Exhibit 10.9


 


OPENTABLE, INC.


 


LOAN AND SECURITY AGREEMENT


 

















 


This LOAN AND SECURITY AGREEMENT is entered into as of
July 30, 2007, by and between Comerica Bank (“Bank”) and OPENTABLE, INC.
(“Borrower”).


 


RECITALS


 


Borrower wishes to obtain credit from time to time
from Bank, and Bank desires to extend credit to Borrower.  This Agreement sets forth the terms on which
Bank will advance credit to Borrower, and Borrower will repay the amounts owing
to Bank.


 


AGREEMENT


 


The parties agree as follows:


 


1.                                       DEFINITIONS
AND CONSTRUCTION.


 


1.1         Definitions.  As used in this Agreement, all capitalized
terms shall have the definitions set forth on Exhibit A.  Any term used in the Code and not defined
herein shall have the meaning given to the term in the Code.


 


1.2         Accounting
Terms.  Any accounting term not
specifically defined on Exhibit A shall be construed in accordance
with GAAP and all calculations shall be made in accordance with GAAP.  The term “financial statements” shall include
the accompanying notes and schedules.


 


2.                                       LOAN
AND TERMS OF PAYMENT.


 


2.1         Credit
Extensions.


 


(a)  Promise to Pay.  Borrower promises to pay to Bank, in lawful
money of the United States of America, the aggregate unpaid principal amount of
all Credit Extensions made by Bank to Borrower, together with interest on the
unpaid principal amount of such Credit Extensions at rates in accordance with
the terms hereof.


 


(b)  Advances Under Revolving Line.


 


(i)                                     Amount.  Subject to and upon the terms and conditions
of this Agreement (1) Borrower may request Advances in an aggregate outstanding
amount not to exceed the lesser of (A) the Revolving Line or (B) the Borrowing
Base, less any amounts outstanding under the Letter of Credit Sublimit, the
Credit Card Services Sublimit, the ACH Sublimit, and the Foreign Exchange
Sublimit, and (2) amounts borrowed pursuant to this Section 2.1(b) may be
repaid and reborrowed at any time prior to the Revolving Maturity Date, at
which time all Advances under this Section 2.1(b) shall be immediately due and
payable.  Borrower may prepay any
Advances without penalty or premium.


 


(ii)                                  Form
of Request.  Whenever Borrower
desires an Advance, Borrower will notify Bank by facsimile transmission or
telephone no later than 3:00 p.m. Pacific time (1:00 p.m. Pacific time for wire
transfers), on the Business Day that the Advance is to be made.  Each such notification shall be promptly
confirmed by a Payment/Advance Form in substantially the form of Exhibit C.  Bank is authorized to make Advances under
this Agreement, based upon instructions received from a Responsible Officer or
a designee of a Responsible Officer, or without instructions if in Bank’s
discretion such Advances are necessary to meet Obligations which have become
due and remain unpaid.  Bank shall be
entitled to rely on any telephonic notice given by a person who Bank reasonably
believes to be a Responsible Officer or a designee thereof, and Borrower shall
indemnify and hold Bank harmless for any damages or loss suffered by Bank as a
result of such reliance.  Bank will
credit the amount of Advances made under this Section 2.1(b) to Borrower’s
deposit account.


 


(iii)                               Letter of Credit
Sublimit. Subject to the availability under the Revolving Line, and in
reliance on the representations and warranties of Borrower set forth herein, at
any time and 


 


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from
time to time from the date hereof through the Business Day immediately prior to
the Revolving Maturity Date, Bank shall issue for the account of Borrower such
Letters of Credit as Borrower may request by delivering to Bank a duly executed
letter of credit application on Bank’s standard form; provided, however, that
the outstanding and undrawn amounts under all such Letters of Credit (i) shall
not at any time exceed the Letter of Credit Sublimit, and (ii) shall be
deemed to constitute Advances for the purpose of calculating availability under
the Revolving Line.  Any drawn but
unreimbursed amounts under any Letters of Credit shall be charged as Advances
against the Revolving Line. All Letters of Credit shall be in form and
substance acceptable to Bank in its sole discretion and shall be subject to the
terms and conditions of Bank’s form application and letter of credit
agreement.  Borrower will pay any
standard issuance and other fees that Bank notifies Borrower in advance that it
will charge for issuing and processing Letters of Credit.


 


(iv)                              Credit
Card Services Sublimit.  Subject to
the terms and conditions of this Agreement, Borrower may request corporate
credit cards and standard and e-commerce merchant account services from Bank
(collectively, the “Credit Card Services”). 
The aggregate limit of the corporate credit cards and merchant credit
card processing reserves shall not exceed the Credit Card Services Sublimit,
provided that availability under the Revolving Line shall be reduced by the
aggregate limits of the corporate credit cards issued to Borrower and merchant
credit card processing reserves.  In
addition, Bank may, in its sole discretion, charge as Advances any amounts that
become due or owing to Bank in connection with the Credit Card Services.  The terms and conditions (including repayment
and fees) of such Credit Card Services shall be subject to the terms and
conditions of the Bank’s standard forms of application and agreement for the
Credit Card Services, which Borrower hereby agrees to execute.


 


(v)                                 ACH
Sublimit.  Subject to the terms and
conditions of this Agreement, Borrower may request ACH origination services by
delivering to Bank a duly executed ACH application on Bank’s standard form;
provided, however, that the total amount of the ACH processing reserves shall
not exceed, and availability under the Revolving Line shall be reduced by, the
ACH Sublimit.  In addition, Bank may, in
its sole discretion, charge as Advances any amounts that become due or owing to
Bank in connection with the ACH services. 
If Borrower has not secured to Bank’s satisfaction its obligations with
respect to any ACH origination services by the Revolving Maturity Date, then,
effective as of such date, the balance in any deposit accounts held by Bank and
the certificates of deposit issued by Bank in Borrower’s name (and any interest
paid thereon or proceeds thereof, including any amounts payable upon the
maturity or liquidation of such certificates), shall automatically secure such
obligations to the extent of the then outstanding ACH origination
services.  Borrower authorizes Bank to
hold such balances in pledge and to decline to honor any drafts thereon or any
requests by Borrower or any other Person to pay or otherwise transfer any part
of such balances for so long as the ACH origination services continue.


 


(vi)                              Foreign
Exchange Sublimit. Subject to and upon the terms and conditions of this
Agreement and any other agreement that Borrower may enter into with the Bank in
connection with foreign exchange transactions (“FX Contracts”), Borrower may
request Bank to enter into FX Contracts with Borrower due not later than the
Revolving Maturity Date.  Borrower shall
pay any standard issuance and other fees that Bank notifies Borrower in advance
that will be charged for issuing and processing FX Contracts for Borrower.  The FX Amount shall at all times be equal to
or less than One Million Dollars ($1,000,000). 
The “FX Amount” shall equal the amount determined by multiplying (i) the
aggregate amount, in United States Dollars, of FX Contracts between Borrower
and Bank remaining outstanding as of any date of determination by (ii) the
applicable Foreign Exchange Reserve Percentage as of such date.  The “Foreign Exchange Reserve Percentage”
shall be a percentage as determined by Bank, in its sole discretion from time
to time.  The initial Foreign Exchange
Reserve Percentage shall be ten percent (10%).


 


(vii)                           Collateralization of
Obligations Extending Beyond Maturity. 
If Borrower has not secured to Bank’s satisfaction its obligations with
respect to any Letters of Credit, Credit Card Services, ACH origination
services, or Foreign Exchange Contracts by the Revolving Maturity Date, then,
effective as of such date, the balance in any deposit accounts held by Bank and
the certificates of deposit or time deposit accounts issued by Bank in
Borrower’s name (and any interest paid thereon or proceeds thereof, including
any amounts payable upon the maturity or liquidation of such certificates or
accounts), shall automatically secure such obligations to the extent of the
then continuing or outstanding and undrawn Letters of Credit, Credit Card
Services, ACH origination services, or Foreign Exchange Contracts.  Borrower authorizes Bank to hold such
balances in pledge and to decline to honor any drafts thereon or any requests
by Borrower or any other Person to pay or 


 


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otherwise
transfer any part of such balances for so long as the Letters of Credit, Credit
Card Services, ACH origination services, or Foreign Exchange Contracts are
outstanding or continue.


 


2.2         Overadvances.  If the aggregate amount of the outstanding
Advances exceeds the lesser of the Revolving Line or the Borrowing Base at any
time, Borrower shall immediately pay to Bank, in cash, the amount of such
excess.


 


2.3         Interest
Rates, Payments, and Calculations.


 


(a)          Interest Rates.
Except as set forth in Section 2.3(b), the Advances shall bear interest, on the
outstanding daily balance thereof, at a variable rate equal to 0.50% above the
Prime Rate.


(b)         Late
Fee; Default Rate.  If any payment is
not made within 10 days after the date such payment is due, Borrower shall pay
Bank a late fee equal to the lesser of (i) 5% of the amount of such unpaid
amount or (ii) the maximum amount permitted to be charged under applicable
law.  All Obligations shall bear
interest, from and after the occurrence and during the continuance of an Event
of Default, at a rate equal to 5 percentage points above the interest rate
applicable immediately prior to the occurrence of the Event of Default.


 


(c)          Payments.  Interest hereunder shall be due and payable
on the first (1st)
calendar day of each month during the term hereof.  Bank shall, at its option, charge such
interest, all Bank Expenses, and all Periodic Payments against any of
Borrower’s deposit accounts or against the Revolving Line, in which case those
amounts shall thereafter accrue interest at the rate then applicable hereunder.  Any interest not paid when due shall be
compounded by becoming a part of the Obligations, and such interest shall
thereafter accrue interest at the rate then applicable hereunder.


 


(d)         Computation.  In the event the Prime Rate is changed from
time to time hereafter, the applicable rate of interest hereunder shall be
increased or decreased, effective as of the day the Prime Rate is changed, by
an amount equal to such change in the Prime Rate.  All interest chargeable under the Loan
Documents shall be computed on the basis of a 360 day year for the actual
number of days elapsed.


 


2.4         Crediting
Payments.  Prior to the occurrence of
an Event of Default, Bank shall credit a wire transfer of funds, check or other
item of payment to such deposit account or Obligation as Borrower specifies,
except that to the extent Borrower uses the Advances to purchase Collateral,
Borrower’s repayment of the Advances shall apply on a “first-in-first-out”
basis so that the portion of the Advances used to purchase a particular item of
Collateral shall be paid in the chronological order the Borrower purchased the
Collateral.  After the occurrence of an
Event of Default, Bank shall have the right, in its sole discretion, to
immediately apply any wire transfer of funds, check, or other item of payment
Bank may receive to conditionally reduce Obligations, but such applications of
funds shall not be considered a payment on account unless such payment is of
immediately available federal funds or unless and until such check or other item
of payment is honored when presented for payment.  Notwithstanding anything to the contrary
contained herein, any wire transfer or payment received by Bank after 12:00
noon Pacific time shall be deemed to have been received by Bank as of the
opening of business on the immediately following Business Day.  Whenever any payment to Bank under the Loan
Documents would otherwise be due (except by reason of acceleration) on a date
that is not a Business Day, such payment shall instead be due on the next
Business Day, and additional fees or interest, as the case may be, shall accrue
and be payable for the period of such extension.


 


2.5         Fees.  Borrower shall pay to Bank the following:


 


(a)          Facility
Fee.  On the Closing Date, a fee
equal to $5,000, which shall be nonrefundable;


 


(b)         Bank
Expenses.  On the Closing Date, all
Bank Expenses incurred through the Closing Date, and, after the Closing Date,
all Bank Expenses, as and when they become due.


 


2.6         Term.  This Agreement shall become effective on the
Closing Date and, subject to Section 13.7, shall continue in full force and
effect for so long as any Obligations remain outstanding or Bank has any


 


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obligation to make Credit Extensions under this Agreement.  Notwithstanding the foregoing, Bank shall
have the right to terminate its obligation to make Credit Extensions under this
Agreement immediately and without notice upon the occurrence and during the
continuance of an Event of Default.


