exv10w1






Exhibit 10.1




CREDIT AGREEMENT




by and among




OMNITURE, INC.




as Borrower,




THE LENDERS THAT ARE SIGNATORIES HERETO




as the Lenders,




and




WELLS FARGO FOOTHILL, LLC




as the Arranger and Administrative Agent




Dated as of December 24, 2008




 









 





Table of Contents




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	1.	 	  DEFINITIONS AND CONSTRUCTION	 	 	1	 
	 

	 	 	1.1	 	 	Definitions
	 	 	1	 
	 

	 	 	1.2	 	 	Accounting Terms
	 	 	1	 
	 

	 	 	1.3	 	 	Code
	 	 	1	 
	 

	 	 	1.4	 	 	Construction
	 	 	1	 
	 

	 	 	1.5	 	 	Schedules and Exhibits
	 	 	1	 
	 
	 	 	 	 	 	 	 	 	 	 
	2.	 	  LOAN AND TERMS OF PAYMENT	 	 	2	 
	 

	 	 	2.1	 	 	Revolver Advances
	 	 	2	 
	 

	 	 	2.2	 	 	Term Loan
	 	 	2	 
	 

	 	 	2.3	 	 	Borrowing Procedures and Settlements
	 	 	2	 
	 

	 	 	2.4	 	 	Payments; Reductions of Commitments; Prepayments
	 	 	6	 
	 

	 	 	2.5	 	 	Overadvances
	 	 	10	 
	 

	 	 	2.6	 	 	Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations
	 	 	10	 
	 

	 	 	2.7	 	 	Crediting Payments
	 	 	12	 
	 

	 	 	2.8	 	 	Designated Account
	 	 	12	 
	 

	 	 	2.9	 	 	Maintenance of Loan Account; Statements of Obligations
	 	 	12	 
	 

	 	 	2.10	 	 	Fees
	 	 	12	 
	 

	 	 	2.11	 	 	Letters of Credit
	 	 	12	 
	 

	 	 	2.12	 	 	LIBOR Option
	 	 	15	 
	 

	 	 	2.13	 	 	Capital Requirements
	 	 	17	 
	 
	 	 	 	 	 	 	 	 	 	 
	3.	 	  CONDITIONS; TERM OF AGREEMENT	 	 	18	 
	 

	 	 	3.1	 	 	Conditions Precedent to the Initial Extension of Credit
	 	 	18	 
	 

	 	 	3.2	 	 	Conditions Precedent to all Extensions of Credit
	 	 	18	 
	 

	 	 	3.3	 	 	Term
	 	 	18	 
	 

	 	 	3.4	 	 	Effect of Termination
	 	 	18	 
	 

	 	 	3.5	 	 	Early Termination by Borrower
	 	 	18	 
	 

	 	 	3.6	 	 	Conditions Subsequent
	 	 	19	 
	 
	 	 	 	 	 	 	 	 	 	 
	4.	 	  REPRESENTATIONS AND WARRANTIES	 	 	19	 
	 

	 	 	4.1	 	 	Due Organization and Qualification; Subsidiaries
	 	 	19	 
	 

	 	 	4.2	 	 	Due Authorization; No Conflict
	 	 	19	 
	 

	 	 	4.3	 	 	Governmental Consents
	 	 	20	 
	 

	 	 	4.4	 	 	Binding Obligations; Perfected Liens
	 	 	20	 
	 

	 	 	4.5	 	 	Title to Assets; No Encumbrances
	 	 	20	 
	 

	 	 	4.6	 	 	Jurisdiction of Organization; Location of Chief Executive Office;
Organizational Identification Number; Commercial Tort Claims 	 	 	20	 






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(continued)





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	4.7	 	 	Litigation
	 	 	21	 
	 

	 	 	4.8	 	 	Compliance with Laws
	 	 	21	 
	 

	 	 	4.9	 	 	No Material Adverse Change
	 	 	21	 
	 

	 	 	4.10	 	 	Fraudulent Transfer
	 	 	21	 
	 

	 	 	4.11	 	 	Employee Benefits
	 	 	21	 
	 

	 	 	4.12	 	 	Environmental Condition
	 	 	22	 
	 

	 	 	4.13	 	 	Intellectual Property
	 	 	22	 
	 

	 	 	4.14	 	 	Leases
	 	 	22	 
	 

	 	 	4.15	 	 	Deposit Accounts and Securities Accounts
	 	 	22	 
	 

	 	 	4.16	 	 	Complete Disclosure
	 	 	22	 
	 

	 	 	4.17	 	 	Material Contracts
	 	 	23	 
	 

	 	 	4.18	 	 	Patriot Act
	 	 	23	 
	 

	 	 	4.19	 	 	Indebtedness
	 	 	23	 
	 

	 	 	4.20	 	 	Payment of Taxes
	 	 	23	 
	 

	 	 	4.21	 	 	Margin Stock
	 	 	23	 
	 

	 	 	4.22	 	 	Governmental Regulation
	 	 	23	 
	 

	 	 	4.23	 	 	OFAC
	 	 	24	 
	 

	 	 	4.24	 	 	Location of Equipment
	 	 	24	 
	 

	 	 	4.25	 	 	Excluded Subsidiaries
	 	 	24	 
	 
	 	 	 	 	 	 	 	 	 	 
	5.	 	  AFFIRMATIVE COVENANTS	 	 	24	 
	 

	 	 	5.1	 	 	Financial Statements, Reports, Certificates
	 	 	24	 
	 

	 	 	5.2	 	 	Collateral Reporting
	 	 	24	 
	 

	 	 	5.3	 	 	Existence
	 	 	24	 
	 

	 	 	5.4	 	 	Maintenance of Properties
	 	 	24	 
	 

	 	 	5.5	 	 	Taxes
	 	 	25	 
	 

	 	 	5.6	 	 	Insurance
	 	 	25	 
	 

	 	 	5.7	 	 	Inspection
	 	 	25	 
	 

	 	 	5.8	 	 	Compliance with Laws
	 	 	25	 
	 

	 	 	5.9	 	 	Environmental
	 	 	26	 
	 

	 	 	5.10	 	 	Disclosure Updates
	 	 	26	 
	 

	 	 	5.11	 	 	Formation of Subsidiaries
	 	 	26	 
	 

	 	 	5.12	 	 	Further Assurances
	 	 	27	 
	 

	 	 	5.13	 	 	Lender Meetings
	 	 	27	 
	 

	 	 	5.14	 	 	Material Contracts
	 	 	27	 






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	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	5.15	 	 	Location of Equipment
	 	 	27	 
	 

	 	 	5.16	 	 	Assignable Material Contracts
	 	 	27	 
	 
	 	 	 	 	 	 	 	 	 	 
	6.	 	  NEGATIVE COVENANTS	 	 	27	 
	 

	 	 	6.1	 	 	Indebtedness
	 	 	28	 
	 

	 	 	6.2	 	 	Liens
	 	 	28	 
	 

	 	 	6.3	 	 	Restrictions on Fundamental Changes
	 	 	28	 
	 

	 	 	6.4	 	 	Disposal of Assets
	 	 	28	 
	 

	 	 	6.5	 	 	Change Name
	 	 	28	 
	 

	 	 	6.6	 	 	Nature of Business
	 	 	28	 
	 

	 	 	6.7	 	 	Prepayments and Amendments
	 	 	29	 
	 

	 	 	6.8	 	 	[intentionally omitted]
	 	 	29	 
	 

	 	 	6.9	 	 	Distributions
	 	 	29	 
	 

	 	 	6.10	 	 	Accounting Methods
	 	 	30	 
	 

	 	 	6.11	 	 	Investments
	 	 	30	 
	 

	 	 	6.12	 	 	Transactions with Affiliates
	 	 	30	 
	 

	 	 	6.13	 	 	Use of Proceeds
	 	 	31	 
	 
	 	 	 	 	 	 	 	 	 	 
	7.	 	  FINANCIAL COVENANTS	 	 	31	 
	 
	 	 	 	 	 	 	 	 	 	 
	8.	 	  EVENTS OF DEFAULT	 	 	32	 
	 
	 	 	 	 	 	 	 	 	 	 
	9.	 	  RIGHTS AND REMEDIES	 	 	34	 
	 

	 	 	9.1	 	 	Rights and Remedies
	 	 	34	 
	 

	 	 	9.2	 	 	Remedies Cumulative
	 	 	34	 
	 
	 	 	 	 	 	 	 	 	 	 
	10.	 	  WAIVERS; INDEMNIFICATION	 	 	34	 
	 

	 	 	10.1	 	 	Demand; Protest; etc.
	 	 	34	 
	 

	 	 	10.2	 	 	The Lender Group’s Liability for Collateral
	 	 	34	 
	 

	 	 	10.3	 	 	Indemnification
	 	 	35	 
	 
	 	 	 	 	 	 	 	 	 	 
	11.	 	  NOTICES	 	 	35	 
	 
	 	 	 	 	 	 	 	 	 	 
	12.	 	  CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE	 	 	36	 
	 
	 	 	 	 	 	 	 	 	 	 
	13.	 	  ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS	 	 	37	 
	 

	 	 	13.1	 	 	Assignments and Participations
	 	 	37	 
	 

	 	 	13.2	 	 	Successors
	 	 	40	 
	 
	 	 	 	 	 	 	 	 	 	 
	14.	 	  AMENDMENTS; WAIVERS	 	 	40	 
	 

	 	 	14.1	 	 	Amendments and Waivers
	 	 	40	 
	 

	 	 	14.2	 	 	Replacement of Holdout Lender
	 	 	41	 
	 

	 	 	14.3	 	 	No Waivers; Cumulative Remedies
	 	 	42	 






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(continued)





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 	 	 
	15.	 	  AGENT; THE LENDER GROUP	 	 	42	 
	 

	 	 	15.1	 	 	Appointment and Authorization of Agent
	 	 	42	 
	 

	 	 	15.2	 	 	Delegation of Duties
	 	 	43	 
	 

	 	 	15.3	 	 	Liability of Agent
	 	 	43	 
	 

	 	 	15.4	 	 	Reliance by Agent
	 	 	43	 
	 

	 	 	15.5	 	 	Notice of Default or Event of Default
	 	 	43	 
	 

	 	 	15.6	 	 	Credit Decision
	 	 	44	 
	 

	 	 	15.7	 	 	Costs and Expenses; Indemnification
	 	 	44	 
	 

	 	 	15.8	 	 	Agent in Individual Capacity
	 	 	45	 
	 

	 	 	15.9	 	 	Successor Agent
	 	 	45	 
	 

	 	 	15.10	 	 	Lender in Individual Capacity
	 	 	45	 
	 

	 	 	15.11	 	 	Collateral Matters
	 	 	45	 
	 

	 	 	15.12	 	 	Restrictions on Actions by Lenders; Sharing of Payments
	 	 	46	 
	 

	 	 	15.13	 	 	Agency for Perfection
	 	 	46	 
	 

	 	 	15.14	 	 	Payments by Agent to the Lenders
	 	 	47	 
	 

	 	 	15.15	 	 	Concerning the Collateral and Related Loan Documents
	 	 	47	 
	 

	 	 	15.16	 	 	Audits and Examination Reports; Confidentiality; Disclaimers by
Lenders; Other Reports and Information	 	 	47	 
	 

	 	 	15.17	 	 	Several Obligations; No Liability
	 	 	48	 
	 
	 	 	 	 	 	 	 	 	 	 
	16.	 	  WITHHOLDING TAXES	 	 	48	 
	 
	 	 	 	 	 	 	 	 	 	 
	17.	 	  GENERAL PROVISIONS	 	 	50	 
	 

	 	 	17.1	 	 	Effectiveness
	 	 	50	 
	 

	 	 	17.2	 	 	Section Headings
	 	 	50	 
	 

	 	 	17.3	 	 	Interpretation
	 	 	50	 
	 

	 	 	17.4	 	 	Severability of Provisions
	 	 	50	 
	 

	 	 	17.5	 	 	Bank Product Providers
	 	 	51	 
	 

	 	 	17.6	 	 	Debtor-Creditor Relationship
	 	 	51	 
	 

	 	 	17.7	 	 	Counterparts; Electronic Execution
	 	 	51	 
	 

	 	 	17.8	 	 	Revival and Reinstatement of Obligations
	 	 	51	 
	 

	 	 	17.9	 	 	Confidentiality
	 	 	51	 
	 

	 	 	17.10	 	 	Lender Group Expenses
	 	 	52	 
	 

	 	 	17.11	 	 	USA PATRIOT Act
	 	 	52	 
	 

	 	 	17.12	 	 	Integration
	 	 	52	 






-iv-









 






EXHIBITS AND SCHEDULES




	 	 	 
	Exhibit A-1

	 	Form of Assignment and Acceptance
	Exhibit C-1

	 	Form of Compliance Certificate
	Exhibit C-2

	 	Form of Credit Amount Certificate
	Exhibit L-1

	 	Form of LIBOR Notice
	 
	 	 
	Schedule C-1

	 	Commitments
	Schedule 1.1

	 	Definitions
	Schedule 3.1

	 	Conditions Precedent
	Schedule 3.6

	 	Conditions Subsequent
	Schedule 5.1

	 	Financial Statements, Reports, Certificates
	Schedule 5.2

	 	Collateral Reporting







-v-











 





CREDIT AGREEMENT




     THIS CREDIT AGREEMENT (this “Agreement”), is entered into as of December 24, 2008, by
and among the lenders identified on the signature pages hereof (such lenders, together with their
respective successors and permitted assigns, are referred to hereinafter each individually as a
“Lender” and collectively as the “Lenders”), WELLS FARGO FOOTHILL, LLC, a Delaware
limited liability company, as the arranger and administrative agent for the Lenders (in such
capacity, together with its successors and assigns in such capacity, “Agent”), and
OMNITURE, INC., a Delaware corporation (“Borrower”).



     The parties agree as follows:



1. DEFINITIONS AND CONSTRUCTION.




     1.1 Definitions. Capitalized terms used in this Agreement shall have the meanings
specified therefor on Schedule 1.1.



     1.2 Accounting Terms. All accounting terms not specifically defined herein shall be
construed in accordance with GAAP. When used herein, the term “financial statements” shall include
the notes and schedules thereto. Whenever the term “Borrower” is used in respect of a financial
covenant or a related definition, it shall be understood to mean Borrower and its Subsidiaries on a
consolidated basis, unless the context clearly requires otherwise.



     1.3 Code. 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; provided,
however, that to the extent that the Code is used to define any term herein and 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.



     1.4 Construction. 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). The words “asset” and “property” shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts, and contract rights. 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, in the case of Letters of Credit or Bank Products, providing Letter of Credit
Collateralization) 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 Provider to remain outstanding and that are not required by the provisions of this
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.



     1.5 Schedules and Exhibits. All of the schedules and exhibits attached to this
Agreement shall be deemed incorporated herein by reference.



1









 





2. LOAN AND TERMS OF PAYMENT.




     2.1 Revolver Advances.



          (a) Subject to the terms and conditions of this Agreement, and during the term of this
Agreement, each Lender with a Revolver Commitment agrees (severally, not jointly or jointly and
severally) to make advances (“Advances”) to Borrower in an amount at any one time
outstanding not to exceed such Lender’s Pro Rata Share of an amount equal to the lesser of (i) the
Maximum Revolver Amount less the sum of (x) the Letter of Credit Usage and (y) the Bank Product
Reserve at such time, and (ii) the Credit Amount at such time less the sum of (x) Letter of Credit
Usage and (y) the Bank Product Reserve at such time.



          (b) Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject to the
terms and conditions of this Agreement, reborrowed at any time during the term of this Agreement.
The outstanding principal amount of the Advances, together with interest accrued thereon, shall be
due and payable on the Maturity Date or, if earlier, on the date on which they are declared due and
payable pursuant to the terms of this Agreement.



          (c) Anything to the contrary in this Section 2.1 notwithstanding, Agent shall have the
right to establish reserves against the Credit Amount or the Maximum Revolver Amount in such
amounts, and with respect to such matters, as Agent in its Permitted Discretion shall deem
necessary or appropriate, including without limitation, the Bank Product Reserve.



     2.2 Term Loan. Subject to the terms and conditions of this Agreement, on the Closing
Date each Lender with a Term Loan Commitment agrees (severally, not jointly or jointly and
severally) to make term loans (collectively, the “Term Loan”) to Borrower in an amount
equal to such Lender’s Pro Rata Share of the Term Loan Amount. The principal of the Term Loan
shall be repaid on the following dates and in the following amounts:



	 	 	 	 	 
	Date	 	Installment Amount
	on the last day of each June, September, December and
March commencing on March 31, 2009
	 	$	375,000	 





The outstanding unpaid principal balance and all accrued and unpaid interest on the Term Loan shall
be due and payable on the earlier of (i) the Maturity Date, and (ii) the date of the acceleration
of the Term Loan in accordance with the terms hereof. All principal of, interest on, and other
amounts payable in respect of the Term Loan shall constitute Obligations.




     2.3 Borrowing Procedures and Settlements.



          (a) Procedure for Borrowing. Each Borrowing shall be made by a written request by an
Authorized Person delivered to Agent. Unless Swing Lender is not obligated to make a Swing Loan
pursuant to Section 2.3(b) below, such notice must be received by Agent no later than 10:00
a.m. (California time) on the Business Day that is the requested Funding Date specifying (i) the
amount of such Borrowing, and (ii) the requested Funding Date, which shall be a Business Day;
provided, however, that if Swing Lender is not obligated to make a Swing Loan as to
a requested Borrowing, such notice must be received by Agent no later than 10:00 a.m. (California
time) on the Business Day prior to the date that is the requested Funding Date. At Agent’s
election, in lieu of delivering the above-described written request, any Authorized Person may give
Agent telephonic notice of such request by the required time. In such circumstances, Borrower
agrees that any such telephonic notice will be confirmed in writing within 24 hours of the giving
of such telephonic notice, but the failure to provide such written confirmation shall not affect
the validity of the request.



2









 





          (b) Making of Swing Loans. In the case of a request for an Advance and so long as either (i)
the aggregate amount of Swing Loans made since the last Settlement Date, minus the amount of
Collections or payments applied to Swing Loans since the last Settlement Date, plus the amount of
the requested Advance does not exceed $5,000,000, or (ii) Swing Lender, in its sole discretion,
shall agree to make a Swing Loan notwithstanding the foregoing limitation, Swing Lender shall make
an Advance in the amount of such Borrowing (any such Advance made solely by Swing Lender pursuant
to this Section 2.3(b) being referred to as a “Swing Loan” and such Advances being
referred to collectively as “Swing Loans”) available to Borrower on the Funding Date
applicable thereto by transferring immediately available funds to Borrower’s Designated Account.
Each Swing Loan shall be deemed to be an Advance hereunder and shall be subject to all the terms
and conditions applicable to other Advances, except that all payments on any Swing Loan shall be
payable to Swing Lender solely for its own account. Subject to the provisions of Section
2.3(d)(ii), Swing Lender shall not make and shall not be obligated to make any Swing Loan if
Swing Lender has actual knowledge that (i) one or more of the applicable conditions precedent set
forth in Section 3 will not be satisfied on the requested Funding Date for the applicable
Borrowing, or (ii) the requested Borrowing would exceed the Availability on such Funding Date.
Swing Lender shall not otherwise be required to determine whether the applicable conditions
precedent set forth in Section 3 have been satisfied on the Funding Date applicable thereto
prior to making any Swing Loan. The Swing Loans shall be secured by the Agent’s Liens, constitute
Obligations hereunder, and bear interest at the rate applicable from time to time to Advances that
are Base Rate Loans.



          (c) Making of Loans.



               (i) In the event that Swing Lender is not obligated to make a Swing Loan, then promptly after
receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the
Lenders, not later than 1:00 p.m. (California time) on the Business Day immediately preceding the
Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of
the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the
requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not
later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent’s
receipt of the proceeds of such Advances, Agent shall make the proceeds thereof available to
Borrower on the applicable Funding Date by transferring immediately available funds equal to such
proceeds received by Agent to the Designated Account; provided, however, that,
subject to the provisions of Section 2.3(d)(ii), Agent shall not request any Lender to
make, and no Lender shall have the obligation to make, any Advance if (1) one or more of the
applicable conditions precedent set forth in Section 3 will not be satisfied on the
requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2)
the requested Borrowing would exceed the Availability on such Funding Date.



               (ii) Unless Agent receives notice from a Lender prior to 9:00 a.m. (California time) on the
date of a Borrowing, that such Lender will not make available as and when required hereunder to
Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Borrowing,
Agent may assume that each Lender has made or will make such amount available to Agent in
immediately available funds on the Funding Date and Agent may (but shall not be so required), in
reliance upon such assumption, make available to Borrower on such date a corresponding amount. If
any Lender shall not have made its full amount available to Agent in immediately available funds
and if Agent in such circumstances has made available to Borrower such amount, that Lender shall on
the Business Day following such Funding Date make such amount available to Agent, together with
interest at the Defaulting Lender Rate for each day during such period. A notice submitted by
Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent
manifest error. If such amount is so made available, such payment to Agent shall constitute such
Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is
not made available to Agent on the Business Day following the Funding Date, Agent will notify
Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent
for Agent’s account, together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances
composing such Borrowing. The failure of any Lender to make any Advance on any Funding Date shall not relieve any other Lender of
any obligation hereunder to make an Advance on such Funding Date, but no Lender shall be
responsible for the failure of any other Lender to make the Advance to be made by such other Lender
on any Funding Date.



3









 








               (iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by
Borrower to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the
Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender
member of the Lender Group ratably in accordance with their Commitments (but only to the extent
that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if
so directed by Borrower and if no Default or Event of Default has occurred and is continuing (and
to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to
be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to
the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account
of such Defaulting Lender the amount of all such payments received and retained by Agent for the
account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with
respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Lender” and such
Lender’s Commitment shall be deemed to be zero. This Section shall remain effective with respect
to such Lender until (x) the Obligations under this Agreement shall have been declared or shall
have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall
have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro
Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in
respect thereof. The operation of this Section shall not be construed to increase or otherwise
affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender
or any other Lender of its duties and obligations hereunder, or to relieve or excuse the
performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other
than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a
material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its
option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment
of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In
connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no
right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of
Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to
have executed and delivered such document if it fails to do so) subject only to being repaid its
share of the outstanding Obligations (other than Bank Product Obligations, but including an
assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or
penalty of any kind whatsoever; provided, however, that any such assumption of the
Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the
Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of
or in relation to such failure to fund.



          (d) Protective Advances and Optional Overadvances.



               (i) Agent hereby is authorized by Borrower and the Lenders, from time to time in Agent’s sole
discretion, (A) after the occurrence and during the continuance of a Default or an Event of
Default, or (B) at any time that any of the other applicable conditions precedent set forth in
Section 3 are not satisfied, to make Advances to Borrower on behalf of the Lenders that
Agent, in its Permitted Discretion deems necessary or desirable (1) to preserve or protect the
Collateral, or any portion thereof, or (2) to enhance the likelihood of repayment of the
Obligations (other than the Bank Product Obligations) (any of the Advances described in this
Section 2.3(d)(i) shall be referred to as “Protective Advances”).




4









 







               (ii) Any contrary provision of this Agreement notwithstanding, the Lenders hereby authorize
Agent or Swing Lender, as applicable, and either Agent or Swing Lender, as applicable, may, but is
not obligated to, knowingly and intentionally, continue to make Advances (including Swing Loans) to
Borrower notwithstanding that an Overadvance exists or thereby would be created, so long as (A)
after giving effect to such Advances, the outstanding Revolver Usage does not exceed the Credit
Amount by more than $5,000,000, and (B) after giving effect to such Advances, the outstanding
Revolver Usage (except for and
excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses)
does not exceed the Maximum Revolver Amount. In the event Agent obtains actual knowledge that the
Revolver Usage exceeds the amounts permitted by the immediately foregoing provisions, regardless of
the amount of, or reason for, such excess, Agent shall notify the Lenders as soon as practicable
(and prior to making any (or any additional) intentional Overadvances (except for and excluding
amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) unless Agent
determines that prior notice would result in imminent harm to the Collateral or its value), and the
Lenders with Revolver Commitments thereupon shall, together with Agent, jointly determine the terms
of arrangements that shall be implemented with Borrower intended to reduce, within a reasonable
time, the outstanding principal amount of the Advances to Borrower to an amount permitted by the
preceding sentence. In such circumstances, if any Lender with a Revolver Commitment objects to the
proposed terms of reduction or repayment of any Overadvance, the terms of reduction or repayment
thereof shall be implemented according to the determination of the Required Lenders. Each Lender
with a Revolver Commitment shall be obligated to settle with Agent as provided in Section
2.3(e) for the amount of such Lender’s Pro Rata Share of any unintentional Overadvances by
Agent reported to such Lender, any intentional Overadvances made as permitted under this
Section 2.3(d)(ii), and any Overadvances resulting from the charging to the Loan Account of
interest, fees, or Lender Group Expenses.



               (iii) Each Protective Advance and each Overadvance shall be deemed to be an Advance hereunder,
except that no Protective Advance or Overadvance shall be eligible to be a LIBOR Rate Loan and,
prior to Settlement therefor, all payments on the Protective Advances shall be payable to Agent
solely for its own account. The Protective Advances and Overadvances shall be repayable on demand,
secured by the Agent’s Liens, constitute Obligations hereunder, and bear interest at the rate
applicable from time to time to Advances that are Base Rate Loans. The provisions of this
Section 2.3(d) are for the exclusive benefit of Agent, Swing Lender, and the Lenders and
are not intended to benefit Borrower in any way.



          (e) Settlement. It is agreed that each Lender’s funded portion of the Advances is intended by
the Lenders to equal, at all times, such Lender’s Pro Rata Share of the outstanding Advances. Such
agreement notwithstanding, Agent, Swing Lender, and the other Lenders agree (which agreement shall
not be for the benefit of Borrower) that in order to facilitate the administration of this
Agreement and the other Loan Documents, settlement among the Lenders as to the Advances, the Swing
Loans, and the Protective Advances shall take place on a periodic basis in accordance with the
following provisions:



               (i) Agent shall request settlement (“Settlement”) with the Lenders on a weekly basis,
or on a more frequent basis if so determined by Agent (1) on behalf of Swing Lender, with respect
to the outstanding Swing Loans, (2) for itself, with respect to the outstanding Protective
Advances, and (3) with respect to Borrower’s or its Subsidiaries’ Collections or payments received,
as to each by notifying the Lenders by telecopy, telephone, or other similar form of transmission,
of such requested Settlement, no later than 2:00 p.m. (California time) on the Business Day
immediately prior to the date of such requested Settlement (the date of such requested Settlement
being the “Settlement Date”). Such notice of a Settlement Date shall include a summary
statement of the amount of outstanding Advances, Swing Loans, and Protective Advances for the
period since the prior Settlement Date. Subject to the terms and conditions contained herein
(including Section 2.3(c)(iii)): (y) if a Lender’s balance of the Advances (including
Swing Loans and Protective Advances) exceeds such Lender’s Pro Rata Share of the Advances
(including Swing Loans and Protective Advances) as of a Settlement Date, then Agent shall, by no
later than 12:00 p.m. (California time) on the Settlement Date, transfer in immediately available
funds to a Deposit Account of such Lender (as such Lender may designate), an amount such that each
such Lender shall, upon receipt of such amount, have as of the Settlement Date, its Pro Rata Share
of the Advances (including Swing Loans and Protective Advances), and (z) if a Lender’s balance of
the Advances (including Swing Loans and Protective Advances) is less than such Lender’s Pro Rata
Share of the Advances (including Swing Loans and Protective Advances) as of a Settlement Date, such
Lender shall no later than 12:00 p.m. (California time) on the Settlement Date transfer in
immediately available funds to the Agent’s Account, an amount such that each such Lender shall,
upon transfer of such amount, have as of the Settlement Date, its Pro Rata Share of the Advances
(including Swing Loans and Protective Advances). Such amounts made available to Agent under clause
(z) of the immediately preceding sentence shall be applied against the amounts of the applicable Swing Loans or Protective Advances and, together with
the portion of such Swing Loans or Protective Advances representing Swing Lender’s Pro Rata Share
thereof, shall constitute Advances of such Lenders. If any such amount is not made available to
Agent by any Lender on the Settlement Date applicable thereto to the extent required by the terms
hereof, Agent shall be entitled to recover for its account such amount on demand from such Lender
together with interest thereon at the Defaulting Lender Rate.



5









 








               (ii) In determining whether a Lender’s balance of the Advances, Swing Loans, and Protective
Advances is less than, equal to, or greater than such Lender’s Pro Rata Share of the Advances,
Swing Loans, and Protective Advances as of a Settlement Date, Agent shall, as part of the relevant
Settlement, apply to such balance the portion of payments actually received in good funds by Agent
with respect to principal, interest, fees payable by Borrower and allocable to the Lenders
hereunder, and proceeds of Collateral.



               (iii) Between Settlement Dates, Agent, to the extent Protective Advances or Swing Loans are
outstanding, may pay over to Agent or Swing Lender, as applicable, any Collections or payments
received by Agent, that in accordance with the terms of this Agreement would be applied to the
reduction of the Advances, for application to the Protective Advances or Swing Loans. Between
Settlement Dates, Agent, to the extent no Protective Advances or Swing Loans are outstanding, may
pay over to Swing Lender any Collections or payments received by Agent, that in accordance with the
terms of this Agreement would be applied to the reduction of the Advances, for application to Swing
Lender’s Pro Rata Share of the Advances. If, as of any Settlement Date, Collections or payments of
Borrower or its Subsidiaries received since the then immediately preceding Settlement Date have
been applied to Swing Lender’s Pro Rata Share of the Advances other than to Swing Loans, as
provided for in the previous sentence, Swing Lender shall pay to Agent for the accounts of the
Lenders, and Agent shall pay to the Lenders, to be applied to the outstanding Advances of such
Lenders, an amount such that each Lender shall, upon receipt of such amount, have, as of such
Settlement Date, its Pro Rata Share of the Advances. During the period between Settlement Dates,
Swing Lender with respect to Swing Loans, Agent with respect to Protective Advances, and each
Lender (subject to the effect of agreements between Agent and individual Lenders) with respect to
the Advances other than Swing Loans and Protective Advances, shall be entitled to interest at the
applicable rate or rates payable under this Agreement on the daily amount of funds employed by
Swing Lender, Agent, or the Lenders, as applicable.



          (f) Notation. Agent, as a non-fiduciary agent for Borrower, shall maintain a register showing
the principal amount of the Advances (and portion of the Term Loan, as applicable), owing to each
Lender, including the Swing Loans owing to Swing Lender, and Protective Advances owing to Agent,
and the interests therein of each Lender, from time to time and such records shall, absent manifest
error, conclusively be presumed to be correct and accurate.



          (g) Lenders’ Failure to Perform. All Advances (other than Swing Loans and Protective
Advances) shall be made by the Lenders contemporaneously and in accordance with their Pro Rata
Shares. It is understood that (i) no Lender shall be responsible for any failure by any other
Lender to perform its obligation to make any Advance (or other extension of credit) hereunder, nor
shall any Commitment of any Lender be increased or decreased as a result of any failure by any
other Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its
obligations hereunder shall excuse any other Lender from its obligations hereunder.



     2.4 Payments; Reductions of Commitments; Prepayments.



          (a) Payments by Borrower.



               (i) Except as otherwise expressly provided herein, all payments by Borrower shall be made to
Agent’s Account for the account of the Lender Group and shall be made in immediately available
funds, no later than 11:00 a.m. (California time) on the date specified herein. Any payment
received by Agent later than 11:00 a.m. (California time) shall be deemed to have been received on the
following Business Day and any applicable interest or fee shall continue to accrue until such
following Business Day.



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               (ii) Unless Agent receives notice from Borrower prior to the date on which any payment is due
to the Lenders that Borrower will not make such payment in full as and when required, Agent may
assume that Borrower has made (or will make) such payment in full to Agent on such date in
immediately available funds and Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent Borrower does not make such payment in full to Agent on the date when
due, each Lender severally shall repay to Agent on demand such amount distributed to such Lender,
together with interest thereon at the Defaulting Lender Rate for each day from the date such amount
is distributed to such Lender until the date repaid.



          (b) Apportionment and Application.



               (i) So long as no Application Event has occurred and is continuing and except as otherwise
provided with respect to Defaulting Lenders, all principal and interest payments shall be
apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations
to which such payments relate held by each Lender) and all payments of fees and expenses (other
than fees or expenses that are for Agent’s separate account) shall be apportioned ratably among the
Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee
or expense relates. All payments to be made hereunder by Borrower shall be remitted to Agent and
all (subject to Section 2.4(b)(iv)) such payments, and all proceeds of Collateral received
by Agent, shall be applied, so long as no Application Event has occurred and is continuing, to
reduce the balance of the Advances outstanding and, thereafter, to Borrower (to be wired to the
Designated Account) or such other Person entitled thereto under applicable law.



               (ii) At any time that an Application Event has occurred and is continuing and except as
otherwise provided with respect to Defaulting Lenders, all payments remitted to Agent and all
proceeds of Collateral received by Agent shall be applied as follows:



                    (A) first, to pay any Lender Group Expenses (including cost or expense reimbursements)
or indemnities then due to Agent under the Loan Documents, until paid in full,



                    (B) second, to pay any fees or premiums then due to Agent under the Loan Documents
until paid in full,



                    (C) third, to pay interest due in respect of all Protective Advances until paid in
full,



                    (D) fourth, to pay the principal of all Protective Advances until paid in full,



                    (E) fifth, ratably to pay any Lender Group Expenses (including cost or expense
reimbursements) or indemnities then due to any of the Lenders under the Loan Documents, until paid
in full,



                    (F) sixth, ratably to pay any fees or premiums then due to any of the Lenders under
the Loan Documents until paid in full,



                    (G) seventh, ratably to pay interest due in respect of the Advances (other than
Protective Advances), the Swing Loans, and the Term Loan until paid in full,



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                    (H) eighth, ratably (i) to pay the principal of all Swing Loans until paid in full,
(ii) to pay the principal of all Advances until paid in full, (iii) to Agent, to be held by Agent,
for the benefit of Issuing Lender and those Lenders having a share of the Risk Participation
Liability, as cash collateral in an amount up to 105% of the Letter of Credit Usage, (iv) to Agent,
to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount
up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in
contemplation of, the subject Event of Default, and (v) to pay the outstanding principal balance of
the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the
Term Loan is paid in full,



                    (I) ninth, to pay any other Obligations, and



                    (J) tenth, to Borrower (to be wired to the Designated Account) or such other Person
entitled thereto under applicable law.



               (iii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire
instructions received from each Lender in writing, such funds as it may be entitled to receive,
subject to a Settlement delay as provided in Section 2.3(e).



               (iv) In each instance, so long as no Application Event has occurred and is continuing,
Section 2.4(b)(i) shall not apply to any payment made by Borrower to Agent and specified by
Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under
any provision of this Agreement or any other Loan Document.



               (v) For purposes of Section 2.4(b)(ii), “paid in full” means payment in cash of all
amounts owing under the Loan Documents, including loan fees, service fees, professional fees,
interest (and specifically including interest accrued after the commencement of any Insolvency
Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any
of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency
Proceeding.



               (vi) In the event of a direct conflict between the priority provisions of this Section
2.4 and any other provision contained in any other Loan Document, it is the intention of the
parties hereto that such provisions be read together and construed, to the fullest extent possible,
to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot
be resolved as aforesaid, the terms and provisions of this Section 2.4 shall control and
govern.



          (c) Reduction of Commitments.



               (i) Revolver Commitments. The Revolver Commitments shall terminate on the Maturity Date.
Borrower may reduce the Revolver Commitments to an amount not less than the greater of (x) the sum
of (A) the Revolver Usage as of such date, plus (B) the principal amount of all Advances not yet
made as to which a request has been given by Borrower under Section 2.3(a), plus (C) the
amount of all Letters of Credit not yet issued as to which a request has been given by Borrower
pursuant to Section 2.11(a), and (y) $10,000,000. Each such reduction made pursuant to
this Section 2.4(c) shall be in an amount which is an integral multiple of $5,000,000,
shall be made by providing not less than 5 Business Days prior written notice to Agent and shall be
irrevocable. Once reduced, the Revolver Commitments may not be increased. Each such reduction of
the Revolver Commitments shall reduce the Revolver Commitments of each Lender proportionately in
accordance with its Pro Rata Share thereof.



