FIRST AMENDMENT
TO
THIRD AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT
THIS FIRST
AMENDMENT to Third Amended and Restated Loan and Security
Agreement (this “Amendment”) is entered into this 7th
day of August, 2008, by and between Silicon Valley Bank
(“Bank”) and Omniture, Inc., a Delaware corporation
(“Borrower”) whose address is 550 E. Timpanogos Circle,
Orem, UT 84097.
A.
Bank and Borrower have entered into that certain Third Amended and
Restated Loan and Security Agreement with an Effective Date of
August 17, 2007 (as the same may from time to time be further
amended, modified, supplemented or restated, the “Loan
Agreement”).
B.
Bank has extended credit to Borrower for the purposes permitted in
the Loan Agreement.
C.
Borrower has requested that Bank amend the Loan Agreement to
(i) extend the Revolving Line Maturity Date and
(ii) waive the Fixed Charge Coverage covenant violation that
occurred as of June 30, 2008, and the reporting requirements that
were triggered by the covenant violation.
D.
Bank has agreed to so amend certain provisions of the Loan
Agreement, but only to the extent, in accordance with the terms,
subject to the conditions and in reliance upon the representations
and warranties set forth below.
Now, Therefore, in
consideration of the foregoing recitals and other good and valuable
consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto
agree as follows:
1. Definitions. Capitalized terms used but not defined
in this Amendment shall have the meanings given to them in the Loan
Agreement.
2. Amendments to Loan Agreement.
2.1
Section 13.1 ( Definitions ). The following term
and its definition is amended by deleting the existing definition
and replacing it with the following:
““ Revolving Line
Maturity Date ” is October 16,
2008.”
3. Waiver
of Covenant Violation. Bank waives Borrower’s existing
default under the Loan Agreement consisting of Borrower’s
failure to comply with the Fixed Charge Coverage covenant as of
June 30, 2008. To the extent Borrower was required to provide
to Bank a Borrowing Base Certificate, aged listings of accounts
receivable and
accounts
payable and a list of all Deferred Revenue due to such failure to
comply with the Fixed Charge Coverage covenant, Bank also waives
such requirement due to the failure to comply with the Fixed Charge
Covenant as of June 30, 2008. As of September 30, 2008,
Borrower shall be required to comply with the Fixed Charge Coverage
covenant and the other financial covenants set forth in the Loan
Agreement.
Bank’s
agreement to waive the default (1) is not an agreement to
waive Borrower’s compliance with the covenants for other
date