 


3.                                       CONDITIONS
OF LOANS.


 


3.1         Conditions
Precedent to Initial Credit Extension. 
The obligation of Bank to make the initial Credit Extension is subject
to the condition precedent that Bank shall have received, in form and substance
satisfactory to Bank, the following:


 


(a)          this
Agreement;


 


(b)         an
officer’s certificate of Borrower with respect to incumbency and resolutions
authorizing the execution and delivery of this Agreement;


 


(c)          a
financing statement (Form UCC-1);


 


(d)         agreement
to provide insurance;


 


(e)          payment of
the fees and Bank Expenses then due specified in Section 2.5;


 


(f)            current
SOS Reports indicating that except for Permitted Liens, there are no other
security interests or Liens of record in the Collateral;


 


(g)         an
audit of the Collateral, the results of which shall be satisfactory to Bank;


 


(h)         current
financial statements, including company prepared consolidated and consolidating
balance sheets and income statements for the most recently ended month in
accordance with Section 6.2, and such other updated financial information
as Bank may reasonably request;


 


(i)             current
Compliance Certificate in accordance with Section 6.2(b);


 


(j)             a
Collateral Information Certificate; and


 


(k)          such
other documents or certificates, and completion of such other matters, as Bank
may reasonably deem necessary or appropriate.


 


3.2         Conditions
Precedent to all Credit Extensions. 
The obligation of Bank to make each Credit Extension, including the
initial Credit Extension, is further subject to the following conditions:


 


(a)          timely receipt by Bank
of the Payment/Advance Form as provided in Section 2.1; and


 


(b)         the representations and
warranties contained in Section 5 shall be true and correct in all material
respects on and as of the date of such Payment/Advance Form and on the
effective date of each Credit Extension as though made at and as of each such
date, and no Event of Default shall have occurred and be continuing, or would
exist after giving effect to such Credit Extension (provided, however, that
those representations and warranties expressly referring to another date shall
be true, correct and complete in all material respects as of such date).  The making of each Credit Extension shall be
deemed to be a representation and warranty by Borrower on the date of such
Credit Extension as to the accuracy of the facts referred to in this Section
3.2.


 


4.                                       CREATION
OF SECURITY INTEREST.


 


4.1         Grant
of Security Interest.  Borrower
grants and pledges to Bank a continuing security interest in the Collateral to
secure prompt repayment of any and all Obligations and to secure prompt
performance by 


 


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Borrower of each of its covenants and duties under the Loan
Documents.  Except as set forth in the
Schedule, such security interest constitutes a valid, first priority security
interest in the presently existing Collateral, and will constitute a valid,
first priority security interest in later-acquired Collateral.  Notwithstanding any termination, Bank’s Lien
on the Collateral shall remain in effect for so long as any Obligations are
outstanding.


 


4.2         Perfection
of Security Interest.  Borrower
authorizes Bank to file at any time financing statements, continuation
statements, and amendments thereto that (i) either specifically describe
the Collateral or describe the Collateral as all assets of Borrower of the kind
pledged hereunder, and (ii) contain any other information required by the
Code for the sufficiency of filing office acceptance of any financing
statement, continuation statement, or amendment, including whether Borrower is
an organization, the type of organization and any organizational identification
number issued to Borrower, if applicable. 
Any such financing statements may be signed by Bank on behalf of
Borrower, as provided in the Code, and may be filed at any time in any
jurisdiction whether or not Revised Article 9 of the Code is then in
effect in that jurisdiction.  Borrower
shall from time to time endorse and deliver to Bank, at the request of Bank,
all Negotiable Collateral and other documents that Bank may reasonably request,
in form satisfactory to Bank, to perfect and continue perfected Bank’s security
interests in the Collateral and in order to fully consummate all of the
transactions contemplated under the Loan Documents.  Borrower shall have possession of the
Collateral, except where expressly otherwise provided in this Agreement or
where Bank chooses to perfect its security interest by possession in addition
to the filing of a financing statement. 
Where Collateral is in possession of a third party bailee, Borrower
shall take such steps as Bank reasonably requests for Bank to (i) obtain
an acknowledgment, in form and substance satisfactory to Bank, of the bailee
that the bailee holds such Collateral for the benefit of Bank, and (ii) obtain
“control” of any Collateral consisting of investment property, deposit
accounts, letter-of-credit rights or electronic chattel paper (as such items
and the term “control” are defined in Revised Article 9 of the Code) by
causing the securities intermediary or depositary institution or issuing bank
to execute a control agreement in form and substance satisfactory to Bank.  Borrower will not create any chattel paper
without placing a legend on the chattel paper acceptable to Bank indicating
that Bank has a security interest in the chattel paper, with the exception of
the lease of Borrower’s equipment to customers in the ordinary course of
business (subject to the other provisions of this Agreement).  Borrower from time to time may deposit with
Bank specific cash collateral to secure specific Obligations; Borrower
authorizes Bank to hold such specific balances in pledge and to decline to
honor any drafts thereon or any request by Borrower or any other Person to pay
or otherwise transfer any part of such balances for so long as the specific
Obligations are outstanding.


 


4.3         Right
to Inspect.  Bank (through any of its
officers, employees, or agents) shall have the right, upon reasonable prior
notice, from time to time during Borrower’s usual business hours but no more
than twice a year (unless an Event of Default has occurred and is continuing),
to inspect Borrower’s Books and to make copies thereof and to check, test, and
appraise the Collateral in order to verify Borrower’s financial condition or
the amount, condition of, or any other matter relating to, the Collateral.


 


5.                                       REPRESENTATIONS
AND WARRANTIES.


 


Borrower
represents and warrants as follows:


 


5.1         Due
Organization and Qualification. 
Borrower and each Subsidiary is a corporation duly existing under the
laws of the state in which it is incorporated and qualified and licensed to do
business in any state in which the conduct of its business or its ownership of
property requires that it be so qualified, except where the failure to do so
would not reasonably be expected to cause a Material Adverse Effect or except
as set forth on the Schedule.


 


5.2         Due
Authorization; No Conflict.  The
execution, delivery, and performance of the Loan Documents are within
Borrower’s powers, have been duly authorized, and are not in conflict with nor
constitute a breach of any provision contained in Borrower’s Certificate of
Incorporation or Bylaws, nor will they constitute an event of default under any
material agreement by which Borrower is bound. 
Borrower is not in default under any material agreement by which it is
bound, except to the extent such default would not reasonably be expected to
cause a Material Adverse Effect.


 


5.3         Collateral.  Borrower has rights in or the power to
transfer the Collateral, and its title to the Collateral is free and clear of
Liens, adverse claims, and restrictions on transfer or pledge except for
Permitted 


 


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Liens.  All Collateral is located
solely in the Collateral States.  The
Eligible Accounts are bona fide existing obligations.  The property or services giving rise to such
Eligible Accounts has been delivered or rendered to the account debtor or its
agent for immediate shipment to and unconditional acceptance by the account
debtor.  Borrower has not received notice
of actual or imminent Insolvency Proceeding of any account debtor whose
accounts are included in any Borrowing Base Certificate as an Eligible
Account.  All Inventory is in all
material respects of good and merchantable quality, free from all material
defects, except for Inventory for which adequate reserves have been made.  Except as set forth in the Schedule, none of
the Collateral is maintained or invested with a Person other than Bank or
Bank’s Affiliates.


 


5.4         Intellectual
Property.  Borrower is the sole owner
of the Intellectual Property that it owns, except for licenses granted by
Borrower to its customers in the ordinary course of business.  To the best of Borrower’s knowledge, each of
Borrower’s Copyrights, Trademarks and Patents are valid and enforceable, and no
part of any material Intellectual Property has been judged invalid or
unenforceable, in whole or in part, and no claim has been made to Borrower that
any part of any material Intellectual Property violates the rights of any third
party except to the extent such claim would not reasonably be expected to cause
a Material Adverse Effect.


 


5.5         Name;
Location of Chief Executive Office. 
Except as disclosed in the Schedule, Borrower has not done business
under any name other than that specified on the signature page hereof, and
its exact legal name is as set forth in the first paragraph of this
Agreement.  The chief executive office of
Borrower is located in the Chief Executive Office State at the address
indicated in Section 10 hereof.


 


5.6         Litigation.  Except as set forth in the Schedule, there
are no actions or proceedings pending by or against Borrower or any Subsidiary
before any court or administrative agency in which a likely adverse decision
would reasonably be expected to have a Material Adverse Effect.


 


5.7         No
Material Adverse Change in Financial Statements.  All consolidated and consolidating financial
statements related to Borrower and any Subsidiary that are delivered by
Borrower to Bank fairly present in all material respects Borrower’s
consolidated and consolidating financial condition as of the date thereof and
Borrower’s consolidated and consolidating results of operations for the period
then ended, subject in the cases of any unaudited financial statements to any
year-end audit adjustments.  There has
not been a material adverse change in the consolidated or in the consolidating
financial condition of Borrower since the date of the most recent of such
financial statements submitted to Bank.


 


5.8         Solvency,
Payment of Debts.  Borrower is able
to pay its debts (including trade debts) as they mature; the fair saleable
value of Borrower’s assets (including goodwill minus disposition costs) exceeds
the fair value of its liabilities; and Borrower is not left with unreasonably
small capital after the transactions contemplated by this Agreement.


 


5.9         Compliance
with Laws and Regulations.  Borrower
and each Subsidiary have met the minimum funding requirements of ERISA with
respect to any employee benefit plans subject to ERISA.  No event has occurred resulting from
Borrower’s failure to comply with ERISA that is reasonably likely to result in
Borrower’s incurring any liability that could have a Material Adverse
Effect.  Borrower is not an “investment
company” or a company “controlled” by an “investment company” within the
meaning of the Investment Company Act of 1940. 
Borrower is not engaged principally, or as one of the important
activities, in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulations T and U of the
Board of Governors of the Federal Reserve System).  Borrower has complied in all material
respects with all the provisions of the Federal Fair Labor Standards Act.  Borrower is in compliance with all environmental
laws, regulations and ordinances except where the failure to comply is not
reasonably likely to have a Material Adverse Effect.  Borrower has not violated any statutes, laws,
ordinances or rules applicable to it, the violation of which would reasonably
be expected to have a Material Adverse Effect. 
Borrower and each Subsidiary have filed or caused to be filed all tax
returns required to be filed, and have paid, or have made adequate provision
for the payment of, all taxes reflected therein except those being contested in
good faith with adequate reserves under GAAP or where the failure to file such
returns or pay such taxes would not reasonably be expected to have a Material
Adverse Effect.


 


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5.10   Subsidiaries. 
Borrower does not own any stock, partnership interest or other equity
securities of any Person, except for Permitted Investments and as set forth on
the Schedule.


 


5.11   Government Consents. 
Borrower and each Subsidiary have obtained all consents, approvals and
authorizations of, made all declarations or filings with, and given all notices
to, all governmental authorities that are necessary for the continued operation
of Borrower’s business as currently conducted, except where the failure to do
so would not reasonably be expected to cause a Material Adverse Effect.


 


5.12   Inbound Licenses. 
As of the Closing Date, Borrower is not a party to, nor is bound by, any
material license or other agreement that prohibits or otherwise restricts Borrower
from granting a security interest in Borrower’s interest in such license or
agreement or any other property, except as disclosed on the Schedule.


