect to the Investment
Related Property or the remedies in respect of the Collateral pursuant to this Agreement, except as
may be required in connection with such disposition of Investment Related Property by laws
affecting the offering and sale of securities generally. No material Intellectual Property License
to which such Grantor is a party requires any consent for such Grantor to grant the security
interest granted hereunder in such Grantor’s right, title or interest in or to any Copyrights,
Patents, Trademarks or material Intellectual Property Licenses.




          (g) Each Grantor has filed the applications and taken all other actions necessary to register
the Copyrights comprising the Required Library on the Closing Date in accordance with the
procedures and regulations of the United States Copyright Office and in a manner sufficient to
impart constructive notice of such Grantor’s ownership thereof.




     6. Covenants. Each Grantor, jointly and severally, covenants and agrees with Agent
that from and after the date of this Agreement and until the date of termination of this Agreement
in accordance with Section 22 hereof:



          (a) Possession of Collateral. In the event that any Collateral, including proceeds,
is evidenced by or consists of Negotiable Collateral, Investment Related Property, or Chattel
Paper, and if and to the extent that perfection or priority of Agent’s Security Interest is
dependent on or enhanced by possession, and such Collateral has value in excess of $250,000 in the
aggregate or $125,000 on an individual basis, the applicable Grantor, immediately upon the request
of Agent, shall execute such other documents and instruments as shall be requested by Agent or, if
applicable, endorse and deliver physical possession of such Negotiable Collateral, Investment
Related Property, or Chattel Paper to Agent, together with such undated powers endorsed in blank as
shall be requested by Agent;




          (b) Chattel Paper.




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               (i) Each Grantor shall take all steps reasonably necessary to grant Agent control of all
electronic Chattel Paper having value in excess of $150,000 in the aggregate or $75,000 on an
individual basis in accordance with the Code and all “transferable records” as that term is defined in
Section 16 of the Uniform Electronic Transaction Act and Section 201 of the federal Electronic
Signatures in Global and National Commerce Act as in effect in any relevant jurisdiction;



               (ii) If any Grantor retains possession of any Chattel Paper or instruments (which retention of
possession shall be subject to the extent permitted hereby and by the Credit Agreement), promptly
upon the request of Agent, such Chattel Paper and instruments having value in excess of $150,000 in
the aggregate or $75,000 on an individual basis shall be marked with the following legend: “This
writing and the obligations evidenced or secured hereby are subject to the Security Interest of
Wells Fargo Foothill, LLC, as Agent for the benefit of the Lender Group and the Bank Product
Providers”;



          (c) Controlled Account Agreements.




               (i) Except to the extent otherwise excused by the Credit Agreement, each Grantor shall obtain
an authenticated Controlled Account Agreement, from each bank maintaining a Deposit Account for
such Grantor;



               (ii) Except to the extent otherwise excused by the Credit Agreement, each Grantor shall obtain
an authenticated Controlled Account Agreement, from each issuer of uncertificated securities,
securities intermediary, or commodities intermediary issuing or holding any financial assets or
commodities to or for any Grantor;



               (iii) Except to the extent otherwise excused by the Credit Agreement, each Grantor shall
obtain an authenticated Controlled Account Agreement with respect to all of such Grantor’s
electronic chattel paper, investment property, and letter-of-credit rights;



          (d) Letter-of-Credit Rights. Each Grantor that is or becomes the beneficiary of a
letter of credit having value in excess of $150,000 in the aggregate or $75,000 on an individual
basis shall promptly (and in any event within 5 Business Days after becoming a beneficiary), notify
Agent thereof and, upon the request by Agent, enter into a tri-party agreement with Agent and the
issuer or confirming bank with respect to letter-of-credit rights assigning such letter-of-credit
rights to Agent and directing all payments thereunder to Agent’s Account, all in form and substance
satisfactory to Agent;




          (e) Commercial Tort Claims. Each Grantor shall promptly (and in any event within 5
Business Days of receipt thereof), notify Agent in writing upon incurring or otherwise obtaining a
Commercial Tort Claim for an amount in excess of $150,000 in the aggregate or $75,000 on an
individual basis after the date hereof and, upon request of Agent, promptly amend Schedule
1 to the Disclosure Letter to describe such after-acquired Commercial Tort Claim in a manner
that reasonably identifies such Commercial Tort Claim, and hereby authorizes the filing of
additional financing statements or amendments to existing financing statements describing such
Commercial Tort Claims, and agrees to do such other acts or things deemed necessary or desirable by
Agent to give Agent a first priority, perfected security interest in any such Commercial Tort
Claim;




          (f) Government Contracts. If any Account or Chattel Paper arises out of a contract or
contracts with the United States of America or any department, agency, or instrumentality thereof
pursuant to which more than $150,000 in the aggregate or $75,000 on an individual basis may be
paid in any calendar year, Grantors shall promptly (and in any event within 5 Business Days of the
creation thereof) notify Agent thereof in writing and execute any instruments or take any steps
reasonably required by Agent in order that all moneys due or to become due under such contract or
contracts shall be assigned to Agent, for the benefit of the Lender Group and the Bank Product
Providers, and shall provide written notice thereof under the Assignment of Claims Act or other
applicable law;




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          (g) Intellectual Property.




               (i) Upon request of Agent, in order to facilitate filings with the United States Patent and
Trademark Office and the United States Copyright Office, each Grantor shall execute and deliver to
Agent one or more Copyright Security Agreements, Trademark Security Agreements, or Patent Security
Agreements to further evidence Agent’s Lien on such Grantor’s Patents, Trademarks, or Copyrights,
and the General Intangibles of such Grantor relating thereto or represented thereby;



               (ii) Each Grantor shall have the duty, at such Grantor’s expense, to the extent necessary or
economically desirable in the operation of such Grantor’s business, as determined in such Grantor’s
reasonable business judgment: (A) to protect and diligently enforce and defend all its Intellectual
Property, including, as applicable, the duty (I) to promptly sue for infringement,
misappropriation, or dilution and to recover any and all damages for such infringement,
misappropriation, or dilution of an Intellectual Property, (II) to prosecute diligently any
trademark application or service mark application that is part of the Trademarks pending as of the
date hereof or hereafter until the termination of this Agreement, and (III) to prosecute diligently
any patent application that is part of the Patents pending as of the date hereof or hereafter until
the termination of this Agreement; (B) to take all reasonable and necessary action to preserve and
maintain all of such Grantor’s Trademarks, Patents, Copyrights, material Intellectual Property
Licenses, and its rights therein, including the filing of applications for renewal, affidavits of
use, affidavits of non-contestability and opposition and interference and cancellation proceedings;
(C) to protect the confidentiality of the Intellectual Property that is material to its business,
including, as applicable, the duty to (I) protect the secrecy and confidentiality of its
confidential information and trade secrets by having and enforcing a policy requiring all current
employees, consultants, licensees, vendors and contractors with access to such information to
execute appropriate confidentiality agreements; (II) to take actions reasonably necessary to ensure
that no trade secret falls into the public domain; and (III) to protect the secrecy and
confidentiality of the source code of all computer software programs and applications of which it
is the owner or licensee by having and enforcing a policy requiring any licensees (or sublicensees)
of such source code to enter into license agreements with appropriate use and non-disclosure
restrictions; and (D) not to abandon any Trademark, Patent, Copyright, or Intellectual Property
License that is necessary or economically desirable in the operation of such Grantor’s business, as
determined in such Grantor’s reasonable business judgment;



               (iii) Grantors acknowledge and agree that the Lender Group shall have no duties with respect
to the Trademarks, Patents, Copyrights, or Intellectual Property Licenses. Without limiting the
generality of this Section 6(g), Grantors acknowledge and agree that no member of the
Lender Group shall be under any obligation to take any steps necessary to preserve rights in the
Trademarks, Patents, Copyrights, or Intellectual Property Licenses against any other Person, but
any member of the Lender Group may do so at its option from and after the occurrence and during the
continuance of an Event of Default, and all expenses incurred in connection therewith (including
reasonable fees and expenses of attorneys and other professionals) shall be for the sole account of
Borrower and shall be chargeable to the Loan Account;



               (iv) On each date of the delivery of a Compliance Certificate in respect of a fiscal quarter
pursuant to Section 5.1 of the Credit Agreement, each Grantor shall deliver to Agent a list
reasonably satisfactory to Agent identifying the Copyrights, whether created or acquired before or
after the Closing Date, comprising the Required Library (including any supporting documentation
reasonably requested by Agent relating to the determination of the composition of the Required
Library), and a certification, signed by an officer of such Grantor, certifying that such list
identifies the Copyrights, whether created or acquired before or after the Closing Date, comprising
the Required Library. No more than 15 Business Days following each such date of delivery, each
Grantor shall, at its expense, (A) file applications and take any and all other actions necessary
to register or record a transfer of ownership, as applicable, each such Copyright comprising the
Required Library which on the applicable date of delivery is not already the subject of a valid
registration or an application therefor with the United States Copyright Office (or any similar
office of any other jurisdiction in which Copyrights are used) identifying such Grantor as the sole
claimant thereof in a manner sufficient to claim in the public record (or as a co-claimant thereof, if such is the case)
such Grantor’s ownership or co-ownership thereof, and (B) cause to be prepared, executed, and
delivered to Agent, with sufficient time to permit Agent to record no later than 5 Business Days
following the date of registration of or recordation of transfer of ownership, as applicable, to
the applicable Grantor of such Copyrights, (I) a Copyright Security Agreement or supplemental
schedules to the Copyright Security Agreement reflecting the security interest of Agent in such
Copyrights, which supplemental schedules shall be in form and content suitable for recordation with
the United States Copyright Office (or any similar office of any other jurisdiction in which
Copyrights are used) and (II) any other documentation as Agent reasonably deems necessary and
requests in order to perfect and continue perfected Agent’s Liens on such Copyrights following such
recordation. Notwithstanding anything to the contrary contained herein, no Grantor shall be
required to take any action under this Section 6(g)(iv) with respect to any release or new version
of computer software that constitutes solely a Minor Release;