               (ii) Term Loan Commitments. The Term Loan Commitments shall terminate upon the making of the
Term Loan.



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          (d) Optional Prepayments.



               (i) Advances. Borrower may prepay the principal of any Advance at any time in whole or in
part.



               (ii) Term Loan. Borrower may, upon at least 10 Business Days prior written notice to Agent,
prepay the principal of the Term Loan, in whole or in part. Each prepayment made pursuant to this
Section 2.4(d)(ii) shall (A) be made in an amount which is an integral multiple of
$1,500,000 and (B) be accompanied by the payment of accrued interest to the date of such payment on
the amount prepaid. Each such prepayment shall be applied against the remaining installments of
principal due on the Term Loan in the inverse order of maturity (for the avoidance of doubt, any
amount that is due and payable on the Maturity Date shall constitute an installment).



          (e) Mandatory Prepayments.



               (i) Credit Amount. If, at any time, (A) the sum of the outstanding principal balance of the
Term Loan on such date plus the Revolver Usage on such date exceeds (B) the Credit Amount (such
excess being referred to as the “Credit Amount Excess”), then Borrower shall immediately
prepay the Obligations in accordance with Section 2.4(f)(i) in an aggregate amount equal to
the Credit Amount Excess.



               (ii) Dispositions. Within 5 Business Days of the date of receipt by Borrower or any Loan
Party of the Net Cash Proceeds of any voluntary or involuntary sale or disposition by Borrower or
any Loan Party of assets (including casualty losses or condemnations but excluding sales or
dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), (d), (i), (l), or
(m) of the definition of Permitted Dispositions), Borrower shall prepay the outstanding principal
amount of the Obligations in accordance with Section 2.4(f)(ii) in an amount equal to 100%
of such Net Cash Proceeds (including condemnation awards and payments in lieu thereof) received by
such Person in connection with such sales or dispositions; provided that, so long as (A) no
Default or Event of Default shall have occurred and is continuing, (B) Borrower shall have given
Agent prior written notice of Borrower’s or the applicable Loan Party’s intention to apply such
monies to the costs of replacement of the properties or assets that are the subject of such sale or
disposition or the cost of purchase or construction of other assets useful in the business of
Borrower or the applicable Loan Party, (C) the monies are held in a Deposit Account in which Agent
has a perfected first-priority security interest, and (D) Borrower or the applicable Loan Party
completes such replacement, purchase, or construction within 180 days (or 270 days if a binding
contract for such replacement, purchase, or construction has been entered into by Borrower or the
applicable Loan Party within 180 days) after the initial receipt of such monies, Borrower or the
applicable Loan Party shall have the option to apply such monies to the costs of replacement of the
assets that are the subject of such sale or disposition unless and to the extent that such
applicable period shall have expired without such replacement, purchase or construction being made
or completed, in which case, any amounts remaining in the cash collateral account shall be paid to
Agent and applied in accordance with Section 2.4(f)(ii). Nothing contained in this
Section 2.4(e)(ii) shall permit Borrower or any of its Subsidiaries to sell or otherwise
dispose of any assets other than in accordance with Section 6.4.



               (iii) Extraordinary Receipts. Within 5 Business Days of the date of receipt by Borrower or
any Loan Party of any Extraordinary Receipts, Borrower shall prepay the outstanding principal
amount of the Obligations in accordance with Section 2.4(f)(ii) in an amount equal to 50%
of such Extraordinary Receipts, net of any reasonable expenses incurred in collecting such
Extraordinary Receipts.



               (iv) Indebtedness. Within 1 Business Day of the date of incurrence by Borrower or any of its
Subsidiaries of any Indebtedness (other than Permitted Indebtedness), Borrower shall prepay the
outstanding principal amount of the Obligations in accordance with Section 2.4(f)(ii) in an
amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such
incurrence. The
provisions of this Section 2.4(e)(iv) shall not be deemed to be implied consent to any
such incurrence otherwise prohibited by the terms and conditions of this Agreement.



9









 





               (v) Equity. Within 1 Business Day of the date of the issuance by Borrower or any of its
Subsidiaries of any shares of its or their Stock (other than (A) in the event that Borrower or any
of its Subsidiaries forms any Subsidiary in accordance with the terms hereof, the issuance by such
Subsidiary of Stock to Borrower or such Subsidiary, as applicable, (B) the issuance of Stock of
Borrower to directors, officers, consultants, and employees of Borrower pursuant to stock option
plans (or other employee incentive plans or other compensation arrangements) approved by the Board
of Directors, and (C) the issuance of Stock of Borrower in order to finance the purchase
consideration (or a portion thereof) in connection with a Permitted Acquisition), Borrower shall
prepay the outstanding principal amount of the Obligations in accordance with Section
2.4(f)(ii) in an amount equal to 50% of the Net Cash Proceeds received by such Person in
connection with such issuance. The provisions of this Section 2.4(e)(v) shall not be
deemed to be implied consent to any such issuance otherwise prohibited by the terms and conditions
of this Agreement.



          (f) Application of Payments.



               (i) Each prepayment pursuant to Section 2.4(e)(i) shall, (A) so long as no Application
Event shall have occurred and be continuing, be applied, first, to the outstanding principal amount
of the Advances until paid in full, second, to the outstanding principal amount of the Term Loan
until paid in full, and third, to cash collateralize the Letters of Credit in an amount equal to
105% of the then extant Letter of Credit Usage, and (B) if an Application Event shall have occurred
and be continuing, be applied in the manner set forth in Section 2.4(b)(ii). Each such
prepayment of the Term Loan shall be applied against the remaining installments of principal of the
Term Loan on a pro rata basis (for the avoidance of doubt, any amount that is due and payable on
the Maturity Date shall constitute an installment).



               (ii) Each prepayment pursuant to Section 2.4(e)(ii), 2.4(e)(iii),
2.4(e)(iv), or 2.4(e)(v) above shall (A) so long as no Application Event shall have
occurred and be continuing, be applied to the outstanding principal amount of the Term Loan until
paid in full, with any remaining amounts to be paid to Borrower, and (B) if an Application Event
shall have occurred and be continuing, be applied in the manner set forth in Section
2.4(b)(ii). Each such prepayment of the Term Loan shall be applied against the remaining
installments of principal of the Term Loan on a pro rata basis (for the avoidance of doubt, any
amount that is due and payable on the Maturity Date shall constitute an installment).
Notwithstanding anything to the contrary in foregoing provisions of this Section
2.4(f)(ii), any prepayments made pursuant to Section 2.4(e)(ii), 2.4(e)(iii),
or 2.4(e)(v) above, shall be applied first to the outstanding principal amount of the Term
Loan that is made up of Base Rate Loans and then to the outstanding principal amount of the Term
Loan that is made up of LIBOR Rate Loans; provided, however, that any such
prepayments that would be applied to LIBOR Rate Loans under clause (A) of this Section
2.4(f)(ii) may, at the option of Borrower, be held by Agent to cash collateralize the
Obligations and applied by Agent to prepayment of such LIBOR Rate Loans at the end of their
Interest Periods.



     2.5 Overadvances. If, at any time or for any reason, the amount of Obligations owed
by Borrower to the Lender Group pursuant to Section 2.1 or Section 2.11 is greater
than any of the limitations set forth in Section 2.1 or Section 2.11, as applicable
(an “Overadvance”), Borrower shall immediately pay to Agent, in cash, the amount of such
excess, which amount shall be used by Agent to reduce the Obligations in accordance with the
priorities set forth in Section 2.4(b). Borrower promises to pay the Obligations
(including principal, interest, fees, costs, and expenses) in Dollars in full on the Maturity Date
or, if earlier, on the date on which the Obligations are declared due and payable pursuant to the
terms of this Agreement.



     2.6 Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations.



          (a) Interest Rates. Except as provided in Section 2.6(c), all Obligations (except for
undrawn Letters of Credit and except for Bank Product Obligations) that have been charged to the
Loan Account pursuant to the terms hereof shall bear interest on the Daily Balance thereof as
follows:



10









 





               (i) if the relevant Obligation is a LIBOR Rate Loan, at a per annum rate equal to the LIBOR
Rate plus the LIBOR Rate Margin, and



               (ii) otherwise, at a per annum rate equal to the Base Rate plus the Base Rate Margin.



          (b) Letter of Credit Fee. Borrower shall pay Agent (for the ratable benefit of the Lenders
with a Revolver Commitment, subject to any agreements between Agent and individual Lenders), a
Letter of Credit fee (in addition to the charges, commissions, fees, and costs set forth in
Section 2.11(e)) which shall accrue at a per annum rate equal to the LIBOR Rate Margin
times the Daily Balance of the undrawn amount of all outstanding Letters of Credit.



          (c) Default Rate. Upon the occurrence and during the continuation of an Event of Default and
at the election of the Required Lenders,



               (i) all Obligations (except for undrawn Letters of Credit and except for Bank Product
Obligations) that have been charged to the Loan Account pursuant to the terms hereof shall bear
interest on the Daily Balance thereof at a per annum rate equal to 2 percentage points above the
per annum rate otherwise applicable hereunder, and



               (ii) the Letter of Credit fee provided for in Section 2.6(b) shall be increased to 2
percentage points above the per annum rate otherwise applicable hereunder.



          (d) Payment. Except as provided to the contrary in Section 2.10 or Section
2.12(a), interest, Letter of Credit fees, and all other fees payable hereunder shall be due and
payable, in arrears, on the first day of each month at any time that Obligations or Commitments are
outstanding. Borrower hereby authorizes Agent, from time to time without prior notice to Borrower,
to charge all interest and fees (when due and payable), all Lender Group Expenses (as and when
incurred), all charges, commissions, fees, and costs provided for in Section 2.11(e) (as
and when accrued or incurred), all fees and costs provided for in Section 2.10 (as and when
accrued or incurred), and all other payments as and when due and payable under any Loan Document
(including any amounts due and payable to the Bank Product Providers in respect of Bank Products)
to the Loan Account, which amounts thereafter shall constitute Advances hereunder and shall accrue
interest at the rate then applicable to Advances that are Base Rate Loans. Any interest not paid
when due shall be compounded by being charged to the Loan Account and shall thereafter constitute
Advances hereunder and shall accrue interest at the rate then applicable to Advances that are Base
Rate Loans.



          (e) Computation. All interest and fees chargeable under the Loan Documents shall be computed
on the basis of a 360 day year, in each case, for the actual number of days elapsed in the period
during which the interest or fees accrue. In the event the Base Rate is changed from time to time
hereafter, the rates of interest hereunder based upon the Base Rate automatically and immediately
shall be increased or decreased by an amount equal to such change in the Base Rate.



          (f) Intent to Limit Charges to Maximum Lawful Rate. In no event shall the interest rate or
rates payable under this Agreement, plus any other amounts paid in connection herewith, exceed the
highest rate permissible under any law that a court of competent jurisdiction shall, in a final
determination, deem applicable. Borrower and the Lender Group, in executing and delivering this
Agreement, intend legally to agree upon the rate or rates of interest and manner of payment stated
within it; provided, however, that,
anything contained herein to the contrary notwithstanding, if said rate or rates of interest
or manner of payment exceeds the maximum allowable under applicable law, then, ipso facto, as of
the date of this Agreement, Borrower is and shall be liable only for the payment of such maximum as
allowed by law, and payment received from Borrower in excess of such legal maximum, whenever
received, shall be applied to reduce the principal balance of the Obligations to the extent of such
excess.



11









 





     2.7 Crediting Payments. The receipt of any payment item by Agent shall not be
considered a payment on account unless such payment item is a wire transfer of immediately
available federal funds made to the Agent’s Account or unless and until such payment item is
honored when presented for payment. Should any payment item not be honored when presented for
payment, then Borrower shall be deemed not to have made such payment and interest shall be
calculated accordingly. Anything to the contrary contained herein notwithstanding, any payment
item shall be deemed received by Agent only if it is received into the Agent’s Account on a
Business Day on or before 11:00 a.m. (California time). If any payment item is received into the
Agent’s Account on a non-Business Day or after 11:00 a.m. (California time) on a Business Day, it
shall be deemed to have been received by Agent as of the opening of business on the immediately
following Business Day.



     2.8 Designated Account. Agent is authorized to make the Advances and the Term Loan,
and Issuing Lender is authorized to issue the Letters of Credit, under this Agreement based upon
telephonic or other instructions received from anyone purporting to be an Authorized Person or,
without instructions, if pursuant to Section 2.6(d). Borrower agrees to establish and
maintain the Designated Account with the Designated Account Bank for the purpose of receiving the
proceeds of the Advances requested by Borrower and made by Agent or the Lenders hereunder. Unless
otherwise agreed by Agent and Borrower, any Advance, Protective Advance, or Swing Loan requested by
Borrower and made by Agent or the Lenders hereunder shall be made to the Designated Account.



     2.9 Maintenance of Loan Account; Statements of Obligations. Agent shall maintain an
account on its books in the name of Borrower (the “Loan Account”) on which Borrower will be
charged with the Term Loan, all Advances (including Protective Advances and Swing Loans) made by
Agent, Swing Lender, or the Lenders to Borrower or for Borrower’s account, the Letters of Credit
issued by Issuing Lender for Borrower’s account, and with all other payment Obligations hereunder
or under the other Loan Documents (except for Bank Product Obligations), including, accrued
interest, fees and expenses, and Lender Group Expenses. In accordance with Section 2.7,
the Loan Account will be credited with all payments received by Agent from Borrower or for
Borrower’s account. Agent shall render statements regarding the Loan Account to Borrower,
including principal, interest, fees, and including an itemization of all charges and expenses
constituting Lender Group Expenses owing, and such statements, absent manifest error, shall be
conclusively presumed to be correct and accurate and constitute an account stated between Borrower
and the Lender Group unless, within 30 days after receipt thereof by Borrower, Borrower shall
deliver to Agent written objection thereto describing the error or errors contained in any such
statements.



     2.10 Fees. Borrower shall pay to Agent,



          (a) for the account of Agent, as and when due and payable under the terms of the Fee Letter,
the fees set forth in the Fee Letter.



          (b) for the ratable account of those Lenders with Revolver Commitments, on the first day of
each month from and after the Closing Date up to the first day of the month prior to the Payoff
Date and on the Payoff Date, an unused line fee in an amount equal to 0.375% per annum times the
result of (i) the Maximum Revolver Amount, less (ii) the average Daily Balance of the Revolver
Usage during the immediately preceding month (or portion thereof).



     2.11 Letters of Credit.




12









 







          (a) Subject to the terms and conditions of this Agreement, the Issuing Lender agrees to issue
letters of credit for the account of Borrower (each, an “L/C”) or to purchase
participations or execute indemnities, guarantees, or reimbursement obligations (each such
undertaking, an “L/C Undertaking”) with respect to letters of credit issued by an
Underlying Issuer (as of the Closing Date, the prospective Underlying Issuer is to be Wells Fargo)
for the account of Borrower. Each request for the issuance of a Letter of Credit, or the
amendment, renewal, or extension of any outstanding Letter of Credit, shall be made in writing by
an Authorized Person and delivered to the Issuing Lender and Agent via hand delivery,
telefacsimile, or other electronic method of transmission reasonably in advance of the requested
date of issuance, amendment, renewal, or extension. Each such request shall be in form and
substance reasonably satisfactory to the Issuing Lender in its Permitted Discretion and shall
specify (i) the amount of such Letter of Credit, (ii) the date of issuance, amendment, renewal, or
extension of such Letter of Credit, (iii) the expiration date of such Letter of Credit, (iv) the
name and address of the beneficiary thereof (or the beneficiary of the Underlying Letter of Credit,
as applicable), and (v) such other information (including, in the case of an amendment, renewal, or
extension, identification of the outstanding Letter of Credit to be so amended, renewed, or
extended) as shall be necessary to prepare, amend, renew, or extend such Letter of Credit. If
requested by the Issuing Lender, Borrower also shall be an applicant under the application with
respect to any Underlying Letter of Credit that is to be the subject of an L/C Undertaking. The
Issuing Lender shall have no obligation to issue a Letter of Credit if any of the following would
result after giving effect to the issuance of such requested Letter of Credit:



               (i) the Letter of Credit Usage would exceed the Credit Amount less the sum of (A) the Bank
Product Reserve, and (B) the outstanding amount of Advances, or



               (ii) the Letter of Credit Usage would exceed $7,500,000, or



               (iii) the Letter of Credit Usage would exceed the Maximum Revolver Amount less the sum of (A)
the Bank Product Reserve, and (B) the outstanding amount of Advances.



     Borrower and the Lender Group acknowledge and agree that certain Underlying Letters of Credit
may be issued to support letters of credit that already are outstanding as of the Closing Date,
including the SVB Letter of Credit. Borrower and the Lender Group acknowledge and agree that the
Existing WFB Letter of Credit shall for all purposes under this Agreement and the other Loan
Documents be deemed to be an Underlying Letter of Credit for which Issuing Lender has issued an L/C
Undertaking. Each Letter of Credit (and corresponding Underlying Letter of Credit) shall be in
form and substance acceptable to the Issuing Lender (in the exercise of its Permitted Discretion),
including the requirement that the amounts payable thereunder must be payable in Dollars. If
Issuing Lender is obligated to advance funds under a Letter of Credit, Borrower shall reimburse
such L/C Disbursement to Issuing Lender by paying to Agent an amount equal to such L/C Disbursement
not later than 11:00 a.m., California time, on the date that such L/C Disbursement is made, if
Borrower shall have received written or telephonic notice of such L/C Disbursement prior to 10:00
a.m., California time, on such date, or, if such notice has not been received by Borrower prior to
such time on such date, then not later than 11:00 a.m., California time, on the Business Day that
Borrower receives such notice, if such notice is received prior to 10:00 a.m., California time, on
the date of receipt, and, in the absence of such reimbursement, the L/C Disbursement immediately
and automatically shall be deemed to be an Advance hereunder and, initially, shall bear interest at
the rate then applicable to Advances that are Base Rate Loans. To the extent an L/C Disbursement
is deemed to be an Advance hereunder, Borrower’s obligation to reimburse such L/C Disbursement
shall be discharged and replaced by the resulting Advance. Promptly following receipt by Agent of
any payment from Borrower pursuant to this paragraph, Agent shall distribute such payment to the
Issuing Lender or, to the extent that Lenders have made payments pursuant to Section
2.11(b) to reimburse the Issuing Lender, then to such Lenders and the Issuing Lender as their
interests may appear.




13









 







          (b) Promptly following receipt of a notice of L/C Disbursement pursuant to Section
2.11(a), each Lender with a Revolver Commitment agrees to fund its Pro Rata Share of any
Advance deemed made pursuant to the foregoing subsection on the same terms and conditions as if
Borrower had requested such Advance and Agent shall promptly pay to Issuing Lender the amounts so
received by it from the Lenders. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Lender or the Lenders with Revolver Commitments, the Issuing Lender shall be deemed to have
granted to each Lender with a Revolver Commitment, and each Lender with a Revolver Commitment shall
be deemed to have purchased, a participation in each Letter of Credit, in an amount equal to its
Pro Rata Share of the Risk Participation
Liability of such Letter of Credit, and each such Lender
agrees to pay to Agent, for the account of the Issuing Lender, such Lender’s Pro Rata Share of any
payments made by the Issuing Lender under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender with a Revolver Commitment hereby absolutely and
unconditionally agrees to pay to Agent, for the account of the Issuing Lender, such Lender’s Pro
Rata Share of each L/C Disbursement made by the Issuing Lender and not reimbursed by Borrower on
the date due as provided in Section 2.11(a), or of any reimbursement payment required to be
refunded to Borrower for any reason. Each Lender with a Revolver Commitment acknowledges and
agrees that its obligation to deliver to Agent, for the account of the Issuing Lender, an amount
equal to its respective Pro Rata Share of each L/C Disbursement made by the Issuing Lender pursuant
to this Section 2.11(b) shall be absolute and unconditional and such remittance shall be
made notwithstanding the occurrence or continuation of an Event of Default or Default or the
failure to satisfy any condition set forth in Section 3. If any such Lender fails to make
available to Agent the amount of such Lender’s Pro Rata Share of each L/C Disbursement made by the
Issuing Lender in respect of such Letter of Credit as provided in this Section, such Lender shall
be deemed to be a Defaulting Lender and Agent (for the account of the Issuing Lender) shall be
entitled to recover such amount on demand from such Lender together with interest thereon at the
Defaulting Lender Rate until paid in full.



          (c) Borrower hereby agrees to indemnify, save, defend, and hold the Lender Group harmless from
any loss, cost, expense, or liability, and reasonable attorneys fees incurred by the Lender Group
arising out of or in connection with any Letter of Credit; provided, however, that Borrower shall
not be obligated hereunder to indemnify for any loss, cost, expense, or liability to the extent
that it is caused by the gross negligence or willful misconduct of the Issuing Lender or any other
member of the Lender Group. Borrower agrees to be bound by the Underlying Issuer’s regulations and
interpretations of any Underlying Letter of Credit or by Issuing Lender’s interpretations of any
L/C issued by Issuing Lender to or for Borrower’s account, even though this interpretation may be
different from Borrower’s own, and Borrower understands and agrees that the Lender Group shall not
be liable for any error, negligence, or mistake, whether of omission or commission, in following
Borrower’s instructions or those contained in the Letter of Credit or any modifications,
amendments, or supplements thereto. Borrower understands that the L/C Undertakings may require
Issuing Lender to indemnify the Underlying Issuer for certain costs or liabilities arising out of
claims by Borrower against such Underlying Issuer. Borrower hereby agrees to indemnify, save,
defend, and hold the Lender Group harmless with respect to any loss, cost, expense (including
reasonable attorneys fees), or liability incurred by the Lender Group under any L/C Undertaking as
a result of the Lender Group’s indemnification of any Underlying Issuer; provided,
however, that Borrower shall not be obligated hereunder to indemnify for any loss, cost,
expense, or liability to the extent that it is caused by the gross negligence or willful misconduct
of the Issuing Lender or any other member of the Lender Group. Borrower hereby acknowledges and
agrees that neither the Lender Group nor the Issuing Lender shall be responsible for delays,
errors, or omissions resulting from the malfunction of equipment in connection with any Letter of
Credit.



          (d) Borrower hereby authorizes and directs any Underlying Issuer to deliver to the Issuing
Lender all instruments, documents, and other writings and property received by such Underlying
Issuer pursuant to such Underlying Letter of Credit and to accept and rely upon the Issuing
Lender’s instructions with respect to all matters arising in connection with such Underlying Letter
of Credit and the related application.



          (e) Any and all issuance charges, commissions, fees, and costs incurred by the Issuing Lender
relating to Underlying Letters of Credit shall be Lender Group Expenses for purposes of this
Agreement and shall be reimbursable immediately by Borrower to Agent for the account of the
Issuing Lender; it being acknowledged and agreed by Borrower that, as of the Closing Date, the
issuance charge imposed by the prospective Underlying Issuer is .825% per annum times the undrawn
amount of each Underlying Letter of Credit, that such issuance charge may be changed from time to
time, and that the Underlying Issuer also imposes a schedule of charges for amendments, extensions,
drawings, and renewals.




14









 







          (f) If by reason of (i) any change after the Closing Date in any applicable law, treaty, rule,
or regulation or any change in the interpretation or application thereof by any Governmental
Authority, or (ii) compliance by the Underlying Issuer or the Lender Group with any direction,
request, or requirement (irrespective of whether having the force of law) of any Governmental
Authority or monetary authority including, Regulation D of the Federal Reserve Board as from time
to time in effect (and any successor thereto):



               (i) any reserve, deposit, or similar requirement is or shall be imposed or modified in respect
of any Letter of Credit issued hereunder, or



               (ii) there shall be imposed on the Underlying Issuer or the Lender Group any other condition
regarding any Underlying Letter of Credit or any Letter of Credit issued pursuant hereto,


and the result of the foregoing is to increase, directly or indirectly, the cost to the Lender
Group of issuing, making, guaranteeing, or maintaining any Letter of Credit or to reduce the amount
receivable in respect thereof by the Lender Group, then, and in any such case, Agent may, at any
time within a reasonable period after the additional cost is incurred or the amount received is
reduced, notify Borrower, and Borrower shall pay within 30 days after demand therefor, such amounts
as Agent may specify to be necessary to compensate the Lender Group for such additional cost or
reduced receipt, together with interest on such amount from the date of such demand until payment
in full thereof at the rate then applicable to Base Rate Loans hereunder; provided that
Borrower shall not be required to compensate a Lender pursuant to this Section for any such amounts
incurred more than 180 days prior to the date that such Lender first demands payment from Borrower
of such amounts; provided further that if an event or circumstance giving rise to
such amounts is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof. The determination by Agent of any amount due pursuant to
this Section, as set forth in a certificate setting forth the calculation thereof in reasonable
detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and
binding on all of the parties hereto.




     2.12 LIBOR Option.



          (a) Interest and Interest Payment Dates. In lieu of having interest charged at the rate based
upon the Base Rate, Borrower shall have the option (the “LIBOR Option”) to have interest on
all or a portion of the Advances or the Term Loan be charged (whether at the time when made (unless
otherwise provided herein), upon conversion from a Base Rate Loan to a LIBOR Rate Loan, or upon
continuation of a LIBOR Rate Loan as a LIBOR Rate Loan) at a rate of interest based upon the LIBOR
Rate. Interest on LIBOR Rate Loans shall be payable on the earliest of (i) the last day of the
Interest Period applicable thereto; (ii) the date on which all or any portion of the Obligations
are accelerated pursuant to the terms hereof, or (iii) the date on which this Agreement is
terminated pursuant to the terms hereof. On the last day of each applicable Interest Period,
unless Borrower properly has exercised the LIBOR Option with respect thereto, the interest rate
applicable to such LIBOR Rate Loan automatically shall convert to the rate of interest then
applicable to Base Rate Loans of the same type hereunder. At any time that an Event of Default has
occurred and is continuing, Borrower no longer shall have the option to request that Advances or
the Term Loan bear interest at a rate based upon the LIBOR Rate.



          (b) LIBOR Election.



               (i) Borrower may, at any time and from time to time, so long as no Event of Default has
occurred and is continuing, elect to exercise the LIBOR Option by notifying Agent prior to 11:00
a.m. (California time) at least 3 Business Days prior to the commencement of the proposed Interest
Period (the “LIBOR Deadline”). Notice of Borrower’s election of the LIBOR Option for a
permitted portion of the Advances or the Term Loan and an Interest Period pursuant to this Section
shall be made by delivery to Agent of a LIBOR Notice received by Agent before the LIBOR Deadline,
or by telephonic notice received by Agent before the LIBOR Deadline (to be confirmed by delivery to
Agent of a LIBOR Notice received by Agent prior to 5:00 p.m. (California time) on the same day).
Promptly upon its receipt of each such LIBOR Notice, Agent shall provide a copy thereof to each of
the affected Lenders.



15









 





               (ii) Each LIBOR Notice shall be irrevocable and binding on Borrower. In connection with each
LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against
any loss, cost, or expense actually incurred by Agent or any Lender as a result of (A) the payment
of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (B) the conversion of any LIBOR Rate Loan
other than on the last day of the Interest Period applicable thereto, or (C) the failure to borrow,
convert, continue or prepay any LIBOR Rate Loan on the date specified in any LIBOR Notice delivered
pursuant hereto (such losses, costs, or expenses, “Funding Losses”). A certificate of
Agent or a Lender delivered to Borrower setting forth in reasonable detail any amount or amounts
that Agent or such Lender is entitled to receive pursuant to this Section 2.12 shall be
conclusive absent manifest error. Borrower shall pay such amount to Agent or the Lender, as
applicable, within 30 days of the date of its receipt of such certificate.



               (iii) Borrower shall have not more than 5 LIBOR Rate Loans in effect at any given time.
Borrower only may exercise the LIBOR Option for LIBOR Rate Loans of at least $1,000,000.



          (c) Conversion. Borrower may convert LIBOR Rate Loans to Base Rate Loans at any time;
provided, however, that in the event that LIBOR Rate Loans are converted or prepaid
on any date that is not the last day of the Interest Period applicable thereto, including as a
result of any automatic prepayment through the required application by Agent of proceeds of
Borrower’s and its Subsidiaries’ Collections in accordance with Section 2.4(b) or for any
other reason, including early termination of the term of this Agreement or acceleration of all or
any portion of the Obligations pursuant to the terms hereof, Borrower shall indemnify, defend, and
hold Agent and the Lenders and their Participants harmless against any and all Funding Losses in
accordance with Section 2.12(b)(ii) above.



          (d) Special Provisions Applicable to LIBOR Rate.



               (i) The LIBOR Rate may be adjusted by Agent with respect to any Lender on a prospective basis
to take into account any additional or increased costs to such Lender of maintaining or obtaining
any eurodollar deposits or increased costs, in each case, due to changes in applicable law
occurring subsequent to the commencement of the then applicable Interest Period, including changes
in tax laws (except (1) changes of general applicability in corporate income tax laws and (2)
changes in tax laws with respect to any taxes required to be withheld or deducted by Borrower
(which is addressed in clauses (b) through (g) of Section 16)) and changes in the reserve
requirements imposed by the Board of Governors of the Federal Reserve System (or any successor),
excluding the Reserve Percentage, which additional or increased costs would increase the cost of
funding or maintaining loans bearing interest at the LIBOR Rate. In any such event, the affected
Lender shall give Borrower and Agent notice of such a determination and adjustment and Agent
promptly shall transmit the notice to each other Lender and, upon its receipt of the notice from
the affected Lender, Borrower may, by notice to such affected Lender (y) require such Lender to
furnish to Borrower a statement setting forth the basis for adjusting such LIBOR Rate and the
method for determining the amount of such adjustment, or (z) repay the LIBOR Rate Loans with
respect to which such adjustment is made (together with any amounts due under Section
2.12(b)(ii)).



               (ii) In the event that any change in market conditions or any law, regulation, treaty, or
directive, or any change therein or in the interpretation or application thereof, shall at any time
after the date hereof, in the reasonable opinion of any Lender, make it unlawful or impractical for
such Lender to fund or maintain LIBOR Rate Loans or to continue such funding or maintaining, or to
determine or charge interest rates at the LIBOR Rate, such Lender shall give notice of such changed
circumstances to Agent and Borrower and Agent promptly shall transmit the notice to each other
Lender and (y) in the case of any LIBOR Rate Loans of such Lender that are outstanding, the date
specified in such Lender’s notice shall be deemed to be the last day of the Interest Period of such
LIBOR Rate Loans, and interest upon the LIBOR Rate Loans of such Lender thereafter shall accrue
interest at the rate then applicable to Base Rate Loans, and (z) Borrower shall not be entitled to
elect the LIBOR Option until such Lender determines that it would no longer be unlawful or
impractical to do so.



16









 





          (e) No Requirement of Matched Funding. Anything to the contrary contained herein
notwithstanding, neither Agent, nor any Lender, nor any of their Participants, is required actually
to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest
accrues at the LIBOR Rate.



     2.13 Capital Requirements.



          (a) If, after the date hereof, any Lender determines that (i) the adoption of or change in any
law, rule, regulation or guideline regarding capital requirements for banks or bank holding
companies, or any change in the interpretation or application thereof by any Governmental Authority
charged with the administration thereof, or (ii) compliance by such Lender or its parent bank
holding company with any guideline, request or directive of any such entity regarding capital
adequacy (whether or not having the force of law), has the effect of reducing the return on such
Lender’s or such holding company’s capital as a consequence of such Lender’s Commitments hereunder
to a level below that which such Lender or such holding company could have achieved but for such
adoption, change, or compliance (taking into consideration such Lender’s or such holding company’s
then existing policies with respect to capital adequacy and assuming the full utilization of such
entity’s capital) by any amount deemed by such Lender to be material, then such Lender may notify
Borrower and Agent thereof. Following receipt of such notice, Borrower agrees to pay such Lender
on demand the amount of such reduction of return of capital as and when such reduction is
determined, payable within 30 days after presentation by such Lender of a statement in the amount
and setting forth in reasonable detail such Lender’s calculation thereof and the assumptions upon
which such calculation was based (which statement shall be deemed true and correct absent manifest
error). In determining such amount, such Lender may use any reasonable averaging and attribution
methods. Failure or delay on the part of any Lender to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s right to demand such compensation;
provided that Borrower shall not be required to compensate a Lender pursuant to this
Section for any reductions in return incurred more than 180 days prior to the date that such Lender
notifies Borrower of such law, rule, regulation or guideline giving rise to such reductions and of
such Lender’s intention to claim compensation therefor; provided further that if
such claim arises by reason of the adoption of or change in any law, rule, regulation or guideline
that is retroactive, then the 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.



          (b) If any Lender requests additional or increased costs referred to in Section
2.12(d)(i) or amounts under Section 2.13(a) (any such Lender, an “Affected
Lender”), then such Affected Lender shall use reasonable efforts to promptly designate a
different one of its lending offices or to assign its rights and obligations hereunder to another
of its offices or branches, if (i) in the reasonable judgment of such Affected Lender, such
designation or assignment would eliminate or reduce amounts payable pursuant to Section
2.12(d)(i) or Section 2.13(a), as applicable, and (ii) in the reasonable judgment of
such Affected Lender, such designation or assignment would not subject it to any material
unreimbursed cost or expense and would not otherwise be materially disadvantageous to it. Borrower
agrees to pay all reasonable out-of-pocket costs and expenses incurred by such Affected Lender in
connection with any such designation or assignment. If, after such reasonable efforts, such
Affected Lender does not so designate a different one of its lending offices or
assign its rights to another of its offices or branches so as to eliminate Borrower’s
obligation to pay any future amounts to such Affected Lender pursuant to Section 2.12(d)(i)
or Section 2.13(a), as applicable, then Borrower (without prejudice to any amounts then due
to such Affected Lender under Section 2.12(d)(i) or Section 2.13(a), as applicable)
may, unless prior to the effective date of any such assignment the Affected Lender withdraws its
request for such additional amounts under Section 2.12(d)(i) or Section 2.13(a), as
applicable, designate another Lender reasonably acceptable to Agent to purchase the Obligations
owed to such Affected Lender and such Affected Lender’s Commitments hereunder (a “Replacement
Lender”), such Affected Lender shall assign to the Replacement Lender its Obligations and
Commitments, pursuant to an Assignment and Acceptance Agreement, and upon such purchase by the
Replacement Lender, such Replacement Lender shall be deemed to be a “Lender” for purposes of this
Agreement and such Affected Lender shall cease to be a “Lender” for purposes of this Agreement.



17









 





3. CONDITIONS; TERM OF AGREEMENT.




     3.1 Conditions Precedent to the Initial Extension of Credit. The obligation of each
Lender to make its initial extension of credit provided for hereunder, is subject to the
fulfillment, to the satisfaction of Agent and each Lender of each of the conditions precedent set
forth on Schedule 3.1 (the making of such initial extension of credit by a Lender being
conclusively deemed to be its satisfaction or waiver of the conditions precedent ).



     3.2 Conditions Precedent to all Extensions of Credit. The obligation of the Lender
Group (or any member thereof) to make any Advances hereunder (or to extend any other credit
hereunder) at any time shall be subject to the following conditions precedent:



          (a) the representations and warranties of Borrower or its Subsidiaries contained in this
Agreement or in the other Loan Documents shall be true and correct in all material respects (except
that such materiality qualifier shall not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text thereof) on and as of the date of such
extension of credit, as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date); and



          (b) no Default or Event of Default shall have occurred and be continuing on the date of such
extension of credit, nor shall either result from the making thereof.



     3.3 Term. This Agreement shall continue in full force and effect for a term ending on
December 24, 2012 (the “Maturity Date”). The foregoing notwithstanding, the Lender Group,
upon the election of the Required Lenders, shall have the right to terminate its obligations under
this Agreement immediately and without notice upon the occurrence and during the continuation of an
Event of Default.