 


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


 


6.                                       AFFIRMATIVE COVENANTS.


 


Borrower
covenants that, until payment in full of all outstanding Obligations, and for
so long as Bank may have any commitment to make a Credit Extension hereunder,
Borrower shall do all of the following:


 


6.1         Good Standing and Government Compliance. 
Borrower shall maintain its and each of its Subsidiaries’ corporate
existence and good standing in the Borrower State, shall maintain qualification
and good standing in each other jurisdiction in which the failure to so qualify
would reasonably be expected to have a Material Adverse Effect except as set
forth in the Schedule, and shall furnish to Bank the organizational
identification number issued to Borrower by the authorities of the state in
which Borrower is organized, if applicable. 
Borrower shall meet, and shall cause each Subsidiary to meet, the
minimum funding requirements of ERISA with respect to any employee benefit
plans subject to ERISA.  Borrower shall
comply in all material respects with all applicable Environmental Laws, and
maintain all material permits, licenses and approvals required thereunder where
the failure to do so would reasonably be expected to have a Material Adverse
Effect.  Except as set forth in the
Schedule, Borrower shall comply, and shall cause each Subsidiary to comply,
with all statutes, laws, ordinances and government rules and regulations
to which it is subject, and shall maintain, and shall cause each of its
Subsidiaries to maintain, in force all licenses, approvals and agreements, the
loss of which or failure to comply with which would reasonably be expected to
have a Material Adverse Effect.


 


6.2         Financial Statements, Reports, Certificates. 
Borrower shall deliver to Bank:  (i) as
soon as available, but in any event within 30 days after the end of each
calendar month, a company prepared consolidated and consolidating balance sheet
and income statement covering Borrower’s operations during such period, in a
form reasonably acceptable to Bank and certified by a Responsible Officer; (ii) as
soon as available, but in any event within 120 days after the end of Borrower’s
fiscal year (commencing with fiscal year end 2007), company prepared consolidated
and consolidating annual financial statements of Borrower prepared in
accordance with GAAP, consistently applied, which shall include all adjustments
made to such financial statements by an independent certified public accounting
firm reasonably acceptable to Bank; (iii) if applicable, copies of all
statements, reports and notices sent or made available generally by Borrower to
its security holders or to any holders of Subordinated Debt , except, in each
case, for such documents or materials that are publicly available; (iv) promptly
upon receipt of written notice thereof, a report of any legal actions pending
or threatened against Borrower or any Subsidiary that could result in damages
or costs to Borrower or any Subsidiary of $500,000 or more; (v) promptly
upon receipt, each management letter prepared by Borrower’s independent
certified public accounting firm regarding Borrower’s management control
systems; and (vi) such budgets, sales projections, operating plans or
other financial information generally prepared by Borrower in the ordinary
course of business as Bank may reasonably request from time to time, including
without limitation Board approved annual projections, which shall include
monthly projections for such year, and which shall be provided within 30 days
of fiscal year end.


 


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(a)          Within 30 days after the last day of each
month, Borrower shall deliver to Bank a Borrowing Base Certificate signed by a
Responsible Officer in substantially the form of Exhibit D hereto,
together with aged listings by invoice date of accounts receivable and accounts
payable.


 


(b)         Within 30 days after the last day of each
month, Borrower shall deliver to Bank with the monthly financial statements a
Compliance Certificate certified as of the last day of the applicable month and
signed by a Responsible Officer in substantially the form of Exhibit E
hereto.


 


(c)          As soon as possible and in any event
within 3 business days after becoming aware of the occurrence or existence of
an Event of Default hereunder, a written statement of a Responsible Officer
setting forth details of the Event of Default, and the action which Borrower
has taken or proposes to take with respect thereto.


 


(d)         Bank shall have a right from time to time
hereafter, at times and dates mutually agreed upon by Borrower and Bank, to
audit Borrower’s Accounts and appraise Collateral at Borrower’s expense,
provided that such audits will be conducted no more often than every 12 months
unless an Event of Default has occurred and is continuing.


 


Borrower
may deliver to Bank on an electronic basis any certificates, reports or
information required pursuant to this Section 6.2, and Bank shall be
entitled to rely on the information contained in the electronic files, provided
that Bank in good faith believes that the files were delivered by a Responsible
Officer.  If Borrower delivers this
information electronically, it shall also deliver to Bank by U.S. Mail,
reputable overnight courier service, hand delivery, facsimile or .pdf file
within 5 Business Days of submission of the unsigned electronic copy the
certification of monthly financial statements, the intellectual property
report, the Borrowing Base Certificate and the Compliance Certificate, each
bearing the physical signature of the Responsible Officer.


 


6.3         Inventory; Returns. 
Borrower shall keep all Inventory in good and merchantable condition,
free from all material defects except for Inventory for which adequate reserves
have been made.  Returns and allowances,
if any, as between Borrower and its account debtors shall be on the same basis
and in accordance with the usual customary practices of Borrower, as they exist
on the Closing Date.  Borrower shall
promptly notify Bank of all returns and recoveries and of all disputes and
claims involving more than $500,000.


 


6.4         Taxes.  Borrower
shall make, and cause each Subsidiary to make, due and timely payment or
deposit of all material federal, state, and local taxes, assessments, or
contributions required of it by law, including, but not limited to, those laws
concerning income taxes, F.I.C.A., F.U.T.A. and state disability, and will
execute and deliver to Bank, on demand, proof satisfactory to Bank indicating
that Borrower or a Subsidiary has made such payments or deposits and any
appropriate certificates attesting to the payment or deposit thereof; provided
that Borrower or a Subsidiary need not make any payment if the amount or
validity of such payment is contested in good faith by appropriate proceedings and
is reserved against (to the extent required by GAAP) by Borrower.


 


6.5         Insurance.


 


(a)          Borrower, at its expense, shall keep the
Collateral insured against loss or damage by fire, theft, explosion,
sprinklers, and all other hazards and risks, and in such amounts, as ordinarily
insured against by other owners in similar businesses conducted in the
locations where Borrower’s business is conducted on the date hereof.  Borrower shall also maintain liability and
other insurance in amounts and of a type that are customary to businesses
similar to Borrower’s.


 


(b)         All such policies of insurance shall be
in such form, with such companies, and in such amounts as ordinarily maintained
by other owners in similar business conducted in the locations where Borrower’s
business is conducted on the date hereof. 
All policies of property insurance shall contain a lender’s loss payable
endorsement, in a form satisfactory to Bank, showing Bank as an additional loss
payee, and all liability insurance policies shall show Bank as an additional
insured and specify that the insurer must give at least 20 days notice to Bank
before canceling its policy for any reason. 
Upon Bank’s request, Borrower shall deliver to Bank certified copies of
the policies of insurance and evidence of all premium payments.  If no Event of Default has 


 


8

















 


occurred and is continuing, proceeds payable under any casualty policy
will, at Borrower’s option, be payable to Borrower to replace the property
subject to the claim, provided that any such replacement property shall be
deemed Collateral in which Bank has been granted a first priority security
interest.  If an Event of Default has
occurred and is continuing, all proceeds payable under any such policy shall, at
Bank’s option, be payable to Bank to be applied on account of the Obligations.


 


6.6         Accounts.  Borrower
shall maintain its primary depository and operating accounts with Bank at all
times.  Borrower shall maintain its
primary investment accounts with Bank or Bank’s affiliates (covered by
satisfactory control agreements), provided however, that Borrower may
maintain investment accounts at other financial institutions so long as such
investment accounts are covered by control agreements satisfactory to Bank.


 


6.7         Minimum Revenue. 
Measured on a monthly basis:


 


(a)          During the measurement periods beginning June 30,
2007 up to and including December 31, 2007, Borrower shall maintain
minimum revenues for the Rolling 3-Month Revenue Period preceding the date of measurement,
of not less than the following:


 


(i)                                     $7,130,000 for the period ending June 30,
2007;


(ii)                                  $7,370,000 for the period ending July 31,
2007;


(iii)                               $7,670,000 for the period ending August 31, 2007;


(iv)                              $7,850,000 for the period ending September 30,
2007;


(v)                                 $8,090,000 for the period ending October 31,
2007


(vi)                              $8,235,000 for the period ending November 30,
2007; and


(vii)                           $8,700,000 for the period ending December 31,
2007.


 


(b)         During the measurement periods beginning
on January 13, 2008 and continuing each month thereafter, Borrower shall
maintain minimum revenues of not less than eighty percent (80%) of Borrower’s
Board approved Plan for each month in the then current fiscal year, for the
Rolling 3-Month Revenue Period preceding the date of measurement.


 


6.8         Intellectual Property Rights.


 


Borrower shall use commercially reasonable efforts  to (i) protect, defend and maintain the
validity and enforceability of the trade secrets, Trademarks, Patents and
Copyrights that Borrower desires to protect, (ii) promptly advise Bank in
writing of material infringements known by Borrower with respect to Trademarks,
Patents and Copyrights that Borrower desires to protect, and (iii) not
allow any material Trademarks, Patents or Copyrights to be abandoned, forfeited
or dedicated to the public without written consent of Bank, which shall not be
unreasonably withheld.  In the case of
(i), (ii), and (iii), each shall be consistent with sound commercial practices
as determined by Borrower in its reasonable business judgement.


 


6.9         Possession of Chattel Paper. 
Borrower shall at all times maintain sole possession of all of
Borrower’s chattel paper at Borrower’s chief executive office and shall not
transfer possession to, or grant any interest in, any chattel paper to any
third party.


 


6.10   Further Assurances. 
At any time and from time to time Borrower shall execute and deliver
such further instruments and take such further action as may reasonably be
requested by Bank to effect the purposes of this Agreement.


 


7.                                       NEGATIVE COVENANTS.


 


Borrower
covenants and agrees that, so long as any credit hereunder shall be available
and until the outstanding Obligations are paid in full or for so long as Bank
may have any commitment to make any Credit Extensions, Borrower will not do any
of the following without Bank’s prior written consent:


 


9

















 


7.1         Dispositions. 
Convey, sell, lease, license, transfer or otherwise dispose of
(collectively, to “Transfer”), or permit any of its Subsidiaries to Transfer,
all or any part of its business or property, or move cash balances on deposit
with Bank to accounts opened at another financial institution, other than
Permitted Transfers.


 


7.2         Change in Name, Location, Executive
Office, or Executive Management; Change in Business; Change in Fiscal Year;
Change in Control.  Change its name or the Borrower State or
relocate its chief executive office without 30 days prior written notification
to Bank; replace its chief executive officer or chief financial officer without
prompt written notification to Bank, which shall in any event be no later than
5 business days thereafter; engage in any business, or permit any of its
Subsidiaries to engage in any business, other than or reasonably related or
incidental to the businesses currently engaged in by Borrower; change its
fiscal year end; have a Change in Control.


 


7.3         Mergers or Acquisitions. 
Merge or consolidate, or permit any of its Subsidiaries to merge or
consolidate, with or into any other business organization (other than mergers
or consolidations of a Subsidiary into another Subsidiary or into Borrower), or
acquire, or permit any of its Subsidiaries to acquire, all or substantially all
of the capital stock or property of another Person except where (i) such transactions
do not in the aggregate exceed $500,000 during any fiscal year, (ii) no
Event of Default has occurred, is continuing or would exist after giving effect
to such transactions, (iii)such transactions do not result in a Change in
Control, and (iv) Borrower is the surviving entity.


 


7.4         Indebtedness. 
Create, incur, assume, guarantee or be or remain liable with respect to
any Indebtedness, or permit any Subsidiary so to do, other than Permitted
Indebtedness, or prepay any Indebtedness or take any actions which impose on
Borrower an obligation to prepay any Indebtedness, except Indebtedness to Bank.


 


7.5         Encumbrances. 
Create, incur, assume or allow any Lien with respect to any of its
property, including, without limitation, its Intellectual Property, or assign
or otherwise convey any right to receive income, including the sale of any
Accounts, or permit any of its Subsidiaries so to do, except for Permitted
Liens, or covenant to any other Person that Borrower in the future will refrain
from creating, incurring, assuming or allowing any Lien with respect to any of
Borrower’s property, including, without limitation, its Intellectual Property.


 


7.6         Distributions. 
Pay any dividends or make any other distribution or payment on account
of or in redemption, retirement or purchase of any capital stock, except that
Borrower may repurchase the stock of former employees or directors pursuant to
stock repurchase agreements as long as an Event of Default does not exist prior
to such repurchase or would not exist after giving effect to such repurchase.