11









 





               (v) In addition, on each date on which the Compliance Certificate is delivered by Borrower
pursuant to Section 5.1 of the Credit Agreement, each Grantor shall provide Agent with a
written report of all new Copyrights (to the extent not already covered in Section 6(g)(iv)
above), Patents and Trademarks that are registered or the subject of pending applications for
registrations or patent, which were acquired or filed by any Grantor during the prior period and
are material to the operation of its business. In the case of such registrations or applications
therefor, which were acquired by any Grantor, each such Grantor shall file the necessary documents
with the appropriate Governmental Authority identifying the applicable Grantor as the owner (or as
a co-owner thereof, if such is the case) of such Intellectual Property. In each of the foregoing
cases, the applicable Grantor(s) shall cause to be prepared, executed, and delivered to Agent
supplemental schedules to the applicable Loan Documents to identify such Copyright, Patent and
Trademark registrations and applications therefor (with the exception of Trademark applications
filed on an intent-to-use basis) as being subject to the security interests created thereunder;



               (vi) Upon receipt from the United States Copyright Office of notice of registration of any
Copyright, each Grantor shall promptly (but in no event later than 10 Business Days following such
receipt) notify (but without duplication of any notice required by Section 6(g)(iv)) Agent
of such registration by delivering, or causing to be delivered to Agent, via overnight courier,
electronic mail or telefacsimile at the addresses designated in the Credit Agreement, documentation
sufficient for Agent to perfect Agent’s Liens on such Copyright(s); and



               (vii) Upon (A) the occurrence and during the continuance of an Event of Default, or (B)
Borrower’s failure to maintain Excess Availability plus Qualified Cash of $25,000,000 at any time,
each Grantor shall promptly deposit with the escrow agent designated under the Source Code Escrow
Agreement all materials required under the Source Code Escrow Agreement, including the source code
for each version or versions of each item of computer software programs or other technology of such
Grantor constituting the Required Library and any updates thereto (other than Minor Releases), on
or before the 15th Business Day following the date of the delivery of a Compliance Certificate in
respect of a fiscal quarter pursuant to Section 5.1 of the Credit Agreement and in
accordance with all other terms and conditions of the Source Code Escrow Agreement.



          (h) Investment Related Property.




               (i) If any Grantor shall receive or become entitled to receive any Pledged Interests after the
Closing Date, it shall promptly (and in any event within 5 Business Days of receipt thereof)
deliver to Agent a duly executed Pledged Interests Addendum identifying such Pledged Interests;



               (ii) All sums of money and property paid or distributed in respect of the Investment Related
Property which are received by any Grantor after the occurrence and during the continuance of an
Event of Default shall be held by the Grantors in trust for the benefit of Agent segregated
from such Grantor’s other property, and such Grantor shall deliver it forthwith to Agent’s in
the exact form received;



12









 





               (iii) Each Grantor shall promptly deliver to Agent a copy of each notice or other
communication received by it in respect of any Pledged Interests;



               (iv) No Grantor shall make or consent to any amendment or other modification or waiver with
respect to any Pledged Interests, Pledged Operating Agreement, or Pledged Partnership Agreement, or
enter into any agreement or permit to exist any restriction with respect to any Pledged Interests
other than pursuant to the Loan Documents;



               (v) Each Grantor agrees that it will cooperate with Agent in obtaining all necessary approvals
and making all necessary filings under federal, state, local, or foreign law in connection with the
Security Interest on the Investment Related Property or any sale or transfer thereof;



               (vi) As to all limited liability company or partnership interests, issued under any Pledged
Operating Agreement or Pledged Partnership Agreement, each Grantor hereby represents, warrants and
covenants that the Pledged Interests issued pursuant to such agreement (A) are not and shall not be
dealt in or traded on securities exchanges or in securities markets, (B) do not and will not
constitute investment company securities, and (C) are not and will not be held by such Grantor in a
securities account. In addition, none of the Pledged Operating Agreements, the Pledged Partnership
Agreements, or any other agreements governing any of the Pledged Interests issued under any Pledged
Operating Agreement or Pledged Partnership Agreement, provide or shall provide that such Pledged
Interests are securities governed by Article 8 of the Uniform Commercial Code as in effect in any
relevant jurisdiction;



          (i) Real Property; Fixtures. Each Grantor covenants and agrees that upon the
acquisition of any fee interest in Real Property it will promptly (and in any event within 5
Business Days of acquisition) notify Agent of the acquisition of such Real Property and will grant
to Agent, for the benefit of the Lender Group and the Bank Product Providers, a first priority
Mortgage on each fee interest in Real Property now or hereafter owned by such Grantor and shall
deliver such other documentation and opinions, in form and substance satisfactory to Agent, in
connection with the grant of such Mortgage as Agent shall request in its Permitted Discretion,
including title insurance policies, financing statements, fixture filings and environmental audits
and such Grantor shall pay all recording costs, intangible taxes and other fees and costs
(including reasonable attorneys fees and expenses) incurred in connection therewith. Each Grantor
acknowledges and agrees that, to the extent permitted by applicable law, all of the Collateral
shall remain personal property regardless of the manner of its attachment or affixation to real
property;




          (j) Transfers and Other Liens. Grantors shall not (i) sell, assign (by operation of
law or otherwise) or otherwise dispose of, or grant any option with respect to, any of the
Collateral, except expressly permitted by the Credit Agreement, or (ii) create or permit to exist
any Lien upon or with respect to any of the Collateral of any of Grantors, except for Permitted
Liens. The inclusion of Proceeds in the Collateral shall not be deemed to constitute Agent’s
consent to any sale or other disposition of any of the Collateral except as expressly permitted in
this Agreement or the other Loan Documents;




          (k) Other Actions as to Any and All Collateral. Each Grantor shall promptly (and in
any event within 5 Business Days of acquiring or obtaining such Collateral) notify Agent in writing
upon (i) acquiring or otherwise obtaining any Collateral after the date hereof consisting of
material Intellectual Property Licenses, Investment Related Property, Chattel Paper (electronic,
tangible or otherwise), documents (as defined in Article 9 of the Code), promissory notes (as
defined in the Code), or instruments (as defined in the Code), and in the case of Chattel Paper,
documents, promissory notes or instruments, such Collateral is in excess of the applicable amounts
set forth in Sections 6(a) and (b), or (ii) any amount payable in excess of the applicable amounts
set forth in Sections 6(a) and (b) under or in connection with any of the Collateral being or
becoming evidenced after the date hereof by any Chattel Paper, documents, promissory notes, or
instruments and, in each such case upon the request of Agent, promptly execute such other
documents, or if applicable, deliver such Chattel Paper, other documents or certificates evidencing
any Investment Related Property and do such other acts or things deemed necessary or desirable by
Agent to protect Agent’s Security Interest therein; and




13









 








          (l) Controlled Accounts.




               (i) Borrower shall and shall cause each Loan Party to (i) establish and maintain cash
management services of a type and on terms reasonably satisfactory to Agent at one or more of the
banks set forth on Schedule 6(l) to the Disclosure Letter (each a “Controlled Account
Bank”) and, subject to Section 6.11 of the Credit Agreement, shall take reasonable
steps to ensure that all of its Account Debtors forward payment of the amounts owed by them
directly to such Controlled Account Bank, and (ii) deposit or cause to be deposited promptly, and
in any event no later than the third Business Day after the date of receipt thereof, all of their
Collections (including those sent directly by their Account Debtors to a Loan Party) into a bank
account of such Loan Party (each, a “Controlled Account”) at one of the Controlled Account
Banks.



               (ii) Each Controlled Account Bank shall establish and maintain Controlled Account Agreements
with Agent and the applicable Loan Party, in form and substance reasonably acceptable to Agent.
Each such Controlled Account Agreement shall provide, among other things, that (a) the Controlled
Account Bank will comply with any instructions originated by Agent directing the disposition of the
funds in such Controlled Account without further consent by the applicable Loan Party, (b) the
Controlled Account Bank has no rights of setoff or recoupment or any other claim against the
applicable Controlled Account other than for payment of its service fees and other charges directly
related to the administration of such Controlled Account and for returned checks or other items of
payment, and (c) upon the instruction of the Agent (an “Activation Instruction”), the
Controlled Account Bank will forward by daily sweep all amounts in the applicable Controlled
Account to the Agent’s Account. Agent agrees not to issue an Activation Instruction with respect
to the Controlled Accounts unless a Triggering Event has occurred and is continuing at the time
such Activation Instruction is issued. Agent agrees to use commercially reasonable efforts to
rescind an Activation Instruction (the “Rescission”) if: (x) the Triggering Event upon
which such Activation Instruction was issued has been waived in writing in accordance with the
terms of this Agreement, and (y) no additional Triggering Event has occurred and is continuing
prior to the date of the Rescission or is reasonably expected to occur on or immediately after the
date of the Rescission.