     3.4 Effect of Termination. On the date of termination of this Agreement, all
Obligations (including contingent reimbursement obligations of Borrower with respect to outstanding
Letters of Credit and including all Bank Product Obligations) immediately shall become due and
payable without notice or demand (including the requirement that Borrower provide (a) Letter of
Credit Collateralization, and (b) Bank Product Collateralization). No termination of this
Agreement, however, shall relieve or discharge Borrower or its Subsidiaries of their duties,
Obligations, or covenants hereunder or under any other Loan Document and the Agent’s Liens in the
Collateral shall remain in effect until all Obligations have been paid in full and the Lender
Group’s obligations to provide additional credit hereunder have been terminated. When this
Agreement has been terminated and all of the Obligations have been paid in full and the Lender
Group’s obligations to provide additional credit under the Loan Documents have been terminated
irrevocably, Agent will, at Borrower’s sole expense, execute and deliver any termination
statements, lien releases, mortgage releases, re-assignments of trademarks, discharges of security
interests, and other similar discharge or release documents (and, if applicable, in recordable
form) as are reasonably necessary to release, as of record, the Agent’s Liens and all notices of
security interests and liens previously filed by Agent with respect to the Obligations.



     3.5 Early Termination by Borrower. Borrower has the option, at any time upon 5
Business Days prior written notice to Agent, to terminate this Agreement and terminate the
Commitments hereunder by paying to Agent the Obligations (including (a) providing Letter of Credit
Collateralization with respect to the then existing Letter of Credit Usage, and (b) providing Bank
Product Collateralization with respect to the then existing Bank Products), in full. If Borrower
has sent a notice of termination pursuant to the provisions of this Section, then the Commitments
shall terminate and Borrower shall be obligated to make the foregoing payments of the Obligations
on the date set forth as the date of termination of this Agreement in such notice, provided,
however, that notwithstanding the foregoing, Borrower may rescind such a termination notice twice
during the term of this Agreement by written notice received by Agent prior to 9:00 a.m.
(California time) on the date set forth as the date of termination in such notice of termination.



18









 





     3.6 Conditions Subsequent. The obligation of the Lender Group (or any member thereof)
to continue to make Advances (or otherwise extend credit hereunder) is subject to the fulfillment,
on or before the date applicable thereto, of each of the conditions subsequent set forth on
Schedule 3.6 (the failure by the Borrower to so perform or cause to be performed
constituting an Event of Default).



4. REPRESENTATIONS AND WARRANTIES.




     In order to induce the Lender Group to enter into this Agreement, Borrower makes the following
representations and warranties to the Lender Group which shall be true, correct, and complete, in
all material respects, as of the date hereof, and shall be true, correct, and complete, in all
material respects, as of the Closing Date and at and as of the date of the making of each Advance
(or other extension of credit) made thereafter, as though made on and as of the date of such
Advance (or other extension of credit) (except to the extent that such representations and
warranties relate solely to an earlier date) and such representations and warranties shall survive
the execution and delivery of this Agreement:



     4.1 Due Organization and Qualification; Subsidiaries.



          (a) Each Loan Party (i) is duly organized and existing and in good standing under the laws of
the jurisdiction of its organization, (ii) qualified to do business in any state where the failure
to be so qualified reasonably could be expected to result in a Material Adverse Change, and (iii)
has all requisite power and authority to own and operate its properties, to carry on its business
as now conducted and as proposed to be conducted, to enter into the Loan Documents to which it is a
party and to carry out the transactions contemplated thereby.



          (b) Borrower’s most recent public filings made with the SEC set forth a complete and accurate
description of the authorized capital Stock of Borrower, by class, and a description of the number
of shares of each such class that were issued and outstanding as of the date of such filings.



          (c) Set forth on Schedule 4.1(c) to the Disclosure Letter (as such Schedule may be
updated from time to time to reflect changes permitted to be made under Section 5.11), is a
complete and accurate list of the Loan Parties’ direct and indirect Subsidiaries (other than
Excluded Subsidiaries), showing: (i) the number of shares of each class of common and preferred
Stock authorized for each of such Subsidiaries (other than Excluded Subsidiaries), and (ii) the
number and the percentage of the outstanding shares of each such class owned directly or indirectly
by Borrower. All of the outstanding capital Stock of each such Subsidiary (other than Excluded
Subsidiaries) has been validly issued and is fully paid and non-assessable.



          (d) Except as set forth on Schedule 4.1(c) to the Disclosure Letter, there are no
subscriptions, options, warrants, or calls relating to any shares of Borrower’s Subsidiaries’
(other than Excluded Subsidiaries) capital Stock, including any right of conversion or exchange
under any outstanding security or other instrument. Neither Borrower nor any of its Subsidiaries
(other than Excluded Subsidiaries) is subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of
Borrower’s Subsidiaries’ capital Stock or any security convertible into or exchangeable for
any such capital Stock.



     4.2 Due Authorization; No Conflict.



          (a) As to each Loan Party, the execution, delivery, and performance by such Loan Party of the
Loan Documents to which it is a party have been duly authorized by all necessary action on the part
of such Loan Party.




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          (b) As to each Loan Party, the execution, delivery, and performance by such Loan Party of the
Loan Documents to which it is a party do not and will not (i) violate any material provision of
federal, state, or local law or regulation applicable to any Loan Party or its Subsidiaries, the
Governing Documents of any Loan Party or its Subsidiaries, or any order, judgment, or decree of any
court or other Governmental Authority binding on any Loan Party or its Subsidiaries, (ii) conflict
with, result in a breach of, or constitute (with due notice or lapse of time or both) a default
under any Material Contract of any Loan Party or its Subsidiaries except to the extent that any
such conflict, breach or default could not individually or in the aggregate reasonably be expected
to have a Material Adverse Change, (iii) result in or require the creation or imposition of any
Lien of any nature whatsoever upon any assets of any Loan Party, other than Permitted Liens, or
(iv) require any approval of the holder of any Loan Party’s Stock or any approval or consent of any
Person under any Material Contract of any Loan Party, other than consents or approvals that have
been obtained and that are still in force and effect and except, in the case of Material Contracts,
for consents or approvals, the failure to obtain could not individually or in the aggregate
reasonably be expected to cause a Material Adverse Change.



     4.3 Governmental Consents. The execution, delivery, and performance by each Loan
Party of the Loan Documents to which such Loan Party is a party and the consummation of the
transactions contemplated by the Loan Documents do not and will not require any registration with,
consent, or approval of, or notice to, or other action with or by, any Governmental Authority,
other than consents or approvals that have been obtained and that are still in force and effect and
except for filings and recordings with respect to the Collateral to be made, or otherwise delivered
to the Agent for filing or recordation, as of the Closing Date.



     4.4 Binding Obligations; Perfected Liens.



          (a) Each Loan Document has been duly executed and delivered by each Loan Party that is a party
thereto and is the legally valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its respective terms, except as enforcement may be limited by
equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws
relating to or limiting creditors’ rights generally.



          (b) The Agent’s Liens are validly created, perfected (other than (i) in respect of motor
vehicles and (ii) any Deposit Accounts and Securities Accounts not subject to a Control Agreement
as permitted by Section 6.11, and subject only to the filing of financing statements and
the recordation of the Mortgages), and first priority Liens, subject only to Permitted Liens.



     4.5 Title to Assets; No Encumbrances. Each of the Loan Parties and its Subsidiaries
has (i) good, sufficient and legal title to (in the case of fee interests in Real Property), (ii)
valid leasehold interests in (in the case of leasehold interests in real or personal property), and
(iii) good and marketable title to (in the case of all other personal property), all of their
respective assets reflected in their most recent financial statements delivered pursuant to
Section 5.1, in each case except for assets disposed of since the date of such financial
statements to the extent permitted hereby. All of such assets are free and clear of Liens except
for Permitted Liens.



     4.6 Jurisdiction of Organization; Location of Chief Executive Office; Organizational
Identification Number; Commercial Tort Claims.



          (a) The name of (within the meaning of Section 9-503 of the Code) and jurisdiction of
organization of each Loan Party and each of its Subsidiaries is set forth on Schedule
4.6(a) to the Disclosure Letter (as such Schedule may be updated from time to time to reflect
changes permitted to be made under Section 6.5).



          (b) The chief executive office of each Loan Party is located at the address indicated on
Schedule 4.6(b) to the Disclosure Letter (as such Schedule may be updated from time to time
to reflect changes permitted to be made under Section 5.15).



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          (c) Each Loan Party’s tax identification numbers and organizational identification numbers, if
any, are identified on Schedule 4.6(c) to the Disclosure Letter (as such Schedule may be
updated from time to time to reflect changes permitted to be made under Section 6.5).



          (d) As of the Closing Date, no Loan Party holds any commercial tort claims, except as set
forth on Schedule 4.6(d) to the Disclosure Letter.



     4.7 Litigation.



          (a) There are no actions, suits, or proceedings pending or, to the actual knowledge of senior
management of Borrower following reasonable inquiry, threatened in writing against a Loan Party or
any of its Subsidiaries that either individually or in the aggregate could reasonably be expected
to result in a Material Adverse Change.



          (b) Schedule 4.7(b) to the Disclosure Letter sets forth a complete and accurate
description, with respect to each of the material actions, suits, or proceedings that, as of the
Closing Date, is pending or, to the actual knowledge of senior management of Borrower following
reasonable inquiry, is threatened in writing against a Loan Party or any of its Subsidiaries.



     4.8 Compliance with Laws. No Loan Party nor any of its Subsidiaries (a) is in
violation of any applicable laws, rules, regulations, executive orders, or codes (including
Environmental Laws) that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Change, or (b) is subject to or in default with respect to any final judgments,
writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or
other governmental department, commission, board, bureau, agency or instrumentality, domestic or
foreign, that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Change.



     4.9 No Material Adverse Change. All financial statements relating to the Loan Parties
and their Subsidiaries that have been delivered by Borrower to Agent have been prepared in
accordance with GAAP (except, in the case of unaudited financial statements, for the lack of
footnotes and being subject to year-end audit adjustments) and present fairly in all material
respects, the Loan Parties’ and their Subsidiaries’ consolidated financial condition as of the date
thereof and consolidated results of operations for the period then ended. Since September 30,
2008, no event, circumstance, or change has occurred that has or could reasonably be expected to
result in a Material Adverse Change with respect to the Loan Parties and their Subsidiaries, taken
as a whole.



     4.10 Fraudulent Transfer.



          (a) The Loan Parties, taken as a whole, are Solvent.



          (b) No transfer of property (including in connection with each Permitted Stock Repurchase) is
being made by any Loan Party and no obligation is being incurred by any Loan Party in connection
with the transactions contemplated by this Agreement or the other Loan Documents with the intent to
hinder, delay, or defraud either present or future creditors of such Loan Party.



     4.11 Employee Benefits. No Loan Party, none of their Subsidiaries, nor any of their
ERISA Affiliates maintains or contributes to any Benefit Plan.




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     4.12 Environmental Condition. Except as set forth on Schedule 4.12 to the
Disclosure Letter, (a) to Borrower’s knowledge, no Loan Party’s or its Subsidiaries’ properties or
assets has ever been used by a Loan Party, its Subsidiaries, or by previous owners or operators in
the disposal of, or to produce, store, handle, treat, release, or transport, any Hazardous
Materials, where such disposal, production, storage, handling, treatment, release or transport was
in violation, in any material respect, of any applicable Environmental Law,
(b) to Borrower’s
knowledge, no Loan Party’s or its Subsidiaries’ properties or assets has ever been designated or
identified in any manner pursuant to any environmental protection statute as a Hazardous Materials
disposal site, (c) no Loan Party nor any of its Subsidiaries has received notice that a Lien
arising under any Environmental Law has attached to any revenues or to any Real Property owned or
operated by a Loan Party or its Subsidiaries, and (d) no Loan Party nor any of its Subsidiaries nor
any of their respective facilities or operations is subject to any outstanding written order,
consent decree, or settlement agreement with any Person relating to any Environmental Law or
Environmental Liability that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Change.



     4.13 Intellectual Property. Each Loan Party owns, or holds licenses in, all
trademarks, trade names, copyrights, patents, and licenses that are necessary to the conduct of its
business as currently conducted, and attached hereto as Schedule 4.13 to the Disclosure
Letter (as updated from time to time) is a true, correct, and complete listing of all material
trademarks and trademark applications, trade names, copyrights and copyright applications, patents
and patent applications, and licenses as to which Borrower or one of its Subsidiaries is the owner
or is an exclusive licensee (but excluding any (i) off-the-shelf software license agreement, (ii)
open source codes, (iii) end-user agreements with such Loan Party’s customers, partners,
distributors, resellers and end users of such customers, partners, distributers, and resellers);
provided, however, that Borrower may amend Schedule 4.13 to the Disclosure
Letter to add additional intellectual property.



     4.14 Leases. Each Loan Party and its Subsidiaries enjoy peaceful and undisturbed
possession under all leases material to their business and to which they are parties or under which
they are operating, and, subject to Permitted Protests, all of such material leases are valid and
subsisting and no material default by the applicable Loan Party or its Subsidiaries exists under
any of them.



     4.15 Deposit Accounts and Securities Accounts. Set forth on Schedule 4.15 to
the Disclosure Letter (as updated pursuant to the provisions of the Security Agreement from time to
time) is a listing of all of the Loan Parties’ and (and upon the request of Agent) their
Subsidiaries’ Deposit Accounts and Securities Accounts, including, with respect to each bank or
securities intermediary (a) the name and address of such Person, and (b) the account numbers of the
Deposit Accounts or Securities Accounts maintained with such Person.



     4.16 Complete Disclosure. All factual information (taken as a whole) furnished by or
on behalf of a Loan Party or its Subsidiaries in writing to Agent or any Lender (including all
information contained in the Schedules hereto, in the Disclosure Letter or in the other Loan
Documents) for purposes of or in connection with this Agreement, the other Loan Documents, or any
transaction contemplated herein or therein is, and all other such factual information (taken as a
whole) hereafter furnished by or on behalf of a Loan Party or its Subsidiaries in writing to Agent
or any Lender will be, true and accurate, in all material respects, on the date as of which such
information is dated or certified and not incomplete by omitting to state any fact necessary to
make such information (taken as a whole) not misleading in any material respect at such
time in light of the circumstances under which such information was provided. On the Closing
Date, the Closing Date Projections represent, and as of the date on which any other Projections are
delivered to Agent, such additional Projections represent Borrower’s good faith estimate of the
Loan Parties’ and their Subsidiaries future performance for the periods covered thereby based upon
assumptions believed by Borrower to be reasonable at the time of the delivery thereof to Agent (it
being understood that such projections and forecasts are subject to uncertainties and
contingencies, many of which are beyond the control of the Loan Parties and their Subsidiaries and
no assurances can be given that such projections or forecasts will be realized).




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     4.17 Material Contracts. Set forth on Schedule 4.17 to the Disclosure Letter
(as updated from time to time) is a reasonably detailed description of the Material Contracts of
each Loan Party and its Subsidiaries; provided, however, that Borrower may amend
such Schedule 4.17 to add additional Material Contracts so long as such amendment occurs by
written notice to Agent upon the sooner to occur of (i) at the time that Borrower provides its
quarterly financial statements pursuant to Section 5.1, or (ii) at the time that Borrower
requests Advances or L/Cs. Except for matters which, either individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Change, each Material Contract
(other than those that have expired at the end of their normal terms) (a) is in full force and
effect and is binding upon and enforceable against the applicable Loan Party or its Subsidiary and,
to the best of Borrower’s knowledge, each other Person that is a party thereto in accordance with
its terms, except as enforcement may be limited by equitable principles or by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights
generally, (b) has not been otherwise amended or modified (other than amendments or modifications
permitted by Section 6.7(b)), and (c) is not in default due to the action or inaction of
the applicable Loan Party or its Subsidiary.



     4.18 Patriot Act. To the extent applicable, each Loan Party is in compliance, in all
material respects, with the (a) Trading with the Enemy Act, as amended, and each of the foreign
assets control regulations of the Untied States Treasury Department (31 CFR, Subtitle B, Chapter V,
as amended) and any other enabling legislation or executive order relating thereto, and (b) Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA Patriot Act of 2001) (the “Patriot Act”). No part of the proceeds of the
loans made hereunder will be used, directly or indirectly, for any payments to any governmental
official or employee, political party, official of a political party, candidate for political
office, or anyone else acting in an official capacity, in order to obtain, retain or direct
business or obtain any improper advantage, in violation of the United States Foreign Corrupt
Practices Act of 1977, as amended.



     4.19 Indebtedness. Set forth on Schedule 4.19 to the Disclosure Letter is a
true and complete list of all Indebtedness of each Loan Party and each of its Subsidiaries
outstanding immediately prior to the Closing Date that is to remain outstanding after the Closing
Date and such Schedule accurately sets forth the aggregate principal amount of such Indebtedness as
of the Closing Date.



     4.20 Payment of Taxes. Except as otherwise permitted under Section 5.5, all
tax returns and reports of each Loan Party and its Subsidiaries required to be filed by any of them
have been timely filed, and all taxes shown on such tax returns to be due and payable and all
assessments, fees and other governmental charges upon a Loan Party and its Subsidiaries and upon
their respective assets, income, businesses and franchises that are due and payable have been paid
when due and payable. Each Loan Party and each of its Subsidiaries have made adequate provision in
accordance with GAAP for all taxes not yet due and payable. Borrower knows of no proposed tax
assessment against a Loan Party or any of its Subsidiaries that is not being actively contested by
such Loan Party or such Subsidiary diligently, in good faith, and by appropriate proceedings;
provided such reserves or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made or provided therefor. No Loan Party nor any of its
Subsidiaries has ever been a party to any understanding or arrangement constituting a “tax shelter”
within the meaning of Section 6662(d)(2)(C)(iii) of the IRC or within the meaning of Section
6111(c) or Section 6111(d) of the IRC as in effect immediately prior to the enactment of the
American Jobs Creation Act of 2004, or has ever “participated” in a “reportable transaction” within
the meaning of Treasury Regulation Section 1.6011-4,
except as would not be reasonably expected to, individually or in the aggregate, result in a
Material Adverse Change.



     4.21 Margin Stock. No Loan Party nor any of its Subsidiaries is engaged principally,
or as one of its important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock. No part of the proceeds of the loans made to Borrower
will be used for any purpose that violates, or is inconsistent with, the provisions of Regulation
T, U or X of the Board of Governors of the Federal Reserve System as in effect from time to time.



     4.22 Governmental Regulation. No Loan Party nor any of its Subsidiaries is subject to
regulation under the Federal Power Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur Indebtedness or which
may otherwise render all or any portion of the Obligations unenforceable. No Loan Party nor any of
its Subsidiaries is a “registered investment company” or a company “controlled” by a “registered
investment company” or a “principal underwriter” of a “registered investment company” as such terms
are defined in the Investment Company Act of 1940.



23









 







     4.23 OFAC. No Loan Party nor any of its Subsidiaries is in violation of any of the
country or list based economic and trade sanctions administered and enforced by OFAC. No Loan
Party nor any of its Subsidiaries (a) is a Sanctioned Person or a Sanctioned Entity, (b) has a more
than 10% of its assets located in Sanctioned Entities, or (c) derives more than 10% of its revenues
from investments in, or transactions with Sanctioned Persons or Sanctioned Entities. The proceeds
of any Advance or of the Term Loan will not be used to fund any operations in, finance any
investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity.



     4.24 Location of Equipment. The Equipment (other than (i) vehicles or Equipment out
for repair, and (ii) other Equipment having value of not more than $1,000,000 in the aggregate) of
the Loan Parties is located only at, or in-transit between, the locations identified on
Schedule 4.24 to the Disclosure Letter (as such Schedule may be updated pursuant to
Section 5.15).



     4.25 Excluded Subsidiaries. None of the Excluded Subsidiaries owns or is owed any
Subscription Revenues, or owns any material assets (other than the Stock of its direct
Subsidiaries), or contributes (in the aggregate with all other Excluded Subsidiaries) a material
portion of Borrower’s consolidated net earnings or EBITDA .



5. AFFIRMATIVE COVENANTS.




     Borrower covenants and agrees that, until termination of all of the Commitments and payment in
full of the Obligations, the Loan Parties shall and shall cause each of their Subsidiaries to
comply with each of the following:



     5.1 Financial Statements, Reports, Certificates. Deliver to Agent, with copies to
each Lender, each of the financial statements, reports, and other items set forth on Schedule
5.1 at the times specified therein. In addition, Borrower agrees that no Subsidiary of a Loan
Party will have a fiscal year different from that of Borrower. In addition, Borrower agrees to
maintain a system of accounting that enables Borrower to produce financial statements in accordance
with GAAP. Each Loan Party shall also maintain its billing systems/practices as approved by Agent
prior to the Closing Date and shall only make material modifications thereto with notice to Agent.



     5.2 Collateral Reporting. Provide Agent (and if so requested by Agent, with copies
for each Lender) with each of the reports set forth on Schedule 5.2 at the times specified
therein.



     5.3 Existence. Except as otherwise permitted under Section 6.3, each Loan
Party to, and cause each of its Subsidiaries to, at all times preserve and keep in full force and
effect its existence (including being in good standing in its jurisdiction of organization) and all
rights and franchises, licenses and permits material to its business.



     5.4 Maintenance of Properties. Maintain and preserve all of its assets that are
necessary or useful in the proper conduct of its business in good working order and condition,
ordinary wear, tear, and casualty excepted and Permitted Dispositions excepted (and except where
the failure to do so could not reasonably be expected to result in a Material Adverse Change), and
comply with the material provisions of all material leases to which it is a party as lessee, so as
to prevent the loss or forfeiture thereof, unless such provisions are the subject of a Permitted
Protest.




24









 







     5.5 Taxes. Cause all assessments and taxes imposed, levied, or assessed against any
Loan Party or its Subsidiaries, or any of their respective assets or in respect of any of its
income, businesses, or franchises to be paid in full, before delinquency or before the expiration
of any extension period, except to the extent that the validity of such assessment or tax shall be
the subject of a Permitted Protest and so long as, in the case of an assessment or tax that has or
may become a Lien against any of the Collateral, such contest proceedings conclusively operate to
stay the sale of any portion of the Collateral to satisfy such assessment or tax. Borrower will and
will cause each of its Subsidiaries to make timely payment or deposit of all tax payments and
withholding taxes required of it and them by applicable laws, including those laws concerning
F.I.C.A., F.U.T.A., state disability, and local, state, and federal income taxes, and will, upon
request, furnish Agent with proof reasonably satisfactory to Agent indicating that Borrower and its
Subsidiaries have made such payments or deposits. Notwithstanding anything this Section 5.5
to the contrary, the Loan Parties may have an aggregate amount of unpaid or delinquent taxes,
assessments, or other governmental fees or charges outstanding in an aggregate amount not to exceed
$500,000 at any one time.



     5.6 Insurance. At Borrower’s expense, maintain insurance respecting each of the Loan
Parties’ and their Subsidiaries’ assets wherever located, covering loss or damage by fire, theft,
explosion, and all other hazards and risks as ordinarily are insured against by other Persons
engaged in the same or similar businesses. Borrower also shall maintain (with respect to each of
the Loan Parties and their Subsidiaries) business interruption, public liability, and product
liability insurance, as well as insurance against larceny, embezzlement, and criminal
misappropriation. All such policies of insurance shall be with responsible and reputable insurance
companies and in such amounts as is carried generally in accordance with sound business practice by
companies in similar businesses similarly situated and located and in any event in amount, adequacy
and scope reasonably satisfactory to Agent. All property insurance policies covering the Collateral
are to be made payable to Agent for the benefit of Agent and the Lenders, as their interests may
appear, in case of loss, pursuant to a standard loss payable endorsement with a standard non
contributory “lender” or “secured party” clause and are to contain such other provisions as Agent
may reasonably require to fully protect the Lenders’ interest in the Collateral and to any payments
to be made under such policies. All certificates of insurance are to be delivered to Agent, with
the loss payable and additional insured endorsement in favor of Agent and shall provide for not
less than 30 days (10 days in the case of non-payment) prior written notice to Agent of the
exercise of any right of cancellation. If Borrower fails to maintain such insurance, Agent may
arrange for such insurance, but at Borrower’s expense and without any responsibility on Agent’s
part for obtaining the insurance, the solvency of the insurance companies, the adequacy of the
coverage, or the collection of claims. Borrower shall give Agent prompt notice of any loss
exceeding $250,000 covered by its casualty or business interruption insurance. Upon the occurrence
and during the continuance of an Event of Default, Agent shall have the sole right to file claims
under any insurance policies, to receive, receipt and give acquittance for any payments that may be
payable thereunder, and to execute any and all endorsements, receipts, releases, assignments,
reassignments or other documents that may be necessary to effect the collection, compromise or
settlement of any claims under any such insurance policies. If no Event of Default exists,
Borrower or the applicable Loan Party shall have the sole right to file claims under any insurance
policies, to receive, receipt and give acquittance for any payments that may be payable thereunder,
and to execute any and all endorsements, receipts, releases, assignments, reassignments or other
documents that may
be necessary to effect the collection, compromise or settlement of any claims under any such
insurance policies.



     5.7 Inspection. Permit Agent and each of its duly authorized representatives or
agents to visit any of its properties and inspect any of its assets or books and records, to
examine and make copies of its books and records, and to discuss its affairs, finances, and
accounts with, and to be advised as to the same by, its officers and employees at such reasonable
times and intervals as Agent may designate and, so long as no Default or Event of Default exists,
with reasonable prior notice to Borrower.



     5.8 Compliance with Laws. Comply with the requirements of all applicable laws, rules,
regulations, and orders of any Governmental Authority, other than laws, rules, regulations, and
orders the non-compliance with which, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Change.




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     5.9 Environmental.



          (a) Keep any property either owned or operated by Borrower or its Subsidiaries free of any
Environmental Liens or post bonds or other financial assurances sufficient to satisfy the
obligations or liability evidenced by such Environmental Liens,




          (b) comply, in all material respects, with Environmental Laws and provide to Agent
documentation of such compliance which Agent reasonably requests,




          (c) promptly notify Agent of any release of a Hazardous Material in any reportable quantity
from or onto property owned or operated by Borrower or its Subsidiaries and take any Remedial
Actions required to abate said release or otherwise to come into compliance with applicable
Environmental Law, and




          (d) promptly, but in any event within 5 Business Days of its receipt thereof, provide Agent
with written notice of any of the following: (i) notice that an Environmental Lien has been filed
against any of the real or personal property of Borrower or its Subsidiaries, (ii) commencement of
any Environmental Action or notice that an Environmental Action will be filed against Borrower or
its Subsidiaries, and (iii) notice of a violation, citation, or other administrative order which
could reasonably be expected to result in a Material Adverse Change.




     5.10 Disclosure Updates. Promptly and in no event later than 5 Business Days after
obtaining knowledge thereof, notify Agent if any written information, exhibit, or report furnished
to the Lender Group contained, at the time it was furnished, any untrue statement of a material
fact or omitted to state any material fact necessary to make the statements contained therein not
misleading in light of the circumstances in which made. The foregoing to the contrary
notwithstanding, any notification pursuant to the foregoing provision will not cure or remedy the
effect of the prior untrue statement of a material fact or omission of any material fact nor shall
any such notification have the effect of amending or modifying this Agreement or any of the
Schedules hereto.



     5.11 Formation of Subsidiaries. At the time that any Loan Party forms any direct or
indirect Subsidiary or acquires any direct or indirect Subsidiary after the Closing Date, such Loan
Party shall (a) within 10 days of such formation or acquisition cause any such new Subsidiary to
provide to Agent a joinder to the Guaranty and the Security Agreement, together with such other
security documents (including mortgages with respect to any Real Property owned in fee of such new
Subsidiary with a fair market value of at least $250,000), as well as appropriate financing
statements (and with respect to all property subject to a mortgage, fixture filings), all in form
and substance reasonably satisfactory to Agent (including being sufficient to grant Agent a first
priority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquired
Subsidiary); provided that the Guaranty, the Security Agreement, and such other security
documents shall not be required to be provided to Agent with respect to any Subsidiary of Borrower
that is a CFC, (b) within 30 days of such formation or acquisition (or such later date as permitted
by Agent in its sole discretion) provide to Agent a pledge agreement and appropriate certificates
and powers or financing statements, hypothecating all of the direct or beneficial ownership
interest in such new Subsidiary reasonably satisfactory to Agent; provided that only 65% of
the total outstanding voting Stock of any first tier Subsidiary of Borrower that is a CFC and none
of the total outstanding voting Stock of any other Subsidiary of such CFC shall be required to be
pledged, and (c) within 30 days of such formation or acquisition (or such later date as permitted
by Agent in its sole discretion) provide to Agent all other documentation, including one or more
opinions of counsel reasonably satisfactory to Agent, which in its opinion is appropriate with
respect to the execution and delivery of the applicable documentation referred to above (including
policies of title insurance or other documentation with respect to all Real Property owned in fee
and subject to a mortgage). Any document, agreement, or instrument executed or issued pursuant to
this Section 5.11 shall be a Loan Document.



26









 





     5.12 Further Assurances. At any time upon the reasonable request of Agent, execute or
deliver to Agent any and all financing statements, fixture filings, security agreements, pledges,
collateral assignments, endorsements of certificates of title, mortgages, deeds of trust, opinions
of counsel, and all other documents (collectively, the “Additional Documents”) that Agent
may reasonably request in form and substance reasonably satisfactory to Agent, to create, perfect,
and continue perfected or to better perfect the Agent’s Liens in all of the assets of Borrower and
the Loan Parties (whether now owned or hereafter arising or acquired, tangible or intangible, real
or personal), to create and perfect Liens in favor of Agent in any Real Property acquired by
Borrower or the Loan Parties after the Closing Date with a fair market value in excess of $250,000,
and in order to fully consummate all of the transactions contemplated hereby and under the other
Loan Documents); provided that the foregoing shall not apply to any Subsidiary of Borrower
that is a CFC. To the maximum extent permitted by applicable law, Borrower authorizes Agent to
execute any such Additional Documents in the applicable Loan Party’s ‘s name, as applicable, and
authorizes Agent to file such executed Additional Documents in any appropriate filing office. In
furtherance and not in limitation of the foregoing, each Loan Party shall take such actions as
Agent may reasonably request from time to time to ensure that the Obligations are guarantied by the
Guarantors and are secured by substantially all of the assets of Borrower and the Loan Parties and
all of the outstanding Capital Stock of Borrower’s Subsidiaries (subject to limitations contained
in the Loan Documents with respect to CFCs).



     5.13 Lender Meetings. Within 120 days after the close of each fiscal year of
Borrower, at the request of Agent or of the Required Lenders and upon reasonable prior notice, hold
a meeting (at a mutually agreeable location and time or, at the option of Agent, by conference
call) with all Lenders who choose to attend such meeting at which meeting shall be reviewed the
financial results of the previous fiscal year and the financial condition of Borrower and its
Subsidiaries and the projections presented for the current fiscal year of Borrower.



     5.14 Material Contracts. Contemporaneously with the delivery of each Compliance
Certificate pursuant hereto, provide Agent with notice of (a) each Material Contract entered into
since the delivery of the previous Compliance Certificate, and (b) each material amendment or
modification of any Material Contract entered into since the delivery of the previous Compliance
Certificate. Such notice may be in the form of a link to the filed Material Contract or amendment,
as applicable, in Borrower’s filings with the SEC, or, if such Material Contract or amendment has
not been filed, a copy of the same .



     5.15 Location of Equipment. Keep each Loan Party’s Equipment (other than (i) vehicles
and Equipment out for repair and (ii) other Equipment having a value of not more than $1,000,000 in
the aggregate) only at the locations identified on Schedule 4.24 to the Disclosure Letter
and their chief executive offices only at the locations identified on Schedule 4.6(b) to
the Disclosure Letter, provided, however, that Borrower may amend Schedule
4.24 to the Disclosure Letter or Schedule 4.6(b) to the Disclosure Letter so long as
such amendment occurs by written notice to Agent not less than 10 days prior to the date on which
such Equipment is moved to such new location or such chief executive office is relocated and so
long as such new location is within the continental United States, and so long as, at the time of
such written notification, Borrower provides Agent a Collateral Access Agreement with respect
thereto.



     5.16 Assignable Material Contracts. Use commercially reasonable efforts to ensure
that any Material Contract entered into after the Closing Date by Borrower or one of its
Subsidiaries that generates or, by its terms, will generate revenue, permits the assignment of such
agreement (and all rights of Borrower or such Subsidiary, as applicable, thereunder) to Borrower’s
or such Subsidiary’s lenders or an agent for any lenders (and any transferees of such lenders or
such agent, as applicable).



6. NEGATIVE COVENANTS.




     Borrower covenants and agrees that, until termination of all of the Commitments and payment in
full of the Obligations, the Loan Parties will not and will not permit any of their Subsidiaries to
do any of the following:



27









 





     6.1 Indebtedness. Create, incur, assume, suffer to exist, guarantee, or otherwise
become or remain, directly or indirectly, liable with respect to any Indebtedness, except for
Permitted Indebtedness.



     6.2 Liens. Create, incur, assume, or suffer to exist, directly or indirectly, any
Lien on or with respect to any of its assets, of any kind, whether now owned or hereafter acquired,
or any income or profits therefrom, except for Permitted Liens.



     6.3 Restrictions on Fundamental Changes.



          (a) Other than in order to consummate a Permitted Acquisition, enter into (provided that
Borrower or any of its Subsidiaries may enter into any merger, consolidation, reorganization, or
recapitalization, or reclassification of its Stock, if Borrower or such Subsidiary has disclosed to
the other Persons party to the transaction any required consent of Agent and the Lenders hereunder)
or consummate any merger, consolidation, reorganization, or recapitalization, or reclassify its
Stock, except for (i) any merger between Loan Parties, provided that Borrower must be the surviving
entity of any such merger to which it is a party, (ii) any merger between Loan Parties and
Subsidiaries of Borrower that are not Loan Parties so long as such Loan Party is the surviving
entity of any such merger, and (iii) any merger between Subsidiaries of Borrower that are not Loan
Parties;




          (b) Liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution), except
for (i) the liquidation or dissolution of Excluded Subsidiaries and other non-operating
Subsidiaries of Borrower with nominal assets and nominal liabilities, (ii) the liquidation or
dissolution of a Loan Party (other than Borrower) or any of its wholly-owned Subsidiaries so long
as all of the assets (including any interest in any Stock) of such liquidating or dissolving Loan
Party or Subsidiary are transferred to a Loan Party that is not liquidating or dissolving, (iii)
the liquidation or dissolution of a Subsidiary of Borrower that is not a Loan Party (other than any
such Subsidiary the Stock of which (or any portion thereof) is subject to a Lien in favor of Agent)
so long as all of the assets of such liquidating or dissolving Subsidiary are transferred to a
Subsidiary of Borrower that is not liquidating or dissolving; or (iv) the liquidation or
dissolution of a Subsidiary of Borrower that is not a Loan Party, but the Stock of which (or any
portion thereof) is subject to a Lien in favor of Agent) so long as all of the assets of such
liquidating or dissolving Subsidiary are transferred to a Loan Party or a Subsidiary the Stock of
which (or any portion thereof) is subject to a Lien in favor of Agent, that is not liquidating or
dissolving; or




          (c) Suspend or go out of a substantial portion of its or their business, except as permitted
pursuant to clauses (a) or (b) above or in connection with the transactions permitted pursuant to
Section 6.4.




     6.4 Disposal of Assets. Other than Permitted Dispositions, Permitted Investments, or
transactions expressly permitted by Sections 6.3, 6.9, 6.11, and
6.12, convey, sell, lease, license, assign, transfer, or otherwise dispose of (or enter
into an agreement to convey, sell, lease, license, assign, transfer, or otherwise dispose of
(provided that Borrower or any of its Subsidiaries may enter into such an agreement in order to
consummate an Acquisition that is not a Permitted Acquisition, if Borrower or such Subsidiary has
disclosed to the other Persons party to the transaction any required consent of Agent and the
Lenders hereunder)) any of Borrower’s or its Subsidiaries’ assets.



     6.5 Change Name. Change the name, organizational identification number, state of
organization or organizational identity of (a) any Loan Party or (b) any Subsidiary of Borrower
that is not a Loan Party if all or any portion of the Stock of such Subsidiary has been pledged to
Agent; provided, however, that Loan Parties and any of the Subsidiaries described
in clause (b) above may change their names upon at least 10 days prior written notice to Agent of
such change.



     6.6 Nature of Business. Make any change in the nature of its or their business as
described in Schedule 6.6 to the Disclosure Letter or acquire any properties or assets that
are not reasonably
related to the
conduct of such business activities; provided that Borrower and its
Subsidiaries may engage in any business that is reasonably related or ancillary to its or their
business.