 


7.7         Investments. 
Directly or indirectly acquire or own, or make any Investment in or to
any Person, or permit any of its Subsidiaries so to do, other than Permitted
Investments, or maintain or invest any of its property with a Person other than
Bank or Bank’s Affiliates or permit any Subsidiary to do so unless such Person
has entered into a control agreement with Bank, in form and substance
satisfactory to Bank, or suffer or permit any Subsidiary to be a party to, or be
bound by, an agreement that restricts such Subsidiary from paying dividends or
otherwise distributing property to Borrower.


 


7.8         Transactions with Affiliates. 
Directly or indirectly enter into or permit to exist any material
transaction with any Affiliate of Borrower except for (a) transactions
that are in the ordinary course of Borrower’s business, upon fair and
reasonable terms that are no less favorable to Borrower than would be obtained
in an arm’s length transaction with a non-affiliated Person, (b) financing
transactions involving, in connection with, or for the purposes of, New Equity,
(c) compensation arrangements, benefits plans or other similar
arrangements for officers, directors and other employees of Borrower and its
Subsidiaries entered into or maintained in the ordinary course of business, or (d) any
transaction between Borrower and any of its Subsidiaries or between any
Subsidiaries that is not otherwise prohibited by this Agreement.


 


7.9         Subordinated Debt. 
Make any payment in respect of any Subordinated Debt, or permit any of
its Subsidiaries to make any such payment, except in compliance with the terms
of such Subordinated Debt, or amend any provision affecting Bank’s rights
contained in any documentation relating to the Subordinated Debt without Bank’s
prior written consent.


 


10

















 


7.10   Inventory and Equipment. 
Store the Inventory or the Equipment with a bailee, warehouseman, or
similar third party unless the third party has been notified of Bank’s security
interest and Bank (a) has received an acknowledgment from the third party
that it is holding or will hold the Inventory or Equipment for Bank’s benefit
or (b) is in possession of the warehouse receipt, where negotiable,
covering such Inventory or Equipment. 
Except for Inventory sold in the ordinary course of business and except
for such other locations as Bank may approve in writing, Borrower shall keep
the Inventory and Equipment only at the location set forth in Section 10
and in the Collateral States.


 


7.11   No Investment Company; Margin Regulation. 
Become or be controlled by an “investment company,” within the meaning
of the Investment Company Act of 1940, or become principally engaged in, or
undertake as one of its important activities, the business of extending credit
for the purpose of purchasing or carrying margin stock, or use the proceeds of
any Credit Extension for such purpose.


 


8.                                       EVENTS OF DEFAULT.


 


Any
one or more of the following events shall constitute an Event of Default by Borrower
under this Agreement:


 


8.1         Payment Default. 
If Borrower fails to pay any of the Obligations when due;


 


8.2         Covenant Default.


 


(a)          If Borrower fails to perform any
obligation under Article 6 or violates any of the covenants contained in Article
7 of this Agreement; or


 


(b)         If Borrower fails or neglects to perform
or observe any other material term, provision, condition, covenant contained in
this Agreement, in any of the Loan Documents, or in any other present or future
agreement between Borrower and Bank and as to any default under such other
term, provision, condition or covenant that can be cured, has failed to cure
such default within 20 days after Borrower receives notice thereof or any
officer of Borrower becomes aware thereof; provided, however, that if the
default cannot by its nature be cured within the 20 day period or cannot after
diligent attempts by Borrower be cured within such 20 day period, and such
default is likely to be cured within a reasonable time, then Borrower shall
have an additional reasonable period (which shall not in any case exceed 30
days) to attempt to cure such default, and within such reasonable time period
the failure to have cured such default shall not be deemed an Event of Default
but no Credit Extensions will be made;


 


8.3         Material Adverse Change. 
If there occurs a material adverse change in Borrower’s business or
financial condition, or if there is a material impairment in the repayment of
any portion of the Obligations or a material impairment in the perfection,
value or priority of Bank’s security interests in the Collateral;


 


8.4         Defective Perfection. 
If Bank shall receive at any time following the Closing Date an SOS
Report indicating that except for Permitted Liens, Bank’s security interest in
the Collateral is not prior to all other security interests or Liens of record
reflected in the report;


 


8.5         Attachment.  If any
material portion of Borrower’s assets is attached, seized, subjected to a writ
or distress warrant, or is levied upon, or comes into the possession of any
trustee, receiver or person acting in a similar capacity and such attachment,
seizure, writ or distress warrant or levy has not been removed, discharged or
rescinded within 20 days, or if Borrower is enjoined, restrained, or in any way
prevented by court order from continuing to conduct all or any material part of
its business affairs, or if a judgment or other claim becomes a lien or
encumbrance upon any material portion of Borrower’s assets, or if a notice of
lien, levy, or assessment is filed of record with respect to any of Borrower’s
assets by the United States Government, or any department, agency, or
instrumentality thereof, or by any state, county, municipal, or governmental
agency, and the same is not paid within 20 days after Borrower receives notice
thereof, provided that none of the foregoing shall constitute an Event of
Default where such action or event is stayed or an adequate bond has been
posted pending a good faith contest by Borrower (provided that no Credit
Extensions will be made during such cure period);


 


11

















 


8.6         Insolvency.  If Borrower
becomes insolvent, or if an Insolvency Proceeding is commenced by Borrower, or
if an Insolvency Proceeding is commenced against Borrower and is not dismissed
or stayed within 45 days (provided that no Credit Extensions will be made prior
to the dismissal of such Insolvency Proceeding);


 


8.7         Other Agreements. 
If there is a default or other failure to perform in any agreement to
which Borrower is a party with a third party or parties resulting in a right by
such third party or parties, whether or not exercised, to accelerate the
maturity of any Indebtedness in an amount in excess of $500,000 or that would
reasonably be expected to have a Material Adverse Effect;


 


8.8         Subordinated Debt. 
If Borrower makes any payment on account of Subordinated Debt, except to
the extent the payment is allowed under any subordination agreement entered
into with Bank;


 


8.9         Judgments.  If a judgment
or judgments for the payment of money in an amount, individually or in the
aggregate, of at least $500,000 shall be rendered against Borrower and shall
remain unsatisfied and unstayed for a period of 20 days (provided that no
Credit Extensions will be made prior to the satisfaction or stay of the
judgment); or


 


8.10   Misrepresentations. 
If any material misrepresentation or material misstatement exists now or
hereafter in any warranty or representation set forth herein or in any
certificate delivered to Bank by any Responsible Officer pursuant to this
Agreement or to induce Bank to enter into this Agreement or any other Loan
Document.


 


9.                                       BANK’S RIGHTS AND REMEDIES.


 


9.1         Rights and Remedies. 
Upon the occurrence and during the continuance of an Event of Default,
Bank may, at its election, without notice of its election and without demand,
do any one or more of the following, all of which are authorized by Borrower:


 


(a)          Declare all Obligations, whether
evidenced by this Agreement, by any of the other Loan Documents, or otherwise,
immediately due and payable (provided that upon the occurrence of an Event of
Default described in Section 8.5 (insolvency), all Obligations shall
become immediately due and payable without any action by Bank);


 


(b)         Demand that Borrower  (i) deposit cash with Bank in an amount
equal to the amount of any Letters of Credit remaining undrawn, any outstanding
Credit Card Services, ACH origination services, or Foreign Exchange Contracts,
as collateral security for the repayment of any future drawings under such
Letters of Credit, Credit Card Services, ACH origination services, or Foreign
Exchange Contracts, and (ii) pay in advance all Letter of Credit, Credit
Card Services, ACH origination services, or Foreign Exchange Contracts fees
scheduled to be paid or payable over the remaining term of the Letters of
Credit, Credit Card Services, ACH origination services, or Foreign Exchange
Contracts, and Borrower shall promptly deposit and pay such amounts;


 


(c)          Cease advancing money or extending credit
to or for the benefit of Borrower under this Agreement or under any other
agreement between Borrower and Bank;


 


(d)         Settle or adjust disputes and claims
directly with account debtors for amounts, upon terms and in whatever order
that Bank reasonably considers advisable;


 


(e)          Make such payments and do such acts as
Bank considers necessary or reasonable to protect its security interest in the
Collateral.  Borrower agrees to assemble
the Collateral if Bank so requires, and to make the Collateral available to
Bank as Bank may designate.  Borrower
authorizes Bank to enter the premises where the Collateral is located, to take
and maintain possession of the Collateral, or any part of it, and to pay,
purchase, contest, or compromise any encumbrance, charge, or lien which in
Bank’s determination appears to be prior or superior to its security interest
and to pay all expenses incurred in connection therewith.  With respect to any of Borrower’s owned
premises, Borrower hereby grants Bank a license to enter into possession of
such premises and 


 


12

















 


to occupy the same, without charge, in order to exercise any of Bank’s
rights or remedies provided herein, at law, in equity, or otherwise;


 


(f)            Set off and apply to the Obligations any
and all (i) balances and deposits of Borrower held by Bank, and (ii) indebtedness
at any time owing to or for the credit or the account of Borrower held by Bank;


 


(g)         Ship, reclaim, recover, store, finish,
maintain, repair, prepare for sale, advertise for sale, and sell (in the manner
provided for herein) the Collateral. 
Bank is hereby granted a non-exclusive license, solely pursuant to the
provisions of this Section 9.1, to use, without charge, Borrower’s labels,
patents, copyrights, rights of use of any name, trade secrets, trade names,
trademarks, service marks, and advertising matter, or any property of a similar
nature, as each pertains to the Collateral, in completing production of,
advertising for sale, and selling any Collateral and, in connection with Bank’s
exercise of its rights under this Section 9.1, Borrower’s rights under all
licenses and all franchise agreements shall inure to Bank’s benefit;


 


(h)         Sell the Collateral at either a public or
private sale, or both, by way of one or more contracts or transactions, for
cash or on terms, in such manner and at such places (including Borrower’s
premises) as Bank determines is commercially reasonable, and apply any proceeds
to the Obligations in whatever manner or order Bank deems appropriate.  Bank may sell the Collateral without giving
any warranties as to the Collateral. 
Bank may specifically disclaim any warranties of title or the like.  This procedure will not be considered adversely
to affect the commercial reasonableness of any sale of the Collateral.  If Bank sells any of the Collateral upon
credit, Borrower will be credited only with payments actually made by the
purchaser, received by Bank, and applied to the indebtedness of the
purchaser.  If the purchaser fails to pay
for the Collateral, Bank may resell the Collateral and Borrower shall be
credited with the proceeds of the sale;


 


(i)             Bank may credit bid and purchase at any
public sale;


 


(j)             Apply for the appointment of a receiver,
trustee, liquidator or conservator of the Collateral, without notice and
without regard to the adequacy of the security for the Obligations and without
regard to the solvency of Borrower, any guarantor or any other Person liable
for any of the Obligations; and


 


(k)          Any deficiency that exists after
disposition of the Collateral as provided above will be paid immediately by
Borrower.


 


Bank may comply with any applicable state or federal
law requirements in connection with a disposition of the Collateral and
compliance will not be considered adversely to affect the commercial reasonableness
of any sale of the Collateral.


 


9.2         Power of Attorney. 
Effective only upon the occurrence and during the continuance of an
Event of Default, Borrower hereby irrevocably appoints Bank (and any of Bank’s
designated officers, or employees) as Borrower’s true and lawful attorney
to:  (a) send requests for
verification of Accounts or notify account debtors of Bank’s security interest
in the Accounts; (b) endorse Borrower’s name on any checks or other forms
of payment or security that may come into Bank’s possession; (c) sign
Borrower’s name on any invoice or bill of lading relating to any Account,
drafts against account debtors, schedules and assignments of Accounts,
verifications of Accounts, and notices to account debtors; (d) dispose of
any Collateral; (e) make, settle, and adjust all claims under and
decisions with respect to Borrower’s policies of insurance; (f) settle and
adjust disputes and claims respecting the accounts directly with account
debtors, for amounts and upon terms which Bank determines to be reasonable; and
(g) file, in its sole discretion, one or more financing or continuation
statements and amendments thereto, relative to any of the Collateral without
the signature of Borrower where permitted by law; provided Bank may exercise such
power of attorney to sign the name of Borrower on any of the documents
described in clause (g) above, in accordance with the security interest in
the Collateral granted hereunder, regardless of whether an Event of Default has
occurred.  The appointment of Bank as
Borrower’s attorney in fact, and each and every one of Bank’s rights and
powers, being coupled with an interest, is irrevocable until all of the
Obligations have been fully repaid and performed and Bank’s obligation to
provide advances hereunder is terminated.