               (iii) So long as no Default or Event of Default has occurred and is continuing, Borrower may
amend Schedule 6(l) to the Disclosure Letter to add or replace a Controlled Account Bank or
Controlled Account; provided, however, that (i) such prospective Controlled Account
Bank shall be reasonably satisfactory to Agent, and (ii) prior to the time of the opening of such
Controlled Account, the applicable Loan Party and such prospective Controlled Account Bank shall
have executed and delivered to Agent a Controlled Account Agreement. Borrower shall and shall
cause each Loan Party to close any of its Controlled Accounts (and establish replacement Controlled
Account accounts in accordance with the foregoing sentence) as promptly as practicable and in any
event within 45 days of notice from Agent that the operating performance, funds transfer, or
availability procedures or performance of the Controlled Account Bank with respect to Controlled
Account Accounts or Agent’s liability under any Controlled Account Agreement with such Controlled
Account Bank is no longer acceptable in Agent’s reasonable judgment.



     7. Relation to Other Security Documents. The provisions of this Agreement shall be
read and construed with the other Loan Documents referred to below in the manner so indicated.



          (a) Credit Agreement. In the event of any conflict between any provision in this
Agreement and a provision in the Credit Agreement, such provision of the Credit Agreement shall
control.




14









 








          (b) Patent, Trademark, Copyright Security Agreements. The provisions of the Copyright
Security Agreements, Trademark Security Agreements, and Patent Security Agreements are supplemental
to the provisions of this Agreement, and nothing contained in the Copyright Security Agreements,
Trademark Security Agreements, or the Patent Security Agreements shall limit any of the rights or
remedies of Agent hereunder.




     8. Further Assurances.



          (a) Each Grantor agrees that from time to time, at its own expense, such Grantor will promptly
execute and deliver all further instruments and documents, and take all further action, that may be
necessary or that Agent may reasonably request, in order to perfect and protect the Security
Interest granted or purported to be granted hereby or to enable Agent to exercise and enforce its
rights and remedies hereunder with respect to any of the Collateral.




          (b) Each Grantor authorizes the filing by Agent of financing or continuation statements, or
amendments thereto, and such Grantor will execute and deliver to Agent such other instruments or
notices, as may be necessary or as Agent may reasonably request, in order to perfect and preserve
the Security Interest granted or purported to be granted hereby.




          (c) Each Grantor authorizes Agent at any time and from time to time to file, transmit, or
communicate, as applicable, financing statements and amendments (i) describing the Collateral as
“all personal property of debtor” or “all assets of debtor” or words of similar effect, (ii)
describing the Collateral as being of equal or lesser scope or with greater detail, or (iii) that
contain any information required by part 5 of Article 9 of the Code for the sufficiency or filing
office acceptance. Each Grantor also hereby ratifies any and all financing statements or
amendments previously filed by Agent in any jurisdiction.




          (d) Each Grantor acknowledges that it is not authorized to file any financing statement or
amendment or termination statement with respect to any financing statement filed in connection with
this Agreement without the prior written consent of Agent, subject to such Grantor’s rights under
Section 9-509(d)(2) of the Code.




     9. Agent’s Right to Perform Contracts, Exercise Rights, etc. Upon the occurrence and
during the continuance of an Event of Default, Agent (or its designee) (a) may proceed to perform
any and all of the obligations of any Grantor contained in any contract, lease, or other agreement
and exercise any and all rights of any Grantor therein contained as fully as such Grantor itself
could, (b) shall have the right to use any of Grantor’s rights under Intellectual Property Licenses
in connection with the enforcement of Agent’s rights hereunder, including the right to prepare for
sale and sell any and all Inventory and Equipment now or hereafter owned by any Grantor and now or
hereafter covered by such licenses, and (c) shall have the right to request that any Stock that is
pledged hereunder be registered in the name of Agent or any of its nominees.



     10. Agent Appointed Attorney-in-Fact. Each Grantor hereby irrevocably appoints Agent
its attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of
such Grantor or otherwise, at such time as an Event of Default has occurred and is continuing under
the Credit Agreement, to take any action and to execute any instrument which Agent may reasonably
deem necessary or advisable to accomplish the purposes of this Agreement, including:



          (a) to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and
receipts for moneys due and to become due under or in connection with the Accounts or any other
Collateral of such Grantor;




          (b) to receive and open all mail addressed to such Grantor and to notify postal authorities to
change the address for the delivery of mail to such Grantor to that of Agent;




15









 








          (c) to receive, indorse, and collect any drafts or other instruments, documents, Negotiable
Collateral or Chattel Paper;




          (d) to file any claims or take any action or institute any proceedings which Agent may deem
necessary or desirable for the collection of any of the Collateral of such Grantor or otherwise to
enforce the rights of Agent with respect to any of the Collateral;




          (e) to repair, alter, or supply goods, if any, necessary to fulfill in whole or in part the
purchase order of any Person obligated to such Grantor in respect of any Account of such Grantor;




          (f) to use any labels, Patents, Trademarks, trade names, URLs, domain names, industrial
designs, Copyrights, advertising matter or other industrial or intellectual property rights, in
advertising for sale and selling Inventory and other Collateral and to collect any amounts due
under Accounts, contracts or Negotiable Collateral of such Grantor; and




          (g) Agent on behalf of the Lender Group shall have the right, but shall not be obligated, to
bring suit in its own name to enforce the Trademarks, Patents, Copyrights and Intellectual Property
Licenses and, if Agent shall commence any such suit, the appropriate Grantor shall, at the request
of Agent, do any and all lawful acts and execute any and all proper documents reasonably required
by Agent in aid of such enforcement.




     To the extent permitted by law, each Grantor hereby ratifies all that such attorney-in-fact
shall lawfully do or cause to be done by virtue hereof. This power of attorney is coupled with an
interest and shall be irrevocable until this Agreement is terminated.



     11. Agent May Perform. If any Grantor fails to perform any agreement contained
herein, Agent may itself perform, or cause performance of, such agreement, and the reasonable
expenses of Agent incurred in connection therewith shall be payable, jointly and severally, by
Grantors.



     12. Agent’s Duties. The powers conferred on Agent hereunder are solely to protect
Agent’s interest in the Collateral, for the benefit of the Lender Group and the Bank Product
Providers, and shall not impose any duty upon Agent to exercise any such powers. Except for the
safe custody of any Collateral in its actual possession and the accounting for moneys actually
received by it hereunder, Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights pertaining to any
Collateral. Agent shall be deemed to have exercised reasonable care in the custody and
preservation of any Collateral in its actual possession if such Collateral is accorded treatment
substantially equal to that which Agent accords its own property.



     13. Collection of Accounts, General Intangibles and Negotiable Collateral. At any
time upon the occurrence and during the continuance of an Event of Default, Agent or Agent’s
designee may to the extent permitted by law, (a) notify Account Debtors of any Grantor that the
Accounts, General Intangibles, Chattel Paper or Negotiable Collateral have been assigned to Agent,
for the benefit of the Lender Group and the Bank Product Providers in connection with the exercise
of its remedies hereunder, or that Agent has a security interest therein, and (b) collect all
amounts payable in respect of the Accounts, General Intangibles and Negotiable Collateral directly,
and any collection costs and expenses shall constitute part of such Grantor’s Secured Obligations
under the Loan Documents.



16









 





     14. Disposition of Pledged Interests by Agent. None of the Pledged Interests existing
as of the date of this Agreement are, and none of the Pledged Interests hereafter acquired on the
date of acquisition thereof will be, registered or qualified under the various federal or state
securities laws of the United States and disposition thereof after an Event of Default may be
restricted to one or more private (instead of public) sales in view of the lack of such
registration. Each Grantor understands that in connection with such disposition,
Agent may approach only a restricted number of potential purchasers and further understands
that a sale under such circumstances may yield a lower price for the Pledged Interests than if the
Pledged Interests were registered and qualified pursuant to federal and state securities laws and
sold on the open market. Each Grantor, therefore, agrees that: (a) if Agent shall, pursuant to
the terms of this Agreement, sell or cause the Pledged Interests or any portion thereof to be sold
at a private sale, Agent shall have the right to rely upon the advice and opinion of any nationally
recognized brokerage or investment firm (but shall not be obligated to seek such advice and the
failure to do so shall not be considered in determining the commercial reasonableness of such
action) as to the best manner in which to offer the Pledged Interest or any portion thereof for
sale and as to the best price reasonably obtainable at the private sale thereof; and (b) such
reliance shall be conclusive evidence that Agent has handled the disposition in a commercially
reasonable manner.



     15. Voting Rights.



          (a) Upon the occurrence and during the continuance of an Event of Default, (i) Agent may, at
its option, and with 2 Business Days prior notice to any Grantor, and in addition to all rights and
remedies available to Agent under any other agreement, at law, in equity, or otherwise, exercise
all voting rights, and all other ownership or consensual rights in respect of the Pledged Interests
owned by such Grantor, but under no circumstances is Agent obligated by the terms of this Agreement
to exercise such rights, and (ii) if Agent duly exercises its right to vote any of such Pledged
Interests, each Grantor hereby appoints Agent, such Grantor’s true and lawful attorney-in-fact and
IRREVOCABLE PROXY to vote such Pledged Interests in any manner Agent deems advisable for or against
all matters submitted or which may be submitted to a vote of shareholders, partners or members, as
the case may be. The power-of-attorney granted hereby is coupled with an interest and shall be
irrevocable.