28









 





     6.7 Prepayments and Amendments.



          (a) Except in connection with Refinancing Indebtedness permitted by Section 6.1,




               (i) optionally prepay, redeem, defease, purchase, or otherwise acquire any Indebtedness of
Borrower or its Subsidiaries, other than (A) the Obligations in accordance with this Agreement, (B)
Permitted Intercompany Advances, and (C) other Indebtedness in an aggregate principal amount not to
exceed $1,000,000, so long as no Event of Default shall exist or arise as a result thereof and
Borrower shall have Availability plus Qualified Cash in an amount equal to or greater than
$25,000,000 immediately after giving effect to the consummation of the proposed prepayment,
redemption, defeasance, purchase or other acquisition of Indebtedness,



               (ii) make any payment on account of Indebtedness that has been contractually subordinated in
right of payment if such payment is not permitted at such time under the subordination terms and
conditions, provided that in connection with a Permitted Acquisition, payments on
account of Indebtedness consisting of Earn-outs that have been contractually subordinated in right
of payment to the Obligations may be made so long as (A) no Default or Event of Default has
occurred and is continuing or would result therefrom; (B) Borrower and its Subsidiaries have Excess
Availability plus Qualified Cash of at least $25,000,000, both immediately before and immediately
after giving effect to any such payment; and (C) the payment is required to be made by the
acquisition agreement relative to the Permitted Acquisition; provided further
that if at any time any such payment is not permitted to be paid as a result of the failure
to satisfy the condition set forth in clauses (A) or (B) of this Section 6.7(a)(ii), then
(1) such amount together with interest at a market rate applicable to Indebtedness consisting of
Earn-outs shall continue to accrue, and (2) any such amount, together with accrued interest, may be
paid so long as each of the conditions set forth in clauses (A), (B) and (C) of this Section
6.7(a)(ii) is satisfied at the time of the making of such payment, or



          (b) Directly or indirectly, amend, modify, or change any of the terms or provisions of




               (i) any agreement, instrument, document, indenture, or other writing evidencing or concerning
Indebtedness permitted under Section 6.1 if the terms and conditions thereof could
reasonably be expected to be materially adverse to Agent, any Lender, Borrower, or any of
Borrower’s Subsidiaries,



               (ii) any Material Contract except to the extent that such amendment, modification, alteration,
increase, or change could not, individually or in the aggregate, reasonably be expected to be
materially adverse to the interests of the Lenders, or



               (iii) the Governing Documents of any Loan Party or any of its Subsidiaries if the effect
thereof, either individually or in the aggregate, could reasonably be expected to be materially
adverse to the interests of the Lenders; provided that the adoption and
implementation of a stockholders rights plan shall not be deemed to be materially adverse to the
interests of the Lenders. Nothing in this Section 6.7(b)(iii) shall permit Borrower or any
of its Subsidiaries to make any distributions under such a stockholders rights plan other than as
permitted by Section 6.9(c).



     6.8 [intentionally omitted]



     6.9 Distributions. Make any distribution or declare or pay any dividends (in cash or
other property, other than common Stock) on, or purchase, acquire, redeem, or retire any of
Borrower’s Stock, of any class, whether now or hereafter outstanding; provided,
however, that,



          (a) Borrower may consummate the Permitted Stock Repurchases,




29









 








          (b) Borrower may purchase fractional shares of its Stock arising out of stock dividends splits
or combinations, business combinations otherwise permitted hereunder, or conversion of convertible
securities, in an amount not to exceed $50,000 in any calendar year,




          (c) Borrower may distribute rights pursuant to a stockholder rights plan or purchase, acquire,
redeem or retire such rights distributed in connection with such stockholder rights plan (whether
by exchange of common Stock or purchase for value), provided that if such rights are purchased for
cash, then the cash amount paid shall not exceed $500,000 per calendar year, except that such cash
amount may exceed $500,000 per calendar year if (i) no Event of Default has occurred and is
continuing or would result therefrom, and (ii) Borrower has Excess Availability plus Qualified Cash
of $25,000,000 or greater immediately after giving effect to such purchase, acquisition, redemption
or retirement,




          (d) Borrower may repurchase Stock in connection with or pursuant to any of its stock option
plans (or other employee incentive plans or compensation arrangements), provided that if such Stock
is purchased with cash, then the cash amount shall not exceed $500,000 in any calendar year, except
that such cash amount may exceed $500,000 per calendar year if (i) no Event of Default has occurred
and is continuing or would result therefrom, and (ii) Borrower has Excess Availability plus
Qualified Cash of $25,000,000 or greater immediately after giving effect to such repurchase,




          (e) Borrower may repurchase Stock in connection with or pursuant to any of its stock option
plans (or other employee incentive plans or compensation arrangements) or convertible securities by
way of cashless exercise or in connection with the satisfaction of withholding tax obligations,




          (f) Borrower may purchase, acquire, redeem or retire any stock options in connection with any
stock option exchange provided that such exchange is on a cashless basis.




     6.10 Accounting Methods. Modify or change its fiscal year or its method of accounting
(other than as may be required to conform to GAAP).



     6.11 Investments. Except for Permitted Investments, directly or indirectly, make or
acquire any Investment or incur any liabilities (including contingent obligations) for or in
connection with any Investment; provided, however, that other than (a) an aggregate
amount of not more than $100,000 at any one time, in the case of Borrower and its Subsidiaries that
are not CFCs, (b) the cash collateral in the account of Existing Lender referred to in clause (a)
of Schedule 3.6, but only for the time period provided in such clause (a), (c) amounts
deposited into Deposit Accounts specially and exclusively used for payroll, payroll taxes and other
employee wage and benefit payments to or for Borrower’s or its Subsidiaries’ employees, and (d) an
aggregate amount of not more than 20% of the total amount of all of the cash and Cash Equivalents
of Borrower and its Subsidiaries (calculated at current exchange rates) at any one time, in the
case of Subsidiaries of Borrower that are CFCs, Borrower and its Subsidiaries shall not have
Permitted Investments consisting of cash, Cash Equivalents, or amounts credited to Deposit Accounts
or Securities Accounts unless Borrower or its Subsidiary, as applicable, and the applicable
securities intermediary or bank have entered into Control Agreements with Agent governing such
Permitted Investments in order to perfect (and further establish) the Agent’s Liens in such
Permitted Investments. Subject to the foregoing proviso, Borrower shall not and shall not permit
any Loan Party to establish or maintain any Deposit Account or Securities Account unless Agent
shall have received a Control Agreement in respect of such Deposit Account or Securities Account..



     6.12 Transactions with Affiliates. Directly or indirectly enter into or permit to
exist any transaction with any Affiliate of Borrower or any of its Subsidiaries except for:



          (a) transactions (other than the payment of management, consulting, monitoring, or advisory
fees) between Borrower or its Subsidiaries, on the one hand, and any Affiliate of Borrower or its
Subsidiaries, on the other hand, so long as such transactions (i) are upon fair and reasonable
terms, (ii) are fully disclosed to Agent prior to the consummation thereof, if they involve one or
more payments by Borrower or its Subsidiaries in excess of $500,000 for any single transaction or series of related
transactions, and (iii) are no less favorable, taken as a whole, to Borrower or its Subsidiaries,
as applicable, than would be obtained in an arm’s length transaction with a non-Affiliate,




30









 








          (b) so long as it has been approved by Borrower’s Board of Directors in accordance with
applicable law, any indemnity provided for the benefit of directors of Borrower,




          (c) so long as it has been approved by Borrower’s Board of Directors, the payment of
reasonable fees, compensation, or employee benefit arrangements to employees, consultants,
officers, and outside directors of Borrower in the ordinary course of business and consistent with
industry practice,




          (d) transactions permitted by Section 6.3, Section 6.4, or Section
6.9, or any Permitted Investment or Permitted Intercompany Advance, and




          (e) intercompany transactions among the Borrower or any Subsidiary on the one hand and any
Subsidiary on the other hand, in the ordinary course of Borrower’s business pursuant to one or more
Marketing and Sales Services Agreements, the terms of which (including the calculation of any
service fees and the extent of any other payments to such Subsidiaries) are consistent with the
Marketing and Sales Services Agreements in effect on the Closing Date, and which transactions are
not otherwise prohibited by this Agreement or any other Loan Document.




     6.13 Use of Proceeds. Use the proceeds of the Advances and the Term Loan for any
purpose other than (a) on the Closing Date, (i) to repay, in full, the outstanding principal,
accrued interest, and accrued fees and expenses owing to Existing Lender, and (iii) to pay
transactional fees, costs, and expenses incurred in connection with this Agreement, the other Loan
Documents, and the transactions contemplated hereby and thereby, and (b) thereafter, consistent
with the terms and conditions hereof, for its lawful and permitted purposes.



7. FINANCIAL COVENANTS.




     Borrower covenants and agrees that, until termination of all of the Commitments and payment in
full of the Obligations, Borrower will comply with each of the following financial covenants:



          (a) Minimum EBITDA. Achieve EBITDA, measured on a quarter-end basis, of at least the required
amount set forth in the following table for the applicable period set forth opposite thereto:




	 	 	 	 	 
	Applicable Amount	 	Applicable Period
	$	*	 	 	For the 1 quarter period

ending December 31, 2008

	$	*	 	 	For the 2 quarter period

ending March 31, 2009

	$	*	 	 	For the 3 quarter period

ending June 30, 2009

	$	*	 	 	For the 4 quarter period

ending September 30, 2009

	$	*	 	 	For the 4 quarter period

ending December 31, 2009

	$	*	 	 	For the 4 quarter period

ending March 31, 2010

	$	*	 	 	For the 4 quarter period

ending June 30, 2010

	$	*	 	 	For the 4 quarter period

ending September 30, 2010







31









 






	 	 	 	 	 
	Applicable Amount	 	Applicable Period
	$	*	 	 	For the 4 quarter period

ending December 31, 2010


	$	*	 	 	For the 4 quarter period

ending March 31, 2011

	$	*	 	 	For the 4 quarter period

ending June 30, 2011

	$	*	 	 	For the 4 quarter period

ending September 30, 2011

	$	*	 	 	For the 4 quarter period

ending December 31, 2011

	$	*	 	 	For the 4 quarter periods ending on the last day of each

March, June, September, and December thereafter







          (b) Capital Expenditures. Make Capital Expenditures (excluding the amount, if any, of Capital
Expenditures made with Net Cash Proceeds reinvested pursuant to the proviso in Section
2.4(e)(ii)) in any fiscal year in an amount less than or equal to, but not greater than, the
amount set forth in the following table for the applicable period:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Fiscal Year 2009	 	Fiscal Year 2010	 	Fiscal Year 2011	 	Fiscal Year 2012
	$*

	 	$	*	 	 	$	*	 	 	$	*	 






(* Portions of this Agreement have been
omitted and filed separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to those omitted portions.)



8. EVENTS OF DEFAULT.




     Any one or more of the following events shall constitute an event of default (each, an
“Event of Default”) under this Agreement:



     8.1 If Borrower fails to pay when due and payable, or when declared due and payable, (a) all
or any portion of the Obligations consisting of interest, fees, or charges due the Lender Group,
reimbursement of Lender Group Expenses, or other amounts (other than any portion thereof
constituting principal) constituting Obligations (including any portion thereof that accrues after
the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole
or in part as a claim in any such Insolvency Proceeding), and such failure continues for a period
of 3 Business Days, or (b) all or any portion of the principal of the Obligations;



     8.2 If any Loan Party or any of its Subsidiaries:



          (a) fails to perform or observe any covenant or other agreement contained in any of (i)
Sections 3.6, 5.1, 5.2, 5.3, 5.6, 5.7, 5.10,
5.11, 5.13, or 5.14 of this Agreement, (ii) Sections 6.1 through
6.16 of this Agreement, (iii) Section 7 of this Agreement, or (iv) Section
6 of the Security Agreement;




          (b) fails to perform or observe any covenant or other agreement contained in any of
Sections 5.4, 5.5, 5.8, 5.12, and 5.15 of this Agreement
and such failure continues for a period of 10 Business Days after the earlier of (i) the date on
which such failure shall first become known to any officer of Borrower or (ii) the date on which
written notice thereof is given to Borrower by Agent; or




          (c) fails to perform or observe any covenant or other agreement contained in this Agreement,
or in any of the other Loan Documents, in each case, other than any such covenant or agreement that
is the subject of another provision of this Section 8 (in which event such other provision
of this Section 8 shall govern), and such failure continues for a period of 30 days after
the earlier of (i) the date on which such failure shall first become known to any officer of
Borrower or (ii) the date on which written notice thereof is given to Borrower by Agent;




32









 








     8.3 If one or more judgments, orders, or awards for the payment of money involving an
aggregate amount of $1,000,000, or more (except to the extent fully covered by insurance pursuant
to which the insurer has accepted liability therefor in writing) is entered or filed against a Loan
Party or any of its Subsidiaries, or with respect to any of their respective assets, and either (a)
there is a period of 30 consecutive days at any time after the entry of any such judgment, order,
or award during which a stay of enforcement thereof is not in effect, or (b) enforcement
proceedings are commenced upon such judgment, order, or award;



     8.4 If an Insolvency Proceeding is commenced by a Loan Party or any of its Subsidiaries other
than Excluded Subsidiaries;



     8.5 If an Insolvency Proceeding is commenced against a Loan Party or any of its Subsidiaries
other than Excluded Subsidiaries, and any of the following events occur: (a) such Loan Party or
such Subsidiary consents to the institution of such Insolvency Proceeding against it, (b) the
petition commencing the Insolvency Proceeding is not timely controverted, (c) the petition
commencing the Insolvency Proceeding is not dismissed within 60 calendar days of the date of the
filing thereof, (d) an interim trustee is appointed to take possession of all or any substantial
portion of the properties or assets of, or to operate all or any substantial portion of the
business of, such Loan Party or its Subsidiary, or (e) an order for relief shall have been issued
or entered therein;



     8.6 If a Loan Party or any of its Subsidiaries other than Excluded Subsidiaries is enjoined,
restrained, or in any way prevented by court order from continuing to conduct all or any material
part of its business affairs;



     8.7 If there is a default in one or more agreements to which a Loan Party or any of its
Subsidiaries is a party with one or more third Persons relative to a Loan Party’s or any of its
Subsidiaries’ Indebtedness involving an aggregate amount of $1,000,000 or more, and such default
(i) occurs at the final maturity of the obligations thereunder, or (ii) results in a right by such
third Person, irrespective of whether exercised, to accelerate the maturity of such Loan Party’s or
its Subsidiary’s obligations thereunder;



     8.8 If any warranty, representation, statement, or Record made herein or in any other Loan
Document or delivered in writing to Agent or any Lender in connection with this Agreement or any
other Loan Document proves to be untrue in any material respect (except that such materiality
qualifier shall not be applicable to any representations and warranties that already are qualified
or modified by materiality in the text thereof) as of the date of issuance or making or deemed
making thereof;



     8.9 If the obligation of any Guarantor under the Guaranty is limited or terminated by
operation of law or by such Guarantor;



     8.10 If the Security Agreement or any other Loan Document that purports to create a Lien,
shall, for any reason, fail or cease to create a valid and perfected and, except to the extent
permitted by the terms hereof or thereof, first priority Lien on the Collateral covered thereby,
except as a result of a disposition of the applicable Collateral in a transaction permitted under
this Agreement;



     8.11 Any provision of any Loan Document shall at any time for any reason be declared to be
null and void, or the validity or enforceability thereof shall be contested by a Loan Party or its
Subsidiaries, or a proceeding shall be commenced by a Loan Party or its Subsidiaries, or by any
Governmental Authority having jurisdiction over a Loan Party or its Subsidiaries, seeking to
establish the invalidity or unenforceability thereof, or a Loan Party or its Subsidiaries shall
deny that such Loan Party or its Subsidiaries has any liability or obligation purported to be
created under any Loan Document; or



     8.12 If there shall be caused, or Borrower shall permit or suffer directly or indirectly any
Change of Control.



33









 





9. RIGHTS AND REMEDIES.




     9.1 Rights and Remedies. Upon the occurrence and during the continuation of an Event
of Default, Agent may, and, at the instruction of the Required Lenders, shall, in each case by
written notice to Borrower and in addition to any other rights or remedies provided for hereunder
or under any other Loan Document or by applicable law, do any one or more of the following on
behalf of the Lender Group:



          (a) declare the Obligations, whether evidenced by this Agreement, by any of the other Loan
Documents, or otherwise, immediately due and payable, whereupon the same shall become and be
immediately due and payable, without presentment, demand, protest, or further notice or other
requirements of any kind, all of which are hereby expressly waived by Borrower; and




          (b) declare the Revolver Commitments terminated, whereupon the Revolver Commitments shall
immediately be terminated together with any obligation of any Lender hereunder to make Advances and
the obligation of the Issuing Lender to issue Letters of Credit.



The foregoing to the contrary notwithstanding, upon the occurrence of any Event of Default
described in Section 8.4 or Section 8.5, in addition to the remedies set forth
above, without any notice to Borrower or any other Person or any act by the Lender Group, the
Commitments shall automatically terminate and the Obligations then outstanding, together with all
accrued and unpaid interest thereon and all fees and all other amounts due under this Agreement and
the other Loan Documents, shall automatically and immediately become due and payable, without
presentment, demand, protest, or notice of any kind, all of which are expressly waived by Borrower.




     9.2 Remedies Cumulative. The rights and remedies of the Lender Group under this
Agreement, the other Loan Documents, and all other agreements shall be cumulative. The Lender
Group shall have all other rights and remedies not inconsistent herewith as provided under the
Code, by law, or in equity. No exercise by the Lender Group of one right or remedy shall be deemed
an election, and no waiver by the Lender Group of any Event of Default shall be deemed a continuing
waiver. No delay by the Lender Group shall constitute a waiver, election, or acquiescence by it.



10. WAIVERS; INDEMNIFICATION.




     10.1 Demand; Protest; etc. Borrower waives demand, protest, notice of protest, notice
of default or dishonor, notice of payment and nonpayment, nonpayment at maturity, release,
compromise, settlement, extension, or renewal of documents, instruments, chattel paper, and
guarantees at any time held by the Lender Group on which Borrower may in any way be liable.



     10.2 The Lender Group’s Liability for Collateral. Borrower hereby agrees that: (a)
so long as Agent complies with its obligations, if any, under the Code, the Lender Group shall not
in any way or manner be liable or responsible for: (i) the safekeeping of the Collateral, (ii) any
loss or damage thereto occurring or arising in any manner or fashion from any cause, (iii) any
diminution in the value thereof, or (iv) any act or default of any carrier, warehouseman, bailee,
forwarding agency, or other Person, and (b) all risk of loss, damage, or destruction of the
Collateral shall be borne by Borrower.



34









 





     10.3 Indemnification. Borrower shall pay, indemnify, defend, and hold the
Agent-Related Persons, the Lender-Related Persons, and each Participant (each, an “Indemnified
Person”) harmless (to the fullest extent permitted by law) from and against any and all claims,
demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and
damages, and all reasonable fees and disbursements of attorneys, experts, or consultants and all
other costs and expenses actually incurred in connection therewith or in connection with the
enforcement of this indemnification (as and when they are incurred and irrespective of whether suit
is brought), at any time asserted against, imposed upon, or incurred by any of them (a) in
connection with or as a result of or related to the execution and delivery (provided that Borrower
shall not be
liable for costs and expenses (including attorneys fees) of any Lender (other than WFF)
incurred in advising, structuring, drafting, reviewing, administering or syndicating the Loan
Documents), enforcement, performance, or administration (including any restructuring or workout
with respect hereto) of this Agreement, any of the other Loan Documents, or the transactions
contemplated hereby or thereby or the monitoring of Borrower’s and its Subsidiaries’ compliance
with the terms of the Loan Documents (other than disputes solely between the Lenders), (b) with
respect to any investigation, litigation, or proceeding related to this Agreement, any other Loan
Document, or the use of the proceeds of the credit provided hereunder (irrespective of whether any
Indemnified Person is a party thereto), or any act, omission, event, or circumstance in any manner
related thereto, and (c) in connection with or arising out of any presence or release of Hazardous
Materials at, on, under, to or from any assets or properties owned, leased or operated by Borrower
or any of its Subsidiaries or any Environmental Actions, Environmental Liabilities and Costs or
Remedial Actions related in any way to any such assets or properties of Borrower or any of its
Subsidiaries (each and all of the foregoing, the “Indemnified Liabilities”). The foregoing
to the contrary notwithstanding, Borrower shall have no obligation to any Indemnified Person under
this Section 10.3 with respect to any Indemnified Liability that a court of competent
jurisdiction finally determines to have resulted from the gross negligence or willful misconduct of
such Indemnified Person or its officers, directors, employees, attorneys, or agents. This
provision shall survive the termination of this Agreement and the repayment of the Obligations. If
any Indemnified Person makes any payment to any other Indemnified Person with respect to an
Indemnified Liability as to which Borrower was required to indemnify the Indemnified Person
receiving such payment, the Indemnified Person making such payment is entitled to be indemnified
and reimbursed by Borrower with respect thereto. WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL
APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED LIABILITIES WHICH IN WHOLE OR IN PART
ARE CAUSED BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF SUCH INDEMNIFIED PERSON OR OF ANY
OTHER PERSON.



11. NOTICES.




     Unless otherwise provided in this Agreement, all notices or demands relating to this Agreement
or any other Loan Document shall be in writing and (except for financial statements and other
informational documents which may be sent by first-class mail, postage prepaid) shall be personally
delivered or sent by registered or certified mail (postage prepaid, return receipt requested),
overnight courier, electronic mail (at such email addresses as a party may designate in accordance
herewith), or telefacsimile. In the case of notices or demands to Borrower or Agent, as the case
may be, they shall be sent to the respective address set forth below:



	 	 	 
	If to Borrower:

	 	OMNITURE, INC.
	 

	 	550 E. Timpanogos Circle
	 

	 	Orem, Utah 84097
	 

	 	Attn: Chief Financial Officer and Chief Legal Officer
	 

	 	Fax No. (801) 722-7005
	 
	 	 
	with copies to:

	 	WILSON SONSINI GOODRICH & ROSATI, PC
	 

	 	650 Page Mill Road
	 

	 	Palo Alto, California 94304
	 

	 	Attn: John Mao, Esq.
	 

	 	Fax No.: (650) 493-6811






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	If to Agent:

	 	WELLS FARGO FOOTHILL, LLC
	 

	 	2450 Colorado Avenue, Suite 3000 West
	 

	 	Santa Monica, California 90404
	 

	 	Attn: Technology Finance Manager
	 

	 	Fax No.: (310) 453-7413
	 
	 	 
	with copies to:

	 	BUCHALTER NEMER
	 

	 	1000 Wilshire Boulevard, 15th Floor
	 

	 	Los Angeles, California 90017
	 

	 	Attn: Robert J. Davidson, Esq.
	 

	 	Fax No.: (213) 891-0700






     Any party hereto may change the address at which they are to receive notices hereunder, by
notice in writing in the foregoing manner given to the other party. All notices or demands sent in
accordance with this Section 10, shall be deemed received on the earlier of the date of
actual receipt or 3 Business Days after the deposit thereof in the mail; provided, that (a)
notices sent by overnight courier service shall be deemed to have been given when received, (b)
notices by facsimile shall be deemed to have been given when sent (except that, if not given during
normal business hours for the recipient, shall be deemed to have been given at the opening on
business on the next Business Day for the recipient) and (c) notices by electronic mail shall be
deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as
by the “return receipt requested” function, as available, return email or other written
acknowledgment).



12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE.




          (a) THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO
THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, AND THE RIGHTS OF THE PARTIES HERETO AND
THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO
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 AND THE OTHER LOAN DOCUMENTS 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. BORROWER AND EACH
MEMBER OF THE LENDER GROUP 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 12(b).




          (c) BORROWER AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS
OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. BORROWER AND EACH MEMBER OF THE LENDER
GROUP 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.




36









 








          (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 12(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 12(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 12(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 12(d). THE PARTIES ACKNOWLEDGE THAT ANY CLAIM DETERMINED BY REFERENCE PURSUANT TO
THIS SECTION 12(d) SHALL NOT BE ADJUDICATED BY A JURY.




13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS.




     13.1 Assignments and Participations.



          (a) With the prior written consent of Borrower, which consent of Borrower shall not be
unreasonably withheld, delayed or conditioned, and shall not be required (1) if an Event of Default
has occurred and is continuing, and (2) in connection with an assignment to a Person that is a
Lender or an Affiliate (other than individuals) of a Lender and with the prior written consent of
Agent, which consent of Agent shall not be unreasonably withheld, delayed or conditioned, and shall
not be required in connection with an assignment to a Person that is a Lender or an Affiliate
(other than individuals) of a Lender, any Lender may assign and delegate to one or more assignees
(each an “Assignee”; provided that no Loan Party or Affiliate of a Loan Party shall be
permitted to become an Assignee) all or any portion of the Obligations, the Commitments and the
other rights and obligations of such Lender hereunder and under the other Loan Documents, in a
minimum amount (unless waived by the Agent) of $5,000,000 (except such minimum amount shall not
apply to (x) an assignment or delegation by any Lender to any other Lender or an Affiliate of any
Lender or (y) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund
of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders
is at least $5,000,000); provided, however, that Borrower and Agent may continue to deal solely and
directly with such Lender in connection with the interest so assigned to an Assignee until (i)
written notice of such assignment, together with payment instructions, addresses, and related
information with respect to the Assignee, have been given to Borrower and Agent by such Lender and
the Assignee, (ii) such Lender and its Assignee have delivered to Borrower and Agent an Assignment
and Acceptance and Agent has notified the assigning Lender of its receipt thereof in
accordance with Section 13.1(b), and (iii) unless waived by the Agent, the assigning
Lender or Assignee has paid to Agent for Agent’s separate account a processing fee in the amount of
$3,500.




37









 








          (b) From and after the date that Agent notifies the assigning Lender (with a copy to Borrower)
that it has received an executed Assignment and Acceptance and, if applicable, payment of the
required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii)
the assigning Lender shall, to the extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights (except with respect to Section 10.3) and be released from any future obligations
under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender’s rights and obligations under this Agreement and the other Loan
Documents, such Lender shall cease to be a party hereto and thereto), and such assignment shall
effect a novation among Borrower, the assigning Lender, and the Assignee; provided, however, that
nothing contained herein shall release any assigning Lender from obligations that survive the
termination of this Agreement, including such assigning Lender’s obligations under Section 15
and Section 17.9(a) of this Agreement.




          (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the Assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any
other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial condition of Borrower or
the performance or observance by Borrower of any of its obligations under this Agreement or any
other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a
copy of this Agreement, together with such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such Assignment and
Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning
Lender or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to
exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent,
by the terms hereof and thereof, together with such powers as are reasonably incidental thereto,
and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.




          (d) Immediately upon Agent’s receipt of the required processing fee, if applicable, and
delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement
shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro
tanto.




38









 








          (e) Any Lender may at any time sell to one or more commercial banks, financial institutions,
or other Persons (a “Participant”) participating interests in all or any portion of its
Obligations, its Commitment, and the other rights and interests of that Lender (the
“Originating Lender”) hereunder and under the other Loan Documents; provided, however, that
(i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other
Loan Documents and the Participant receiving the participating interest in the Obligations, the
Commitments, and the other rights and interests of the Originating Lender hereunder shall not
constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s
obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain
solely responsible for the performance of such obligations, (iii) Borrower, Agent, and the Lenders
shall continue to deal solely and directly with the Originating Lender in connection with the
Originating Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv)
no Lender shall transfer or
grant any participating interest under which the Participant has the right to approve any
amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document,
except to the extent such amendment to, or consent or waiver with respect to this Agreement or of
any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in
which such Participant is participating, (B) reduce the interest rate applicable to the Obligations
hereunder in which such Participant is participating, (C) release all or substantially all of the
Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan
Documents) supporting the Obligations hereunder in which such Participant is participating, (D)
postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant
through such Lender, or (E) change the amount or due dates of scheduled principal repayments or
prepayments or premiums, and (v) all amounts payable by Borrower hereunder shall be determined as
if such Lender had not sold such participation, except that, if amounts outstanding under this
Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to have the right of set
off in respect of its participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly to it as a Lender under
this Agreement. The rights of any Participant only shall be derivative through the Originating
Lender with whom such Participant participates and no Participant shall have any rights under this
Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent,
Borrower, the Collections of Borrower or its Subsidiaries, the Collateral, or otherwise in respect
of the Obligations. No Participant shall have the right to participate directly in the making of
decisions by the Lenders among themselves.




          (f) In connection with any such assignment or participation or proposed assignment or
participation or any grant of a security interest in, or pledge of, its rights under and interest
in this Agreement, a Lender may, subject to the provisions of Section 17.9, disclose all
documents and information which it now or hereafter may have relating to Borrower and its
Subsidiaries and their respective businesses.




          (g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a
security interest in, or pledge, all or any portion of its rights under and interest in this
Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal
Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce
such pledge or security interest in any manner permitted under applicable law.




          (h) Agent (as a non-fiduciary agent on behalf of Borrower) shall maintain, or cause to be
maintained, a register (the “Register”) on which it enters the name and address of each
Lender as the registered owner of the Term Loan (and the principal amount thereof and stated
interest thereon) held by such Lender (each, a “Registered Loan”). Other than in
connection with an assignment by a Lender of all or any portion of its portion of the Term Loan to
an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the
registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by
registration of such assignment or sale on the Register (and each registered note shall expressly
so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the
registered note, if any, evidencing the same) may be effected only by registration of such
assignment or sale on the Register, together with the surrender of the registered note, if any,
evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale
duly executed by) the holder of such registered note, whereupon, at the request of the designated
assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal
amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration
of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same),
Borrower shall treat the Person in whose name such Registered Loan (and the registered note, if
any, evidencing the same) is registered as the owner thereof for the purpose of receiving all
payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case
of any assignment by a Lender of all or any portion of the Term Loan to an Affiliate of such Lender
or a Related Fund of such Lender, and which assignment is not recorded in the Register, the
assigning Lender, on behalf of Borrower, shall maintain a register comparable to the Register.




39









 








          (i) In the event that a Lender sells participations in the Registered Loan, such Lender, as a
non-fiduciary agent on behalf of Borrower, shall maintain a register on which it enters the name of
all participants in the Registered Loans held by it (the “Participant Register”). A Registered
Loan (and the Registered Note, if any, evidencing the same) may be participated in whole or in part
only by registration of such participation on the Participant Register (and each registered note
shall expressly so provide). Any participation of such Registered Loan (and the registered note,
if any, evidencing the same) may be effected only by the registration of such participation on the
Participant Register.




          (j) Agent shall make a copy of the Register (and each Lender shall make a copy of its
Participant Register in the extent it has one) available for review by Borrower from time to time
as Borrower may reasonably request.




     13.2 Successors. This Agreement shall bind and inure to the benefit of the respective
successors and assigns of each of the parties; provided, however, that Borrower may
not assign this Agreement or any rights or duties hereunder without the Lenders’ prior written
consent and any prohibited assignment shall be absolutely void ab initio. No consent to assignment
by the Lenders shall release Borrower from its Obligations. A Lender may assign this Agreement and
the other Loan Documents and its rights and duties hereunder and thereunder pursuant to Section
13.1 and, except as expressly required pursuant to Section 13.1, no consent or approval
by Borrower is required in connection with any such assignment.



14. AMENDMENTS; WAIVERS.




     14.1 Amendments and Waivers.



          (a) No amendment, waiver or other modification of any provision of this Agreement or any other
Loan Document (other than Bank Product Agreements or the Fee Letter), and no consent with respect
to any departure by Borrower therefrom, shall be effective unless the same shall be in writing and
signed by the Required Lenders (or by Agent at the written request of the Required Lenders) and
Borrower and then any such waiver or consent shall be effective, but only in the specific instance
and for the specific purpose for which given; provided, however, that no such waiver, amendment, or
consent shall, unless in writing and signed by all of the Lenders directly affected thereby and
Borrower, do any of the following:




               (i) increase the amount of or extend the expiration date of any Commitment of any Lender,



               (ii) postpone or delay any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees, or other amounts due hereunder or under any other Loan
Document,



               (iii) reduce the principal of, or the rate of interest on, any loan or other extension of
credit hereunder, or reduce any fees or other amounts payable hereunder or under any other Loan
Document (except (y) in connection with the waiver of applicability of Section 2.6(c)
(which waiver shall be effective with the written consent of the Required Lenders), and (z) that
any amendment or modification of defined terms used in the financial covenants in this Agreement
shall not constitute a reduction in the rate of interest or a reduction of fees for purposes of
this clause (iii)),



               (iv) amend or modify this Section or any provision of this Agreement providing for consent or
other action by all Lenders,



               (v) other than as permitted by Section 15.11, release Agent’s Lien in and to any of
the Collateral,



               (vi) change the definition of “Required Lenders” or “Pro Rata Share”,



40









 





               (vii) contractually subordinate any of the Agent’s Liens,



               (viii) other than in connection with a merger, liquidation, dissolution or sale of such Person
expressly permitted by the terms hereof or the other Loan Documents, release Borrower or any
Guarantor from any obligation for the payment of money or consent to the assignment or transfer by
the Borrower or any Guarantor of any of its rights or duties under this Agreement or the other Loan
Documents,



               (ix) amend any of the provisions of Section 2.4(b)(i) or (ii) or Section
2.4(e) or (f),



               (x) amend Section 13.1(a) to permit a Loan Party or an Affiliate of a Loan Party to be
permitted to become an Assignee, or



               (xi) change the definition of Credit Amount or any of the defined terms (including the
definition of EBITDA) that are used in such definition to the extent that any such change results
in more credit being made available to Borrower based upon the Credit Amount, but not otherwise, or
the definitions of Maximum Revolver Amount or Term Loan Amount, or change Section 2.1(c).



          (b) No amendment, waiver, modification, or consent shall amend, modify, or waive (i) the
definition of, or any of the terms or provisions of, the Fee Letter, without the written consent of
Agent and Borrower (and shall not require the written consent of any of the Lenders), and (ii) any
provision of Section 15 pertaining to Agent, or any other rights or duties of Agent under
this Agreement or the other Loan Documents, without the written consent of Agent, Borrower, and the
Required Lenders,




          (c) No amendment, waiver, modification, or consent shall amend, modify, or waive any provision
of this Agreement or the other Loan Documents pertaining to Issuing Lender, or any other rights or
duties of Issuing Lender under this Agreement or the other Loan Documents, without the written
consent of Issuing Lender, Agent, Borrower, and the Required Lenders,




          (d) No amendment, waiver, modification, or consent shall amend, modify, or waive any provision
of this Agreement or the other Loan Documents pertaining to Swing Lender, or any other rights or
duties of Swing Lender under this Agreement or the other Loan Documents, without the written
consent of Swing Lender, Agent, Borrower, and the Required Lenders,




          (e) Anything in this Section 14.1 to the contrary notwithstanding, any amendment,
modification, waiver, consent, termination, or release of, or with respect to, any provision of
this Agreement or any other Loan Document that relates only to the relationship of the Lender Group
among themselves, and that does not affect the rights or obligations of Borrower, shall not require
consent by or the agreement of Borrower.




     14.2 Replacement of Holdout Lender.



          (a) If any action to be taken by the Lender Group or Agent hereunder requires the unanimous
consent, authorization, or agreement of all Lenders and if such action has received the consent,
authorization, or agreement of the Required Lenders but not all of the Lenders, then Agent, upon at
least 5 Business Days prior irrevocable notice, may permanently replace any Lender (a “Holdout
Lender”) that failed to give its consent, authorization, or agreement with one or more
Replacement Lenders, and the Holdout Lender shall have no right to refuse to be replaced hereunder.
Such notice to replace the Holdout Lender shall specify an effective date for such replacement,
which date shall not be later than 15 Business Days after the date such notice is given.