 


13














 


9.3         Accounts
Collection.  At any time after the
occurrence and during the continuation of an Event of Default, Bank may notify
any Person owing funds to Borrower of Bank’s security interest in such funds
and verify the amount of such Account. 
Borrower shall collect all amounts owing to Borrower for Bank, receive
in trust all payments as Bank’s trustee, and immediately deliver such payments
to Bank in their original form as received from the account debtor, with proper
endorsements for deposit.


 


9.4         Bank
Expenses.  If Borrower fails to pay
any amounts or furnish any required proof of payment due to third persons or
entities, as required under the terms of this Agreement, then Bank may do any
or all of the following after reasonable notice to Borrower:  (a) make payment of the same or any part
thereof; (b) set up such reserves under the Revolving Line as Bank deems
necessary to protect Bank from the exposure created by such failure; or (c) obtain
and maintain insurance policies of the type discussed in Section 6.5 of
this Agreement, and take any action with respect to such policies as Bank deems
prudent.  Any amounts so paid or
deposited by Bank shall constitute Bank Expenses, shall be immediately due and
payable, and shall bear interest at the then applicable rate hereinabove
provided, and shall be secured by the Collateral.  Any payments made by Bank shall not
constitute an agreement by Bank to make similar payments in the future or a
waiver by Bank of any Event of Default under this Agreement.


 


9.5         Bank’s
Liability for Collateral.  Bank has
no obligation to clean up or otherwise prepare the Collateral for sale.  All risk of loss, damage or destruction of
the Collateral shall be borne by Borrower.


 


9.6         No
Obligation to Pursue Others.  Bank
has no obligation to attempt to satisfy the Obligations by collecting them from
any other person liable for them and Bank may release, modify or waive any
collateral provided by any other Person to secure any of the Obligations, all
without affecting Bank’s rights against Borrower.  Borrower waives any right it may have to
require Bank to pursue any other Person for any of the Obligations.


 


9.7         Remedies
Cumulative.  Bank’s rights and
remedies under this Agreement, the Loan Documents, and all other agreements
shall be cumulative.  Bank shall have all
other rights and remedies not inconsistent herewith as provided under the Code,
by law, or in equity.  No exercise by
Bank of one right or remedy shall be deemed an election, and no waiver by Bank
of any Event of Default on Borrower’s part shall be deemed a continuing
waiver.  No delay by Bank shall
constitute a waiver, election, or acquiescence by it.  No waiver by Bank shall be effective unless
made in a written document signed on behalf of Bank and then shall be effective
only in the specific instance and for the specific purpose for which it was
given.  Borrower expressly agrees that
this Section 9.7 may not be waived or modified by Bank by course of
performance, conduct, estoppel or otherwise.


 


9.8         Demand;
Protest.  Except as otherwise
provided in this Agreement, Borrower waives demand, protest, notice of protest,
notice of default or dishonor, notice of payment and nonpayment and any other
notices relating to the Obligations.


 


10.                                 NOTICES.


 


Unless
otherwise provided in this Agreement, all notices or demands by any party
relating to this Agreement or any other agreement entered into in connection
herewith 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 a recognized overnight delivery
service, certified mail, postage prepaid, return receipt requested, or by
telefacsimile to Borrower or to Bank, as the case may be, at its addresses set
forth below:


 


	
   

  	
  If to Borrower:

  	
  OPENTABLE, INC.

  
	
   

  	
   

  	
  799 Market Street, 4th Floor

  
	
   

  	
   

  	
  San Francisco, CA 94103

  
	
   

  	
   

  	
  Attn: Chief Financial
  Officer

  
	
   

  	
   

  	
  FAX: (415) 267-0938

  



 


14

















 


	
   

  	
  If to Bank:

  	
  Comerica Bank

  
	
   

  	
   

  	
  m/c 4770

  
	
   

  	
   

  	
  75 E Trimble Road

  
	
   

  	
   

  	
  San Jose, CA 95131

  
	
   

  	
   

  	
  Attn:
  Manager

  
	
   

  	
   

  	
  FAX:
  (408) 556-5091

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
  Comerica Bank

  
	
   

  	
   

  	
  Two Embarcadero Center, Suite 300

  
	
   

  	
   

  	
  San Francisco, CA 94111

  
	
   

  	
   

  	
  Attn: Phil Koblis

  
	
   

  	
   

  	
  FAX: (415) 477-3260

  



 


The
parties 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.


 


11.                                 CHOICE
OF LAW AND VENUE; JURY TRIAL WAIVER.


 


This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of California, without regard to principles of conflicts of
law.  Jurisdiction shall lie in the State
of California.  THE UNDERSIGNED
ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT
IT MAY BE WAIVED UNDER CERTAIN CIRCUMSTANCES.  TO THE EXTENT PERMITTED BY LAW, EACH PARTY,
AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
ITS, HIS OR HER CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT
OF ALL PARTIES, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OTHER DOCUMENT, INSTRUMENT
OR AGREEMENT BETWEEN THE UNDERSIGNED PARTIES.


 


12.                                 REFERENCE
PROVISION.


 


12.1                           In
the event the Jury Trial Waiver set forth above is not enforceable, the parties
elect to proceed under this Judicial Reference Provision.


 


12.2                           With
the exception of the items specified in Section 12.3 below, any
controversy, dispute or claim (each, a “Claim”) between the parties arising out
of or relating to this Agreement or any other document, instrument or agreement
between the undersigned parties (collectively in this Section, the “Loan
Documents”), will be resolved by a reference proceeding in California in
accordance with the provisions of Sections 638 et seq. of the California Code
of Civil Procedure (“CCP”), or their successor sections, which shall constitute
the exclusive remedy for the resolution of any Claim, including whether the
Claim is subject to the reference proceeding. Except as otherwise provided in
the Loan Documents, venue for the reference proceeding will be in the Superior
Court in the County where the real property involved in the action, if any, is
located or in a County where venue is otherwise appropriate under applicable
law (the “Court”).


 


12.3                           The
matters that shall not be subject to a reference are the following: (i) nonjudicial
foreclosure of any security interests in real or personal property, (ii) exercise
of selfhelp remedies (including, without limitation, set-off), (iii) appointment
of a receiver and (iv) temporary, provisional or ancillary remedies
(including, without limitation, writs of attachment, writs of possession,
temporary restraining orders or preliminary injunctions). This Agreement does
not limit the right of any party to exercise or oppose any of the rights and
remedies described in clauses (i) and (ii) or to seek or oppose from
a court of competent jurisdiction any of the items described in clauses (iii) and
(iv). The exercise of, or opposition to, any of those items does not waive the
right of any party to a reference pursuant to this Agreement.


 


12.4                           The
referee shall be a retired Judge or Justice selected by mutual written
agreement of the parties. If the parties do not agree within ten (10) days
of a written request to do so by any party, then, upon request


 


15

















 


of any party, the referee
shall be selected by the Presiding Judge of the Court (or his or her
representative). A request for appointment of a referee may be heard on an ex
parte or expedited basis, and the parties agree that irreparable harm would
result if ex parte relief is not granted.


 


12.5                           The
parties agree that time is of the essence in conducting the reference
proceedings. Accordingly, the referee shall be requested, subject to change in
the time periods specified herein for good cause shown, to (i) set the
matter for a status and trial-setting conference within fifteen (15) days after
the date of selection of the referee, (ii) if practicable, try all issues
of law or fact within one hundred twenty (120) days after the date of the
conference and (iii) report a statement of decision within twenty (20)
days after the matter has been submitted for decision.


 


12.6                           The
referee will have power to expand or limit the amount and duration of
discovery.  The referee may set or extend
discovery deadlines or cutoffs for good cause, including a party’s failure to
provide requested discovery for any reason whatsoever. Unless otherwise ordered
based upon good cause shown, no party shall be entitled to “priority” in
conducting discovery, depositions may be taken by either party upon seven (7) days
written notice, and all other discovery shall be responded to within fifteen
(15) days after service. All disputes relating to discovery which cannot be
resolved by the parties shall be submitted to the referee whose decision shall
be final and binding.


 


12.7                           Except
as expressly set forth in this Agreement, the referee shall determine the
manner in which the reference proceeding is conducted including the time and
place of hearings, the order of presentation of evidence, and all other
questions that arise with respect to the course of the reference proceeding.
All proceedings and hearings conducted before the referee, except for trial,
shall be conducted without a court reporter, except that when any party so
requests, a court reporter will be used at any hearing conducted before the
referee, and the referee will be provided a courtesy copy of the transcript.
The party making such a request shall have the obligation to arrange for and
pay the court reporter. Subject to the referee’s power to award costs to the
prevailing party, the parties will equally share the cost of the referee and
the court reporter at trial.


 


12.8                           The
referee shall be required to determine all issues in accordance with existing
case law and the statutory laws of the State of California. The rules of
evidence applicable to proceedings at law in the State of California will be
applicable to the reference proceeding. The referee shall be empowered to enter
equitable as well as legal relief, enter equitable orders that will be binding
on the parties and rule on any motion which would be authorized in a court
proceeding, including without limitation motions for summary judgment or
summary adjudication. The referee shall issue a decision at the close of the
reference proceeding which disposes of all claims of the parties that are the
subject of the reference.  Pursuant to
CCP § 644, such decision shall be entered by the Court as a judgment or an
order in the same manner as if the action had been tried by the Court and any
such decision will be final, binding and conclusive.  The parties reserve the right to appeal from
the final judgment or order or from any appealable decision or order entered by
the referee.  The parties reserve the
right to findings of fact, conclusions of laws, a written statement of
decision, and the right to move for a new trial or a different judgment, which
new trial, if granted, is also to be a reference proceeding under this
provision.


 


12.9                           If
the enabling legislation which provides for appointment of a referee is
repealed (and no successor statute is enacted), any dispute between the parties
that would otherwise be determined by reference procedure will be resolved and
determined by arbitration.   The
arbitration will be conducted by a retired judge or Justice, in accordance with
the California Arbitration Act §1280 through §1294.2 of the CCP as amended from
time to time. The limitations with respect to discovery set forth above shall
apply to any such arbitration proceeding.


 


12.10                     THE PARTIES RECOGNIZE AND AGREE
THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED UNDER THIS REFERENCE
PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN
CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL
PARTIES, AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY CONTROVERSY,
DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR IN ANY WAY RELATED TO,
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.


 


16

















 


13.                                 GENERAL
PROVISIONS.


 


13.1   Successors
and Assigns.  This Agreement shall
bind and inure to the benefit of the respective successors and permitted
assigns of each of the parties and shall bind all persons who become bound as a
debtor to this Agreement; provided, however, that neither this Agreement nor
any rights hereunder may be assigned by Borrower without Bank’s prior written
consent, which consent may be granted or withheld in Bank’s sole
discretion.  Bank shall have the right
without the consent of or notice to Borrower to sell, transfer, negotiate, or
grant participation in all or any part of, or any interest in, Bank’s
obligations, rights and benefits hereunder.


 


13.2   Indemnification.  Borrower shall defend, indemnify and hold
harmless Bank and its officers, employees, and agents against:  (a) all obligations, demands, claims,
and liabilities claimed or asserted by any other party in connection with the
transactions contemplated by this Agreement; and (b) all losses or Bank
Expenses in any way suffered, incurred, or paid by Bank, its officers,
employees and agents as a result of or in any way arising out of, following, or
consequential to transactions between Bank and Borrower whether under this
Agreement, or otherwise (including without limitation reasonable attorneys fees
and expenses), except for losses caused by Bank’s gross negligence or willful
misconduct.