          (b) For so long as any Grantor shall have the right to vote the Pledged Interests owned by it,
such Grantor covenants and agrees that it will not, without the prior written consent of Agent,
vote or take any consensual action with respect to such Pledged Interests which would materially
adversely affect the rights of Agent and the other members of the Lender Group or the value of the
Pledged Interests.




     16. Remedies. Upon the occurrence and during the continuance of an Event of Default:



          (a) Agent may, and, at the instruction of the Required Lenders, shall exercise in respect of
the Collateral, in addition to other rights and remedies provided for herein, in the other Loan
Documents, or otherwise available to it, all the rights and remedies of a secured party on default
under the Code or any other applicable law. Without limiting the generality of the foregoing, each
Grantor expressly agrees that, in any such event, Agent without demand of performance or other
demand, advertisement or notice of any kind (except a notice specified below of time and place of
public or private sale) to or upon any of Grantors or any other Person (all and each of which
demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by
the Code or any other applicable law), may take immediate possession of all or any portion of the
Collateral and (i) require Grantors to, and each Grantor hereby agrees that it will at its own
expense and upon request of Agent forthwith, assemble all or part of the Collateral as directed by
Agent and make it available to Agent at one or more locations where such Grantor regularly
maintains Inventory, and (ii) without notice except as specified below, sell the Collateral or any
part thereof in one or more parcels at public or private sale, at any of Agent’s offices or
elsewhere, for cash, on credit, and upon such other terms as Agent may deem commercially
reasonable. Each Grantor agrees that, to the extent notice of sale shall be required by law, at
least 10 days notice to any of Grantors of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable notification and specifically such
notice shall constitute a reasonable “authenticated notification of disposition” within the meaning
of Section 9-611 of the Code. Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.




17









 








          (b) Agent is hereby granted a license or other right to use, without liability for royalties
or any other charge, each Grantor’s labels, Patents, Copyrights, rights of use of any name, trade
secrets, trade names, Trademarks, service marks and advertising matter, URLs, domain names,
industrial designs, other industrial or intellectual property or any property of a similar nature,
whether owned by any of Grantors or with respect to which any of Grantors have rights under
license, sublicense, or other agreements, as it pertains to the Collateral, in preparing for sale,
advertising for sale and selling any Collateral, and each Grantor’s rights under all licenses and
all franchise agreements shall inure to the benefit of Agent.




          (c) Agent may, in addition to other rights and remedies provided for herein, in the other Loan
Documents, or otherwise available to it under applicable law and without the requirement of notice
to or upon any of Grantors or any other Person (which notice is hereby expressly waived to the
maximum extent permitted by the Code or any other applicable law), (i) with respect to any of
Grantors’ Deposit Accounts in which Agent’s Liens are perfected by control under Section 9-104 of
the Code, instruct the bank maintaining such Deposit Account for the applicable Grantor to pay the
balance of such Deposit Account to or for the benefit of Agent, and (ii) with respect to any of
Grantors’ Securities Accounts in which the Agent’s Liens are perfected by control under Section
9-106 of the Code, instruct the securities intermediary maintaining such Securities Account for the
applicable Grantor to (A) transfer any cash in such Securities Account to or for the benefit of
Agent, or (B) liquidate any financial assets in such Securities Account that are customarily sold
on a recognized market and transfer the cash proceeds thereof to or for the benefit of Agent.




          (d) Any cash held by Agent as Collateral and all cash proceeds received by Agent in respect of
any sale of, collection from, or other realization upon all or any part of the Collateral shall be
applied against the Secured Obligations in the order set forth in the Credit Agreement. In the
event the proceeds of Collateral are insufficient to satisfy all of the Secured Obligations in
full, each Grantor shall remain jointly and severally liable for any such deficiency.




          (e) Each Grantor hereby acknowledges that the Secured Obligations arose out of a commercial
transaction, and agrees that if an Event of Default shall occur and be continuing Agent shall have
the right to an immediate writ of possession without notice of a hearing. Agent shall have the
right to the appointment of a receiver for the properties and assets of each of Grantors, and each
Grantor hereby consents to such rights and such appointment and hereby waives any objection such
Grantors may have thereto or the right to have a bond or other security posted by Agent.




     17. Remedies Cumulative. Each right, power, and remedy of Agent as provided for in
this Agreement or in the other Loan Documents or now or hereafter existing at law or in equity or
by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other
right, power, or remedy provided for in this Agreement or in the other Loan Documents or now or
hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of
the exercise by Agent, of any one or more of such rights, powers, or remedies shall not preclude
the simultaneous or later exercise by Agent of any or all such other rights, powers, or remedies.



     18. Marshaling. Agent shall not be required to marshal any present or future
collateral security (including but not limited to the Collateral) for, or other assurances of
payment of, the Secured Obligations or any of them or to resort to such collateral security or
other assurances of payment in any particular order, and all of its rights and remedies hereunder
and in respect of such collateral security and other assurances of payment shall be cumulative and
in addition to all other rights and remedies, however existing or arising. To the extent that it
lawfully may, each Grantor hereby agrees that it will not invoke any law relating to the marshaling
of collateral which might cause delay in or impede the enforcement of Agent’s rights and remedies
under this Agreement or under any other instrument creating or evidencing any of the Secured
Obligations or under which any of the Secured Obligations is outstanding or by which any of the
Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that it
lawfully may, each Grantor hereby irrevocably waives the benefits of all such laws.



18









 





     19. Indemnity and Expenses.



          (a) Each Grantor agrees to indemnify Agent and the other members of the Lender Group from and
against all claims, lawsuits and liabilities (including reasonable attorneys fees) arising out of
or resulting from this Agreement (including enforcement of this Agreement) or any other Loan
Document to which such Grantor is a party, except claims, losses or liabilities resulting from the
gross negligence or willful misconduct of the party seeking indemnification as determined by a
final non-appealable order of a court of competent jurisdiction. This provision shall survive the
termination of this Agreement and the Credit Agreement and the repayment of the Secured
Obligations.




          (b) Grantors, jointly and severally, shall, upon demand, pay to Agent (or Agent, may charge to
the Loan Account) all the Lender Group Expenses which Agent may incur in connection with (i) the
administration of this Agreement, (ii) the custody, preservation, use or operation of, or, upon an
Event of Default, the sale of, collection from, or other realization upon, any of the Collateral in
accordance with this Agreement and the other Loan Documents, (iii) the exercise or enforcement of
any of the rights of Agent hereunder or (iv) the failure by any of Grantors to perform or observe
any of the provisions hereof.




     20. Merger, Amendments; Etc. THIS AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS,
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
AGREEMENTS BETWEEN THE PARTIES. No waiver of any provision of this Agreement, and no consent to
any departure by any of Grantors herefrom, shall in any event be effective unless the same shall be
in writing and signed by Agent, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No amendment of any provision of
this Agreement shall be effective unless the same shall be in writing and signed by Agent and each
of Grantors to which such amendment applies.



     21. Addresses for Notices. All notices and other communications provided for
hereunder shall be given in the form and manner and delivered to Agent at its address specified in
the Credit Agreement, and to any of the Grantors at their respective addresses specified in the
Credit Agreement or Guaranty, as applicable, or, as to any party, at such other address as shall be
designated by such party in a written notice to the other party.



     22. Continuing Security Interest: Assignments under Credit Agreement. This Agreement
shall create a continuing security interest in the Collateral and shall (a) remain in full force
and effect until the Obligations have been paid in full in cash in accordance with the provisions
of the Credit Agreement and the Commitments have expired or have been terminated, (b) be binding
upon each of Grantors, and their respective successors and assigns, and (c) inure to the benefit
of, and be enforceable by, Agent, and its successors, transferees and assigns. Without limiting
the generality of the foregoing clause (c), any the Lender may, in accordance with the provisions
of the Credit Agreement, assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to such the Lender herein or
otherwise. Upon payment in full in cash of the Obligations in accordance with the provisions of
the Credit Agreement and the expiration or termination of the Commitments, the Security Interest
granted hereby shall terminate and all rights to the Collateral shall revert to Grantors or any
other Person entitled thereto. At such time, Agent will authorize the filing of appropriate
termination statements to terminate such Security Interests. No transfer or renewal, extension,
assignment, or termination of this Agreement or of the Credit Agreement, any other Loan Document,
or any other instrument or document executed and delivered by any Grantor to Agent nor any
additional Advances or other loans made by any the Lender to Borrower, nor the taking of further
security, nor the retaking or re-delivery of the Collateral to Grantors, or any of them, by Agent,
nor any other act of the Lender Group or the Bank Product Providers, or any of them, shall release
any of Grantors from any obligation, except a release or discharge executed in writing by Agent in
accordance with the provisions of the Credit Agreement. Agent shall not by any act, delay, omission or otherwise,
be deemed to have waived any of its rights or remedies hereunder, unless such waiver is in writing
and signed by Agent and then only to the extent therein set forth. A waiver by Agent of any right
or remedy on any occasion shall not be construed as a bar to the exercise of any such right or
remedy which Agent would otherwise have had on any other occasion.



19









 





     23. Governing Law.



          (a) THE VALIDITY OF THIS AGREEMENT, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF,
AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED
HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA.