41









 








          (b) Prior to the effective date of such replacement, the Holdout Lender and each Replacement
Lender shall execute and deliver an Assignment and Acceptance, subject only to the Holdout Lender
being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata
Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever.
If the Holdout Lender shall refuse or fail to execute and deliver any such Assignment and
Acceptance prior to the effective date of such replacement, the Holdout Lender shall be deemed to
have executed and delivered such Assignment and Acceptance. The replacement of any Holdout Lender
shall be made in accordance with the terms of Section 13.1. Until such time as the
Replacement Lenders shall have acquired all of the Obligations, the Commitments, and the other
rights and obligations of the Holdout Lender hereunder and under the other Loan Documents, the
Holdout Lender shall remain obligated to make the Holdout Lender’s Pro Rata Share of Advances and
to purchase a participation in each Letter of Credit, in an amount equal to its Pro Rata Share of
the Risk Participation Liability of such Letter of Credit.




     14.3 No Waivers; Cumulative Remedies. No failure by Agent or any Lender to exercise
any right, remedy, or option under this Agreement or any other Loan Document, or delay by Agent or
any Lender in exercising the same, will operate as a waiver thereof. No waiver by Agent or any
Lender will be effective unless it is in writing, and then only to the extent specifically stated.
No waiver by Agent or any Lender on any occasion shall affect or diminish Agent’s and each Lender’s
rights thereafter to require strict performance by Borrower of any provision of this Agreement.
Agent’s and each Lender’s rights under this Agreement and the other Loan Documents will be
cumulative and not exclusive of any other right or remedy that Agent or any Lender may have.



15. AGENT; THE LENDER GROUP.




     15.1 Appointment and Authorization of Agent. Each Lender hereby designates and
appoints WFF as its representative under this Agreement and the other Loan Documents and each
Lender hereby irrevocably authorizes Agent to execute and deliver each of the other Loan Documents
on its behalf and to take such other action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties as are expressly
delegated to Agent by the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Agent agrees to act as such on the express conditions
contained in this Section 15. The provisions of this Section 15 are solely for the
benefit of Agent and the Lenders, and Borrower and its Subsidiaries shall have no rights as a third
party beneficiary of any of the provisions contained herein. Any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document notwithstanding, Agent shall
not have any duties or responsibilities, except those expressly set forth herein, nor shall Agent
have or be deemed to have any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement
or any other Loan Document or otherwise exist against Agent; it being expressly understood and
agreed that the use of the word “Agent” is for convenience only, that WFF is merely the
representative of the Lenders, and only has the contractual duties set forth herein. Except as
expressly otherwise provided in this Agreement, Agent shall have and may use its sole discretion
with respect to exercising or refraining from exercising any discretionary rights or taking or
refraining from taking any actions that Agent expressly is entitled to take or assert under or
pursuant to this Agreement and the other Loan Documents. Without limiting the generality of the
foregoing, or of any other provision of the Loan Documents that provides rights or powers to Agent,
Lenders agree that Agent shall have the right to exercise the following powers as long as this
Agreement remains in effect: (a) maintain, in accordance with its customary business practices,
ledgers and records reflecting the status of the Obligations, the Collateral, the Collections of
Borrower and its Subsidiaries, and related matters, (b) execute or file any and all financing or
similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of
claim, notices and other written agreements with respect to the Loan Documents, (c) make Advances,
for itself or on behalf of Lenders, as provided in the Loan Documents, (d) exclusively receive,
apply, and distribute the Collections of Borrower and its Subsidiaries as provided in the Loan
Documents, (e) open and maintain such bank accounts and cash management arrangements as Agent deems
necessary and appropriate in accordance with the Loan Documents for the foregoing purposes with
respect to the Collateral and the Collections of
Borrower and its Subsidiaries, (f) perform, exercise, and enforce any and all other rights and
remedies of the Lender Group with respect to Borrower or its Subsidiaries, the Obligations, the
Collateral, the Collections of Borrower and its Subsidiaries, or otherwise related to any of same
as provided in the Loan Documents, and (g) incur and pay such Lender Group Expenses as Agent may
deem necessary or appropriate for the performance and fulfillment of its functions and powers
pursuant to the Loan Documents.



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     15.2 Delegation of Duties. Agent may execute any of its duties under this Agreement
or any other Loan Document by or through agents, employees or attorneys in fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties. Agent shall not be
responsible for the negligence or misconduct of any agent or attorney in fact that it selects as
long as such selection was made without gross negligence or willful misconduct.



     15.3 Liability of Agent. None of the Agent-Related Persons shall (a) be liable for
any action taken or omitted to be taken by any of them under or in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (b) be responsible in any manner to any of the Lenders for
any recital, statement, representation or warranty made by Borrower or any of its Subsidiaries or
Affiliates, or any officer or director thereof, contained in this Agreement or in any other Loan
Document, or in any certificate, report, statement or other document referred to or provided for
in, or received by Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any
other Loan Document, or for any failure of Borrower or its Subsidiaries or any other party to any
Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be
under any obligation to any Lender to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document,
or to inspect the books and records or properties of Borrower or its Subsidiaries.



     15.4 Reliance by Agent. Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter,
telegram, telefacsimile or other electronic method of transmission, telex or telephone message,
statement or other document or conversation believed by it to be genuine and correct and to have
been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to Borrower or counsel to any Lender), independent accountants and other
experts selected by Agent. Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless Agent shall first receive such advice
or concurrence of the Lenders as it deems appropriate and until such instructions are received,
Agent shall act, or refrain from acting, as it deems advisable. If Agent so requests, it shall
first be indemnified to its reasonable satisfaction by the Lenders against any and all liability
and expense that may be incurred by it by reason of taking or continuing to take any such action.
Agent shall in all cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of the requisite
Lenders and such request and any action taken or failure to act pursuant thereto shall be binding
upon all of the Lenders.



     15.5 Notice of Default or Event of Default. Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except with respect to
defaults in the payment of principal, interest, fees, and expenses required to be paid to Agent for
the account of the Lenders and, except with respect to Events of Default of which Agent has actual
knowledge, unless Agent shall have received written notice from a Lender or Borrower referring to
this Agreement, describing such Default or Event of Default, and stating that such notice is a
“notice of default.” Agent promptly will notify the Lenders of its receipt of any such notice or
of any Event of Default of which Agent has actual knowledge. If any Lender obtains actual
knowledge of any Event of Default, such Lender promptly shall notify the other Lenders and Agent of
such Event of Default. Each Lender shall be solely responsible for giving any notices to its
Participants, if any. Subject to Section 15.4, Agent shall take such action with respect
to such Default or Event of Default as may be requested by the Required Lenders in accordance with
Section 8; provided, however, that unless and until Agent has received any
such request, Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or Event of Default
as it shall deem advisable.



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     15.6 Credit Decision. Each Lender acknowledges that none of the Agent-Related Persons
has made any representation or warranty to it, and that no act by Agent hereinafter taken,
including any review of the affairs of Borrower and its Subsidiaries or Affiliates, shall be deemed
to constitute any representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of Borrower or any other Person party to a Loan Document, and
all applicable bank regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to Borrower. Each Lender also
represents that it will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other condition and
creditworthiness of Borrower or any other Person party to a Loan Document. Except for notices,
reports, and other documents expressly herein required to be furnished to the Lenders by Agent,
Agent shall not have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial and other condition
or creditworthiness of Borrower or any other Person party to a Loan Document that may come into the
possession of any of the Agent-Related Persons.



     15.7 Costs and Expenses; Indemnification. Agent may incur and pay Lender Group
Expenses to the extent Agent reasonably deems necessary or appropriate for the performance and
fulfillment of its functions, powers, and obligations pursuant to the Loan Documents, including
court costs, attorneys fees and expenses, fees and expenses of financial accountants, advisors,
consultants, and appraisers, costs of collection by outside collection agencies, auctioneer fees
and expenses, and costs of security guards or insurance premiums paid to maintain the Collateral,
whether or not Borrower is obligated to reimburse Agent or Lenders for such expenses pursuant to
this Agreement or otherwise. Agent is authorized and directed to deduct and retain sufficient
amounts from the Collections of Borrower and its Subsidiaries received by Agent to reimburse Agent
for such out-of-pocket costs and expenses prior to the distribution of any amounts to Lenders. In
the event Agent is not reimbursed for such costs and expenses by Borrower or its Subsidiaries, each
Lender hereby agrees that it is and shall be obligated to pay to Agent such Lender’s Pro Rata Share
thereof. Whether or not the transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand the Agent-Related Persons (to the extent not reimbursed by or on behalf of
Borrower and without limiting the obligation of Borrower to do so), according to their Pro Rata
Shares, from and against any and all Indemnified Liabilities; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities resulting solely from such Person’s gross negligence or willful misconduct
nor shall any Lender be liable for the obligations of any Defaulting Lender in failing to make an
Advance or other extension of credit hereunder. Without limitation of the foregoing, each Lender
shall reimburse Agent upon demand for such Lender’s Pro Rata Share of any costs or out of pocket
expenses (including attorneys, accountants, advisors, and consultants fees and expenses) incurred
by Agent in connection with the preparation, execution, delivery, administration, modification,
amendment, or enforcement (whether through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent that Agent is not
reimbursed for such expenses by or on behalf of Borrower. The undertaking in this Section shall
survive the payment of all Obligations hereunder and the resignation or replacement of Agent.



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     15.8 Agent in Individual Capacity. WFF and its Affiliates may make loans to, issue
letters of credit for the account of, accept deposits from, acquire equity interests in, and
generally engage in any kind of banking, trust, financial advisory, underwriting, or other business
with Borrower and its Subsidiaries and
Affiliates and any other Person party to any Loan Documents as though WFF were not Agent
hereunder, and, in each case, without notice to or consent of the other members of the Lender
Group. The other members of the Lender Group acknowledge that, pursuant to such activities, WFF or
its Affiliates may receive information regarding Borrower or its Affiliates or any other Person
party to any Loan Documents that is subject to confidentiality obligations in favor of Borrower or
such other Person and that prohibit the disclosure of such information to the Lenders, and the
Lenders acknowledge that, in such circumstances (and in the absence of a waiver of such
confidentiality obligations, which waiver Agent will use its reasonable best efforts to obtain),
Agent shall not be under any obligation to provide such information to them. The terms “Lender”
and “Lenders” include WFF in its individual capacity.



     15.9 Successor Agent. Agent may resign as Agent upon 30 days prior written notice to
the Lenders (unless such notice is waived by the Required Lenders) and Borrower (unless such notice
is waived by Borrower). If Agent resigns under this Agreement, the Required Lenders shall be
entitled, with (so long as no Event of Default has occurred and is continuing) the consent of
Borrower (such consent not to be unreasonably withheld, delayed, or conditioned), appoint a
successor Agent for the Lenders. If, at the time that Agent’s resignation is effective, it is
acting as the Issuing Lender or the Swing Lender, such resignation shall also operate to effectuate
its resignation as the Issuing Lender or the Swing Lender, as applicable, and it shall
automatically be relieved of any further obligation to issue Letters of Credit or make Swing Loans.
If no successor Agent is appointed prior to the effective date of the resignation of Agent, Agent
may appoint, after consulting with the Lenders and Borrower, a successor Agent. If Agent has
materially breached or failed to perform any material provision of this Agreement or of applicable
law, the Required Lenders may agree in writing to remove and replace Agent with a successor Agent
from among the Lenders. In any such event, upon the acceptance of its appointment as successor
Agent hereunder, such successor Agent shall succeed to all the rights, powers, and duties of the
retiring Agent and the term “Agent” shall mean such successor Agent and the retiring Agent’s
appointment, powers, and duties as Agent shall be terminated. After any retiring Agent’s
resignation hereunder as Agent, the provisions of this Section 15 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor Agent has accepted appointment as Agent by the date which is 30 days
following a retiring Agent’s notice of resignation, the retiring Agent’s resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the duties of Agent
hereunder until such time, if any, as the Lenders appoint a successor Agent as provided for above.



     15.10 Lender in Individual Capacity. Any Lender and its respective Affiliates may
make loans to, issue letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial advisory, underwriting,
or other business with Borrower and its Subsidiaries and Affiliates and any other Person party to
any Loan Documents as though such Lender were not a Lender hereunder without notice to or consent
of the other members of the Lender Group. The other members of the Lender Group acknowledge that,
pursuant to such activities, such Lender and its respective Affiliates may receive information
regarding Borrower or its Affiliates or any other Person party to any Loan Documents that is
subject to confidentiality obligations in favor of Borrower or such other Person and that prohibit
the disclosure of such information to the Lenders, and the Lenders acknowledge that, in such
circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver
such Lender will use its reasonable best efforts to obtain), such Lender shall not be under any
obligation to provide such information to them.



     15.11 Collateral Matters.



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          (a) The Lenders hereby irrevocably authorize Agent, at its option and in its sole discretion,
to release any Lien on any Collateral (i) upon the termination of the Commitments and payment and
satisfaction in full by Borrower of all Obligations, (ii) constituting property being sold or
disposed of if a release is required or desirable in connection therewith and if Borrower certifies
to Agent that the sale or disposition is permitted under Section 6.4 of this Agreement or
the other Loan Documents (and Agent may rely conclusively on any such certificate, without further
inquiry), (iii) constituting property in which
Borrower or its Subsidiaries owned no interest at the time the Agent’s Lien was granted nor at
any time thereafter, or (iv) constituting property leased to Borrower or its Subsidiaries under a
lease that has expired or is terminated in a transaction permitted under this Agreement. Except as
provided above, Agent will not execute and deliver a release of any Lien on any Collateral without
the prior written authorization of (y) if the release is of all or substantially all of the
Collateral, all of the Lenders, or (z) otherwise, the Required Lenders. Upon request by Agent or
Borrower at any time, the Lenders will confirm in writing Agent’s authority to release any such
Liens on particular types or items of Collateral pursuant to this Section 15.11;
provided, however, that (1) Agent shall not be required to execute any document
necessary to evidence such release on terms that, in Agent’s opinion, would expose Agent to
liability or create any obligation or entail any consequence other than the release of such Lien
without recourse, representation, or warranty, and (2) such release shall not in any manner
discharge, affect, or impair the Obligations or any Liens (other than those expressly being
released) upon (or obligations of Borrower in respect of) all interests retained by Borrower,
including, the proceeds of any sale, all of which shall continue to constitute part of the
Collateral.




          (b) Agent shall have no obligation whatsoever to any of the Lenders to assure that the
Collateral exists or is owned by Borrower or its Subsidiaries or is cared for, protected, or
insured or has been encumbered, or that the Agent’s Liens have been properly or sufficiently or
lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or
to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity,
or to continue exercising, any of the rights, authorities and powers granted or available to Agent
pursuant to any of the Loan Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission, or event related thereto, subject to the terms and conditions
contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given
Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall
have no other duty or liability whatsoever to any Lender as to any of the foregoing, except as
otherwise provided herein.




     15.12 Restrictions on Actions by Lenders; Sharing of Payments.



          (a) Each of the Lenders agrees that it shall not, without the express written consent of
Agent, and that it shall, to the extent it is lawfully entitled to do so, upon the written request
of Agent, set off against the Obligations, any amounts owing by such Lender to Borrower or its
Subsidiaries or any deposit accounts of Borrower or its Subsidiaries now or hereafter maintained
with such Lender. Each of the Lenders further agrees that it shall not, unless specifically
requested to do so in writing by Agent, take or cause to be taken any action, including, the
commencement of any legal or equitable proceedings to enforce any Loan Document against Borrower or
any Guarantor or to foreclose any Lien on, or otherwise enforce any security interest in, any of
the Collateral.




          (b) If, at any time or times any Lender shall receive (i) by payment, foreclosure, setoff, or
otherwise, any proceeds of Collateral or any payments with respect to the Obligations, except for
any such proceeds or payments received by such Lender from Agent pursuant to the terms of this
Agreement, or (ii) payments from Agent in excess of such Lender’s Pro Rata Share of all such
distributions by Agent, such Lender promptly shall (A) turn the same over to Agent, in kind, and
with such endorsements as may be required to negotiate the same to Agent, or in immediately
available funds, as applicable, for the account of all of the Lenders and for application to the
Obligations in accordance with the applicable provisions of this Agreement, or (B) purchase,
without recourse or warranty, an undivided interest and participation in the Obligations owed to
the other Lenders so that such excess payment received shall be applied ratably as among the
Lenders in accordance with their Pro Rata Shares; provided, however, that to the extent that such
excess payment received by the purchasing party is thereafter recovered from it, those purchases of
participations shall be rescinded in whole or in part, as applicable, and the applicable portion of
the purchase price paid therefor shall be returned to such purchasing party, but without interest
except to the extent that such purchasing party is required to pay interest in connection with the
recovery of the excess payment.




     15.13 Agency for Perfection. Agent hereby appoints each other Lender as its agent
(and each Lender hereby accepts such appointment) for the purpose of perfecting the Agent’s Liens
in assets which,
in accordance with Article 8 or Article 9, as applicable, of the Code can be perfected by
possession or control. Should any Lender obtain possession or control of any such Collateral, such
Lender shall notify Agent thereof, and, promptly upon Agent’s request therefor shall deliver
possession or control of such Collateral to Agent or in accordance with Agent’s instructions.



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     15.14 Payments by Agent to the Lenders. All payments to be made by Agent to the
Lenders shall be made by bank wire transfer of immediately available funds pursuant to such wire
transfer instructions as each party may designate for itself by written notice to Agent.
Concurrently with each such payment, Agent shall identify whether such payment (or any portion
thereof) represents principal, premium, fees, or interest of the Obligations.



     15.15 Concerning the Collateral and Related Loan Documents. Each member of the Lender
Group authorizes and directs Agent to enter into this Agreement and the other Loan Documents. Each
member of the Lender Group agrees that any action taken by Agent in accordance with the terms of
this Agreement or the other Loan Documents relating to the Collateral and the exercise by Agent of
its powers set forth therein or herein, together with such other powers that are reasonably
incidental thereto, shall be binding upon all of the Lenders.



     15.16 Audits and Examination Reports; Confidentiality; Disclaimers by Lenders; Other
Reports and Information. By becoming a party to this Agreement, each Lender:



          (a) is deemed to have requested that Agent furnish such Lender, promptly after it becomes
available, a copy of each field audit or examination report respecting Borrower or its Subsidiaries
(each a “Report” and collectively, “Reports”) prepared by or at the request of
Agent, and Agent shall so furnish each Lender with such Reports,




          (b) expressly agrees and acknowledges that Agent does not (i) make any representation or
warranty as to the accuracy of any Report, and (ii) shall not be liable for any information
contained in any Report,




          (c) expressly agrees and acknowledges that the Reports are not comprehensive audits or
examinations, that Agent or other party performing any audit or examination will inspect only
specific information regarding Borrower and its Subsidiaries and will rely significantly upon
Borrower’s and its Subsidiaries’ books and records, as well as on representations of Borrower’s
personnel,




          (d) agrees to keep all Reports and other material, non-public information regarding Borrower
and its Subsidiaries and their operations, assets, and existing and contemplated business plans in
a confidential manner in accordance with Section 17.9, and




          (e) without limiting the generality of any other indemnification provision contained in this
Agreement, agrees: (i) to hold Agent and any other Lender preparing a Report harmless from any
action the indemnifying Lender may take or fail to take or any conclusion the indemnifying Lender
may reach or draw from any Report in connection with any loans or other credit accommodations that
the indemnifying Lender has made or may make to Borrower, or the indemnifying Lender’s
participation in, or the indemnifying Lender’s purchase of, a loan or loans of Borrower, and (ii)
to pay and protect, and indemnify, defend and hold Agent, and any such other Lender preparing a
Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and
other amounts (including, attorneys fees and costs) incurred by Agent and any such other Lender
preparing a Report as the direct or indirect result of any third parties who might obtain all or
part of any Report through the indemnifying Lender.



In addition to the foregoing: (x) any Lender may from time to time request of Agent in writing
that Agent provide to such Lender a copy of any report or document provided by Borrower or its
Subsidiaries to Agent that has not been contemporaneously provided by Borrower or such Subsidiary
to such Lender, and, upon
receipt of such request, Agent promptly shall provide a copy of same to such Lender, (y) to the
extent that Agent is entitled, under any provision of the Loan Documents, to request additional
reports or information from Borrower or its Subsidiaries, any Lender may, from time to time,
reasonably request Agent to exercise such right as specified in such Lender’s notice to Agent,
whereupon Agent promptly shall request of Borrower the additional reports or information reasonably
specified by such Lender, and, upon receipt thereof from Borrower or such Subsidiary, Agent
promptly shall provide a copy of same to such Lender, and (z) any time that Agent renders to
Borrower a statement regarding the Loan Account, Agent shall send a copy of such statement to each
Lender.




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     15.17 Several Obligations; No Liability. Notwithstanding that certain of the Loan
Documents now or hereafter may have been or will be executed only by or in favor of Agent in its
capacity as such, and not by or in favor of the Lenders, any and all obligations on the part of
Agent (if any) to make any credit available hereunder shall constitute the several (and not joint)
obligations of the respective Lenders on a ratable basis, according to their respective
Commitments, to make an amount of such credit not to exceed, in principal amount, at any one time
outstanding, the amount of their respective Commitments. Nothing contained herein shall confer
upon any Lender any interest in, or subject any Lender to any liability for, or in respect of, the
business, assets, profits, losses, or liabilities of any other Lender. Each Lender shall be solely
responsible for notifying its Participants of any matters relating to the Loan Documents to the
extent any such notice may be required, and no Lender shall have any obligation, duty, or liability
to any Participant of any other Lender. Except as provided in Section 15.7, no member of
the Lender Group shall have any liability for the acts of any other member of the Lender Group. No
Lender shall be responsible to Borrower or any other Person for any failure by any other Lender to
fulfill its obligations to make credit available hereunder, nor to advance for it or on its behalf
in connection with its Commitment, nor to take any other action on its behalf hereunder or in
connection with the financing contemplated herein.



16. WITHHOLDING TAXES.




          (a) All payments made by Borrower hereunder or under any note or other Loan Document will be
made without setoff, counterclaim, or other defense. In addition, all such payments will be made
free and clear of, and without deduction or withholding for, any present or future Taxes, and in
the event any deduction or withholding of Taxes is required, Borrower shall comply with the next
sentence of this Section 16(a). If any Taxes are so levied or imposed, Borrower agrees to
pay the full amount of such Taxes and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement, any note, or other Loan Document, including any
amount paid pursuant to this Section 16(a) after withholding or deduction for or on account
of any Taxes, will not be less than the amount provided for herein; provided, however, that
Borrower shall not be required to increase any such amounts if the increase in such amount payable
results from Agent’s or such Lender’s own willful misconduct or gross negligence (as finally
determined by a court of competent jurisdiction). Borrower will furnish to Agent as promptly as
possible after the date the payment of any Tax is due pursuant to applicable law, certified copies
of tax receipts evidencing such payment by Borrower.




          (b) Borrower agrees to pay any present or future stamp, value added or documentary taxes or
any other excise or property taxes, charges, or similar levies that arise from any payment made
hereunder or from the execution, delivery, performance, recordation, or filing of, or otherwise
with respect to this Agreement or any other Loan Document.




          (c) If a Lender or Participant is entitled to claim an exemption or reduction from United
States withholding tax, such Lender or Participant agrees with and in favor of Agent, to deliver to
Agent (or, in the case of a Participant, to the Lender granting the participation only) one of the
following before receiving its first payment under this Agreement:




               (i) if such Lender or Participant is entitled to claim an exemption from United States
withholding tax pursuant to its portfolio interest exception, (A) a statement of the Lender or
Participant,
signed under penalty of perjury, that it is not a (I) a “bank” as described in Section
881(c)(3)(A) of the IRC, (II) a 10% shareholder of Borrower (within the meaning of Section
871(h)(3)(B) of the IRC), or (III) a controlled foreign corporation related to Borrower within the
meaning of Section 864(d)(4) of the IRC, and (B) a properly completed and executed IRS Form W-8BEN
or Form W-8IMY (with proper attachments);



48









 





               (ii) if such Lender or Participant is entitled to claim an exemption from, or a reduction of,
withholding tax under a United States tax treaty, a properly completed and executed copy of IRS
Form W-8BEN;



               (iii) if such Lender or Participant is entitled to claim that interest paid under this
Agreement is exempt from United States withholding tax because it is effectively connected with a
United States trade or business of such Lender, a properly completed and executed copy of IRS Form
W-8ECI;



               (iv) if such Lender or Participant is entitled to claim that interest paid under this
Agreement is exempt from United States withholding tax because such Lender or Participant serves as
an intermediary, a properly completed and executed copy of IRS Form W-8IMY (with proper
attachments); or



               (v) a properly completed and executed copy of any other form or forms, including IRS Form W-9,
as may be required under the IRC or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding or backup withholding tax.


Each Lender or Participant shall provide new forms (or successor forms) upon the expiration or
obsolescence of any previously delivered forms and to promptly notify Agent (or, in the case of a
Participant, to the Lender granting the participation only) of any change in circumstances which
would modify or render invalid any claimed exemption or reduction.




          (d) If a Lender or Participant claims an exemption from withholding tax in a jurisdiction
other than the United States, such Lender or such Participant agrees with and in favor of Agent, to
deliver to Agent (or, in the case of a Participant, to the Lender granting the participation only)
any such form or forms, as may be required under the laws of such jurisdiction as a condition to
exemption from, or reduction of, foreign withholding or backup withholding tax before receiving its
first payment under this Agreement, but only if such Lender or such Participant is legally able to
deliver such forms, provided, however, that nothing in this Section 16(d) shall require a
Lender or Participant to disclose any information that it deems to be confidential (including
without limitation, its tax returns). Each Lender and each Participant shall provide new forms (or
successor forms) upon the expiration or obsolescence of any previously delivered forms and to
promptly notify Agent (or, in the case of a Participant, to the Lender granting the participation
only) of any change in circumstances which would modify or render invalid any claimed exemption or
reduction.




          (e) If a Lender or Participant claims exemption from, or reduction of, withholding tax and
such Lender or Participant sells, assigns, grants a participation in, or otherwise transfers all or
part of the Obligations of Borrower to such Lender or Participant, such Lender or Participant
agrees to notify Agent (or, in the case of a sale of a participation interest, to the Lender
granting the participation only) of the percentage amount in which it is no longer the beneficial
owner of Obligations of Borrower to such Lender or Participant. To the extent of such percentage
amount, Agent will treat such Lender’s or such Participant’s documentation provided pursuant to
Section 16(c) or 16(d) as no longer valid. With respect to such percentage amount,
such Participant or Assignee may provide new documentation, pursuant to Section 16(c) or
16(d), if applicable. Borrower agrees that each Participant shall be entitled to the
benefits of this Section 16 with respect to its participation in any portion of the
Commitments and the Obligations so long as such Participant complies with the obligations set forth
in this Section 16 with respect thereto, and provided that a Participant shall not be
entitled to any additional amounts pursuant to this Section 16 in excess of the amount to
which the Lender granting the participation would have been entitled with respect to the
participation sold to such Participant.




          (f) If a Lender or a Participant is entitled to a reduction in the applicable withholding tax,
Agent (or, in the case of a Participant, the Lender granting the participation) may withhold from
any interest payment to such Lender or such Participant an amount equivalent to the applicable
withholding tax after taking into account such reduction. If the forms or other documentation
required by subsection (c) or (d) of this Section 16 are not delivered to Agent
(or, in the case of a Participant, to the Lender granting the participation), then Agent (or, in
the case of a Participant, the Lender granting the participation) may withhold from any interest
payment to such Lender or such Participant not providing such forms or other documentation an
amount equivalent to the applicable withholding tax.




49









 








          (g) If the IRS or any other Governmental Authority of the United States or other jurisdiction
asserts a claim that Agent or Borrower (or, in the case of a Participant, the Lender granting the
participation) did not properly withhold tax from amounts paid to or for the account of any Lender
or any Participant due to a failure on the part of the Lender or any Participant (because the
appropriate form was not delivered, was not properly executed, or because such Lender failed to
notify Agent or Borrower (or such Participant failed to notify the Lender granting the
participation) of a change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Lender shall indemnify and hold Agent
and Borrower harmless (or, in the case of a Participant, such Participant shall indemnify and hold
the Lender granting the participation harmless) for all amounts paid, directly or indirectly, by
Agent or Borrower (or, in the case of a Participant, by the Lender granting the participation), as
tax or otherwise, including penalties and interest, and including any taxes imposed by any
jurisdiction on the amounts payable to Agent or Borrower (or, in the case of a Participant, to the
Lender granting the participation only) under this Section 16, together with all costs and
expenses (including attorneys fees and expenses). The obligation of the Lenders and the
Participants under this subsection shall survive the payment of all Obligations and the resignation
or replacement of Agent.




          (h) If Agent or a Lender determines, in its sole discretion, that it has received a refund of
any Taxes as to which it has been indemnified by Borrower or with respect to which Borrower has
paid additional amounts pursuant to this Section 16, so long as no Default or Event of
Default has occurred and is continuing, it shall pay over such refund to Borrower (but only to the
extent of payments made, or additional amounts paid, by Borrower under this Section 16 with
respect to Taxes giving rise to such a refund), net of all out-of-pocket expenses of Agent or such
Lender and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such a refund); provided, that Borrower, upon the request of Agent or such Lender,
agrees to repay the amount paid over to Borrower (plus any penalties, interest or other charges,
imposed by the relevant Governmental Authority, other than such penalties, interest or other
charges imposed as a result of the willful misconduct or gross negligence of Agent hereunder) to
Agent or such Lender in the event Agent or such Lender is required to repay such refund to such
Governmental Authority. Notwithstanding anything in this Credit Agreement to the contrary, this
Section 16 shall not be construed to require Agent or any Lender to make available its tax
returns (or any other information which it deems confidential) to Borrower or any other Person.




17. GENERAL PROVISIONS.




     17.1 Effectiveness. This Agreement shall be binding and deemed effective when
executed by Borrower, Agent, and each Lender whose signature is provided for on the signature pages
hereof.



     17.2 Section Headings. Headings and numbers have been set forth herein for
convenience only. Unless the contrary is compelled by the context, everything contained in each
Section applies equally to this entire Agreement.



     17.3 Interpretation. Neither this Agreement nor any uncertainty or ambiguity herein
shall be construed against the Lender Group or Borrower, whether under any rule of construction or
otherwise. On the contrary, this Agreement has been reviewed by all parties and shall be construed
and interpreted according
to the ordinary meaning of the words used so as to accomplish fairly the purposes and
intentions of all parties hereto.



     17.4 Severability of Provisions. Each provision of this Agreement shall be severable
from every other provision of this Agreement for the purpose of determining the legal
enforceability of any specific provision.



50









 





     17.5 Bank Product Providers. Each Bank Product Provider shall be deemed a third party
beneficiary hereof and of the provisions of the other Loan Documents for purposes of any reference
in a Loan Document to the parties for whom Agent is acting; it being understood and agreed that the
rights and benefits of such Bank Product Provider under the Loan Documents consist exclusively of
such Bank Product Provider’s right to share in payments and collections out of the Collateral as
more fully set forth herein. In connection with any such distribution of payments and collections,
Agent shall be entitled to assume no amounts are due to any Bank Product Provider unless such Bank
Product Provider has notified Agent in writing of the amount of any such liability owed to it prior
to such distribution.



     17.6 Debtor-Creditor Relationship. The relationship between the Lenders and Agent, on
the one hand, and the Loan Parties, on the other hand, is solely that of creditor and debtor. No
member of the Lender Group has (or shall be deemed to have) any fiduciary relationship or duty to
any Loan Party arising out of or in connection with the Loan Documents or the transactions
contemplated thereby, and there is no agency or joint venture relationship between the members of
the Lender Group, on the one hand, and the Loan Parties, on the other hand, by virtue of any Loan
Document or any transaction contemplated therein.



     17.7 Counterparts; Electronic Execution. 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.



     17.8 Revival and Reinstatement of Obligations. If the incurrence or payment of the
Obligations by Borrower or Guarantor or the transfer to the Lender Group of any property should for
any reason subsequently be asserted, or declared, to be void or voidable under any state or federal
law relating to creditors’ rights, including provisions of the Bankruptcy Code relating to
fraudulent conveyances, preferences, or other voidable or recoverable payments of money or
transfers of property (each, a “Voidable Transfer”), and if the Lender Group is required to
repay or restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the
reasonable advice of its counsel, then, as to any such Voidable Transfer, or the amount thereof
that the Lender Group is required or elects to repay or restore, and as to all reasonable costs,
expenses, and attorneys fees of the Lender Group related thereto, the liability of Borrower or
Guarantor automatically shall be revived, reinstated, and restored and shall exist as though such
Voidable Transfer had never been made.



     17.9 Confidentiality.



          (a) Agent and Lenders each individually (and not jointly or jointly and severally) agree that
material, non-public information regarding Borrower and its Subsidiaries, their operations, assets,
and existing and contemplated business plans shall be treated by Agent and the Lenders in a
confidential manner, and shall not be disclosed by Agent and the Lenders to Persons who are not
parties to this Agreement, except: (i) to attorneys for and other advisors, accountants, auditors,
and consultants to any member of the Lender Group, (ii) to Subsidiaries and Affiliates of any
member of the Lender Group (including the Bank Product Providers), provided that any such
Subsidiary or Affiliate shall have agreed to receive such information
hereunder subject to the terms of this Section 17.9, (iii) as may be required by
statute, decision, or judicial or administrative order, rule, or regulation, (iv) as may be agreed
to in advance by Borrower or as requested or required by any Governmental Authority pursuant to any
subpoena or other legal process, (v) as to any such information that is or becomes generally
available to the public (other than as a result of prohibited disclosure by Agent or the Lenders),
(vi) in connection with any assignment, participation or pledge of any Lender’s interest under
this Agreement, provided that any such assignee, participant, or pledgee shall have agreed in
writing to receive such information hereunder subject to the terms of this Section, and (vii) in
connection with any litigation or other adversary proceeding involving parties hereto which such
litigation or adversary proceeding involves claims related to the rights or duties of such parties
under this Agreement or the other Loan Documents.




51









 








          (b) Anything in this Agreement to the contrary notwithstanding, Agent may provide information
concerning the terms and conditions of this Agreement and the other Loan Documents to loan
syndication and pricing reporting services.




     17.10 Lender Group Expenses. Borrower agrees to pay any and all Lender Group Expenses
promptly after demand therefor by Agent and agrees that its obligations contained in this
Section 17.10 shall survive payment or satisfaction in full of all other Obligations.



     17.11 USA PATRIOT Act. Each Lender that is subject to the requirements of the Patriot
Act hereby notifies the Borrower that pursuant to the requirements of the Act, it is required to
obtain, verify and record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Patriot Act.



     17.12 Integration. This Agreement, together with the other Loan Documents, reflects
the entire understanding of the parties with respect to the transactions contemplated hereby and
shall not be contradicted or qualified by any other agreement, oral or written, before the date
hereof.



[Signature pages to follow.]





52











 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
as of the date first above written.



	 	 	 	 	 
	 	OMNITURE, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Michael S. Herring
 	 
	 	 	Title:  	Executive Vice President and  	 
	 	 	 	Chief Financial Officer	 
	 
	 	WELLS FARGO FOOTHILL, LLC.,

a Delaware limited liability company, as Agent and as a Lender

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



Credit Agreement





S-1









 








EXHIBIT A-1




FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT





     This
ASSIGNMENT AND ACCEPTANCE AGREEMENT  (“Assignment Agreement”) is entered into as of                                         
between
                                         (“Assignor”) and                                 
 
  
      (“Assignee”). Reference is made to the Agreement described in Annex
I hereto (the “Credit Agreement”). Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Credit Agreement.



     1. In accordance with the terms and conditions of Section 13 of the Credit Agreement,
the Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, that interest in and to the Assignor’s rights and obligations under the
Loan Documents as of the date hereof with respect to the Obligations owing to the Assignor, and
Assignor’s portion of the Commitments, all to the extent specified on Annex I.



     2. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of
the interest being assigned by it hereunder and that such interest is free and clear of any adverse
claim and (ii) it has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment Agreement and to consummate the transactions contemplated hereby; (b) makes
no representation or warranty and assumes no responsibility with respect to (i) any statements,
representations or warranties made in or in connection with the Loan Documents, or (ii) the
execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any other instrument or document furnished pursuant thereto; (c) makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
Borrower or any Guarantor or the performance or observance by Borrower or any Guarantor of any of
their respective obligations under the Loan Documents or any other instrument or document furnished
pursuant thereto, and (d) represents and warrants that the amount set forth as the Purchase Price
on Annex I represents the amount owed by Borrower to Assignor with respect to Assignor’s
share of the Term Loan and the Advances assigned hereunder, as reflected on Assignor’s books and
records.