 


13.3   Time
of Essence.  Time is of the essence
for the performance of all obligations set forth in this Agreement.


 


13.4   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.


 


13.5   Amendments
in Writing, Integration. All amendments to or terminations of this
Agreement or the other Loan Documents must be in writing.  All prior agreements, understandings,
representations, warranties, and negotiations between the parties hereto with
respect to the subject matter of this Agreement and the other Loan Documents,
if any, are merged into this Agreement and the Loan Documents.


 


13.6   Counterparts.  This Agreement may be executed in any number
of counterparts and by different parties on separate counterparts, each of
which, when executed and delivered, shall be deemed to be an original, and all
of which, when taken together, shall constitute but one and the same Agreement.


 


13.7   Survival.  All covenants, representations and warranties
made in this Agreement shall continue in full force and effect so long as any
Obligations remain outstanding or Bank has any obligation to make any Credit
Extension to Borrower.  The obligations
of Borrower to indemnify Bank with respect to the expenses, damages, losses,
costs and liabilities described in Section 13.2 shall survive until all
applicable statute of limitations periods with respect to actions that may be
brought against Bank have run.


 


13.8   Confidentiality.  In handling any confidential information,
Bank and all employees and agents of Bank shall exercise the same degree of
care that Bank exercises with respect to its own proprietary information of the
same types to maintain the confidentiality of any non-public information
thereby received or received pursuant to this Agreement except that disclosure
of such information may be made (i) to the subsidiaries or Affiliates of
Bank in connection with their present or prospective business relations with
Borrower, (ii) to prospective transferees or purchasers of any interest in
the Loans, provided that they have entered into a comparable confidentiality
agreement in favor of Borrower and have delivered a copy to Borrower, (iii) as
required by law, regulations, rule or order, subpoena, judicial order or
similar order, (iv) as may be required in connection with the examination,
audit or similar investigation of Bank and (v) as Bank may reasonably
determine in connection with the enforcement of any remedies hereunder.  Confidential information hereunder shall not
include information that either:  (a) is
in the public domain or in the knowledge or possession of Bank when disclosed
to Bank, or becomes part of the public domain after disclosure to Bank through
no fault of Bank; or (b) is disclosed to Bank by a third party, provided
Bank does not have actual knowledge that such third party is prohibited from
disclosing such information.


 


17

















 


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


 


	
   

  	
  OPENTABLE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Matt Roberts

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  COMERICA BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kim Crosslin

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  V.P.

  



 


18














 


EXHIBIT A


 


DEFINITIONS


 


“Accounts” means all presently existing and hereafter
arising accounts, contract rights, payment intangibles and all other forms of
obligations owing to Borrower arising out of the sale or lease of goods
(including, without limitation, the licensing of software and other technology)
or the rendering of services by Borrower and any and all credit insurance,
guaranties, and other security therefor, as well as all merchandise returned to
or reclaimed by Borrower and Borrower’s Books relating to any of the foregoing.


 


“ACH Sublimit” means a sublimit for Automated Clearing
House transactions under the Revolving Line not to exceed $1,000,000, less any
amounts outstanding under the Credit Card Services Sublimit, the Foreign
Exchange Sublimit, and the Letter of Credit Sublimit.


 


“Advance” or “Advances” means a cash advance or cash
advances under the Revolving Line.


 


“Affiliate” means, with respect to any Person, any
Person that owns or controls directly or indirectly such Person, any Person that
controls or is controlled by or is under common control with such Person, and
each of such Person’s senior executive officers, directors, and partners.


 


“Bank Expenses” means all reasonable costs or expenses
(including reasonable attorneys’ fees and expenses, whether generated in-house
or by outside counsel) incurred in connection with the preparation,
negotiation, administration, and enforcement of the Loan Documents;  reasonable Collateral audit fees; and Bank’s
reasonable attorneys’ fees and expenses (whether generated in-house or by
outside counsel) incurred in amending, enforcing or defending the Loan
Documents (including fees and expenses of appeal), incurred before, during and
after an Insolvency Proceeding, whether or not suit is brought.


 


“Borrower State” means Delaware, the state under whose
laws Borrower is organized.


 


“Borrower’s Books” means all of Borrower’s books and
records including:  ledgers; records
concerning Borrower’s assets or liabilities, the Collateral, business
operations or financial condition; and all computer programs, or tape files,
and the equipment, containing such information.


 


“Borrowing Base” means an amount equal to 80% of
Eligible Accounts, as determined by Bank with reference to the most recent
Borrowing Base Certificate delivered by Borrower.


 


“Business Day” means any day that is not a Saturday,
Sunday, or other day on which banks in the State of California are authorized
or required to close.


 


“Cash” means unrestricted cash and cash equivalents.


 


“Change in Control” shall mean a transaction in which
any “person” or “group” (within the meaning of Section 13(d) and
14(d)(2) of the Securities Exchange Act of 1934) becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Securities Exchange Act of
1934), directly or indirectly, of a sufficient number of shares of all classes
of stock then outstanding of Borrower ordinarily entitled to vote in the
election of directors, empowering such “person” or “group” to elect a majority
of the Board of Directors of Borrower, who did not have such power before such
transaction.


 


“Chief Executive Office State” means California, where
Borrower’s chief executive office is located.


 


“Closing Date” means the date of this Agreement.


 


“Code” means the California Uniform Commercial Code as
amended or supplemented from time to time.


 


1

















 


“Collateral” means the property described on Exhibit B
attached hereto and all Negotiable Collateral to the extent not described on Exhibit B,
except to the extent any such property (i) is nonassignable by its terms
without the consent of the licensor thereof or another party (but only to the
extent such prohibition on transfer is enforceable under applicable law,
including, without limitation, Sections 9406 and 9408 of the Code), (ii) the
granting of a security interest therein is contrary to applicable law, provided
that upon the cessation of any such restriction or prohibition, such property
shall automatically become part of the Collateral, or (iii) constitutes
the capital stock of a controlled foreign corporation (as defined in the IRC),
in excess of 65% of the voting power of all classes of capital stock of such
controlled foreign corporations entitled to vote.


 


“Collateral State” means the state or states where the
Collateral is located, which are all 50 states in the United States of America.


 


“Contingent Obligation” means, as applied to any
Person, any direct or indirect liability, contingent or otherwise, of that
Person with respect to (i) any indebtedness, lease, dividend, letter of
credit or other obligation of another, including, without limitation, any such
obligation directly or indirectly guaranteed, endorsed, co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable; (ii) any obligations with respect
to undrawn letters of credit, corporate credit cards or merchant services
issued for the account of that Person; and (iii) all obligations arising
under any interest rate, currency or commodity swap agreement, interest rate
cap agreement, interest rate collar agreement, or other agreement or
arrangement designated to protect a Person against fluctuation in interest
rates, currency exchange rates or commodity prices; provided, however, that the
term “Contingent Obligation” shall not include endorsements for collection or
deposit in the ordinary course of business. 
The amount of any Contingent Obligation shall be deemed to be an amount
equal to the stated or determined amount of the primary obligation in respect
of which such Contingent Obligation is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as determined
by such Person in good faith; provided, however, that such amount shall not in
any event exceed the maximum amount of the obligations under the guarantee or
other support arrangement.


 


“Copyrights” means any and all copyright rights,
copyright applications, copyright registrations and like protections in each
work or authorship and derivative work thereof, whether published or
unpublished and whether or not the same also constitutes a trade secret, now or
hereafter existing, created, acquired or held.


 


“Credit Card Services Sublimit” means a sublimit for
corporate credit cards and e-commerce or merchant account services under the
Revolving Line not to exceed $200,000.


 


“Credit Extension” means each Advance or any other
extension of credit by Bank to or for the benefit of Borrower hereunder.


 


“Eligible Accounts” means those Accounts that arise in
the ordinary course of Borrower’s business that comply with all of Borrower’s
representations and warranties to Bank set forth in Section 5.3; provided,
that Bank may change the standards of eligibility by giving Borrower 30 days
prior written notice.  Unless otherwise
agreed to by Bank, Eligible Accounts shall not include the following:


 


(a)                                 Invoices
that the account debtor has failed to pay in full within 90 days of invoice
date;


 


(b)                                Credit
balances over 90 days;


 


(c)                                 All
Accounts with respect to an account debtor, 25% of whose Accounts the account
debtor has failed to pay within 90 days of invoice date;


 


(d)                                Accounts
with respect to an account debtor, including Subsidiaries and Affiliates, whose
total obligations to Borrower exceed 20% of all Accounts, to the extent such
obligations exceed the aforementioned percentage, except as approved in writing
by Bank;


 


(e)                                 Accounts
with respect to which the account debtor does not have its principal place of
business in the United States, except for Eligible Foreign Accounts;


 


2

















 


(f)                                   Accounts
with respect to which the account debtor is the United States or any
department, agency, or instrumentality of the United States;


 


(g)                                Accounts
with respect to which Borrower is liable to the account debtor for goods sold
or services rendered by the account debtor to Borrower, but only to the extent
of any amounts owing to the account debtor against amounts owed to Borrower;


 


(h)                                Accounts
with respect to which goods are placed on consignment, guaranteed sale, sale or
return, sale on approval, bill and hold, demo or promotional, or other terms by
reason of which the payment by the account debtor may be conditional;


 


(i)                                    Accounts
with respect to which the account debtor is an officer, employee, agent or
Affiliate of Borrower;


 


(j)                                    Accounts
that have not yet been billed to the account debtor or that relate to deposits
(such as good faith deposits) or other property of the account debtor held by
Borrower for the performance of services or delivery of goods which Borrower
has not yet performed or delivered;


 


(k)                                 Accounts
with respect to which the account debtor disputes liability or makes any claim
with respect thereto as to which Bank believes, in its sole discretion, that
there may be a basis for dispute (but only to the extent of the amount subject
to such dispute or claim), or is subject to any Insolvency Proceeding, or
becomes insolvent, or goes out of business;


 


(l)                                    Accounts
the collection of which Bank reasonably determines after inquiry and
consultation with Borrower to be doubtful; and


 


(m)                              Retentions
and hold-backs.


 


“Eligible Foreign Accounts” means Accounts with
respect to which the account debtor does not have its principal place of
business in the United States and that are (i) supported by one or more
letters of credit in an amount and of a tenor, and issued by a financial
institution, acceptable to Bank, (ii) insured by the Export Import Bank of
the United States, (iii) generated by an account debtor with its principal
place of business in Canada, provided that the Bank has perfected its security
interest in the appropriate Canadian province, or (iv) approved by Bank on
a case-by-case basis.  All Eligible
Foreign Accounts must be calculated in U.S. Dollars.


 


“Environmental Laws” means all laws, rules,
regulations, orders and the like issued by any federal state, local foreign or
other governmental or quasi-governmental authority or any agency pertaining to
the environment or to any hazardous materials or wastes, toxic substances,
flammable, explosive or radioactive materials, asbestos or other similar
materials.


 


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


 


“ERISA” means the Employee Retirement Income Security
Act of 1974, as amended, and the regulations thereunder.


 


“Event of Default” has the meaning assigned in Article 8.


 


“Foreign Exchange Sublimit” means a sublimit for
foreign exchange contracts under the Revolving Line not to exceed $1,000,000,
less any amounts outstanding under the ACH Sublimit, the Credit Cards Sublimit,
and the Letter of Credit Sublimit.


 


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


 


3

















 


“Indebtedness” means (a) all indebtedness for
borrowed money or the deferred purchase price of property or services, including
without limitation reimbursement and other obligations with respect to surety
bonds and letters of credit, (b) all obligations evidenced by notes,
bonds, debentures or similar instruments, (c) all capital lease
obligations, (d) all Contingent Obligations, and (e) all obligations
arising under the ACH Sublimit, the Credit Card Services Sublimit, the Foreign
Exchange Sublimit, and the Letter of Credit Sublimit, if any.