          (b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS
AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA; PROVIDED,
HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH
ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. AGENT AND EACH GRANTOR WAIVE, TO
THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF
FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS
BROUGHT IN ACCORDANCE WITH THIS SECTION 23(b).




          (c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGENT AND EACH GRANTOR HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. AGENT AND EACH
GRANTOR REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.




          (d) THE PARTIES TO THIS AGREEMENT PREFER THAT ANY DISPUTE BETWEEN OR AMONG THEM BE RESOLVED IN
LITIGATION SUBJECT TO A JURY TRIAL WAIVER AS SET FORTH IN SECTION 23(c). IF, HOWEVER, UNDER THE
THEN APPLICABLE LAW OF THE JURISDICTION IN WHICH A PARTY SEEKS TO COMMENCE ANY SUCH LITIGATION, A
PRE-DISPUTE JURY TRIAL WAIVER OF THE TYPE PROVIDED FOR IN SECTION 23(c) IS UNENFORCEABLE IN
LITIGATION TO RESOLVE ANY DISPUTE, CLAIM, CAUSE OF ACTION OR CONTROVERSY UNDER THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT (EACH, A “CLAIM”), THEN, UPON THE WRITTEN REQUEST OF SUCH PARTY,
SUCH CLAIM, INCLUDING ANY AND ALL QUESTIONS OF LAW OR FACT RELATING THERETO, SHALL BE DETERMINED
EXCLUSIVELY BY A JUDICIAL REFERENCE PROCEEDING. EXCEPT AS OTHERWISE PROVIDED IN SECTION 23(b),
VENUE FOR ANY SUCH REFERENCE PROCEEDING SHALL BE IN THE STATE OR FEDERAL COURT IN THE COUNTY OR
DISTRICT WHERE VENUE IS APPROPRIATE UNDER APPLICABLE LAW (THE “COURT”). THE PARTIES SHALL
SELECT A SINGLE NEUTRAL REFEREE, WHO SHALL BE A RETIRED STATE OR FEDERAL JUDGE. IF THE PARTIES CANNOT AGREE UPON A REFEREE, THE COURT SHALL
APPOINT THE REFEREE. THE REFEREE SHALL REPORT A STATEMENT OF DECISION TO THE COURT. NOTHING IN
THIS PARAGRAPH SHALL LIMIT THE RIGHT OF ANY PARTY AT ANY TIME TO EXERCISE SELF-HELP REMEDIES,
FORECLOSE AGAINST COLLATERAL OR OBTAIN PROVISIONAL REMEDIES (INCLUDING, WITHOUT LIMITATION, CLAIM
AND DELIVERY, INJUNCTIVE RELIEF, ATTACHMENT OR THE APPOINTMENT OF A RECEIVER). THE PARTIES SHALL
BEAR THE FEES AND EXPENSES OF THE REFEREE EQUALLY UNLESS THE REFEREE ORDERS OTHERWISE. THE REFEREE
ALSO SHALL DETERMINE ALL ISSUES RELATING TO THE APPLICABILITY, INTERPRETATION, AND ENFORCEABILITY
OF THIS SECTION 23(d). THE PARTIES ACKNOWLEDGE THAT ANY CLAIM DETERMINED BY REFERENCE PURSUANT TO
THIS SECTION 23(d) SHALL NOT BE ADJUDICATED BY A JURY.




20









 








     24. New Subsidiaries. Pursuant to Section 5.11 of the Credit Agreement, any
new direct or indirect Subsidiary (whether by acquisition or creation) of Grantor is required to
enter into this Agreement by executing and delivering in favor of Agent a supplement to this
Agreement in the form of Annex 1 attached hereto. Upon the execution and delivery of
Annex 1 by such new Subsidiary, such Subsidiary shall become a Grantor hereunder with the
same force and effect as if originally named as a Grantor herein. The execution and delivery of
any instrument adding an additional Grantor as a party to this Agreement shall not require the
consent of any Grantor hereunder. The rights and obligations of each Grantor hereunder shall
remain in full force and effect notwithstanding the addition of any new Grantor hereunder.



     25. Agent. Each reference herein to any right granted to, benefit conferred upon or
power exercisable by the “Agent” shall be a reference to Agent, for the benefit of the Lender Group
and the Bank Product Providers.



     26. Miscellaneous.



          (a) This Agreement may be executed in any number of counterparts and by different parties on
separate counterparts, each of which, when executed and delivered, shall be deemed to be an
original, and all of which, when taken together, shall constitute but one and the same Agreement.
Delivery of an executed counterpart of this Agreement by telefacsimile or other electronic method
of transmission shall be equally as effective as delivery of an original executed counterpart of
this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile or
other electronic method of transmission also shall deliver an original executed counterpart of this
Agreement but the failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Agreement. The foregoing shall apply to each
other Loan Document mutatis mutandis.




          (b) Any provision of this Agreement which is prohibited or unenforceable shall be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of such provision in any
other jurisdiction.




          (c) Headings used in this Agreement are for convenience only and shall not be used in
connection with the interpretation of any provision hereof.




          (d) The pronouns used herein shall include, when appropriate, either gender and both singular
and plural, and the grammatical construction of sentences shall conform thereto.




21









 








          (e) Unless the context of this Agreement or any other Loan Document clearly requires
otherwise, references to the plural include the singular, references to the singular include the
plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where
otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,”
“herein,” “hereby,” “hereunder,” and similar terms in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular provision of this
Agreement or such other Loan Document, as the case may be. Section, subsection, clause, schedule,
and exhibit references herein are to this Agreement unless otherwise specified. Any reference in
this Agreement or in any other Loan Document to any agreement, instrument, or document shall
include all alterations, amendments, changes, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any
restrictions on such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein). Any reference herein or
in any other Loan Document to the satisfaction or repayment in full of the Obligations shall mean
the repayment in full in cash (or cash collateralization in accordance with the terms of the Credit
Agreement) of all Obligations other than unasserted contingent indemnification Obligations and
other than any Bank Product Obligations that, at such time, are allowed by the Bank Product
Providers to remain outstanding and that are not required by the provisions of the Credit Agreement
to be repaid or cash collateralized. Any reference herein to any Person shall be construed to
include such Person’s successors and assigns. Any requirement of a writing contained herein or in
any other Loan Document shall be satisfied by the transmission of a Record.




[Signature pages to follow.]




22









 





     IN WITNESS WHEREOF, the undersigned parties hereto have executed this Agreement by and through
their duly authorized officers, as of the day and year first above written.



	 	 	 	 	 
	GRANTORS:       	OMNITURE, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Michael S. Herring
 	 
	 	 	Name:  	Michael S. Herring 	 
	 	 	Title:  	Executive Vice President and Chief Financial Officer 	 
	 
	 	VISUAL SCIENCES, INC.,

A Delaware corporation

 	 
	 	By:  	/s/ Michael S. Herring
 	 
	 	 	Name:  	Michael S. Herring 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	VISUAL SCIENCES TECHNOLOGIES, LLC,

a Delaware limited liability company

 	 
	 	By:  	VISUAL SCIENCES, INC.,
 	 
	 	 	a Delaware corporation 	 
	 	 	its Sole Member 	 
	 	 	 
	 	By:  	               /s/ Michael S. Herring
 	 
	 	 	Name:  	Michael S. Herring 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	OFFERMATICA CORPORATION,

a Delaware corporation

 	 
	 	By:  	/s/ Michael S. Herring
 	 
	 	 	Name:  	Michael S. Herring 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	AGENT:          	WELLS FARGO FOOTHILL, LLC,

a Delaware limited liability company, as Agent

 	 
	 	By:  	/s/ Jee Hoon Park
 	 
	 	 	Name:  	Jee Hoon Park 	 
	 	 	Title:  	Vice President 	 
	 



Security Agreement




S-1









 








ANNEX 1 TO SECURITY AGREEMENT

FORM OF SUPPLEMENT





     Supplement No. ______ (this “Supplement”) dated as of ____________, to the Security
Agreement dated as of December 24, 2008 (as amended, restated, supplemented or otherwise modified
from time to time, the “Security Agreement”) by each of the parties listed on the signature
pages thereto and those additional entities that thereafter become parties thereto (collectively,
jointly and severally, “Grantors” and each individually “Grantor”) and WELLS FARGO
FOOTHILL, LLC, a Delaware limited liability company, in its capacity as the arranger and
administrative agent for the Lender Group and the Bank Product Providers (together with its
successors and assigns in such capacity, the “Agent”).