     3. The Assignee (a) confirms that it has received copies of the Credit Agreement and the other
Loan Documents, together with copies of the financial statements referred to therein and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment Agreement; (b) agrees that it will, independently and without
reliance upon Agent, Assignor, or any other Lender, based upon such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking any action under the Loan Documents; (c) confirms that it is an Eligible Transferee; (d)
appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such
powers under the Loan Documents as are delegated to Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (e) agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender; [and (f) attaches the forms prescribed by the Internal Revenue Service
of the United States certifying as to the Assignee’s status for purposes of determining exemption
from United States withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement or such other documents as are necessary to indicate that all such payments
are subject to such rates at a rate reduced by an applicable tax treaty.]



     4. Following the execution of this Assignment Agreement by the Assignor and Assignee, the
Assignor will deliver this Assignment Agreement to the Agent for recording by the Agent. The
effective date of this Assignment (the “Settlement Date”) shall be the latest to occur of (a) the
date of the execution and delivery hereof by the Assignor and the Assignee, (b) the receipt by
Agent for its sole and separate account a processing fee in the amount of $3,500 (if required by
the Credit Agreement), (c) the receipt of any required consent of the Agent, and (d) the date
specified in Annex I.



1









 





     5. As of the Settlement Date (a) the Assignee shall be a party to the Credit Agreement and, to
the extent of the interest assigned pursuant to this Assignment Agreement, have the rights and
obligations of a Lender thereunder and under the other Loan Documents, and (b) the Assignor shall,
to the extent of the interest assigned pursuant to this Assignment Agreement, relinquish its rights
and be released from its obligations under the Credit Agreement and the other Loan Documents,
provided, however, that nothing contained herein shall release any assigning Lender
from obligations that survive the termination of this Agreement, including such assigning Lender’s
obligations under Article 15 and Section 16(f) of the Credit Agreement.



     6. Upon the Settlement Date, Assignee shall pay to Assignor the Purchase Price (as set forth
in Annex I). From and after the Settlement Date, Agent shall make all payments that are
due and payable to the holder of the interest assigned hereunder (including payments of principal,
interest, fees and other amounts) to Assignor for amounts which have accrued up to but excluding
the Settlement Date and to Assignee for amounts which have accrued from and after the Settlement
Date. On the Settlement Date, Assignor shall pay to Assignee an amount equal to the portion of any
interest, fee, or any other charge that was paid to Assignor prior to the Settlement Date on
account of the interest assigned hereunder and that are due and payable to Assignee with respect
thereto, to the extent that such interest, fee or other charge relates to the period of time from
and after the Settlement Date.



     7. This Assignment Agreement may be executed in counterparts and by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. This Assignment Agreement may be
executed and delivered by telecopier or other facsimile transmission all with the same force and
effect as if the same were a fully executed and delivered original manual counterpart.



     8. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF CALIFORNIA.



2









 





     IN WITNESS WHEREOF, the parties hereto have caused this Assignment Agreement and Annex I
hereto to be executed by their respective officers, as of the first date written above.



	 	 	 	 	 
	 	[NAME OF ASSIGNOR]



as Assignor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[NAME OF ASSIGNEE]



as Assignee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



ACCEPTED THIS            DAY OF




                                        




	 	 	 	 	 
	WELLS FARGO FOOTHILL, LLC,

a Delaware limited liability company, as Agent

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



Exhibit A-1





S-1









 








ANNEX FOR ASSIGNMENT AND ACCEPTANCE




ANNEX I




	 	 	 	 	 	 	 	 	 
	1.	 	Borrower: Omniture, Inc.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	2.	 	Name and Date of Credit Agreement:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Credit Agreement, dated as of December ___, 2008, by and among Borrower, the lenders
from time to time a party thereto (the “Lenders”), Wells Fargo Foothill, LLC, a
Delaware limited liability company, as the arranger and administrative agent for the
Lenders

	 
	 	 	 	 	 	 	 	 
	3.	 	Date of Assignment Agreement:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	4.	 	Amounts:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	a.    Assigned Amount of Revolver Commitment	 	$                                        	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	b.    Assigned Amount of Advances	 	$                                        	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	c.    Assigned Amount of Term Loan	 	$                                        	 	 
	 
	 	 	 	 	 	 	 	 
	5.	 	Settlement Date:	 	                                        	 	 
	 
	 	 	 	 	 	 	 	 
	6.	 	Purchase Price	 	$                                        	 	 
	 
	 	 	 	 	 	 	 	 
	7.	 	Notice and Payment Instructions, etc.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Assignee: 	Assignor:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	8.

	 	Agreed and Accepted:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	[ASSIGNOR]
	 	[ASSIGNEE]	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	By:
	 	 	 	 
	 

	 	 
	 	 	 	 	 	 
	 

	 	        Title:
	 	        Title:
	 	 	 	 
	 

	 	 
	 	 	 	 	 	 





	 	 	 	 	 
	Accepted:

WELLS FARGO FOOTHILL, LLC,

a Delaware limited liability company, as Agent

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



Exhibit A-1 Annex




 









 








EXHIBIT C-1




FORM OF COMPLIANCE CERTIFICATE




[on Borrower’s letterhead]




	 	 	 
	To:

	 	Wells Fargo Foothill, LLC

2450 Colorado Avenue, Suite 3000 West

Santa Monica, California 90404

Attn: Technology Finance Division Manager






               
Re: Compliance Certificate dated                             .




Ladies and Gentlemen:




     Reference is made to that certain CREDIT AGREEMENT (the “Credit Agreement”) dated as
of December 24, 2008, by and among the lenders identified on the signature pages thereof (such
lenders, together with their respective successors and permitted assigns, are referred to
hereinafter each individually as a “Lender” and collectively as the “Lenders”),
WELLS FARGO FOOTHILL, LLC, a Delaware limited liability company, as the arranger and administrative
agent for the Lenders (“Agent”), and Omniture, Inc., a Delaware corporation (the
“Borrower”.) Capitalized terms used in this Compliance Certificate have the meanings set
forth in the Credit Agreement unless specifically defined herein.



     Pursuant to Schedule 5.1 of the Credit Agreement, the undersigned officer of Borrower
hereby certifies that:



     1. The financial information of Borrower and its Subsidiaries furnished in Schedule 1
attached hereto, has been prepared in accordance with GAAP (except for year-end adjustments and the
lack of footnotes), and fairly presents in all material respects the financial condition of
Borrower and its Subsidiaries.



     2. Such officer has reviewed the terms of the Credit Agreement and has made, or caused to be
made under his/her supervision, a review in reasonable detail of the transactions and condition of
Borrower and its Subsidiaries during the accounting period covered by the financial statements
delivered pursuant to Schedule 5.1 of the Credit Agreement.



     3. Such review has not disclosed the existence on and as of the date hereof, and the
undersigned does not have knowledge of the existence as of the date hereof, of any event or
condition that constitutes a Default or Event of Default, except for such conditions or events
listed on Schedule 2 attached hereto, specifying the nature and period of existence thereof
and what action Borrower and its Subsidiaries have taken, are taking, or propose to take with
respect thereto.



     4. The representations and warranties of Borrower and its Subsidiaries set forth in the Credit
Agreement and the other Loan Documents are true and correct in all material respects on and as of
the date hereof (except to the extent they relate to a specified date), except as set forth on
Schedule 3 attached hereto.



     5. Borrower and its Subsidiaries are in compliance with the applicable covenants contained in
Section 7 of the Credit Agreement as demonstrated on Schedule 4 hereof.



1









 





     IN WITNESS WHEREOF, this Compliance Certificate is executed by the undersigned this             day
of                                ,                     .



	 	 	 	 	 	 	 	 	 
	 	 	OMNITURE, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





S-1









 








SCHEDULE 1




Financial Information




Schedule 1





 









 








SCHEDULE 2




Default or Event of Default




Schedule 2







 









 








SCHEDULE 3




Representations and Warranties




Schedule 3





 









 








SCHEDULE 4




Financial Covenants





	1.	 	Minimum EBITDA.





     Borrower’s and its Subsidiaries’ EBITDA, measured on a quarter-end basis, for the quarter
period ending                     ,                      is $                                   
     , which amount [is/is not] greater than or
equal to the amount set forth in Section 7(a) of the Credit Agreement for the corresponding period.




	2.	 	Capital Expenditures.





     As
of the quarter period ending                 ,                 Borrower’s and its Subsidiaries Capital
Expenditures for the current Fiscal Year (or if this Compliance Certificate is being delivered with
respect to the last fiscal quarter of the Fiscal Year, then for the Fiscal Year ending as of such
fiscal quarter) is                     , which [is/is not] greater than or equal to the amount set forth in
Section 7(b) of the Credit Agreement for the corresponding period.



Schedule 4





 









 








Agented; Single Borrower




FORM OF CREDIT AMOUNT CERTIFICATE




Wells Fargo Foothill, LLC

2450 Colorado Avenue, Suite 3000

Santa Monica, California 90404

Attn.: Technology Finance Division Manager

Fax: (213) 453-7413




     The undersigned, Omniture, Inc., a Delaware corporation (“Borrower”), pursuant to Schedule
5.1 of that certain Credit Agreement dated as of December 24, 2008 (as amended, restated,
modified, supplemented, refinanced, renewed, or extended from time to time, the “Credit
Agreement”), entered into among Borrower, the lenders signatory thereto from time to time and Wells
Fargo Foothill, LLC, a Delaware limited liability company, as the arranger and administrative agent
(in such capacity, together with its successors and assigns, if any, in such capacity, “Agent”),
hereby certifies to Agent that the following items, calculated in accordance with the terms and
definitions set forth in the Credit Agreement for such items are true and correct, and that
Borrower is in compliance with and, after giving effect to any currently requested Advances, will
be in compliance with, the terms, conditions, and provisions of the Credit Agreement.



     All initially capitalized terms used in this Credit Amount Certificate have the meanings set
forth in the Credit Agreement unless specifically defined herein.



[Remainder of page intentionally left blank.]




1









 








	 	 	 	 	 	 	 	 	 
	Effective Date of Calculation:	 	December __, 2008






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	A.	 	Availability Calculation	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	1.	 	Credit Amount	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	a.
	 	(i)
	 	The Subscription Revenues from the most
recent 12-month period for which Agent
received (i) Credit Amount Certificate
and (ii) monthly financial statements
	 	$	—	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(ii)
	 	Multiple
	 	 	0.25	x	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	b.
	 	 	 	the product of Item 1.a(i) and Item 1.a(ii)
	 	 	 	 	 	$	 —	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2.	 	Reserves	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	a.
	 	Bank Product Reserve
	 	$	—	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	b.
	 	Other Reserve esta blished pursuant to 2.1(c)
	 	$	—	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	c.
	 	sum of Item 2.a. and Item 2.b.
	 	 	 	 	 	$	 —	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3.	 	Availability Calculation	 	 	 	 	 	 	 	 
	 

	 	(a)
	 	(i)
	 	Maximum Revolving Amount
	 	$	35,000,000	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(ii)
	 	Letter of Credit Usage
	 	$	—	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(iii)
	 	Outstanding Advances
	 	$	—	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(iv)
	 	Reserves (see Item 2.c.)
	 	$	—	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(v)
	 	Item 3.a.(i) minus
Item 3.a.(ii) minus Item 3.a.(iii) minus
Item 3.a.(iv)
	 	 	 	 	 	$	35,000,000	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	(b)
	 	(i)
	 	Credit Amount (see Item 1.b)
	 	$	—	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(ii)
	 	Letter of Credit Usage
	 	$	—	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(iii)
	 	Outstanding Advances
	 	$	—	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(iv)
	 	Reserves (see Item 2.c.)
	 	$	—	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(v)
	 	Term Loan Balance
	 	$	15,000,000	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(vi)
	 	Item 3.b.(i) minus
Item 3.b.(ii) minus Item 3.b.(iii)minus
Item 3.b.(iv)minus Item 3.b(v)
	 	 	 	 	 	$	(15,000,000	)
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	(c)       lesser of Item 3.a.(v) and 3.b.(vi)	 	 	 	 	 	$	(15,000,000	)
	 

	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 









 






EXHIBIT C-2


      




 









 





	 	 	 	 	 	 	 	 	 
	 	 	OMNITURE, INC.,	 	 
	 	 	a Delaware corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





Credit Amount Certificate





S-1









 








Wells Fargo Foothill, Inc., as Agent

Page 1




EXHIBIT L-1




FORM OF LIBOR NOTICE




Wells Fargo Foothill, LLC, as Agent

under the below referenced Credit Agreement

2450 Colorado Avenue, Suite 3000 West

Santa Monica, California 90404




Ladies and Gentlemen:




     Reference hereby is made to that certain Credit Agreement, dated as of December 24, 2008 (the
“Credit Agreement”), among Omniture, Inc., a Delaware corporation (“Borrower”), the
lenders signatory thereto (the “Lenders”), and Wells Fargo Foothill, LLC, a Delaware
limited liability company, as the arranger and administrative agent for the Lenders
(“Agent”). Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Credit Agreement.



     This LIBOR Notice represents Borrower’s request to elect the LIBOR Option with respect to
outstanding Advances or the Term Loan in the amount of $                     (the “LIBOR Rate Advance”) [, and
is a written confirmation of the telephonic notice of such election given to Agent].



     The LIBOR Rate Advance will have an Interest Period of [1, 2, or 3] month(s) commencing on                                         .



     This LIBOR Notice further confirms Borrower’s acceptance, for purposes of determining the rate
of interest based on the LIBOR Rate under the Credit Agreement, of the LIBOR Rate as determined
pursuant to the Credit Agreement.



     Borrower represents and warrants that (i) as of the date hereof, each representation or
warranty contained in or pursuant to any Loan Document or any agreement, instrument, certificate,
document or other writing furnished at any time under or in connection with any Loan Document,
and as of the effective date of any advance, continuation or conversion requested above, is true
and correct in all material respects (except to the extent any representation or warranty expressly
related to an earlier date), (ii) each of the covenants and agreements contained in any Loan
Document have been performed (to the extent required to be performed on or before the date hereof
or each such effective date), and (iii) no Default or Event of Default has occurred and is
continuing on the date hereof, nor will any thereof occur after giving effect to the request above.



 









 





Wells Fargo Foothill, Inc., as Agent

Page 2




	 	 	 	 	 	 	 	 	 
	 	 	Dated:                                         	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	OMNITURE, INC., 	 	 
	 	 	     a Delaware corporation, as Borrower	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





	 	 	 	 	 	 	 	 	 
	Acknowledged by:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	WELLS FARGO FOOTHILL, LLC,

a Delaware limited liability company, as Agent	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 






 









 








Schedule C-1




Commitments




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Lender	 	Revolver

Commitment	 	Term Loan 
Commitment	 	Total Commitment
	Wells
Fargo Foothill, LLC
	 	$	35,000,000	 	 	$	15,000,000	 	 	$	50,000,000	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	All Lenders
	 	$	35,000,000	 	 	$	15,000,000	 	 	$	50,000,000	 







 










 





Schedule 1.1



As used in the Agreement, the following terms shall have the following definitions:




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



     “Account Debtor” means any Person who is obligated on an Account, chattel paper, or a
general intangible.



     “ACH Transactions” means any cash management or related services (including the
Automated Clearing House processing of electronic fund transfers through the direct Federal Reserve
Fedline system) provided by a Bank Product Provider for the account of Borrower or its
Subsidiaries.



     “Acquired Indebtedness” means Indebtedness of a Person whose assets or Stock is
acquired by Borrower or any of its Subsidiaries in a Permitted Acquisition, provided that such
Indebtedness (a) is either (i) Purchase Money Indebtedness or a Capital Lease with respect to
Equipment, (ii) mortgage financing with respect to Real Property, or (iii) unsecured Indebtedness,
(b) was in existence prior to the date of such Permitted Acquisition, and (c) was not incurred in
connection with, or in contemplation of, such Permitted Acquisition.



     “Acquisition” means (a) the purchase or other acquisition by a Person or its
Subsidiaries of all or substantially all of the assets of any other Person, or (b) the purchase or
other acquisition (whether by means of a merger, consolidation, or otherwise) by a Person or its
Subsidiaries of all or substantially all of the Stock of any other Person.



     “Additional Documents” has the meaning specified therefor in Section 5.12 of
the Agreement.



     “Advances” has the meaning specified therefor in Section 2.1(a) of the
Agreement.



     “Affected Lender” has the meaning specified therefor in Section 2.13(b) of the
Agreement.



     “Affiliate” means, as applied to any Person, any other Person who controls, is
controlled by, or is under common control with, such Person. For purposes of this definition,
“control” means the possession, directly or indirectly through one or more intermediaries, of the
power to direct the management and policies of a Person, whether through the ownership of Stock, by
contract, or otherwise; provided, however, that, for purposes of Section
6.12 of the Agreement: (a) any Person which owns directly or indirectly 10% or more of the
Stock having ordinary voting power for the election of directors or other members of the governing
body of a Person or 10% or more of the partnership or other ownership interests of a Person (other
than as a limited partner of such Person) shall be deemed an Affiliate of such Person, (b) each
director (or comparable manager) of a Person shall be deemed to be an Affiliate of such Person, and
(c) each partnership in which a Person is a general partner shall be deemed an Affiliate of such
Person.



     “Agent” has the meaning specified therefor in the preamble to the Agreement.



     “Agent-Related Persons” means Agent, together with its Affiliates, officers,
directors, employees, attorneys, and agents.



1









 





     “Agent’s Account” means the Deposit Account of Agent identified on Schedule
A-1 to the Disclosure Letter.



     “Agent’s Liens” means the Liens granted by Borrower or its Subsidiaries to Agent under
the Loan Documents.



     “Agreement” means the Credit Agreement to which this Schedule 1.1 is attached.



     “Application Event” means the occurrence of (a) a failure by Borrower to repay all of
the Obligations on the Maturity Date, or (b) an Event of Default and the election by the Agent or
the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to
Section 2.4(b)(ii) of the Agreement.



     “Assignee” has the meaning specified therefor in Section 13.1(a) of the
Agreement.



     “Assignment and Acceptance” means an Assignment and Acceptance Agreement substantially
in the form of Exhibit A-1.



     “Authorized Person” means any one of the individuals identified on Schedule
A-2.



     “Availability” means, as of any date of determination, the amount that Borrower is
entitled to borrow as Advances under Section 2.1 of the Agreement (after giving effect to
all then outstanding Obligations (other than Bank Product Obligations).



     “Bank Product” means any financial accommodation extended to Borrower or its
Subsidiaries by a Bank Product Provider (other than pursuant to the Agreement) including: (a)
credit cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) ACH
Transactions, (f) cash management, including controlled disbursement, accounts or services, or (g)
transactions under Hedge Agreements.



     “Bank Product Agreements” means those agreements entered into from time to time by
Borrower or its Subsidiaries with a Bank Product Provider in connection with the obtaining of any
of the Bank Products.



     “Bank Product Collateralization” means providing cash collateral (pursuant to
documentation reasonably satisfactory to Agent) to be held by Agent for the benefit of the Bank
Product Providers in an amount determined by Agent as sufficient to satisfy the reasonably
estimated credit exposure with respect to the then existing Bank Products.



     “Bank Product Obligations” means (a) all obligations, liabilities, reimbursement
obligations, fees, or expenses owing by Borrower or its Subsidiaries to any Bank Product Provider
pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of
money, whether direct or indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, and (b) all amounts that Borrower or its Subsidiaries are obligated to reimburse
to Agent or any member of the Lender Group as a result of Agent or such member of the Lender Group
purchasing participations from, or executing guarantees or indemnities or reimbursement obligations
to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product
Provider to Borrower or its Subsidiaries.



     “Bank Product Provider” means Wells Fargo or any of its Affiliates.



2









 





     “Bank Product Reserve” means, as of any date of determination, the amount of reserves
that Agent has established (based upon the Bank Product Providers’ reasonable determination of the
credit exposure of Borrower and its Subsidiaries in respect of Bank Products) in respect of Bank
Products then provided or outstanding.



     “Bankruptcy Code” means title 11 of the United States Code, as in effect from time to
time.



     “Base LIBOR Rate” means the greater of (a) 2.50 percent per annum, and (b) the rate
per annum, determined by Agent in accordance with its customary procedures, and utilizing such
electronic or other quotation sources as it considers appropriate, to be the rate at which Dollar
deposits (for delivery on the first day of the requested Interest Period) are offered to major
banks in the London interbank market 2 Business Days prior to the commencement of the requested
Interest Period, for a term and in an amount comparable to the Interest Period and the amount of
the LIBOR Rate Loan requested (whether as an initial LIBOR Rate Loan or as a continuation of a
LIBOR Rate Loan or as a conversion of a Base Rate Loan to a LIBOR Rate Loan) by Borrower in
accordance with the Agreement, which determination shall be conclusive in the absence of manifest
error.



     “Base Rate” means the greatest of (a) 3.50 percent per annum, (b) the Federal Funds
Rate plus 1/2%, and (c) the rate of interest announced, from time to time, within Wells Fargo at its
principal office in San Francisco as its “prime rate”, with the understanding that the “prime rate”
is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the
basis upon which effective rates of interest are calculated for those loans making reference
thereto and is evidenced by the recording thereof after its announcement in such internal
publications as Wells Fargo may designate.



     “Base Rate Loan” means the portion of the Advances or the Term Loan that bears
interest at a rate determined by reference to the Base Rate.



     “Base Rate Margin” means 3.00 percentage points.



     “Benefit Plan” means a “defined benefit plan” (as defined in Section 3(35) of ERISA)
for which Borrower or any of its Subsidiaries or ERISA Affiliates has been an “employer” (as
defined in Section 3(5) of ERISA) within the past six years.



     “Board of Directors” means the board of directors (or comparable managers) of Borrower
or any committee thereof duly authorized to act on behalf of the board of directors (or comparable
managers).



     “Borrower” has the meaning specified therefor in the preamble to the Agreement.



     “Borrowing” means a borrowing hereunder consisting of Advances made on the same day by
the Lenders (or Agent on behalf thereof), or by Swing Lender in the case of a Swing Loan, or by
Agent in the case of a Protective Advance.



     “Business Day” means any day that is not a Saturday, Sunday, or other day on which
banks are authorized or required to close in the state of California, except that, if a
determination of a Business Day shall relate to a LIBOR Rate Loan, the term “Business Day” also
shall exclude any day on which banks are closed for dealings in Dollar deposits in the London
interbank market.



3









 





     “Capital Expenditures” means, with respect to any Person for any period, the aggregate
of all expenditures by such Person and its Subsidiaries during such period that are capital
expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or
financed minus any software development costs to the extent deducted under the definition of EBITDA
for such period.



     “Capitalized Lease Obligation” means that portion of the obligations under a Capital
Lease that is required to be capitalized in accordance with GAAP.



     “Capital Lease” means a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP.



     “Cash Equivalents” means (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the
full faith and credit of the United States, in each case maturing within 1 year from the date of
acquisition thereof, (b) marketable direct obligations issued or fully guaranteed by any state of
the United States or any political subdivision of any such state or any public instrumentality
thereof maturing within 1 year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Rating
Group (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”), (c) commercial paper maturing no more
than 270 days from the date of creation thereof and, at the time of acquisition, having a rating of
at least A-1 from S&P or at least P-1 from Moody’s, (d) certificates of deposit, time deposits,
overnight bank deposits or bankers’ acceptances maturing within 1 year from the date of acquisition
thereof issued by any bank organized under the laws of the United States or any state thereof or
the District of Columbia or any United States branch of a foreign bank having at the date of
acquisition thereof combined capital and surplus of not less than $250,000,000, (e) Deposit
Accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or
(ii) any other bank organized under the laws of the United States or any state thereof so long as
the entire amount maintained with any such other bank is insured by the Federal Deposit Insurance
Corporation, (f) repurchase obligations of any commercial bank satisfying the requirements of
clause (d) of this definition or recognized securities dealer having combined capital and surplus
of not less than $250,000,000, having a term of not more than seven days, with respect to
securities satisfying the criteria in clauses (a) or (d) above, (g) debt securities with maturities
of six months or less from the date of acquisition backed by standby letters of credit issued by
any commercial bank satisfying the criteria described in clause (d) above, and (h) Investments in
money market funds substantially all of whose assets are invested in the types of assets described
in clauses (a) through (g) above.



     “CFC” means a controlled foreign corporation (as that term is defined in the IRC).



     “Change of Control” means that (a) any “person” or “group” (within the meaning of
Sections 13(d) and 14(d) of the Exchange Act), other than Permitted Holders, becomes the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 30%, or more,
of the Stock of Borrower having the right to vote for the election of members of the Board of
Directors, (b) a majority of the members of the Board of Directors do not constitute Continuing
Directors, or (c) Borrower fails to own and control, directly or indirectly, 100% of the Stock of
each other Loan Party.



     “Closing Date” means December 24, 2008.



     “Code” means the California Uniform Commercial Code, as in effect from time to time.



4









 





     “Collateral” means all assets and interests in assets and proceeds thereof now owned
or hereafter acquired by Borrower or its Subsidiaries in or upon which a Lien is granted by such
Person in favor of Agent or the Lenders under any of the Loan Documents.



     “Collateral Access Agreement” means a landlord waiver, bailee letter, or
acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other Person in
possession of, having a Lien upon, or having rights or interests in Borrower’s or its Subsidiaries’
books and records, Equipment, or Inventory, in each case, in form and substance reasonably
satisfactory to Agent.



     “Collections” means all cash, checks, notes, instruments, and other items of payment
(including insurance proceeds, cash proceeds of asset sales, rental proceeds, and tax refunds).



     “Commitment” means, with respect to each Lender, its Revolver Commitment, its Term
Loan Commitment, or its Total Commitment, as the context requires, and, with respect to all
Lenders, their Revolver Commitments, their Term Loan Commitments, or their Total Commitments, as
the context requires, in each case as such Dollar amounts are set forth beside such Lender’s name
under the applicable heading on Schedule C-1 or in the Assignment and Acceptance pursuant
to which such Lender became a Lender hereunder, as such amounts may be reduced or increased from
time to time pursuant to assignments made in accordance with the provisions of Section 13.1
of the Agreement.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
C-1 delivered by the chief financial officer of Borrower to Agent.



     “Continuing Director” means (a) any member of the Board of Directors who was a
director (or comparable manager) of Borrower on the Closing Date, and (b) any individual who
becomes a member of the Board of Directors after the Closing Date if such individual was approved,
appointed or nominated for election to the Board of Directors by either the Permitted Holders or a
majority of the Continuing Directors, but excluding any such individual originally proposed for
election in opposition to the Board of Directors in office at the Closing Date in an actual or
threatened election contest relating to the election of the directors (or comparable managers) of
Borrower and whose initial assumption of office resulted from such contest or the settlement
thereof.



     “Control Agreement” means a control agreement, in form and substance reasonably
satisfactory to Agent, executed and delivered by Borrower or one of its Subsidiaries, Agent, and
the applicable securities intermediary (with respect to a Securities Account) or bank (with respect
to a Deposit Account).



     “Controlled Account Agreement” has the meaning specified therefor in the Security
Agreement.



     “Copyright Security Agreement” has the meaning specified therefor in the Security
Agreement.



     “Credit Amount” means the result of (a) 0.25 times (b) TTM Subscription Revenues
calculated as of the last month for which financial statements have most recently been delivered
pursuant to Section 5.1 of the Agreement.



     “Credit Amount Certificate” means a certificate in the form of Exhibit C-2.



5









 





     “Credit Amount Excess” has the meaning specified therefor in Section 2.4(e)(i)
of the Agreement.



     “Daily Balance” means, as of any date of determination and with respect to any
Obligation, the amount of such Obligation owed at the end of such day.



     “Default” means an event, condition, or default that, with the giving of notice, the
passage of time, or both, would be an Event of Default.



     “Defaulting Lender” means any Lender that fails to make any Advance (or other
extension of credit) that it is required to make hereunder on the date that it is required to do so
hereunder.



     “Defaulting Lender Rate” means (a) for the first 3 days from and after the date the
relevant payment is due, the Base Rate, and (b) thereafter, the interest rate then applicable to
Advances that are Base Rate Loans (inclusive of the Base Rate Margin applicable thereto).



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



     “Designated Account” means the Deposit Account of Borrower identified on Schedule
D-1 to the Disclosure Letter.



     “Designated Account Bank” has the meaning specified therefor in Schedule D-1
to the Disclosure Letter.



     “Disclosure Letter” means the disclosure letter dated as of the Closing Date delivered
by Borrower to Bank, as amended or otherwise modified from time to time in accordance with the
Agreement.



     “Dollars” or “$” means United States dollars.



     “Earn-outs” means unsecured liabilities of Borrower’s Subsidiaries arising under an
agreement to make any deferred payment as a part of the purchase price (as defined by GAAP) for a
Permitted Acquisition, including performance bonuses or consulting payments in any related
services, employment or similar agreement, in an amount that is subject to or contingent upon the
revenues, income, cash flow or profits (or the like) of the underlying target, in each case, to the
extent that such deferred payment would be included as part of such purchase price (as defined by
GAAP).



     “EBITDA” means, with respect to any fiscal period, determined on a consolidated basis
in accordance with GAAP:



     (a) Borrower’s consolidated net earnings (or loss), minus



     (b) each of the following during such period: Borrower’s (i) extraordinary gains, (ii)
interest income, and (iii) software development costs to the extent capitalized, plus



6









 





     (c) each of the following during such period: Borrower’s (i) non-cash extraordinary losses,
(ii) non-cash expenses in cured in connection with stock based compensation, (iii) interest
expense, (iv) income taxes, (v) depreciation and amortization, (vi) a dollar for dollar adjustment
for that portion of revenue that would have been recorded in the relevant period had the balance of
deferred revenue (unearned income) recorded on the closing balance sheet and before application of
purchase accounting not been adjusted downward to fair value to be recorded on the opening
balance sheet in accordance with GAAP purchase accounting rules under FASB Statement No. 141 and
EITF Issue No. 01-3, in the event that such an adjustment is required by Borrower’s independent
auditors, and (vii) non-cash adjustments in accordance with GAAP purchase accounting rules under
FASB Statement No. 141 and EITF Issue No. 01-3, in the event that such an adjustment is required by
Borrower’s independent auditors.



     For the purposes of calculating EBITDA for any period of four consecutive fiscal quarters
(each, a “Reference Period”), if at any time during such Reference Period (and after the
Closing Date) Borrower or any of its Subsidiaries shall have made a Permitted Acquisition, EBITDA
for such Reference Period shall be calculated after giving pro forma effect thereto (determined on
a basis consistent with Article 11 of Regulation S-X promulgated under the Securities Act and as
interpreted by the staff of the SEC) or in such other manner acceptable to Agent as if the
Permitted Acquisition occurred on the first day of such Reference Period.



     “Environmental Action” means any written complaint, summons, citation, notice,
directive, order, claim, litigation, investigation, judicial or administrative proceeding,
judgment, letter, or other written communication from any Governmental Authority, or any third
party involving violations of Environmental Laws or releases of Hazardous Materials from (a) any
assets, properties, or businesses of any Borrower, any Subsidiary of a Borrower, or any of their
predecessors in interest, (b) from adjoining properties or businesses, or (c) from or onto any
facilities which received Hazardous Materials generated by any Borrower, any Subsidiary of a
Borrower, or any of their predecessors in interest.



     “Environmental Law” means any applicable federal, state, provincial, foreign or local
statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and
enforceable written policy, or rule of common law now or hereafter in effect and in each case as
amended, or any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, in each case, to the extent binding on Borrower
or its Subsidiaries, relating to the environment, the effect of the environment on employee health,
or Hazardous Materials, in each case as amended from time to time.



     “Environmental Liabilities” means all liabilities, monetary obligations, losses,
damages, punitive damages, consequential damages, treble damages, costs and expenses (including all
reasonable fees, disbursements and expenses of counsel, experts, or consultants, and costs of
investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a
result of any claim or demand, or Remedial Action required, by any Governmental Authority or any
third party, and which relate to any Environmental Action.



     “Environmental Lien” means any Lien in favor of any Governmental Authority for
Environmental Liabilities.



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



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto.



7









 





     “ERISA Affiliate” means (a) any Person subject to ERISA whose employees are treated as
employed by the same employer as the employees of Borrower or its Subsidiaries under IRC Section
414(b), (b) any trade or business subject to ERISA whose employees are treated as employed by the
same employer as the employees of Borrower or its Subsidiaries under IRC Section 414(c), (c)
solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any organization subject to
ERISA that is a member of an affiliated service group of which Borrower or any of its Subsidiaries
is a member under IRC Section 414(m), or (d) solely for purposes of Section 302 of ERISA and
Section 412 of the IRC, any Person subject to ERISA that is a party to an arrangement with Borrower
or any of its Subsidiaries and whose employees are aggregated with the employees of Borrower or its
Subsidiaries under IRC Section 414(o).



     “Event of Default” has the meaning specified therefor in Section 8 of the
Agreement.



     “Excess Availability” means, as of any date of determination, the amount equal to
Availability minus the aggregate amount, if any, of all trade payables of Borrower and its
Subsidiaries aged in excess of historical levels with respect thereto and all book overdrafts of
Borrower and its Subsidiaries in excess of historical practices with respect thereto, in each case
as determined by Agent in its Permitted Discretion.



     “Exchange Act” means the Securities Exchange Act of 1934, as in effect from time to
time.



     “Excluded Subsidiaries” means, collectively, OldCo1, a corporation organized under the
laws of the United Kingdom, Instadia Ltd, a corporation organized under the laws of the United
Kingdom, Visual Sciences UK Ltd., a corporation organized under the laws of the United Kingdom, and
Fort Point Partners GmbH, a corporation organized under the laws of Germany.



     “Existing Lender” means Silicon Valley Bank.



     “Existing WFB Letter of Credit” means that certain letter of credit number NZS578086,
issued by Wells Fargo prior to the Closing Date for the account of Visual Sciences, Inc., in the
original face amount of $400,000.



     “Extraordinary Receipts” means any cash received by Borrower or any of its
Subsidiaries not in the ordinary course of business consisting of tax refunds.



     “Fee Letter” means that certain fee letter between Borrower and Agent, in form and
substance reasonably satisfactory to Agent.



     “Federal Funds Rate” means, for any period, a fluctuating interest rate per annum
equal to, for each day during such period, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by Agent from three Federal funds brokers of recognized
standing selected by it.



     “Foreign Lender” shall mean any Lender or Participant that is not a United States
person within the meaning of IRC section 7701(a)(30).



     “Funding Date” means the date on which a Borrowing occurs.



     “Funding Losses” has the meaning specified therefor in Section 2.12(b)(ii) of
the Agreement.



8









 





     “GAAP” means generally accepted accounting principles as in effect from time to time
in the United States, consistently applied.



     “Governing Documents” means, with respect to any Person, the certificate or articles
of incorporation, by-laws, or other organizational documents of such Person.



     “Governmental Authority” means any federal, state, local, or other governmental or
administrative body, instrumentality, board, department, or agency or any court, tribunal,
administrative hearing body, arbitration panel, commission, or other similar dispute-resolving
panel or body.



     “Guarantors” means (a) the following Subsidiaries of Borrower: (i) Visual Sciences,
Inc., a Delaware corporation (ii) Offermatica Corporation, a Delaware corporation, and (iii) Visual
Sciences Technologies, LLC, a Delaware limited liability company, and (b) each other Person that
becomes a guarantor after the Closing Date pursuant to Section 5.11 of the Agreement, and
“Guarantor” means any one of them.



     “Guaranty” means that certain general continuing guaranty executed and delivered by
each Guarantor in favor of Agent, for the benefit of the Lender Group and the Bank Product
Providers, in form and substance reasonably satisfactory to Agent.



     “Hazardous Materials” means (a) substances that are defined or listed in, or otherwise
classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous
materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define,
list, or classify substances by reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or
petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids,
produced waters, and other wastes associated with the exploration, development, or production of
crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any
radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil
or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per
million.



     “Hedge Agreement” means any and all agreements or documents now existing or hereafter
entered into by Borrower or any of its Subsidiaries that provide for an interest rate, credit,
commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap,
cross currency rate swap, currency option, or any combination of, or option with respect to, these
or similar transactions, for the purpose of hedging Borrower’s or any of its Subsidiaries’ exposure
to fluctuations in interest or exchange rates, loan, credit exchange, security, or currency
valuations or commodity prices.