 


“Insolvency Proceeding” means any proceeding commenced
by or against any Person or entity under any provision of the United States
Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, formal or informal
moratoria, compositions, extension generally with its creditors, or proceedings
seeking reorganization, arrangement, or other relief.


 


“Intellectual Property” means all of Borrower’s right,
title, and interest in and to the following:


 


(a)                                 Copyrights,
Trademarks and Patents;


 


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


 


(c)                                 Any
and all design rights which may be available to Borrower now or hereafter
existing, created, acquired or held;


 


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


 


(e)                                 All
licenses or other rights to use any of the Copyrights, Patents or Trademarks,
and all license fees and royalties arising from such use to the extent
permitted by such license or rights; and


 


(f)                                   All
amendments, renewals and extensions of any of the Copyrights, Trademarks or
Patents.


 


“Inventory” means all present and future inventory in
which Borrower has any interest, as defined by GAAP.


 


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


 


“IRC” means the Internal Revenue Code of 1986, as
amended, and the regulations thereunder.


 


“Letter of Credit” means a commercial or standby
letter of credit or similar undertaking issued by Bank at Borrower’s request in
accordance with Section 2.1(b)(iii).


 


“Letter of Credit Sublimit” means a sublimit for
Letters of Credit under the Revolving Line not to exceed $1,000,000, less any
amounts outstanding under the ACH Sublimit, the Credit Cards Sublimit, and the
Foreign Exchange Sublimit.


 


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


 


“Loan Documents” means, collectively, this Agreement,
any note or notes executed by Borrower, and any other document, instrument or
agreement entered into in connection with this Agreement, all as amended or
extended from time to time.


 


“Material Adverse Effect” means a material adverse
effect on (i) the business operations, condition (financial or otherwise)
of Borrower and its Subsidiaries taken as a whole, (ii) the ability of
Borrower to repay the Obligations or otherwise perform its obligations under
the Loan Documents, (iii) Borrower’s interest in, or the value, perfection
or priority of Bank’s security interest in the Collateral.


 


4

















 


“Negotiable Collateral” means all of Borrower’s
present and future letters of credit of which it is a beneficiary, drafts,
instruments (including promissory notes), securities, documents of title, and
chattel paper, and Borrower’s Books relating to any of the foregoing.


 


“New Equity” means cash proceeds received after the
Closing Date from the sale or issuance of Borrower’s equity (including, without
limitation, in connection with Borrower’s sale or issuance of equity securities
in a public offering) or Subordinated Debt securities.


 


“Obligations” means all debt, principal, interest,
Bank Expenses and other amounts owed to Bank by Borrower pursuant to this
Agreement or any other agreement, whether absolute or contingent, due or to
become due, now existing or hereafter arising, including any interest that
accrues after the commencement of an Insolvency Proceeding and including any
debt, liability, or obligation owing from Borrower to others that Bank may have
obtained by assignment or otherwise.


 


“Patents” means all patents, patent applications and
like protections including without limitation improvements, divisions,
continuations, renewals, reissues, extensions and continuations-in-part of the
same.


 


“Periodic Payments” means all installments or similar
recurring payments that Borrower may now or hereafter become obligated to pay
to Bank pursuant to the terms and provisions of any instrument, or agreement
now or hereafter in existence between Borrower and Bank.


 


“Permitted Indebtedness” means:


 


(a)                                 Indebtedness
of Borrower in favor of Bank arising under this Agreement or any other Loan
Document;


 


(b)                                Indebtedness
existing on the Closing Date and disclosed in the Schedule;


 


(c)                                 Indebtedness
not to exceed $500,000 in the aggregate in any fiscal year of Borrower secured
by a lien described in clause (c) of the defined term “Permitted Liens,”
provided such Indebtedness does not exceed the lesser of the cost or fair
market value of the equipment financed with such Indebtedness;


 


(d)                                Subordinated
Debt;


 


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


 


(f)                                   Extensions,
refinancings and renewals of any items of Permitted Indebtedness, provided that
the principal amount is not increased or the terms modified to impose more
burdensome terms upon Borrower or its Subsidiary, as the case may be.


 


“Permitted Investment” means:


 


(a)                                 Investments
existing on the Closing Date disclosed in the Schedule;


 


(b)                                (i) Marketable
direct obligations issued or unconditionally guaranteed by the United States of
America or any agency or any State thereof maturing within one year from the
date of acquisition thereof, (ii) commercial paper maturing no more than
one year from the date of creation thereof and currently having rating of at
least A-2 or P-2 from either Standard & Poor’s Corporation or Moody’s
Investors Service, (iii) Bank’s certificates of deposit maturing no more
than one year from the date of investment therein, and (iv) Bank’s money
market accounts, all as defined by Borrower’s investment policies;


 


(c)                                 Repurchases
of stock from former employees or directors of Borrower under the terms of
applicable repurchase agreements (i) in an aggregate amount not to exceed
$500,000 in any fiscal year, provided that no Event of Default has occurred, is
continuing or would exist after giving effect to the repurchases, or (ii) in
any amount where the consideration for the repurchase is the cancellation of
indebtedness owed by such former employees to Borrower regardless of whether an
Event of Default exists;


 


5

















 


(d)                                Investments
accepted in connection with Permitted Transfers;


 


(e)                                 Investments
of Subsidiaries in or to other Subsidiaries or Borrower and Investments by
Borrower in Subsidiaries not to exceed the lesser of (i) $10,000,000 in
the aggregate in any fiscal year, or (ii) 80% of Borrower’s total assets;


 


(f)                                   Investments
not to exceed $500,000 in the aggregate in any fiscal year consisting of (i) travel
advances and employee relocation loans and other employee loans and advances in
the ordinary course of business, and (ii) loans to employees, officers or
directors relating to the purchase of equity securities of Borrower or its
Subsidiaries pursuant to employee stock purchase plan agreements approved by
Borrower’s Board of Directors;


 


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


 


(h)                                Investments
consisting of notes receivable of, or prepaid royalties and other credit
extensions, to customers and suppliers who are not Affiliates, in the ordinary
course of business, provided that this subparagraph (h) shall not apply to
Investments of Borrower in any Subsidiary;


 


(i)                                    Joint
ventures or strategic alliances in the ordinary course of Borrower’s business
consisting of the non-exclusive licensing of technology, the development of
technology or the providing of technical support, provided that any cash
Investments by Borrower do not exceed $500,000 in the aggregate in any fiscal
year; and;


 


(j)                                    Any
Investment with a bank or other financial institution made in accordance with
Borrower’s sole discretion pursuant to Section 6.6 of the Agreement.


 


“Permitted Liens” means the following:


 


(a)                                 Any
Liens existing on the Closing Date and disclosed in the Schedule (excluding
Liens to be satisfied with the proceeds of the Advances) or arising under this
Agreement or the other Loan Documents;


 


(b)                                Liens
for taxes, fees, assessments or other governmental charges or levies, either
not delinquent or being contested in good faith by appropriate proceedings and
for which Borrower maintains adequate reserves, provided the same have no
priority over any of Bank’s security interests;


 


(c)                                 Liens
not to exceed $500,000 in the aggregate (i) upon or in any Equipment
(other than Equipment financed by an Equipment Advance) acquired or held by
Borrower or any of its Subsidiaries to secure the purchase price of such
Equipment or indebtedness incurred solely for the purpose of financing the
acquisition or lease of such Equipment, or (ii) existing on such Equipment
at the time of its acquisition, provided that the Lien is confined solely to
the property so acquired and improvements thereon, and the proceeds of such
Equipment;


 


(d)                                Leases
or subleases and licenses or sublicenses granted in the ordinary course of
Borrower’s business;


 


(e)                                 Liens
incurred in connection with the extension, renewal or refinancing of the
indebtedness secured by Liens of the type described in clauses (a) through
(d) above, provided that any extension, renewal or replacement Lien shall
be limited to the property encumbered by the existing Lien and the principal
amount of the indebtedness being extended, renewed or refinanced does not
increase;


 


(f)                                   Liens
arising from judgments, decrees or attachments in circumstances not
constituting an Event of Default under Sections 8.5 (attachment) or 8.9
(judgments);


 


6

















 


(g)                                Liens
in favor of other financial institutions arising in connection with Borrower’s
deposit accounts held at such institutions to secured standard fees for deposit
services charged by, but not financing made available by such institutions,
provided that Bank has a perfected security interest in the amounts held in
such deposit accounts; and


 


(h)                                Liens
in favor of the Bank.


 


“Permitted Transfer” means the conveyance, sale,
lease, transfer or disposition by Borrower or any Subsidiary of:


 


(a)                                 Inventory
in the ordinary course of business;


 


(b)                                licenses
and similar arrangements for the use of the property of Borrower or its
Subsidiaries in the ordinary course of business;


 


(c)                                 worn-out
or obsolete Equipment not financed with the proceeds of Advances;


 


(d)                                other
assets of Borrower or its Subsidiaries that do not in the aggregate exceed
$500,000 during any fiscal year;


 


(e)                                 any
Cash to investment accounts not held at Bank; or


 


(f)                                   any
equity securities.


 


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


 


“Prime Rate” means the variable rate of interest, per
annum, most recently announced by Bank, as its “prime rate,” whether or not
such announced rate is the lowest rate available from Bank.


 


“Profitability” means net income after tax.


 


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


 


“Revolving Line” means a Credit Extension of up to
$2,000,000 (inclusive of any amounts outstanding under the ACH Sublimit, the
Credit Card Services Sublimit, the Foreign Exchange Sublimit, and the Letter of
Credit Sublimit).


 


“Revolving Maturity Date” means July 30, 2008.


 


“Rolling 3-Month Revenue Period” means the current
month revenue plus the two previous months revenue.


 


“Schedule” means the schedule of exceptions attached
hereto and approved by Bank, if any.


 


“SOS Reports” means the official reports from the
Secretaries of State of each Collateral State, Chief Executive Office State and
the Borrower State and other applicable federal, state or local government
offices identifying all current security interests filed in the Collateral and Liens
of record as of the date of such report.


 


“Subordinated Debt” means any debt incurred by
Borrower that is subordinated in writing to the debt owing by Borrower to Bank
on terms reasonably acceptable to Bank (and identified as being such by
Borrower and Bank).


 


“Subsidiary” means any corporation, partnership or
limited liability company or joint venture in which (i) any general
partnership interest or (ii) more than 50% of the stock, limited liability
company interest or joint venture of which by the terms thereof ordinary voting
power to elect the Board of Directors, managers or trustees of the entity,


 


7

















 


at the time as of which any determination is being
made, is owned by Borrower, either directly or through an Affiliate.


 


“Trademarks” means any trademark and servicemark
rights, whether registered or not, applications to register and registrations
of the same and like protections, and the entire goodwill of the business of
Borrower connected with and symbolized by such trademarks.


 


8

















 


	
  DEBTOR

  	
  OPENTABLE, INC.

  
	
   

  	
   

  
	
  SECURED PARTY:

  	
  COMERICA BANK

  



 


EXHIBIT
B


 


COLLATERAL
DESCRIPTION ATTACHMENT TO LOAN AND SECURITY AGREEMENT


 


All personal property of
Debtor of every kind, whether presently existing or hereafter created or
acquired, and wherever located, including but not limited to: (a) all
accounts (including health-care-insurance receivables), chattel paper
(including tangible and electronic chattel paper), deposit accounts, documents
(including negotiable documents), equipment (including all accessions and
additions thereto), general intangibles (including payment intangibles and
software), goods (including fixtures), instruments (including promissory
notes), inventory (including all goods held for sale or lease or to be
furnished under a contract of service, and including returns and
repossessions), investment property (including securities and securities
entitlements), letter of credit rights, money, and all of Debtor’s books and
records with respect to any of the foregoing, and the computers and equipment
containing said books and records; and (b) any and all cash proceeds
and/or noncash proceeds thereof, including, without limitation, insurance
proceeds, and all supporting obligations and the security therefor or for any
right to payment.  All terms above have
the meanings given to them in the California Uniform Commercial Code, as
amended or supplemented from time to time.