WITNESSETH:




     WHEREAS, pursuant to that certain Credit Agreement dated as of December 24, 2008 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”)
among Omniture, Inc., a Delaware corporation, as borrower (“Borrower”), the lenders party thereto
and Agent, the Lender Group is willing to make certain financial accommodations available to
Borrower from time to time pursuant to the terms and conditions thereof; and



     WHEREAS, capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Security Agreement or the Credit Agreement; and



     WHEREAS, Grantors have entered into the Security Agreement in order to induce the Lender Group
to make certain financial accommodations to Borrower; and



     WHEREAS, pursuant to Section 5.11 of the Credit Agreement, new direct or indirect
Subsidiaries of Borrower, must execute and deliver certain Loan Documents, including the Security
Agreement, and the execution of the Security Agreement by the undersigned new Grantor or Grantors
(collectively, the “New Grantors”) may be accomplished by the execution of this Supplement
in favor of Agent, for the benefit of the Lender Group and the Bank Product Providers;



     NOW, THEREFORE, for and in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, each New Grantor
hereby agrees as follows:



     1. In accordance with Section 24 of the Security Agreement, each New Grantor, by its
signature below, becomes a “Grantor” under the Security Agreement with the same force and effect as
if originally named therein as a “Grantor” and each New Grantor hereby (a) agrees to all of the
terms and provisions of the Security Agreement applicable to it as a “Grantor” thereunder and (b)
represents and warrants that the representations and warranties made by it as a “Grantor”
thereunder are true and correct on and as of the date hereof. In furtherance of the foregoing,
each New Grantor, as security for the payment and performance in full of the Secured Obligations,
does hereby grant, collaterally assign, and pledge to Agent, for the benefit of the Lender Group
and the Bank Product Providers, a security interest in and security title to all assets of such New
Grantor including, all property of the type described in Section 2 of the Security
Agreement to secure the full and prompt payment of the Secured Obligations, including, any interest
thereon, plus reasonable attorneys’ fees and expenses if the Secured Obligations represented by the
Security Agreement are collected by law, through an attorney-at-law, or under advice therefrom.
Schedule 1, “Commercial Tort Claims”, Schedule 2, “Copyrights”, Schedule
3, “Intellectual Property Licenses”, Schedule 4, “Patents”, Schedule 5,
“Pledged Companies”, Schedule 6, “Trademarks”, Schedule 7, “Owned Real Property,”
and Schedule 8, “List of Uniform Commercial Code Filing Jurisdictions” attached hereto
supplement Schedule 1, Schedule 2, Schedule 3, Schedule 4,
Schedule 5, Schedule 6, Schedule 7, and Schedule 8, respectively,
to the Disclosure Letter and shall be deemed a part thereof for all purposes of the Security
Agreement. Each reference to a “Grantor” in the Security Agreement shall be deemed to include each New Grantor. The Security Agreement is
incorporated herein by reference.



Annex 1




1









 








     2. Each New Grantor represents and warrants to Agent, the Lender Group and the Bank Product
Providers that this Supplement has been duly executed and delivered by such New Grantor and
constitutes its legal, valid and binding obligation, enforceable against it in accordance with its
terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws affecting creditors’ rights generally and
general principles of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).



     3. This Supplement may be executed in multiple counterparts, each of which shall be deemed to
be an original, but all such separate counterparts shall together constitute but one and the same
instrument. Delivery of a counterpart hereof by facsimile transmission or by e-mail transmission
shall be as effective as delivery of a manually executed counterpart hereof.



     4. Except as expressly supplemented hereby, the Security Agreement shall remain in full force
and effect.



     5. This Supplement shall be construed in accordance with and governed by the laws of the State
of California, without regard to the conflict of laws principles thereof.



[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]




Annex 1





2











 





     IN WITNESS WHEREOF, each New Grantor and Agent have duly executed this Supplement to the
Security Agreement as of the day and year first above written.



	 	 	 	 	 
	NEW GRANTORS: 	[Name of New Grantor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[Name of New Grantor]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	AGENT:  	WELLS FARGO FOOTHILL, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Supplement to Pledge and Security Agreement




S-1









 








EXHIBIT A




COPYRIGHT SECURITY AGREEMENT





     This COPYRIGHT SECURITY AGREEMENT (this “Copyright Security Agreement”) is made this
___ day of                     , 20___, among Grantors listed on the signature pages hereof (collectively,
jointly and severally, “Grantors” and each individually “Grantor”), and WELLS FARGO
FOOTHILL, LLC, a Delaware limited liability company, in its capacity as the arranger and
administrative agent for the Lender Group and the Bank Product Providers (together with its
successors and assigns in such capacity, the “Agent”).



WITNESSETH:




     WHEREAS, pursuant to that certain Credit Agreement dated as of December 24, 2008 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”)
among Omniture, Inc., a Delaware corporation, as borrower (“Borrower”), the lenders party
thereto and Agent, the Lender Group is willing to make certain financial accommodations available
to Borrower pursuant to the terms and conditions thereof; and



     WHEREAS, the members of the Lender Group are willing to make the financial accommodations to
Borrower as provided for in the Credit Agreement, but only upon the condition, among others, that
Grantors shall have executed and delivered to Agent, for the benefit of the Lender Group and the
Bank Product Providers, that certain Security Agreement dated as of December 24, 2008 (including
all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the “Security Agreement”);



     WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to
Agent, for the benefit of the Lender Group and the Bank Product Providers, this Copyright Security
Agreement;



     NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantors hereby agree as follows:



     1. DEFINED TERMS. All capitalized terms used but not otherwise defined herein have
the meanings given to them in the Security Agreement or the Credit Agreement.



     2. GRANT OF SECURITY INTEREST IN COPYRIGHT COLLATERAL. Each Grantor hereby grants to
Agent, for the benefit of the Lender Group and the Bank Product Providers, a continuing first
priority security interest, subject to Permitted Liens, in all of such Grantor’s right, title and
interest in, to and under the following, whether presently existing or hereafter created or
acquired (collectively, the “Copyright Collateral”):



          (a) all of such Grantor’s Copyrights, including those referred to on Schedule I
hereto;




          (b) all reissues, continuations or extensions of the foregoing; and




          (c) all products and proceeds of the foregoing, including any claim by such Grantor against
third parties for past, present or future infringement or dilution of any Copyright.




Exhibit A




1









 








     Notwithstanding anything contained in this Agreement to the contrary, the term “Copyright
Collateral” shall not include any rights or interest in any contract, lease, permit, license,
charter or license agreement covering real or personal property of any Grantor if under the terms
of such contract, lease, permit, license, charter or license agreement, or applicable law with
respect thereto, the grant of a security interest or
lien therein is prohibited as a matter of law or under the terms of such contract, lease,
permit, license, charter or license agreement and such prohibition has not been waived or the
consent of the other party to such contract, lease, permit, license, charter or license agreement
has not been obtained (provided, that, the foregoing exclusions of this clause shall in no way be
construed (i) to apply to the extent that any described prohibition is unenforceable under Section
9-406, 9-407, 9-408, or 9-409 of the Code or other applicable law, (ii) to limit, impair, or
otherwise affect the Lender Group’s continuing security interests in and liens upon any rights or
interests of any Grantor in or to (x) monies due or to become due under any described contract,
lease, permit, license, charter or license agreement (including any Accounts), or (y) any proceeds
from the sale, license, lease, or other dispositions of any such contract, lease, permit, license,
charter, license agreement, or Stock, or (iii) apply to the extent that any consent or waiver has
been obtained that would permit the security interest of lien notwithstanding the prohibition).



     3. SECURITY FOR OBLIGATIONS. This Copyright Security Agreement and the Security
Interest created hereby secures the payment and performance of all the Secured Obligations, whether
now existing or arising hereafter. Without limiting the generality of the foregoing, this
Copyright Security Agreement secures the payment of all amounts which constitute part of the
Obligations and would be owed by Grantors, or any of them, to Agent, the Lender Group, the Bank
Product Providers or any of them, whether or not they are unenforceable or not allowable due to the
existence of an Insolvency Proceeding involving any Grantor.



     4. SECURITY AGREEMENT. The security interests granted pursuant to this Copyright
Security Agreement are granted in conjunction with the security interests granted to Agent, for the
benefit of the Lender Group and the Bank Product Providers, pursuant to the Security Agreement.
Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to
the security interest in the Copyright Collateral made and granted hereby are more fully set forth
in the Security Agreement, the terms and provisions of which are incorporated by reference herein
as if fully set forth herein.



     5. AUTHORIZATION TO SUPPLEMENT. Grantors shall give Agent notice in writing of any
additional United States copyright registrations or applications therefor after the date hereof
pursuant to the terms of the Security Agreement. Grantors hereby authorize Agent unilaterally to
modify this Agreement by amending Schedule I to include any future United States registered
copyrights or applications therefor of Grantors. Notwithstanding the foregoing, no failure to so
modify this Copyright Security Agreement or amend Schedule I shall in any way affect,
invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not
listed on Schedule I.



     6. COUNTERPARTS. This Copyright Security Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such separate counterparts
shall together constitute but one and the same instrument. In proving this Copyright Security
Agreement or any other Loan Document in any judicial proceedings, it shall not be necessary to
produce or account for more than one such counterpart signed by the party against whom such
enforcement is sought. Any signatures delivered by a party by facsimile transmission or by e-mail
transmission shall be deemed an original signature hereto.



Exhibit A




2









 








     7. CONSTRUCTION. Unless the context of this Copyright Security Agreement or any other
Loan Document clearly requires otherwise, references to the plural include the singular, references
to the singular include the plural, the terms “includes” and “including” are not limiting, and the
term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase
“and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Copyright
Security Agreement or any other Loan Document refer to this Copyright Security Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular provision of this
Copyright Security Agreement or such other Loan Document, as the case may be. Section, subsection,
clause, schedule, and exhibit references herein are to this Copyright Security Agreement unless
otherwise specified. Any reference in this Copyright Security Agreement or in any other Loan
Document to any agreement, instrument, or document shall include all alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements set forth herein). Any reference herein or in any other Loan Document to the
satisfaction or repayment in full of the Obligations shall mean the repayment in full in cash (or
cash collateralization in accordance with the terms of the Credit Agreement) of all Obligations
other than unasserted contingent indemnification Obligations and other than any Bank Product
Obligations that, at such time, are allowed by the applicable Bank Product Providers to remain
outstanding and that are not required by the provisions of the Credit Agreement to be repaid or
cash collateralized. Any reference herein to any Person shall be construed to include such
Person’s successors and assigns. Any requirement of a writing contained herein or in any other
Loan Document shall be satisfied by the transmission of a Record and any Record so transmitted
shall constitute a representation and warranty as to the accuracy and completeness of the
information contained therein.