     “Holdout Lender” has the meaning specified therefor in Section 14.2(a) of the
Agreement.



9









 





     “Indebtedness” means (a) all obligations for borrowed money, (b) all obligations
evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other
obligations in respect of letters of credit, bankers acceptances, or other financial products, (c)
all obligations as a lessee under Capital Leases, (d) all obligations or liabilities of others
secured by a Lien on any asset of a Person or its Subsidiaries, irrespective of whether such
obligation or liability is assumed, (e) all obligations to pay the deferred purchase price of
assets (other than trade payables incurred in the ordinary course of business and repayable in
accordance with customary trade practices), (f) all obligations owing under Hedge Agreements (which
amount shall be calculated based on the amount that would be payable by such Person if the Hedge Agreement were terminated on the date of
determination), and (g) any obligation guaranteeing or intended to guarantee (whether directly or
indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any obligation of any
other Person that constitutes Indebtedness under any of clauses (a) through (f) above. For
purposes of this definition, (i) the amount of any Indebtedness represented by a guaranty or other
similar instrument shall be the lesser of the principal amount of the obligations guaranteed and
still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant
to the terms of the instrument embodying such Indebtedness, and (ii) the amount of any Indebtedness
described in clause (d) above shall be the lower of the amount of the obligation and the fair
market value of the assets securing such obligation.



     “Indemnified Liabilities” has the meaning specified therefor in Section 10.3
of the Agreement.



     “Indemnified Person” has the meaning specified therefor in Section 10.3 of the
Agreement.



     “Insolvency Proceeding” means any proceeding commenced by or against any Person under
any provision of the Bankruptcy Code or under any other state or federal bankruptcy or insolvency
law, assignments for the benefit of creditors, formal or informal moratoria, compositions,
extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other
similar relief.



     “Intercompany Subordination Agreement” means a subordination agreement executed and
delivered by Borrower, each of its Subsidiaries, and Agent, the form and substance of which is
reasonably satisfactory to Agent.



     “Interest Expense” means, for any period, the aggregate of the interest expense of
Borrower for such period, determined on a consolidated basis in accordance with GAAP.



     “Interest Period” means, with respect to each LIBOR Rate Loan, a period commencing on
the date of the making of such LIBOR Rate Loan (or the continuation of a LIBOR Rate Loan or the
conversion of a Base Rate Loan to a LIBOR Rate Loan) and ending 1, 2, or 3 months thereafter;
provided, however, that (a) if any Interest Period would end on a day that is not a
Business Day, such Interest Period shall be extended (subject to clauses (c)-(e) below) to the next
succeeding Business Day, (b) interest shall accrue at the applicable rate based upon the LIBOR Rate
from and including the first day of each Interest Period to, but excluding, the day on which any
Interest Period expires, (c) any Interest Period that would end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next preceding Business Day,
(d) with respect to an Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the end of
such Interest Period), the Interest Period shall end on the last Business Day of the calendar month
that is 1, 2, or 3 months after the date on which the Interest Period began, as applicable, and (e)
Borrower may not elect an Interest Period which will end after the Maturity Date.



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



     “Investment” means, with respect to any Person, any investment by such Person in any
other Person (including Affiliates) in the form of loans, guarantees, advances, capital
contributions (excluding (a) commission, travel, and similar advances to directors, consultants,
officers and employees of such Person made in the ordinary course of business, and (b) bona fide
Accounts arising in the ordinary course of business consistent with past practice), or acquisitions of
Indebtedness, Stock, or all or substantially all of the assets of such other Person (or of any
division or business line of such other Person), and any other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.



10









 





     “IRC” means the Internal Revenue Code of 1986, as in effect from time to time.



     “Issuing Lender” means WFF or any other Lender that, at the request of Borrower and
with the consent of Agent, agrees, in such Lender’s sole discretion, to become an Issuing Lender
for the purpose of issuing L/Cs or L/C Undertakings pursuant to Section 2.11 of the
Agreement.



     “L/C” has the meaning specified therefor in Section 2.11(a) of the Agreement.



     “L/C Disbursement” means a payment made by the Issuing Lender pursuant to a Letter of
Credit.



     “L/C Undertaking” has the meaning specified therefor in Section 2.11(a) of the
Agreement.



     “Lender” and “Lenders” have the respective meanings set forth in the preamble
to the Agreement, and shall include any other Person made a party to the Agreement in accordance
with the provisions of Section 13.1 of the Agreement.



     “Lender Group” means, individually and collectively, each of the Lenders (including
the Issuing Lender) and Agent.



     “Lender Group Expenses” means all (a) costs or expenses (including taxes, and
insurance premiums) required to be paid by Borrower or its Subsidiaries under any of the Loan
Documents that are paid, advanced, or incurred by the Lender Group, (b) out-of-pocket fees or
charges paid or incurred by Agent in connection with the Lender Group’s transactions with Borrower
or its Subsidiaries under any of the Loan Documents, including, fees or charges for photocopying,
notarization, couriers and messengers, telecommunication, public record searches (including tax
lien, litigation, and UCC searches and including searches with the patent and trademark office, the
copyright office, or the department of motor vehicles), filing, recording, publication, appraisal
(including periodic collateral appraisals or business valuations to the extent of the fees and
charges (and up to the amount of any limitation) contained in the Agreement or the Fee Letter),
real estate surveys, real estate title policies and endorsements, and environmental audits, (c)
out-of-pocket costs and expenses incurred by Agent in the disbursement of funds to Borrowers or
other members of the Lender Group (by wire transfer or otherwise), (d) out-of-pocket charges paid
or incurred by Agent resulting from the dishonor of checks payable by or to any Loan Party, (e)
reasonable out-of-pocket costs and expenses paid or incurred by the Lender Group to correct any
default or enforce any provision of the Loan Documents, or during the continuance of an Event of
Default, in gaining possession of, maintaining, handling, preserving, storing, shipping, selling,
preparing for sale, or advertising to sell the Collateral, or any portion thereof, irrespective of
whether a sale is consummated, (f) reasonable out-of-pocket audit fees and expenses (including
travel, meals, and lodging) of Agent related to any inspections or audits to the extent of the fees
and charges (and up to the amount of any limitation) contained in the Agreement or the Fee Letter,
(g) reasonable out-of-pocket costs and expenses of third party claims or any other suit paid or
incurred by the Lender Group in enforcing or defending the Loan Documents or in connection with the
transactions contemplated by the Loan Documents or the Lender Group’s relationship with Borrower or
any of its Subsidiaries, (h) Agent’s reasonable costs and expenses (including reasonable attorneys
fees) incurred in advising, structuring, drafting, reviewing, administering (including travel, meals, and lodging),
syndicating (including rating the Term Loan), or amending the Loan Documents, and (i) Agent’s and
each Lender’s reasonable costs and expenses (including reasonable attorneys, accountants,
consultants, and other advisors fees and expenses) incurred in terminating, enforcing (including
attorneys, accountants, consultants, and other advisors fees and expenses incurred in connection
with a “workout,” a “restructuring,” or an Insolvency Proceeding concerning Borrower or any of its
Subsidiaries or in exercising rights or remedies under the Loan Documents), or defending the Loan
Documents, irrespective of whether suit is brought, or in taking any Remedial Action concerning the
Collateral.



11









 





     “Lender-Related Person” means, with respect to any Lender, such Lender, together with
such Lender’s Affiliates, officers, directors, employees, attorneys, and agents.



     “Letter of Credit” means an L/C or an L/C Undertaking, as the context requires.



     “Letter of Credit Collateralization” means either (a) providing cash collateral
(pursuant to documentation reasonably satisfactory to Agent, including provisions that specify that
the Letter of Credit fee set forth in the Agreement will continue to accrue while the Letters of
Credit are outstanding) to be held by Agent for the benefit of those Lenders with a Revolver
Commitment in an amount equal to 105% of the then existing Letter of Credit Usage, (b) causing the
Underlying Letters of Credit to be returned to the Issuing Lender, or (c) providing Agent with a
standby letter of credit, in form and substance reasonably satisfactory to Agent, from a commercial
bank acceptable to the Agent (in its sole discretion) in an equal to 105% of the then existing
Letter of Credit Usage (it being understood that the Letter of Credit fee set forth in the
Agreement will continue to accrue while the Letters of Credit are outstanding and that any such fee
that accrues must be an amount that can be drawn under any such standby letter of credit).



     “Letter of Credit Usage” means, as of any date of determination, the aggregate undrawn
amount of all outstanding Letters of Credit.



     “LIBOR Deadline” has the meaning specified therefor in Section 2.12(b)(i) of
the Agreement.



     “LIBOR Notice” means a written notice in the form of Exhibit L-1.



     “LIBOR Option” has the meaning specified therefor in Section 2.12(a) of the
Agreement.



     “LIBOR Rate” means, for each Interest Period for each LIBOR Rate Loan, the rate per
annum determined by Agent by dividing (a) the Base LIBOR Rate for such Interest Period, by (b) 100%
minus the Reserve Percentage. The LIBOR Rate shall be adjusted on and as of the effective day of
any change in the Reserve Percentage.



     “LIBOR Rate Loan” means each portion of an Advance or the Term Loan that bears
interest at a rate determined by reference to the LIBOR Rate.



     “LIBOR Rate Margin” means 3.00 percentage points.



     “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge,
deposit arrangement, encumbrance, easement, lien (statutory or other), security interest, or other
security arrangement and any other preference, priority, or preferential arrangement of any kind or
nature whatsoever, including any conditional sale contract or other title retention agreement, the
interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially
the same economic effect as any of the foregoing.



12









 





     “Loan Account” has the meaning specified therefor in Section 2.9 of the
Agreement.



     “Loan Documents” means the Agreement, the Bank Product Agreements, the Controlled
Account Agreements, the Control Agreements, the Copyright Security Agreement, any Credit Amount
Certificate, the Fee Letter, the Guaranty, the Intercompany Subordination Agreement, the Letters of
Credit, the Mortgages, the Patent Security Agreement, the Security Agreement, the Trademark
Security Agreement, any note or notes executed by Borrower in connection with the Agreement and
payable to a member of the Lender Group, and any other agreement entered into, now or in the
future, by Borrower or any of its Subsidiaries and the Lender Group in connection with the
Agreement.



     “Loan Party” means Borrower or any Guarantor.



     “Margin Stock” as defined in Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.



     “Material Adverse Change” means (a) a material adverse change in the business,
operations, results of operations, assets, liabilities or financial condition of Borrower and its
Subsidiaries, taken as a whole, (b) a material impairment of Borrower’s and its Subsidiaries
ability to perform their obligations under the Loan Documents to which they are parties or of the
Lender Group’s ability to enforce the Obligations or realize upon the Collateral, or (c) a material
impairment of the enforceability or priority of the Agent’s Liens with respect to the Collateral as
a result of an action or failure to act on the part of Borrower or its Subsidiaries.



     “Material Contract” means (i) each contract or agreement required to be filed with the
SEC as an exhibit to Borrower’s most recent Annual Report on Form 10-K and Quarterly Report(s) on
Form 10-Q pursuant to the requirements of clauses (2), (4), (9) or (10) of Item 601(b) of
Regulation S-K (other than real property leases, employment agreements (including retention
agreements, change of control agreements, indemnification agreements, and severance agreements),
stockholder rights plans, or equity incentive plans and all related agreements (or other employee
incentive plans or compensation arrangements)) and (ii) each contract or agreement entered into by
a Loan Party, on the one hand, and an Account Debtor of such Loan Party, on the other hand, if at
the time of such determination such Account Debtor was responsible for 10% or more of the total
revenues of Borrower and its Subsidiaries during the 12 month period prior to such determination.



     “Maturity Date” has the meaning specified therefor in Section 3.3 of the
Agreement.



     “Maximum Revolver Amount” means $35,000,000, decreased by the amount of reductions in
the Revolver Commitments made in accordance with Section 2.4(c) of the Agreement.



     “Moody’s” has the meaning specified therefor in the definition of Cash Equivalents.



     “Mortgages” means, individually and collectively, one or more mortgages, deeds of
trust, or deeds to secure debt, executed and delivered by Borrower or its Subsidiaries in favor of
Agent, in form and substance reasonably satisfactory to Agent, that encumber the Real Property
Collateral.



13









 





     “Net Cash Proceeds” means:



     (a) with respect to any sale or disposition by Borrower or any of its Subsidiaries of assets,
the amount of cash proceeds received (directly or indirectly) from time to time (whether as initial
consideration or through the payment of deferred consideration) by or on behalf of Borrower or its
Subsidiaries, in connection therewith after deducting therefrom only (i) the amount of any
Indebtedness secured by any Permitted Lien on any asset (other than (A) Indebtedness owing to Agent
or any Lender under the Agreement or the other Loan Documents and (B) Indebtedness assumed by the
purchaser of such asset) which is required to be, and is, repaid in connection with such sale or
disposition, (ii) reasonable fees, commissions, and expenses related thereto and required to be
paid by Borrower or such Subsidiary in connection with such sale or disposition and (iii) taxes
paid or payable to any taxing authorities by Borrower or such Subsidiary in connection with such
sale or disposition, in each case to the extent, but only to the extent, that the amounts so
deducted are, at the time of receipt of such cash, actually paid or payable to a Person that is not
an Affiliate of Borrower or any of its Subsidiaries, and are properly attributable to such
transaction; and



     (b) with respect to the issuance or incurrence of any Indebtedness by Borrower or any of its
Subsidiaries, or the issuance by Borrower or any of its Subsidiaries of any shares of its Stock,
the aggregate amount of cash received (directly or indirectly) from time to time (whether as
initial consideration or through the payment or disposition of deferred consideration) by or on
behalf of Borrower or such Subsidiary in connection with such issuance or incurrence, after
deducting therefrom only (i) reasonable fees, commissions, and expenses related thereto and
required to be paid by Borrower or such Subsidiary in connection with such issuance or incurrence,
(ii) taxes paid or payable to any taxing authorities by Borrower or such Subsidiary in connection
with such issuance or incurrence, in each case to the extent, but only to the extent, that the
amounts so deducted are, at the time of receipt of such cash, actually paid or payable to a Person
that is not an Affiliate of Borrower or any of its Subsidiaries, and are properly attributable to
such transaction.



     “Obligations” means (a) all loans (including the Term Loan), Advances, debts,
principal, interest (including any interest that accrues after the commencement of an Insolvency
Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such
Insolvency Proceeding), contingent reimbursement obligations with respect to outstanding Letters of
Credit, premiums, liabilities (including all amounts charged to the Loan Account pursuant to the
Agreement), obligations (including indemnification obligations), fees (including the fees provided
for in the Fee Letter), Lender Group Expenses (including any fees or expenses that accrue after the
commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in
part as a claim in any such Insolvency Proceeding), guaranties, covenants, and duties of any kind
and description owing by Borrower to the Lender Group pursuant to or evidenced by the Loan
Documents and irrespective of whether for the payment of money, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising, and including all
interest not paid when due and all other expenses or other amounts that Borrower is required to pay
or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents,
and (b) all Bank Product Obligations. Any reference in the Agreement or in the Loan Documents to
the Obligations shall include all or any portion thereof and any extensions, modifications,
renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.



     “OFAC” means The Office of Foreign Assets Control of the U.S. Department of the
Treasury.



     “Originating Lender” has the meaning specified therefor in Section 13.1(e) of
the Agreement.



14









 





     “Overadvance” has the meaning specified therefor in Section 2.5 of the
Agreement.



     “Participant” has the meaning specified therefor in Section 13.1(e) of the
Agreement.



     “Participant Register” has the meaning set forth in Section 13.1(i) of the
Agreement.



     “Patent Security Agreement” has the meaning specified therefor in the Security
Agreement.



     “Patriot Act” has the meaning specified therefor in Section 4.18 of the
Agreement.



     “Payoff Date” means the first date on which all of the Obligations are paid in full
and the Commitments of the Lenders are terminated.



     “Permitted Acquisition” means (a) a Permitted Cash Acquisition or (b) a Permitted
Non-Cash Acquisition, as the context requires.



     “Permitted Cash Acquisition” means any Acquisition as to which each of the following
is applicable:



     (a) such Acquisition qualifies as a Permitted Non-Cash Acquisition except that the
consideration payable in respect of the proposed Acquisition includes some form of consideration
other than solely the consideration specified in clause (f) of the definition of Permitted Non-Cash
Acquisition;



     (b) the purchase consideration payable in cash in respect of all Permitted Cash Acquisitions
(including the proposed Acquisition and including any cash payments on Indebtedness described in
clause (p) of the definition of Permitted Indebtedness) shall not exceed $100,000,000 in the
aggregate; provided, however, that the purchase consideration payable in cash in
respect of any single Permitted Cash Acquisition (including the proposed Acquisition and including
any cash payments on Indebtedness described in clause (p) of the definition of Permitted
Indebtedness) shall not exceed $50,000,000 in the aggregate, and



     (c) Borrower shall have Availability plus Qualified Cash in an amount equal to or greater than
$25,000,000 immediately after giving effect to the consummation of the proposed Acquisition.



     “Permitted Discretion” means a determination made in the exercise of reasonable (from
the perspective of a secured lender) business judgment.



     “Permitted Dispositions” means:



     (a) sales, abandonment, or other dispositions of Equipment that is substantially worn,
damaged, or obsolete in the ordinary course of business,



     (b) sales of Inventory to buyers in the ordinary course of business,



     (c) the use or transfer of money or Cash Equivalents in a manner that is not prohibited by the
terms of the Agreement or the other Loan Documents,



15









 





     (d) the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other
intellectual property rights in the ordinary course of business and the licensing, on an exclusive
basis, of patents, trademarks, copyrights, and other intellectual property rights in the ordinary
course of business, provided that such exclusivity is limited to (i) geographic scope, (ii) field
of use or distribution, (iii) a limited duration in time, and (iv) customized product for a
specific Person or group of Persons,



     (e) the granting of Permitted Liens,



     (f) the sale or discount, in each case without recourse, of Accounts arising in the ordinary
course of business, but only in connection with the compromise or collection thereof,



     (g) any involuntary loss, damage or destruction of property,



     (h) any involuntary condemnation, seizure or taking, by exercise of the power of eminent
domain or otherwise, or confiscation or requisition of use of property,



     (i) the leasing or subleasing of assets of Borrower or its Subsidiaries in the ordinary course
of business,



     (j) the sale or issuance of Stock (other than Prohibited Preferred Stock) of Borrower,



     (k) the lapse of registered patents, trademarks and other intellectual property of Borrower
and its Subsidiaries to the extent not economically desirable in the conduct of their business and
so long as such lapse is not materially adverse to the interests of the Lenders,



     (l) Permitted Sale Leaseback Transactions,



     (m) dispositions of assets (other than Accounts, intellectual property, licenses, Stock of
Subsidiaries of Borrower, or Material Contracts) not otherwise permitted in clauses (a)
through (l) above so long as made at fair market value and the aggregate fair market value
of all assets disposed of in all such dispositions since the Closing Date (including the proposed
disposition) would not exceed $250,000, and



     (n) dispositions of assets between Loan Parties, or from any Subsidiary to a Loan Party, or
from a Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party.



     “Permitted Holder” means the Person identified on Schedule P-1 to the
Disclosure Letter.



     “Permitted Indebtedness” means:



     (a) Indebtedness evidenced by this Agreement and the other Loan Documents, together with
Indebtedness owed to Underlying Issuers with respect to Underlying Letters of Credit,



     (b) Indebtedness set forth on Schedule 4.19 to the Disclosure Letter and any
Refinancing Indebtedness in respect of such Indebtedness,



     (c) Permitted Purchase Money Indebtedness and any Refinancing Indebtedness in respect of such
Indebtedness,



16









 





     (d) endorsement of instruments or other payment items for deposit,



     (e) Indebtedness consisting of (i) unsecured guarantees incurred in the ordinary course of
business with respect to surety and appeal bonds, performance bonds, bid bonds, appeal bonds,
completion guarantee and similar obligations; (ii) unsecured guarantees arising with respect to
customary indemnification obligations to purchasers in connection with Permitted Dispositions; and
(iii) unsecured guarantees with respect to Indebtedness of Borrower or one of its Subsidiaries, to
the extent that the Person that is obligated under such guaranty could have incurred such
underlying Indebtedness,



     (f) unsecured Indebtedness of Borrower that is incurred on the date of the consummation of a
Permitted Acquisition solely for the purpose of consummating such Permitted Acquisition so long as
(i) no Event of Default has occurred and is continuing or would result therefrom, (ii) such
unsecured Indebtedness is not incurred for working capital purposes, (iii) such unsecured
Indebtedness does not mature prior to the date that is 12 months after the Maturity Date, and (iv)
such Indebtedness is subordinated in right of payment to the Obligations on terms and conditions
reasonably satisfactory to Agent,



     (g) Acquired Indebtedness in an amount not to exceed $1,000,000 outstanding at any one time;
provided, that such $1,000,000 may not include more than $500,000 of unsecured Acquired
Indebtedness unless it is subordinated in right to payment to the Obligations on terms and
conditions reasonably satisfactory to Agent,



     (h) Indebtedness incurred in the ordinary course of business under performance, surety,
statutory, and appeal bonds,



     (i) Indebtedness owed to any Person providing property, casualty, liability, or other
insurance to Borrower or any of its Subsidiaries, so long as the amount of such Indebtedness is not
in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of,
such insurance for the year in which such Indebtedness is incurred and such Indebtedness is
outstanding only during such year,



     (j) the incurrence by Borrower or its Subsidiaries of Indebtedness under Hedging Agreements
that are incurred for the bona fide purpose of hedging the interest rate or foreign currency risk
associated with Borrower’s and its Subsidiaries’ operations and not for speculative purposes,



     (k) unsecured Indebtedness incurred in respect of netting services, overdraft protection, and
other like services, in each case, incurred in the ordinary course of business,



     (l) other unsecured Indebtedness in an aggregate principal amount not exceeding $1,500,000 at
any one time outstanding,



     (m) contingent liabilities in respect of any customary (i) indemnification obligation, (ii)
adjustment of purchase price, or (iii) non-compete, or similar obligation of Borrower or the
applicable Subsidiary incurred in connection with the consummation of one or more Permitted
Acquisitions,



     (n) Indebtedness consisting of reimbursement obligations with respect to (i) the SVB Letter of
Credit, and (ii) other letters of credit issued for the account of Borrower or its Subsidiaries,
provided that the aggregate face amount of such other letters of credit shall not exceed
$1,000,000,



     (o) Indebtedness composing Permitted Investments, and



17









 





     (p) (i) Earn-outs owing to sellers of assets or Stock to a Loan Party arising in connection
with the consummation of one or more Permitted Acquisitions so long as the aggregate maximum
liabilities (contingent or otherwise) for all such Earn-Outs does not exceed $10,000,000 at any one
time outstanding, and (ii) unsecured Indebtedness owing to sellers of assets or Stock to a Loan
Party that is incurred by the applicable Loan Party in connection with the consummation of one or
more Permitted Acquisitions so long as (A) the aggregate principal amount for all such unsecured
Indebtedness does not exceed $5,000,000 at any one time outstanding, (B) is otherwise on terms and
conditions reasonably acceptable to Agent, and (C) at the time any such Indebtedness is incurred
and immediately after giving effect thereto (1) no Event of Default has occurred and is continuing
or would result therefrom, and (2) Borrower has Excess Availability plus Qualified Cash of
$25,000,000 or greater. Notwithstanding anything to the contrary contained in the foregoing
sentence, the amount of any Indebtedness permitted under this clause (p) that is not subordinated
to the Obligations on terms and conditions reasonably acceptable to Agent (including that no
payments shall be made to any such seller if an Event of Default has occurred and is continuing or
Excess Availability plus Qualified Cash would be less than $25,000,000 after giving effect to such
payment) may not exceed $5,000,000 outstanding at any one time.



     “Permitted Intercompany Advances” means loans made by:



     (a) a Loan Party to another Loan Party,



     (b) a non-Loan Party to another non-Loan Party,



     (c) a non-Loan Party to a Loan Party, so long as the parties thereto are party to the
Intercompany Subordination Agreement,



     (d) a Loan Party to a non-Loan Party if and to the extent necessary to provide working capital
for such non-Loan Party’s on-going business operations, so long as (i) the amount of such loans
under this clause (d) does not exceed $10,000,000 outstanding at any one time, (ii) at the making
of each such loan no Event of Default has occurred and is continuing or would result therefrom, and
(iii) Borrower has Excess Availability plus Qualified Cash of $25,000,000 or greater immediately
after giving effect to each such loan, and



     (e) a Loan Party to a non-Loan Party if and to the extent necessary to provide the cash
portion of the purchase price of a Permitted Cash Acquisition by such non-Loan Party or one of its
Subsidiaries, so long as such loan proceeds are used contemporaneously to make the payment of such
purchase price.



     “Permitted Investments” means:



     (a) Investments in cash and Cash Equivalents,



     (b) Investments in negotiable instruments deposited or to be deposited for collection in the
ordinary course of business,



     (c) advances made in connection with purchases of goods or services in the ordinary course of
business,



     (d) Investments received in settlement of amounts due to any Loan Party or any of its
Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its
Subsidiaries as a result of Insolvency Proceedings involving an Account Debtor or upon the
foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries,



18









 





     (e) Investments owned by any Loan Party or any of its Subsidiaries on the Closing Date and set
forth on Schedule P-2,



     (f) guarantees permitted under the definition of Permitted Indebtedness,



     (g) Permitted Intercompany Advances,



     (h) Stock or other securities acquired in connection with the satisfaction or enforcement of
Indebtedness or claims due or owing to a Loan Party or its Subsidiaries (in bankruptcy of customers
or suppliers or otherwise outside the ordinary course of business) or as security for any such
Indebtedness or claims,



     (i) deposits of cash made in the ordinary course of business to secure performance of
operating leases,



     (j) non-cash loans to employees, officers, and directors of Borrower or any of its
Subsidiaries for the purpose of purchasing Stock in Borrower so long as the proceeds of such loans
are used in their entirety to purchase such stock in Borrower,



     (k) Permitted Acquisitions, including capital contributions to a non-Loan Party if and to the
extent necessary to pay the cash portion of the purchase price of a Permitted Cash Acquisition by
such non-Loan Party or one of its Subsidiaries, so long as such capital contributions are used
contemporaneously to make the payment of such purchase price,



     (l) Permitted Stock Repurchases,



     (m) Hedge Agreements permitted under Section 6.1;



     (n) Investments consisting of the initial capital contributions by Borrower to Subsidiaries
that are CFCs, so long as (i) the aggregate amount of such capital contributions, together with the
aggregate outstanding amount of loans made pursuant to clause (d) of the definition of Permitted
Intercompany Advances, do not exceed $10,000,000 outstanding at any one time, (ii) no Event of
Default has occurred and is continuing or would result therefrom, (iii) Borrower has Excess
Availability plus Qualified Cash of $25,000,000 or greater immediately after giving effect to each
such capital contribution, and (iv) such CFC or its Subsidiaries’ primary business purpose is to
provide sales and service support to a Loan Party, and



     (o) any other Investments in an aggregate amount not to exceed $2,000,000 during the term of
the Agreement, so long as (i) no Event of Default has occurred and is continuing or would result
therefrom, and (ii) Borrower has Excess Availability plus Qualified Cash of $25,000,000 or greater
immediately after giving effect to each such Investment.



     “Permitted Liens” means



     (a) Liens held by Agent to secure the Obligations,



19









 





     (b) Liens for unpaid taxes, assessments, or other governmental charges or levies that either
(i) are not yet delinquent, or (ii) do not have priority over Agent’s Liens and the underlying
taxes, assessments, or charges or levies are the subject of Permitted Protests,



     (c) judgment Liens arising solely as a result of the existence of judgments, orders, or awards
that do not constitute an Event of Default under Section 8.3 of the Agreement,



     (d) Liens set forth on Schedule P-3 to the Disclosure Letter, provided that any such
Lien only secures the Indebtedness that it secures on the Closing Date and any Refinancing
Indebtedness in respect thereof,



     (e) the interests of (i) lessors under operating leases, (ii) non-exclusive licensors under
license agreements, and (iii) exclusive licensors under license agreement entered into in the
ordinary course of business, provided that such exclusivity is limited to (A) geographic scope, (B)
field of use or distribution, (C) a limited duration in time, and (D) customized product for a
specific Person or group of Persons,



     (f) purchase money Liens or the interests of lessors under Capital Leases to the extent that
such Liens or interests secure Permitted Purchase Money Indebtedness and so long as (i) such Lien
attaches only to the asset purchased or acquired and the proceeds thereof, and (ii) such Lien only
secures the Indebtedness that was incurred to acquire the asset purchased or acquired or any
Refinancing Indebtedness in respect thereof,



     (g) Liens arising by operation of law in favor of warehousemen, landlords, carriers,
mechanics, materialmen, laborers, or suppliers, incurred in the ordinary course of business and not
in connection with the borrowing of money, and which Liens either (i) are for sums not yet
delinquent, or (ii) are the subject of Permitted Protests,



     (h) Liens on amounts deposited in connection with obtaining worker’s compensation or other
unemployment insurance,



     (i) Liens on amounts deposited in connection with the making or entering into of bids,
tenders, or leases in the ordinary course of business and not in connection with the borrowing of
money,



     (j) Liens on amounts deposited as security for surety or appeal bonds in connection with
obtaining such bonds in the ordinary course of business,



     (k) with respect to any Real Property, easements, rights of way, and zoning restrictions that
do not materially interfere with or impair the use or operation thereof,



     (l) non-exclusive licenses of patents, trademarks, copyrights, and other intellectual property
rights in the ordinary course of business and exclusive licenses of patents, trademarks,
copyrights, and other intellectual property rights in the ordinary course of business, provided
that such exclusivity is limited to (i) geographic scope, (ii) field of use or distribution, (iii)
a limited duration in time, and (iv) customized product for a specific Person or group of Persons,



     (m) Liens that are replacements of Permitted Liens to the extent that the original
Indebtedness is the subject of permitted Refinancing Indebtedness and so long as the replacement
Liens only encumber those assets that secured the original Indebtedness,



20









 





     (n) rights of setoff or bankers’ liens upon deposits of cash in favor of banks or other
depository institutions or in connection with securities accounts, solely to the extent incurred in
connection with the maintenance of such deposit or securities accounts in the ordinary course of
business,



     (o) Liens granted in the ordinary course of business on the unearned portion of insurance
premiums securing the financing of insurance premiums to the extent the financing is permitted
under the definition of Permitted Indebtedness,



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



     (q) Liens solely on any cash earnest money deposits made by Borrower or any of its
Subsidiaries in connection with any letter of intent or purchase agreement with respect to a
Permitted Acquisition,



     (r) Liens assumed by Borrower or its Subsidiaries in connection with a Permitted Acquisition
that secure Acquired Indebtedness,



     (s) Liens with respect to cash collateral securing Indebtedness permitted by paragraph (n) of
the definition of Permitted Indebtedness, provided that (i) the aggregate amount of
cash collateral shall not exceed the face amount of the underlying letters of credit plus customary
reserve amounts as required by the issuers of such letters of credit, and (ii) in the case of cash
collateral held by Existing Lender on the Closing Date in respect of the SVB Letter of Credit, such
Liens will be released no later than 3 Business Days after Existing Lender receives the original
Underlying Letter of Credit issued to support the SVB Letter of Credit,



     (t) other Liens on property, provided that the aggregate outstanding principal amount of
obligations secured thereby shall not exceed $250,000 at any time.



     “Permitted Non-Cash Acquisition” means any Acquisition so long as:



     (a) no Default or Event of Default shall have occurred and be continuing or would result from
the consummation of the proposed Acquisition and the proposed Acquisition is consensual,



     (b) no Indebtedness will be incurred, assumed, or would exist with respect to Borrower or its
Subsidiaries as a result of such Acquisition, other than Indebtedness permitted under clauses (f),
(g), or (m) of the definition of Permitted Indebtedness and no Liens will be incurred, assumed, or
would exist with respect to the assets of Borrower or its Subsidiaries as a result or such
Acquisition other than Permitted Liens;



     (c) Borrower has provided Agent with written confirmation, supported by reasonably detailed
calculations, that on a pro forma basis Borrower and its Subsidiaries are projected to be in
compliance with the financial covenants in Section 7 for the first 4 fiscal quarter period
ended at least one year after the proposed date of consummation of such proposed acquisition (such
pro forma projections shall (i) be prepared on a basis consistent with Borrower’s historical
financial statements and shall take into account the historical consolidated financial statements
of the Person to be acquired (or the historical consolidated financial statements related to the
assets to be acquired) pursuant to the proposed acquisition (ii) include pro forma adjustments
arising out of events which are directly attributable to such proposed acquisition, are factually
supportable, and are expected to have a continuing impact, in each case, determined as if the combination had been accomplished at the
beginning of the relevant period; such eliminations and inclusions to be mutually and reasonably
agreed upon by Borrower and Agent, (iii) include the material assumptions and support for any
material adjustments made in such pro forma projections, and (iv) to the extent that any other
Permitted Acquisition was consummated within the most recent 4 fiscal quarter period ending prior
to the proposed date of consummation, then pro forma adjustments arising out of events which are
directly attributable to such Permitted Acquisition shall be taken into account,



21









 





     (d) Borrower has provided Agent with its due diligence package relative to the proposed
Acquisition, including forecasted balance sheets, profit and loss statements, and cash flow
statements of the Person to be acquired, all prepared on a basis consistent with such Person’s
historical financial statements, together with appropriate supporting details and a statement of
underlying assumptions for the 1 year period following the date of the proposed Acquisition, on a
quarter by quarter basis), in form and substance (including as to scope and underlying assumptions)
reasonably satisfactory to Agent,



     (e) Borrower has provided Agent with written notice of the proposed Acquisition at least 5
Business Days prior to the anticipated closing date of the proposed Acquisition and, not later than
1 Business Day prior to the anticipated closing date of the proposed Acquisition, copies of the
acquisition agreement and other material documents relative to the proposed Acquisition, which
agreement and documents must be reasonably acceptable to Agent;



     (f) the consideration payable in respect of the proposed Acquisition shall be composed solely
of (i) common Stock of Borrower, (ii) Permitted Preferred Stock of Borrower, or (iii) proceeds of
Indebtedness incurred pursuant to clause (f) of the definition of Permitted Indebtedness;



     (g) Borrower and its Subsidiaries shall have complied with Section 5.11 or
5.12, as applicable, and



     (h) the assets being acquired (other than a de minimis amount of assets in relation to
Borrower’s and its Subsidiaries’ total assets), or the Person whose Stock is being acquired, are
useful in or engaged in, as applicable, the business of Borrower and its Subsidiaries or a business
reasonably related thereto.



     “Permitted Preferred Stock” means and refers to any Preferred Stock issued by Borrower
(and not by one or more of its Subsidiaries) that is not Prohibited Preferred Stock.



     “Permitted Protest” means the right of Borrower or any of its Subsidiaries to protest
any Lien (other than any Lien that secures the Obligations), taxes (other than payroll taxes or
taxes that are the subject of a United States federal tax lien), or rental payment, provided that
(a) a reserve with respect to such obligation is established on Borrower’s or its Subsidiaries’
books and records in such amount as is required under GAAP, (b) any such protest is instituted
promptly and prosecuted diligently by Borrower or its Subsidiary, as applicable, in good faith, and
(c) Agent is satisfied that, while any such protest is pending, there will be no impairment of the
enforceability, validity, or priority of any of the Agent’s Liens.



     “Permitted Purchase Money Indebtedness” means, as of any date of determination,
Purchase Money Indebtedness incurred after the Closing Date in an aggregate principal amount
outstanding at any one time not in excess of $5,000,000.



22









 





     “Permitted Sale Leaseback Transaction” means any sale and leaseback of Equipment that
is made by Borrower or its Subsidiaries pursuant to customary terms, so long no Event of Default
has occurred and is continuing at the time of such sale and leaseback transaction.



     “Permitted Stock Repurchase” means the repurchase by Borrower of the issued and
outstanding Stock of Borrower from any owner of the Stock of Borrower consistent with past practice
and the payment of reasonable fees and expenses related thereto and required to be paid by Borrower
in connection with such repurchase, in each case, to the extent, but only to the extent, that the
amounts paid for such fees and expenses are actually paid or payable to a Person that is not an
Affiliate of Borrower or any of its Subsidiaries and are properly attributable to such transaction,
so long as (i) such repurchase is pursuant to a repurchase agreement or similar agreements approved
by the Board of Directors; (ii) no Default or Event of Default has occurred and is continuing or
would result; (iii) Borrower and its Subsidiaries would have Excess Availability plus Qualified
Cash of at least $25,000,000 after taking into account all payments to be made by Borrower in
connection with such repurchase; (iv) such repurchase is permitted under the laws of Delaware and
any other applicable laws; and (v) if Borrower receives a fairness or analogous opinion in respect
of such repurchase, Borrower delivers a copy of such opinion to Agent



     “Person” means natural persons, corporations, limited liability companies, limited
partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land
trusts, business trusts, or other organizations, irrespective of whether they are legal entities,
and governments and agencies and political subdivisions thereof.



     “Preferred Stock” means, as applied to the Stock of any Person, the Stock of any class
or classes (however designated) that is preferred with respect to the payment of dividends, or as
to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Stock of any other class of such Person.



     “Prohibited Preferred Stock” means any Preferred Stock that by its terms is
mandatorily redeemable or subject to any other payment obligation (including any obligation to pay
dividends, other than dividends of shares of Preferred Stock of the same class and series payable
in kind or dividends of shares of common stock) on or before a date that is less than 1 year after
the Maturity Date, or, on or before the date that is less than 1 year after the Maturity Date, is
redeemable at the option of the holder thereof for cash or assets or securities (other than
distributions in kind of shares of Preferred Stock of the same class and series or of shares of
common stock).



     “Projections” means Borrower’s forecasted (a) balance sheets, (b) profit and loss
statements, and (c) cash flow statements, all prepared on a basis consistent with Borrower’s
historical financial statements, together with appropriate supporting details and a statement of
underlying assumptions.



     “Pro Rata Share” means, as of any date of determination:



     (a) with respect to a Lender’s obligation to make Advances and right to receive payments of
principal, interest, fees, costs, and expenses with respect thereto, (i) prior to the Revolver
Commitments being terminated or reduced to zero, the percentage obtained by dividing (y) such
Lender’s Revolver Commitment, by (z) the aggregate Revolver Commitments of all Lenders, and (ii)
from and after the time that the Revolver Commitments have been terminated or reduced to zero, the
percentage obtained by dividing (y) the outstanding principal amount of such Lender’s Advances by
(z) the outstanding principal amount of all Advances,



23









 





     (b) with respect to a Lender’s obligation to participate in Letters of Credit, to reimburse
the Issuing Lender, and right to receive payments of fees with respect thereto, (i) prior to the
Revolver Commitments being terminated or reduced to zero, the percentage obtained by dividing (y)
such Lender’s Revolver Commitment, by (z) the aggregate Revolver Commitments of all Lenders, and
(ii) from and after the time that the Revolver Commitments have been terminated or reduced to zero,
the percentage obtained by dividing (y) the outstanding principal amount of such Lender’s Advances
by (z) the outstanding principal amount of all Advances,



     (c) with respect to a Lender’s obligation to make the Term Loan and right to receive payments
of interest, fees, and principal with respect thereto, (i) prior to the making of the Term Loan,
the percentage obtained by dividing (y) such Lender’s Term Loan Commitment, by (z) the aggregate
amount of all Lenders’ Term Loan Commitments, and (ii) from and after the making of the Term Loan,
the percentage obtained by dividing (y) the principal amount of such Lender’s portion of the Term
Loan by (z) the principal amount of the Term Loan, and



     (d) with respect to all other matters as to a particular Lender (including the indemnification
obligations arising under Section 15.7 of the Agreement), the percentage obtained by
dividing (i) such Lender’s Revolver Commitment plus the outstanding principal amount of such
Lender’s portion of the Term Loan, by (ii) the aggregate amount of Revolver Commitments of all
Lenders plus the outstanding principal amount of the Term Loan; provided, however,
that in the event the Revolver Commitments have been terminated or reduced to zero, Pro Rata Share
under this clause shall be the percentage obtained by dividing (A) the outstanding principal amount
of such Lender’s Advances plus such Lender’s ratable portion of the Risk Participation Liability
with respect to outstanding Letters of Credit plus the outstanding principal amount of such
Lender’s portion of the Term Loan, by (B) the outstanding principal amount of all Advances plus the
aggregate amount of the Risk Participation Liability with respect to outstanding Letters of Credit
plus the outstanding principal amount of the Term Loan.



     “Protective Advances” has the meaning specified therefor in Section 2.3(d)(i)
of the Agreement.



     “Purchase Money Indebtedness” means Indebtedness (other than the Obligations, but
including Capitalized Lease Obligations), incurred at the time of, or within 90 days after, the
acquisition of any fixed assets for the purpose of financing all or any part of the acquisition
cost thereof.



     “Qualified Cash” means, as of any date of determination, the amount of unrestricted
cash and Cash Equivalents of Borrower or any Loan Party that is in Deposit Accounts or in
Securities Accounts, or any combination thereof, and which such Deposit Account or Securities
Account is the subject of a Control Agreement and is maintained by a branch office of the bank or
securities intermediary located within the United States.



     “Real Property” means any estates or interests in real property now owned or hereafter
acquired by Borrower or its Subsidiaries and the improvements thereto.



     “Real Property Collateral” means the Real Property identified on Schedule R-1
and any Real Property hereafter acquired by Borrower or its Subsidiaries.



     “Record” means information that is inscribed on a tangible medium or that is stored in
an electronic or other medium and is retrievable in perceivable form.



24









 





     “Refinancing Indebtedness” means refinancings, renewals, or extensions of Indebtedness
so long as:



     (a) the terms and conditions of such refinancings, renewals, or extensions do not, in Agent’s
reasonable judgment, materially impair the prospects of repayment of the Obligations by Borrower or
materially impair Borrower’s creditworthiness,



     (b) such refinancings, renewals, or extensions do not result in an increase in the principal
amount of the Indebtedness so refinanced, renewed, or extended,



     (c) such refinancings, renewals, or extensions do not result in an increase in the interest
rate with respect to the Indebtedness so refinanced, renewed, or extended,



     (d) such refinancings, renewals, or extensions do not result in a shortening of the average
weighted maturity of the Indebtedness so refinanced, renewed, or extended, nor are they on terms or
conditions that, taken as a whole, are materially more burdensome or restrictive to Borrower,



     (e) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of
payment to the Obligations, then the terms and conditions of the refinancing, renewal, or extension
must include subordination terms and conditions that are at least as favorable to the Lender Group
as those that were applicable to the refinanced, renewed, or extended Indebtedness, and



     (f) the Indebtedness that is refinanced, renewed, or extended is not recourse to any Person
that is liable on account of the Obligations other than those Persons which were obligated with
respect to the Indebtedness that was refinanced, renewed, or extended.



     “Related Fund” means, with respect to any Lender that is an investment fund, any other
investment fund that invests in commercial loans and that is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.



     “Register” has the meaning set forth in Section 13.1(h) of the Agreement.



     “Registered Loan” has the meaning set forth in Section 13.1(h) of the
Agreement.



     “Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain,
treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or
outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials
so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor
or outdoor environment, (c) restore or reclaim natural resources or the environment, (d) perform
any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or
(e) conduct any other actions with respect to Hazardous Materials authorized by Environmental Laws.



     “Replacement Lender” has the meaning specified therefor in Section 2.13(b) of
the Agreement.



     “Report” has the meaning specified therefor in Section 15.16 of the Agreement.



     “Required Availability” means that the sum of (a) Excess Availability, plus (b)
Qualified Cash exceeds $50,000,000.




25











 





     “Required Lenders” means, at any time, Lenders whose aggregate Pro Rata Shares
(calculated under clause (d) of the definition of Pro Rata Shares) exceed 50%; provided,
however, that at any time there are 2 or more Lenders, “Required Lenders” must include at
least 2 Lenders.



     “Reserve Percentage” means, on any day, for any Lender, the maximum percentage
prescribed by the Board of Governors of the Federal Reserve System (or any successor Governmental
Authority) for determining the reserve requirements (including any basic, supplemental, marginal,
or emergency reserves) that are in effect on such date with respect to eurocurrency funding
(currently referred to as “eurocurrency liabilities”) of that Lender, but so long as such Lender is
not required or directed under applicable regulations to maintain such reserves, the Reserve
Percentage shall be zero.



     “Revolver Commitment” means, with respect to each Lender, its Revolver Commitment,
and, with respect to all Lenders, their Revolver Commitments, in each case as such Dollar amounts
are set forth beside such Lender’s name under the applicable heading on Schedule C-1 or in
the Assignment and Acceptance pursuant to which such Lender became a Lender hereunder, as such
amounts may be reduced or increased from time to time pursuant to assignments made in accordance
with the provisions of Section 13.1 of the Agreement.



     “Revolver Usage” means, as of any date of determination, the sum of (a) the amount of
outstanding Advances, plus (b) the amount of the Letter of Credit Usage.



     “Risk Participation Liability” means, as to each Letter of Credit, all obligations of
Borrower to the Issuing Lender with respect to such Letter of Credit, including (a) the contingent
reimbursement obligations of Borrower with respect to the amounts available to be drawn or which
may become available to be drawn thereunder, (b) the reimbursement obligations of Borrower with
respect to amounts that have been paid by the Issuing Lender to the Underlying Issuer, and (c) all
accrued and unpaid interest, fees, and expenses payable with respect thereto.



     “Sanctioned Entity” means (a) a country or a government of a country, (b) an agency of
the government of a country, (c) an organization directly or indirectly controlled by a country or
its government, (d) a Person resident in or determined to be resident in a country, in each case,
that is subject to a country sanctions program administered and enforced by OFAC.



     “Sanctioned Person” means a person named on the list of Specially Designated Nationals
maintained by OFAC.



     “SEC” means the United States Securities and Exchange Commission and any successor
thereto.



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



     “Securities Act” means the Securities Act of 1933, as amended from time to time, and
any successor statute.



     “Security Agreement” means a security agreement, in form and substance reasonably
satisfactory to Agent, executed and delivered by Borrower and Guarantors to Agent.



     “Settlement” has the meaning specified therefor in Section 2.3(e)(i) of the
Agreement.



     “Settlement Date” has the meaning specified therefor in Section 2.3(e)(i) of
the Agreement.



26









 





     “Solvent” means, with respect to any Person on a particular date, that, at fair
valuations, the sum of such Person’s assets is greater than all of such Person’s debts.



     “S&P” has the meaning specified therefor in the definition of Cash Equivalents.



     “Stock” means all shares, options, warrants, interests, participations, or other
equivalents (regardless of how designated) of or in a Person, whether voting or nonvoting,
including common stock, preferred stock, or any other “equity security” (as such term is defined in
Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act).



     “Subscription Revenues” means, with respect to any period, all consolidated
subscription revenues attributable to software owned by Borrower or any of its Subsidiaries earned
during such period (excluding revenues attributable to the sale of perpetual licenses by Borrower
or any of the Loan Parties), calculated on a basis consistent with the financial statements
delivered to Agent prior to the Closing Date.



     “Subsidiary” of a Person means a corporation, partnership, limited liability company,
or other entity in which that Person directly or indirectly owns or controls the shares of Stock
having ordinary voting power to elect a majority of the board of directors (or appoint other
comparable managers) of such corporation, partnership, limited liability company, or other entity.



     “SVB Letter of Credit” means that certain letter of credit number SVBSF005062, issued
by Existing Lender for the account of Borrower, in the original face amount of $1,280,000.



     “Swing Lender” means WFF or any other Lender that, at the request of Borrower and with
the consent of Agent agrees, in such Lender’s sole discretion, to become the Swing Lender under
Section 2.3(b) of the Agreement.



     “Swing Loan” has the meaning specified therefor in Section 2.3(b) of the
Agreement.



     “Taxes” shall mean, any taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to payments made by Borrower or any
Loan Party hereunder or under any other Loan Document and all interest, penalties or similar
liabilities with respect thereto; provided that Taxes shall exclude (i) any tax imposed on
the net income or net profits of any Lender or any Participant (including any branch profits
taxes), in each case imposed by the jurisdiction (or by any political subdivision or taxing
authority thereof) in which such Lender or such Participant is organized or the jurisdiction (or by
any political subdivision or taxing authority thereof) in which such Lender’s or such Participant’s
principal office is located or as a result of a present or former connection between such Lender or
such Participant and the jurisdiction or taxing authority imposing the tax (other than any such
connection arising solely from such Lender or such Participant having executed, delivered or
performed its obligations or received payment under, or enforced its rights or remedies under the
Agreement or any other Loan Document); (ii) taxes resulting from a Lender’s or a Participant’s
failure to comply with the requirements of Section 16(c) or (d) of the Agreement,
and (iii) any United States federal withholding taxes that would be imposed on amounts payable to a
Foreign Lender based upon the applicable withholding rate in effect at the time such Foreign Lender
becomes a party to the Agreement (or designates a new lending office), except that Taxes
shall include (A) any amount that such Foreign Lender (or its assignor, if any) was previously
entitled to receive pursuant to Section 16(a) of the Agreement, if any, with respect to
such withholding tax at the time such Foreign Lender becomes a party to this Agreement (or
designates a new lending office), and (B) additional United States federal withholding taxes that may be imposed after the time such
Foreign Lender becomes a party to the Agreement (or designates a new lending office), as a result
of a change in law, rule, regulation, order or other decision with respect to any of the foregoing
by any Governmental Authority.



27









 








     “Term Loan” has the meaning specified therefor in Section 2.2 of the
Agreement.



     “Term Loan Amount” means $15,000,000.



     “Term Loan Commitment” means, with respect to each Lender, its Term Loan Commitment,
and, with respect to all Lenders, their Term Loan Commitments, in each case as such Dollar amounts
are set forth beside such Lender’s name under the applicable heading on Schedule C-1 or in
the Assignment and Acceptance pursuant to which such Lender became a Lender hereunder, as such
amounts may be reduced or increased from time to time pursuant to assignments made in accordance
with the provisions of Section 13.1 of the Agreement.



     “Total Commitment” means, with respect to each Lender, its Total Commitment, and, with
respect to all Lenders, their Total Commitments, in each case as such Dollar amounts are set forth
beside such Lender’s name under the applicable heading on Schedule C-1 attached hereto or
on the signature page of the Assignment and Acceptance pursuant to which such Lender became a
Lender hereunder, as such amounts may be reduced or increased from time to time pursuant to
assignments made in accordance with the provisions of Section 13.1 of the Agreement.



     “Trademark Security Agreement” has the meaning specified therefor in the Security
Agreement.



     “TTM Subscription Revenues” means, as of any date of determination, Subscription
Revenues for the 12 month period most recently ended.



     “Underlying Issuer” means a third Person which is the beneficiary of an L/C
Undertaking and which has issued a letter of credit at the request of the Issuing Lender for the
benefit of Borrower.



     “Underlying Letter of Credit” means a letter of credit that has been issued by an
Underlying Issuer.



     “United States” means the United States of America.



     “Voidable Transfer” has the meaning specified therefor in Section 17.8 of the
Agreement.



     “Wells Fargo” means Wells Fargo Bank, National Association, a national banking
association.



     “WFF” means Wells Fargo Foothill, LLC, a Delaware limited liability company.




28









 








Schedule 3.1




     The obligation of each Lender to make its initial extension of credit provided for in the
Agreement is subject to the fulfillment, to the satisfaction of each Lender (the making of such
initial extension of credit by any Lender being conclusively deemed to be its satisfaction or
waiver of the following), of each of the following conditions precedent:



     (a) the Closing Date shall occur on or before December 24, 2008;



     (b) Agent shall have received a letter duly executed by Borrower and each Guarantor
authorizing Agent to file appropriate financing statements in such office or offices as may be
necessary or, in the opinion of Agent, desirable to perfect the security interests to be created by
the Loan Documents;



     (c) Agent shall have received evidence that appropriate financing statements have been duly
filed in such office or offices as may be necessary or, in the opinion of Agent, desirable to
perfect the Agent’s Liens in and to the Collateral, and Agent shall have received searches
reflecting the filing of all such financing statements;



     (d) Agent shall have received each of the following documents, in form and substance
satisfactory to Agent, duly executed, and each such document shall be in full force and effect:



          (i) the Credit Agreement,



          (ii) the Credit Amount Certificate completed as of the Closing Date,



          (iii) the Controlled Account Agreements,



          (iv) the Control Agreements,



          (v) the Security Agreement,



          (vi) a disbursement letter executed and delivered by Borrower to Agent regarding the extensions
of credit to be made on the Closing Date, the form and substance of which is satisfactory to Agent,



          (vii) the Fee Letter,



          (viii) the Guaranty,



          (ix) the Intercompany Subordination Agreement,



          (x) a letter, in form and substance satisfactory to Agent, from Existing Lender to Agent
respecting the amount necessary to repay in full all of the obligations of Borrower and its
Subsidiaries owing to Existing Lender and obtain a release of all of the Liens existing in favor of
Existing Lender in and to the assets of Borrower and its Subsidiaries, together with termination
statements and other documentation evidencing the termination by Existing Lender of its Liens
in and to the properties and assets of Borrower and its Subsidiaries,



1









 








          (xi) Copyright Security Agreement;



          (xii) Trademark Security Agreement; and



          (xiii) Patent Security Agreement;



     (e) Agent shall have received a certificate from the Secretary of Borrower (i) attesting to
the resolutions of Borrower’s Board of Directors authorizing its execution, delivery, and
performance of this Agreement and the other Loan Documents to which Borrower is a party, (ii)
authorizing specific officers of Borrower to execute the same, and (iii) attesting to the
incumbency and signatures of such specific officers of Borrower;



     (f) Agent shall have received copies of Borrower’s Governing Documents, as amended, modified,
or supplemented to the Closing Date, certified by the Secretary of Borrower;



     (g) Agent shall have received a certificate of status with respect to Borrower, dated within
10 days of the Closing Date, such certificate to be issued by the appropriate officer of the
jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good
standing in such jurisdiction;



     (h) Agent shall have received certificates of status with respect to Borrower, each dated
within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of
the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to
be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall
indicate that Borrower is in good standing in such jurisdictions;



     (i) Agent shall have received a certificate from the Secretary of each Guarantor (i) attesting
to the resolutions of such Guarantor’s Board of Directors authorizing its execution, delivery, and
performance of the Loan Documents to which such Guarantor is a party, (ii) authorizing specific
officers of such Guarantor to execute the same and (iii) attesting to the incumbency and signatures
of such specific officers of Guarantor;



     (j) Agent shall have received copies of each Guarantor’s Governing Documents, as amended,
modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor;



     (k) Agent shall have received a certificate of status with respect to each Guarantor, dated
within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the
jurisdiction of organization of such Guarantor, which certificate shall indicate that such
Guarantor is in good standing in such jurisdiction;



     (l) Agent shall have received certificates of status with respect to each Guarantor, each
dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer
of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its
failure to be duly qualified or licensed would constitute a Material Adverse Change, which
certificates shall indicate that such Guarantor is in good standing in such jurisdictions;



2









 





     (m) Agent shall have received certificates of insurance, together with the endorsements
thereto, as are required by Section 5.6, the form and substance of which shall be
satisfactory to Agent;



     (n) Agent shall have received Collateral Access Agreements with respect to the following
locations:



          (i) 550 East Timpanogos Circle, Orem, Utah 84097 (the chief executive office);



          (ii) 26 West 17th Street, New York, New York 10010; and



          (iii) 13450 Sunrise Valley Drive, Herndon, Virginia 20171;



     (o) Agent shall have received an opinion of Borrower’s and each Guarantor’s counsel in form
and substance satisfactory to Agent;



     (p) Borrower shall have paid the fees that are due and payable on the Closing Date as set
forth in the Fee Letter and shall have Required Availability after giving effect to the initial
extensions of credit hereunder and the payment of all fees and expenses required to be paid by
Borrower on the Closing Date under this Agreement or the other Loan Documents;



     (q) Agent shall have completed its business due diligence, including receipt of a recurring
revenue valuation performed by a firm selected by Agent and verification of Borrower’s
representations and warranties to the Lender Group, the results of which shall be satisfactory to
Agent;



     (r) Agent shall have completed its legal due diligence, including (i) a review of Borrower’s
and its Subsidiaries corporate structure and pending litigation, and (ii) a review of certified
copies of Borrower’s Material Contracts, in each case the results of which shall be satisfactory to
Agent;



     (s) Agent shall have received completed (i) Patriot Act and OFAC/PEP searches with respect to
the Loan Parties and (ii) OFAC/PEP searches and reference checks with respect to Borrower’s senior
management and key principals, the results of which are satisfactory to Agent in its sole
discretion;



     (t) Agent shall have received evidence reasonably satisfactory to it that all Intellectual
Property (as such term is defined in the Security Agreement) of Borrower and its Subsidiaries that
are a party to the Security Agreement (i) is owned by Borrower or such Subsidiary, (ii) is free and
clear of any Liens, claims and encumbrances of any other Person (other than Liens permitted under
the Security Agreement), and (iii) to the extent such Intellectual Property is used by Borrower or
such Subsidiary to generate revenues of any non-owner, then such Intellectual Property is subject
to a license agreement in form and substance reasonably satisfactory to Agent;



     (u) Agent shall have received evidence reasonably satisfactory to it that each Copyright that
is part of the Required Library (as such term is defined in the Security Agreement) on the Closing
Date has been registered with the United States Copyright Office in a manner sufficient to impart
constructive notice of Borrower’s ownership thereof in accordance with Section 5(g) of the Security
Agreement;



     (v) Borrower shall have paid all Lender Group Expenses incurred in connection with the
transactions evidenced by this Agreement;



3









 





     (w) There shall not have occurred any Material Adverse Change since September 30, 2008;



     (x) Borrower and each of its Subsidiaries shall have received all licenses, approvals or
evidence of other actions required by any Governmental Authority in connection with the execution
and delivery by Borrower or its Subsidiaries of the Loan Documents or with the consummation of the
transactions contemplated thereby; and



     (y) all other documents and legal matters in connection with the transactions contemplated by
this Agreement shall have been delivered, executed, or recorded and shall be in form and substance
satisfactory to Agent.



4









 





SCHEDULE 3.6




     The obligation of the Lender Group (or any member thereof) to make any Advances hereunder at
any time (or to extend any other credit hereunder) shall be subject to the fulfillment, to the
satisfaction of Agent and each Lender (or waiver thereby), of each of the post-closing covenants
set forth below. Borrower shall, and shall cause its Subsidiaries to, satisfy each of the
post-closing covenants set forth below within such covenant’s prescribed time period. Except as
otherwise provided in clause (g) below, Borrower’s failure to satisfy any covenant within the
prescribed time period shall constitute an Event of Default under the Agreement.



          (a) Within 3 Business Days following the date Existing Lender receives the original Underlying
Letter of Credit issued to support the SVB Letter of Credit, Existing Lender shall release its lien
over Borrower’s deposit account number [] maintained at Existing Lender, and upon such
release Borrower shall have until December 31, 2008 to move the cash proceeds therein to a
Controlled Account, as defined in the Security Agreement.




          (b) Within 60 days of the Closing Date, Agent shall have received original certificates
representing the shares of Stock pledged under the Security Agreement with respect to (i) Omniture
Limited, (ii) Omniture KK, (iii) Omniture Hong Kong Limited, and (iv) Omniture Australia Pty Ltd.




          (c) Within 45 days of the Closing Date, Borrower shall cause to be terminated or released those
certain U.S. Patent and Trademark Office filings listed on Annex A hereto.




          (d) Within 45 days of the Closing Date, Borrower shall cause to be terminated or released
those certain U.S. Copyright Office filings listed on Annex A hereto.




          (e) Within 180 days of the Closing Date, Agent shall have received a certificate of status
with respect to Borrower, with such certificate to be issued by the Secretary of State for the
State of New York, which certificate shall indicate that Borrower is in good standing in such
jurisdiction.




          (f) Within 30 days of the Closing Date, Agent shall have received a certificate of status with
respect to Offermatica Corporation, with such certificate to be issued by the Secretary of State
for the State of California, which certificate shall indicate that Borrower is in good standing in
such jurisdiction.




          (g) Within 30 Business Days of the Closing Date, Borrower shall have used commercially
reasonable efforts to deliver a Collateral Access Agreement with respect to the leased facilities
located at 250 Brannan, San Francisco, California 94107, and 10182 Telesis Court, San Diego,
California, 92121.




          (h) Within 40 days of the Closing Date, Borrower shall take all necessary steps to ensure that
(i) all of its Account Debtors forward payment of the amounts owed by them directly to Visual
Science, Inc.’s deposit account number [] maintained at Silicon Valley Bank (the “Subject
Account”), and (ii) have Borrower’s name reflected on the Subject Account as a co-owner thereof.




          (i) Within 60 days of the Closing Date, Borrower and Agent shall have finalized a form of
Source Code Escrow Agreement, in form and substance satisfactory to Agent, and Borrower shall have
delivered its executed signature pages thereto for Agent to hold in escrow until such time as such
Source Code Escrow Agreement is required to be made effective, if at all, in accordance with
Section 6(g)(vii) of the Security Agreement.




 









 








Annex A




Patents




	 	 	 	 	 	 	 
	Grantor:

	 	Grantee:
	 	Reg. No./Serial No.:
	 	Recorded at:
	 
	 	 	 	 	 	 
	Visual Sciences, Inc.,

	 	Imperial Bank
	 	09/326,475
	 	Reel: 010189
	as successor-in-interest

	 	 	 	 	 	Frame: 0254
	to WebSideStory, Inc.

	 	 	 	 	 	08/27/1999
	 
	 	 	 	 	 	 
	Visual Sciences, Inc.,

	 	Imperial Creditcorp
	 	09/326,475 (U.S.)
	 	Reel: 011066
	as successor-in-interest

	 	 	 	60/203,435 (U.S.)
	 	Frame: 0536
	to WebSideStory, Inc.

	 	 	 	09/500,738 (U.S.)
	 	09/19/2000
	 

	 	 	 	09/539,225 (U.S.)	 	 






Trademarks




	 	 	 	 	 	 	 
	Grantor:

	 	Grantee:
	 	Reg. No./Serial No.:
	 	Recorded at:
	 
	 	 	 	 	 	 
	Visual Sciences, Inc.,
	 	Imperial Bank	 	75/444,698	 	Reel: 001949
	as successor-in-interest
	 	 	 	75/653,048	 	Frame: 0931
	to WebSideStory, Inc.
	 	 	 	2,174,768	 	8/27/1999
	 
	 	 	 	2,174,844	 	 
	 
	 	 	 	 	 	 
	Visual Sciences, Inc.,
	 	Imperial Bank	 	75/833,996	 	Reel: 002139
	as successor-in-interest
	 	 	 	75/444,968	 	Frame: 0130
	to WebSideStory, Inc.
	 	 	 	2,338,002	 	09/18/2000
	 
	 	 	 	2,345,610	 	 
	 
	 	 	 	 	 	 
	Visual Sciences, Inc.,
	 	Imperial Creditcorp	 	75/833,996	 	Reel: 002139
	as successor-in-interest
	 	 	 	75/444,968	 	Frame: 0541
	to WebSideStory, Inc.
	 	 	 	75/653,048	 	09/19/2000
	 
	 	 	 	2,174,844	 	 
	 
	 	 	 	2,338,002	 	 
	 
	 	 	 	2,174,768	 	 
	 
	 	 	 	2,345,610	 	 
	 
	 	 	 	 	 	 
	Visual Sciences, Inc.,
	 	Imperial Creditcorp	 	76/136,449	 	Reel: 002166
	as successor-in-interest
	 	 	 	76/136,432	 	Frame: 0520
	to WebSideStory, Inc.
	 	 	 	76/136,448	 	11/03/2000






Copyrights




	 	 	 	 	 	 	 
	Grantor:

	 	Grantee:
	 	Reg. No./Serial No.:
	 	Recorded at:
	 
	 	 	 	 	 	 
	Visual Sciences, Inc.,

	 	Imperial Creditcorp
	 	Txu-912-518
	 	Volume: 3456
	as successor-in-interest

	 	 	 	Txu-894-309
	 	Page: 804
	to WebSideStory, Inc.

	 	 	 	Txu-907-376
	 	10/24/2000
	 

	 	 	 	Txu-894-293	 	 
	 

	 	 	 	Txu-894-306	 	 
	 

	 	 	 	Txu-894-307	 	 
	 

	 	 	 	Txu-894-308	 	 






 









 






	 	 	 	 	 	 	 
	Grantor:

	 	Grantee:
	 	Reg. No./Serial No.:
	 	Recorded at:
	 
	 	 	 	 	 	 
	Visual Sciences, Inc.,

	 	Imperial Bank
	 	Txu-912-518
	 	Volume: 3459
	as successor-in-interest

	 	 	 	Txu-894-309
	 	Page: 851
	to WebSideStory, Inc.

	 	 	 	Txu-907-376
	 	10/12/2000
	 

	 	 	 	Txu-894-293	 	 
	 

	 	 	 	Txu-894-306	 	 
	 

	 	 	 	Txu-894-307	 	 
	 

	 	 	 	Txu-894-308	 	 
	 
	 	 	 	 	 	 
	Visual Sciences, Inc.,

	 	Imperial Creditcorp
	 	TX-5-158-565
	 	Volume: 3460
	as successor-in-interest

	 	 	 	 	 	Page: 278
	to WebSideStory, Inc.

	 	 	 	 	 	10/24/2000






 









 






Schedule 5.1




     Deliver to Agent, with copies to each Lender, each of the financial statements, reports, or
other items set forth set forth below at the following times in form satisfactory to Agent:



	 	 	 
	As soon as
available, but in
any event within 30
days (45 days in
the case of a month
that is the end of
one of Borrower’s
fiscal quarters)
after the end of
each month during
each of Borrower’s
fiscal years

	 	(a) an unaudited consolidated and consolidating
balance sheet and income statement, and consolidated
statement of cash flow covering Borrower’s and its
Subsidiaries’ operations during such period, and


(b) a Credit Amount Certificate, together with a
schedule in form satisfactory to the Agent showing (i)
detailed computations used by the Loan Parties in
determining the Credit Amount, and (ii) all filings
made with the SEC during the applicable month,
including, without limitation, the filings described
in clauses (g), (h) and (i) below.
	 
	 	 
	As soon as
available, but in
any event within 45
days after the end
of each of
Borrower’s fiscal
quarters

	 	(c) a Compliance Certificate together with a schedule
in form satisfactory to the Agent showing detailed
computations used by the Loan Parties in determining
compliance with the requirements and covenants set
forth in Section 7 of the Agreement.
	 
	 	 
	As soon as
available, but in
any event within 90
days after the end
of each of
Borrower’s fiscal
years

	 	(d) consolidated and consolidating financial
statements of Borrower and its Subsidiaries for each
such fiscal year, with the consolidated financial
statements audited by independent certified public
accountants mutually acceptable to Borrower and Agent
and certified, without any qualifications (including
any (A) “going concern” or like qualification or
exception, (B) qualification or exception as to the
scope of such audit, or (C) qualification which
relates to the treatment or classification of any item
and which, as a condition to the removal of such
qualification, would require an adjustment to such
item, the effect of which would be to cause any
noncompliance with the provisions of Section 7, by
such accountants to have been prepared in accordance
with GAAP (such audited financial statements to
include a balance sheet, income statement, and
statement of cash flow and, if prepared, such
accountants’ letter to management), and
	 
	 	 
	 

	 	(e) a Compliance Certificate.
	 
	 	 
	As soon as
available, but in
any event within 10
days prior to the
start of each of
Borrower’s fiscal
years,

	 	(f) copies of Borrower’s Projections, in form and
substance (including as to scope and underlying
assumptions) satisfactory to Agent, in its Permitted
Discretion, for the forthcoming 3 years, year by year,
and for the forthcoming fiscal year, quarter by
quarter, certified by the chief financial officer of
Borrower as being such officer’s good faith estimate
of the financial performance of Borrower during the
period covered thereby.






1









 






	 	 	 
	If and when filed
by Borrower (this
information will be
considered
delivered to Agent
when notice of such
filing is provided
in the schedule to
the monthly Credit
Amount Certificate
required under
clause (b) above),

	 	(g) Form 10-Q quarterly reports, Form 10-K annual
reports, and Form 8-K current reports,


(h) any other filings made by Borrower with the SEC,
and


(i) any other information that is provided by Borrower
to its shareholders generally.
	 
	 	 
	Promptly, but in
any event within 5
Business Days after
Borrower has
knowledge of any
event or condition
that constitutes a
Default or an Event
of Default,

	 	(j) notice of such event or condition and a statement
of the curative action that Borrower proposes to take
with respect thereto.
	 
	 	 
	Promptly after the
commencement
thereof, but in any
event within 5
Business Days after
the service of
process with
respect thereto on
Borrower or any of
its Subsidiaries,

	 	(k) notice of all actions, suits, or proceedings
brought by or against Borrower or any of its
Subsidiaries before any Governmental Authority which
reasonably could be expected to result in a Material
Adverse Change.
	 
	 	 
	Upon the request of
Agent,

	 	(l) any other material information reasonably
requested relating to the financial condition of
Borrower or its Subsidiaries.






2









 






SCHEDULE 5.2




     Provide Agent (and if so requested by Agent, with copies for each Lender) with each of the
documents set forth below at the following times in form satisfactory to Agent:



	 	 	 
	Monthly (not later than the 20th day
of each month)

	 	(a) a calculation for the prior
month and for the 12 month period
most recently ended of the
Subscription Revenues and the
collections associated with the
Subscription Revenues; provided,
that no Subscription Revenues of any
entity acquired by Borrower during
the prior 90 days shall be required
to be included in such calculation
unless such Subscription Revenues
are included in Borrower’s most
recent filing with the SEC, and
	 
	 	 
	 

	 	(b) a detailed report regarding
Borrower’s and its Subsidiaries’
cash and Cash Equivalents, on an
account by account basis, that
includes the bank name, account
number, the balance in Dollars (or
local currency if applicable), and
an indication as to whether or not
the account constitutes Qualified
Cash.






1









 






	 	 	 
	Quarterly (not later than the 25th
day of each quarter)

	 	(c) a list of Borrower’s and its
Subsidiaries’ customers including a
listing of each service type
contracted for by each customer, the
annualized Subscription Revenue for
each, and the expiration date for
each service type,
	 
	 	 
	 

	 	(d) a report detailing subscription
contracts retention statistics for
Borrower and its Subsidiaries,
	 
	 	 
	 

	 	(e) a report showing (i) all
deferred revenue as set forth in
Borrower’s and its Subsidiaries’
balance sheets for the prior
quarter, (ii) the portion of such
deferred revenue that is scheduled
to be earned during the next four
fiscal quarters, (iii) the portion
of such revenue that is scheduled to
be earned during the four fiscal
quarters commencing one year from
the date of such balance sheet, and
(iv) the portion of such revenue
that is scheduled to be earned on or
after the date two years following
the date of such balance sheet,
	 
	 	 
	 

	 	(f) a reconciliation of the prior
quarter’s deferred revenue balance
between Borrower’s and its
Subsidiaries’ balance sheets and
their respective general ledgers,
	 
	 	 
	 

	 	(g) a detailed report regarding
deemed dividend tax liability, if
applicable, for Borrower and its
Subsidiaries,
	 
	 	 
	 

	 	(h) a summary aging, by total, of
Borrower’s and its Subsidiaries’
accounts receivable, together with a
reconciliation and supporting
documentation for any reconciling
items noted,
	 
	 	 
	 

	 	(i) a summary aging, by vendor, of
Borrower’s accounts payable, and any
book overdraft,
	 
	 	 
	 

	 	(j) a report of all modified, newly
developed, and newly acquired
intellectual property for each
Borrower and its Subsidiaries,
	 
	 	 
	 

	 	(k) a report regarding Borrower’s
and its Subsidiaries’ accrued, but
unpaid, taxes, and
	 
	 	 
	 

	 	(l) a detailed report regarding
royalty payables for Borrower and
its Subsidiaries.
	 
	 	 
	Upon request by Agent

	 	(m) such other reports as to the
Collateral or the financial
condition of Borrower and its
Subsidiaries, as Agent may
reasonably request.







2