[signature page follows]




Exhibit A




3









 





     IN WITNESS WHEREOF, each Grantor has caused this Copyright Security Agreement to be executed
and delivered by its duly authorized officer as of the date first set forth above.



	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	ACCEPTED AND ACKNOWLEDGED BY:



WELLS FARGO FOOTHILL, LLC, as Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Copyright Security Agreement





S-1









 








SCHEDULE I

to

COPYRIGHT SECURITY AGREEMENT




Copyright Registrations




	 	 	 	 	 	 	 	 	 
	Grantor	 	Country	 	Copyright	 	Registration No.	 	Registration Date
	 	 	 	 	 	 	 	 	 






Schedule I









 








EXHIBIT B




PATENT SECURITY AGREEMENT




     This PATENT SECURITY AGREEMENT (this “Patent Security Agreement”) is made this ___ day
of                     , 20___, among the Grantors listed on the signature pages hereof (collectively,
jointly and severally, “Grantors” and each individually “Grantor”), and WELLS FARGO
FOOTHILL, LLC, a Delaware limited liability company, in its capacity as the arranger and
administrative agent for the Lender Group and the Bank Product Providers (together with its
successors and assigns in such capacity, the “Agent”).



WITNESSETH:




     WHEREAS, pursuant to that certain Credit Agreement dated as of December 24, 2008 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”)
among Omniture, Inc., a Delaware corporation, as borrower (the “Borrower”), the lenders
party thereto and Agent, the Lender Group is willing to make certain financial accommodations
available to the Borrower pursuant to the terms and conditions thereof; and



     WHEREAS, the members of Lender Group are willing to make the financial accommodations to
Borrower as provided for in the Credit Agreement, but only upon the condition, among others, that
the Grantors shall have executed and delivered to Agent, for the benefit of the Lender Group and
the Bank Product Providers, that certain Security Agreement dated as of December 24, 2008
(including all annexes, exhibits or schedules thereto, as from time to time amended, restated,
supplemented or otherwise modified, the “Security Agreement”);



     WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to
Agent, for the benefit of the Lender Group and the Bank Product Providers, this Patent Security
Agreement;



     NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Grantor hereby agrees as follows:



     1. DEFINED TERMS. All capitalized terms used but not otherwise defined herein have
the meanings given to them in the Security Agreement or the Credit Agreement.



     2. GRANT OF SECURITY INTEREST IN PATENT COLLATERAL. Each Grantor hereby grants to
Agent, for the benefit of the Lender Group and the Bank Product Providers, a continuing first
priority security interest, subject to Permitted Liens, in all of such Grantor’s right, title and
interest in, to and under the following, whether presently existing or hereafter created or
acquired (collectively, the “Patent Collateral”):



          (a) all of its Patents including those referred to on Schedule I hereto;




          (b) all reissues, continuations or extensions of the foregoing; and




          (c) all products and proceeds of the foregoing, including any claim by such Grantor against
third parties for past, present or future infringement or dilution of any Patent.




Exhibit B




1









 








     Notwithstanding anything contained in this Agreement to the contrary, the term “Patent
Collateral” shall not include any rights or interest in any contract, lease, permit, license,
charter or license agreement covering real or personal property of any Grantor if under the terms
of such contract, lease, permit, license, charter or license agreement, or applicable law with
respect thereto, the grant of a security interest or lien therein is prohibited as a matter of law
or under the terms of such contract, lease, permit, license, charter or
license agreement and such prohibition has not been waived or the consent of the other party
to such contract, lease, permit, license, charter or license agreement has not been obtained
(provided, that, the foregoing exclusions of this clause shall in no way be construed (i) to apply
to the extent that any described prohibition is unenforceable under Section 9-406, 9-407, 9-408, or
9-409 of the Code or other applicable law, (ii) to limit, impair, or otherwise affect the Lender
Group’s continuing security interests in and liens upon any rights or interests of any Grantor in
or to (x) monies due or to become due under any described contract, lease, permit, license, charter
or license agreement (including any Accounts), or (y) any proceeds from the sale, license, lease,
or other dispositions of any such contract, lease, permit, license, charter, license agreement, or
Stock, or (iii) apply to the extent that any consent or waiver has been obtained that would permit
the security interest of lien notwithstanding the prohibition).



     3. SECURITY FOR OBLIGATIONS. This Patent Security Agreement and the Security Interest
created hereby secures the payment and performance of all the Secured Obligations, whether now
existing or arising hereafter. Without limiting the generality of the foregoing, this Patent
Security Agreement secures the payment of all amounts which constitute part of the Obligations and
would be owed by Grantors, or any of them, to Agent, the Lender Group, the Bank Product Providers
or any of them, whether or not they are unenforceable or not allowable due to the existence of an
Insolvency Proceeding involving any Grantor.



     4. SECURITY AGREEMENT. The security interests granted pursuant to this Patent
Security Agreement are granted in conjunction with the security interests granted to Agent, for the
benefit of the Lender Group and the Bank Product Providers, pursuant to the Security Agreement.
Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to
the security interest in the Patent Collateral made and granted hereby are more fully set forth in
the Security Agreement, the terms and provisions of which are incorporated by reference herein as
if fully set forth herein.



     5. AUTHORIZATION TO SUPPLEMENT. If any Grantor shall obtain rights to any new
patentable inventions or become entitled to the benefit of any patent application or patent for any
reissue, division, or continuation, of any patent, the provisions of this Patent Security Agreement
shall automatically apply thereto. Grantors shall give notice in writing to Agent with respect to
any such new patent rights pursuant to the terms of the Security Agreement. Without limiting
Grantors’ obligations under this Section, Grantors hereby authorize Agent unilaterally to modify
this Agreement by amending Schedule I to include any such new patent rights of Grantors.
Notwithstanding the foregoing, no failure to so modify this Patent Security Agreement or amend
Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security
interest in all Collateral, whether or not listed on Schedule I.



     6. COUNTERPARTS. This Patent Security Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such separate counterparts
shall together constitute but one and the same instrument. In proving this Patent Security
Agreement or any other Loan Document in any judicial proceedings, it shall not be necessary to
produce or account for more than one such counterpart signed by the party against whom such
enforcement is sought. Any signatures delivered by a party by facsimile transmission or by e-mail
transmission shall be deemed an original signature hereto.



Exhibit B




2









 








     7. CONSTRUCTION. Unless the context of this Patent Security Agreement or any other
Loan Document clearly requires otherwise, references to the plural include the singular, references
to the singular include the plural, the terms “includes” and “including” are not limiting, and the
term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase
“and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Patent
Security Agreement or any other Loan Document refer to this Patent Security Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular provision of this Patent
Security Agreement or such other Loan Document, as the case may be. Section, subsection, clause,
schedule, and exhibit references herein are to this Patent Security Agreement unless otherwise
specified. Any reference in this Patent Security Agreement or in any other Loan Document to any
agreement, instrument, or document shall include all alterations, amendments, changes, extensions,
modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and
thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions,
modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein).
Any reference herein or in any other Loan Document to the satisfaction or repayment in full of the
Obligations shall mean the repayment in full in cash (or cash collateralization in accordance with
the terms of the Credit Agreement) of all Obligations other than unasserted contingent
indemnification Obligations and other than any Bank Product Obligations that, at such time, are
allowed by the applicable Bank Product Providers to remain outstanding and that are not required by
the provisions of the Credit Agreement to be repaid or cash collateralized. Any reference herein
to any Person shall be construed to include such Person’s successors and assigns. Any requirement
of a writing contained herein or in any other Loan Document shall be satisfied by the transmission
of a Record and any Record so transmitted shall constitute a representation and warranty as to the
accuracy and completeness of the information contained therein.



[signature page follows]




Exhibit B




3









 





     IN WITNESS WHEREOF, each Grantor has caused this Patent Security Agreement to be executed and
delivered by its duly authorized officer as of the date first set forth above.



	 	 	 	 	 
	 	
 	 
	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	
 	 
	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	ACCEPTED AND ACKNOWLEDGED BY:



WELLS FARGO FOOTHILL, LLC., as Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Patent Security Agreement




S-1









 








SCHEDULE I

to

PATENT SECURITY AGREEMENT




Patent Registrations/Applications




	 	 	 	 	 	 	 	 	 
	Patent	 	U.S. Patent Number	 	 	Registration Date	 
	 
	 	 	 	 	 	 	 	 





Schedule I to Patent Security Agreement




 









 








EXHIBIT C




PLEDGED INTERESTS ADDENDUM




     This Pledged Interests Addendum, dated as of                      ___, 20___, is delivered pursuant to
Section 6 of the Security Agreement referred to below. The undersigned hereby agrees that
this Pledged Interests Addendum may be attached to that certain Security Agreement, dated as of
December 24, 2008, (as amended, restated, supplemented or otherwise modified from time to time, the
“Security Agreement”), made by the undersigned, together with the other Grantors named
therein, to Wells Fargo Foothill, LLC, as Agent. Initially capitalized terms used but not defined
herein shall have the meaning ascribed to such terms in the Security Agreement or the Credit
Agreement. The undersigned hereby agrees that the additional interests listed on this Pledged
Interests Addendum as set forth below shall be and become part of the Pledged Interests pledged by
the undersigned to the Agent in the Security Agreement and any pledged company set forth on this
Pledged Interests Addendum as set forth below shall be and become a “Pledged Company” under the
Security Agreement, each with the same force and effect as if originally named therein.



     The undersigned hereby certifies that the representations and warranties set forth in
Section 4 of the Security Agreement of the undersigned are true and correct as to the
Pledged Interests listed herein on and as of the date hereof.



	 	 	 	 	 
	 	[                                        ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Pledged Interests Addendum




 









 








	 	 	 	 	 	 	 	 	 	 	 
	 	 	Name of Pledged	 	Number of	 	Class of	 	Percentage of	 	 
	Name of Pledgor	 	Company	 	Shares/Units	 	Interests	 	Class Owned	 	Certificate Nos.
	 
	 	 	 	 	 	 	 	 	 	 





Pledged Interests Addendum





 









 








EXHIBIT D




TRADEMARK SECURITY AGREEMENT




     This TRADEMARK SECURITY AGREEMENT (this “Trademark Security Agreement”) is made this
___ day of                     , 20___, among Grantors listed on the signature pages hereof (collectively,
jointly and severally, “Grantors” and each individually “Grantor”), and WELLS FARGO
FOOTHILL, LLC, a Delaware limited liability company, in its capacity as the arranger and
administrative agent for the Lender Group and the Bank Product Providers (together with its
successors and assigns in such capacity, the “Agent”).



WITNESSETH:




     WHEREAS, pursuant to that certain Credit Agreement dated as of December 24, 2008 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”)
among Omniture, Inc., a Delaware corporation, as borrower ( “Borrower”), the lenders party
thereto and Agent, the Lender Group is willing to make certain financial accommodations available
to Borrower pursuant to the terms and conditions thereof; and



     WHEREAS, the members of the Lender Group are willing to make the financial accommodations to
Borrower as provided for in the Credit Agreement, but only upon the condition, among others, that
Grantors shall have executed and delivered to Agent, for the benefit of Lender Group and the Bank
Product Providers, that certain Security Agreement dated as of December 24, 2008 (including all
annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the “Security Agreement”);



     WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to
Agent, for the benefit of Lender Group and the Bank Product Providers, this Trademark Security
Agreement;



     NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Grantor hereby agrees as follows:



     1. DEFINED TERMS. All capitalized terms used but not otherwise defined herein have
the meanings given to them in the Security Agreement or the Credit Agreement.



     2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL. Each Grantor hereby grants to
Agent, for the benefit of the Lender Group and the Bank Product Providers, a continuing first
priority security interest, subject to Permitted Liens, in all of such Grantor’s right, title and
interest in, to and under the following, whether presently existing or hereafter created or
acquired (collectively, the “Trademark Collateral”):



          (a) all of its Trademarks including those referred to on Schedule I hereto;




          (b) all goodwill, trade secrets, proprietary or confidential information, technical
information, procedures, formulae, quality control standards, designs, operating and training
manuals, customer lists, and other General Intangibles with respect to the foregoing;




          (c) all reissues, continuations or extensions of the foregoing;




          (d) all goodwill of the business connected with the use of, and symbolized by, each Trademark;
and




Exhibit D




1









 








          (e) all products and proceeds of the foregoing, including any claim by such Grantor against
third parties for past, present or future (i) infringement or dilution of any Trademark or (ii)
injury to the goodwill associated with any Trademark.




     Notwithstanding anything contained in this Agreement to the contrary, the term “Trademark
Collateral” shall not include (i) any rights or interest in any contract, lease, permit, license,
charter or license agreement covering real or personal property of any Grantor if under the terms
of such contract, lease, permit, license, charter or license agreement, or applicable law with
respect thereto, the grant of a security interest or lien therein is prohibited as a matter of law
or under the terms of such contract, lease, permit, license, charter or license agreement and such
prohibition has not been waived or the consent of the other party to such contract, lease, permit,
license, charter or license agreement has not been obtained (provided, that, the foregoing
exclusions of this clause shall in no way be construed (A) to apply to the extent that any
described prohibition is unenforceable under Section 9-406, 9-407, 9-408, or 9-409 of the Code or
other applicable law, (B) to limit, impair, or otherwise affect the Lender Group’s continuing
security interests in and liens upon any rights or interests of any Grantor in or to (x) monies due
or to become due under any described contract, lease, permit, license, charter or license agreement
(including any Accounts), or (y) any proceeds from the sale, license, lease, or other dispositions
of any such contract, lease, permit, license, charter, license agreement, or Stock, or (C) apply to
the extent that any consent or waiver has been obtained that would permit the security interest of
lien notwithstanding the prohibition), or (ii) any application for a trademark (including, without
limitation, intent to use trademark applications and any goodwill associated therewith) that would
otherwise be deemed invalidated, cancelled or abandoned due to the granting of a Lien thereon
unless and until such time as the granting of such Lien will not affect the validity of such
trademark.



     3. SECURITY FOR OBLIGATIONS. This Trademark Security Agreement and the Security
Interest created hereby secures the payment and performance of all the Secured Obligations, whether
now existing or arising hereafter. Without limiting the generality of the foregoing, this
Trademark Security Agreement secures the payment of all amounts which constitute part of the
Obligations and would be owed by Grantors, or any of them, to Agent, the Lender Group, the Bank
Product Providers or any of them, whether or not they are unenforceable or not allowable due to the
existence of an Insolvency Proceeding involving any Grantor.



     4. SECURITY AGREEMENT. The security interests granted pursuant to this Trademark
Security Agreement are granted in conjunction with the security interests granted to Agent, for the
benefit of the Lender Group and the Bank Product Providers, pursuant to the Security Agreement.
Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to
the security interest in the Trademark Collateral made and granted hereby are more fully set forth
in the Security Agreement, the terms and provisions of which are incorporated by reference herein
as if fully set forth herein.



     5. AUTHORIZATION TO SUPPLEMENT. If any Grantor shall obtain rights to any new
trademarks, the provisions of this Trademark Security Agreement shall automatically apply thereto.
Grantors shall give notice in writing to Agent with respect to any such new trademarks or renewal
or extension of any trademark registration pursuant to the terms of the Security Agreement.
Without limiting Grantors’ obligations under this Section, Grantors hereby authorize Agent
unilaterally to modify this Agreement by amending Schedule I to include any such new
trademark rights of Grantors. Notwithstanding the foregoing, no failure to so modify this
Trademark Security Agreement or amend Schedule I shall in any way affect, invalidate or
detract from Agent’s continuing security interest in all Collateral, whether or not listed on
Schedule I.



     6. COUNTERPARTS. This Trademark Security Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such separate counterparts
shall together constitute but one and the same instrument. In proving this Trademark Security
Agreement or any other Loan Document in any judicial proceedings, it shall not be necessary to
produce or account for more than one such counterpart signed by the party against whom such enforcement is sought. Any signatures
delivered by a party by facsimile transmission or by e-mail transmission shall be deemed an
original signature hereto.



Exhibit D




2









 








     7. CONSTRUCTION. Unless the context of this Trademark Security Agreement or any other
Loan Document clearly requires otherwise, references to the plural include the singular, references
to the singular include the plural, the terms “includes” and “including” are not limiting, and the
term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase
“and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Trademark
Security Agreement or any other Loan Document refer to this Trademark Security Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular provision of this
Trademark Security Agreement or such other Loan Document, as the case may be. Section, subsection,
clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified.
Any reference in this Trademark Security Agreement or in any other Loan Document to any agreement,
instrument, or document shall include all alterations, amendments, changes, extensions,
modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and
thereof, as applicable (subject to any restrictions on such alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set
forth herein). Any reference herein or in any other Loan Document to the satisfaction or repayment
in full of the Obligations shall mean the repayment in full in cash (or cash collateralization in
accordance with the terms of the Credit Agreement) of all Obligations other than unasserted
contingent indemnification Obligations and other than any Bank Product Obligations that, at such
time, are allowed by the applicable Bank Product Providers to remain outstanding and that are not
required by the provisions of the Credit Agreement to be repaid or cash collateralized. Any
reference herein to any Person shall be construed to include such Person’s successors and assigns.
Any requirement of a writing contained herein or in any other Loan Document shall be satisfied by
the transmission of a Record and any Record so transmitted shall constitute a representation and
warranty as to the accuracy and completeness of the information contained therein.



[signature page follows]




Exhibit D




3









 





     IN WITNESS WHEREOF, each Grantor has caused this Trademark Security Agreement to be executed
and delivered by its duly authorized officer as of the date first set forth above.



	 	 	 	 	 
	 	
 	 
	 	
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	
 	 
	 	
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 
	 	ACCEPTED AND ACKNOWLEDGED BY:



WELLS FARGO FOOTHILL, LLC, as Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Trademark Security Agreement




S-1









 








SCHEDULE I

to




TRADEMARK SECURITY AGREEMENT




Trademark Registrations/Applications




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Application/	 	 
	Grantor	 	Country	 	Mark	 	Registration No.	 	App/Reg Date
	     	 	 	 	 	 	 	 	 






Trademark Security Agreement