 


Notwithstanding
the foregoing, the Collateral shall not include any Intellectual Property (as
defined in the Loan and Security Agreement), now owned or hereafter acquired,
or any claims for damages by way of any past, present and future infringement
of any of the foregoing; provided, however, that the Collateral shall include
all accounts and general intangibles that consist of rights to payment from the
sale, licensing or disposition of all or any part of, or rights in, the
Intellectual Property (the “Rights to Payment”).  Notwithstanding the foregoing, if a judicial
authority (including a U.S. Bankruptcy Court) holds that a security interest in
the underlying Intellectual Property is necessary to have a security interest
in the Rights to Payment, then the Collateral shall automatically, and effective
as of July 30, 2007, include the Intellectual Property solely to the
extent necessary to permit perfection of Bank’s security interest in the Rights
to Payment.


 


9














 


EXHIBIT C


 


TECHNOLOGY & LIFE SCIENCES DIVISION


LOAN ANALYSIS


LOAN ADVANCE/PAYDOWN REQUEST FORM


DEADLINE FO SAME DAY PROCESSING IS 3:00* P.M., P.S.T.


DEADLINE FOR EQUIPMENT ADVANCES IS 3:00 P.M. P.S.T.**


DEADLINE FOR WIRE TRANSFERS IS 1:30 P.M., P.S.T.


*At month end and the day before a holiday, the cut off time is 1:30 P.M.,
P.S.T.


** Subject to 3 day advance notice.


 


	
  TO:
  Loan Analysis

  	
  DATE:

  	
   

  	
   

  	
  TIME:

  	
   

  
	
  FAX
  #: (650) 846-6840

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  FROM:

  	
  OPENTABLE,
  INC.

  	
  TELEPHONE REQUEST (For Bank Use Only):

  
	
   

  	
  Borrower’s
  Name

  	
   

  
	
   

  	
   

  	
  The
  following person is authorized to request the loan payment transfer/loan
  advance on the designated account and is known to me.

  
	
  FROM:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signer’s Name

  	
   

  
	
   

  	
   

  	
   

  
	
  FROM:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signature (Borrower)

  	
   

  	
    Authorized
  Requester & Phone #

  
	
   

  	
   

  	
   

  	
   

  
	
  PHONE
  #:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
    Received
  by (Bank) & Phone #

  
	
  FROM
  ACCOUNT#:

  	
   

  	
   

  	
   

  
	
  (please
  include Note number, if applicable)

  	
   

  	
   

  	
   

  
	
  TO
  ACCOUNT #:

  	
   

  	
   

  	
    Authorized
  Signature (Bank)

  
	
  (please
  include Note number, if applicable)

  	
   

  	
   

  



 


	
  REQUESTED TRANSACTION TYPE

  	
   

  	
  REQUESTED
  DOLLAR AMOUNT

  	
   

  	
   

  	
  For Bank Use Only

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PRINCIPAL
  INCREASE* (ADVANCE)

  	
   

  	
  $

  	
   

  	
   

  	
  Date
  Rec’d:

  	
   

  	
   

  
	
  PRINCIPAL
  PAYMENT (ONLY)

  	
   

  	
  $

  	
   

  	
   

  	
  Time:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Comp.
  Status:

  	
  o YES

  	
  o NO

  
	
  OTHER
  INSTRUCTIONS:

  	
   

  	
   

  	
  Status
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
  Time:

  	
   

  	
   

  
	
   

  	
   

  	
  Approval:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
										



 


All
representations and warranties of Borrower stated in the Loan Agreement are
true, correct and complete in all material respects as of the date of the
telephone request for and advance confirmed by this Borrowing Certificate,
including without limitation the representation that Borrower has paid for and
owns the equipment financed by the Bank; provided, however, that those
representations and warranties expressly referring to another date shall be
true, correct and complete in all material respects as of such date.


 


*IS THERE A WIRE REQUEST TIED TO THIS LOAN ADVANCE?  (PLEASE CIRCLE ONE)   o YES  o NO


 


If YES, the Outgoing Wire Transfer Instructions must be completed below.


 


	
  OUTGOING WIRE TRANSFER INSTRUCTIONS

  	
  Fed
  Reference Number

  	
  Bank
  Transfer Number

  
	
   

  	
   

  	
   

  
	
  The items marked with an asterisk (*) are required to
  be completed.

  
	
   

  
	
  *Beneficiary
  Name

  	
   

  
	
  *Beneficiary
  Account Number

  	
   

  
	
  *Beneficiary
  Address

  	
   

  
	
  Currency Type

  	
  US DOLLARS ONLY

  
	
  *ABA
  Routing Number (9 Digits)

  	
   

  
	
  *Receiving
  Institution Name

  	
   

  
	
  *Receiving
  Institution Address

  	
   

  
	
  *Wire
  Account

  	
  $

  
				



 














 


EXHIBIT D


 


BORROWING BASE CERTIFICATE


 


	
  Borrower:
  OPENTABLE, INC.

  	
  Bank:      Comerica Bank

  
	
   

  	
                  Technology & Life
  Sciences Division
                 Loan Analysis Department
                 Five Palo Alto Square, Suite 800
                 3000 El Camino Real
                 Palo Alto, CA 94306
                 Phone: (650) 846-6820
                 Fax: (650) 846-6840

  
	
  Commitment
  Amount: $2,000,000

  



 


	
  ACCOUNTS
  RECEIVABLE

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Accounts
  Receivable Book Value as of

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  Additions
  (please explain on reverse)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  TOTAL
  ACCOUNTS RECEIVABLE AS OF
                            

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ACCOUNTS
  RECEIVABLE DEDUCTIONS (without duplication)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.

  	
  Amounts
  over 90 days

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  Credit
  Balances over 90 days

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  Balance
  of 25% over 90 days

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.

  	
  Concentration
  limits 20%

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.

  	
  Foreign
  Accounts

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.

  	
  Government
  Accounts

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.

  	
  Contra
  Accounts

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.

  	
  Promotion
  or Demo Accounts

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.

  	
  Intercompany/Employee
  Accounts

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.

  	
  Other
  (please explain below)

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.

  	
  TOTAL
  ACCOUNTS RECEIVABLE DEDUCTIONS

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
  15.

  	
  Eligible
  Accounts (#3 minus #14)

  	
   

  	
   

  	
  $                      

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.

  	
  LOAN
  VALUE OF ACCOUNTS RECEIVABLE (80% of #15) 

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BALANCES

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.

  	
  Maximum
  Loan Amount

  	
   

  	
   

  	
  $                      

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.

  	
  Total
  Funds Available (the lesser of #16 or #17)

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
  19.

  	
  Outstanding
  under Sublimits (ACH, CC, FX, LC)

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
  20.

  	
  Present
  balance outstanding on Line of Credit

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
  21.

  	
  RESERVE
  POSITION (#18 minus #19 and #20)

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  



 


The undersigned represents and warrants that the
foregoing is true, complete and correct, and that the information reflected in
this Borrowing Base Certificate complies with the representations and
warranties set forth in the Loan Agreement between the undersigned and Comerica
Bank.


 


Comments:


 


	
   

  	
   

  	
  BANK USE ONLY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Rec’d
  by:

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
  Reviewed
  by:

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  	
   

  
	
  Authorized
  Signer

  	
   

  	
   

  	
   

  	
   

  



 














 


EXHIBIT E


 


COMPLIANCE CERTIFICATE


 


	
  Please
  send all Required Reporting to:

  	
  Comerica
  Bank

  
	
   

  	
  Technology &
  Life Sciences Division

  Loan Analysis Department

  Five Palo Alto Square, Suite 800

  3000 El Camino Real

  Palo Alto, CA 94306

  Phone: (650) 846-6820

  Fax: (650) 846-6840

  
	
   

  
	
  FROM:  OPENTABLE, INC.

  	
   

  



 


The
undersigned authorized Officer of OpenTable, Inc. (“Borrower”), hereby
certifies that in accordance with the terms and conditions of the Loan and
Security Agreement between Borrower and Bank (the “Agreement”), (i) Borrower
is in complete compliance for the period
ending                                with
all required covenants, including without limitation the ongoing registration
of intellectual property rights in accordance with Section 6.8, except as
noted below and (ii) all representations and warranties of Borrower stated
in the Agreement are true and correct in all material respects as of the date
hereof. Attached herewith are the required documents supporting the above
certification. The Officer further certifies that these are prepared in
accordance with Generally Accepted Accounting Principles (GAAP) and are
consistently applied from one period to the next except as explained in an
accompanying letter or footnotes.


 


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


 


	
  Reporting Covenant

  	
   

  	
  Required

  	
   

  	
  Complies

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Company
  Prepared F/S

  	
   

  	
  Monthly,
  within 30 days

  	
   

  	
  o Yes

  	
   

  	
  o No

  
	
  Compliance
  Certificate

  	
   

  	
  Monthly,
  within 30 days

  	
   

  	
  o Yes

  	
   

  	
  o No

  
	
  Company
  Prepared Annual

  	
   

  	
  Annually,
  within 120 days of FYE

  	
   

  	
  o Yes

  	
   

  	
  o No

  
	
  F/S
  (with CPA adjustments)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Borrowing
  Base Certificate, A/R & A/P Agings

  	
   

  	
  Monthly,
  within 30 days

  	
   

  	
  o Yes

  	
   

  	
  o No

  
	
  Board
  approved Annual Projections

  	
   

  	
  Within
  30 days of FYE

  	
   

  	
  o Yes

  	
   

  	
  o No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  If
  Public:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10-Q

  	
   

  	
  Quarterly,
  within 5 days of SEC filing (50 days)

  	
   

  	
  o Yes

  	
   

  	
  o No

  
	
  10-K

  	
   

  	
  Annually,
  within 5 days of SEC filing (95 days)

  	
   

  	
  o Yes

  	
   

  	
  o No

  



 


	
  Financial Covenants

  	
   

  	
  Required

  	
   

  	
  Actual

  	
   

  	
  Complies

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TO BE
  TESTED MONTHLY, UNLESS OTHERWISE NOTED:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Minimum
  Revenues (Rolling 3-month)

  	
   

  	
  **

  	
   

  	
                          

  	
   

  	
  o YES

  	
   

  	
  o NO

  



 






** See Section 6.7 of the Agreement


 


Please Enter Below Comments Regarding Covenant Violations:


 


The
Officer further acknowledges that at any time Borrower is not in compliance
with all the terms set forth in the Agreement, including, without limitation,
the financial covenants, no credit extensions will be made.


 


Very
truly yours,


 


	
   

  	
   

  	
  BANK USE ONLY

  
	
   

  	
   

  	
   

  
	
  Authorized
  Signer

  	
   

  	
  Rec’d
  by:

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Reviewed
  by:

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
  Financial
  Compliance Status:                                             YES/NO

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  



 

















 


SCHEDULE
OF EXCEPTIONS


 


Permitted Indebtedness  (Exhibit A): None


 


Permitted Investments  (Exhibit A):


 


Existing
Subsidiaries


 


1.             OpenTable
Europe Ltd.


 


2.             OpenTable
Kabushiki Kaisha


 


3.             OpenTable
Mexico S de la RL


 


In
Process or Planned in 2007:


 


1.                                       Germany


 


2.                                       Spain


 


3.                                       France


 


Permitted Liens  (Exhibit A):  None


 


Intellectual Property (Section 5.4):


 


	
  Intellectual Property

  	
   

  	
  Country

  	
   

  	
  Registration/Application

  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TRADEMARKS

  	
   

  	
   

  	
   

  	
   

  
	
  OpenTable.com®

  	
   

  	
  US

  	
   

  	
  2535407

  
	
  OpenTable.com®

  	
   

  	
  European Union

  	
   

  	
  1576479

  
	
  OpenTable®

  	
   

  	
  US

  	
   

  	
  3145088

  
	
  OpenTable®

  	
   

  	
  Mexico

  	
   

  	
  924258

  
	
  OpenTable®

  	
   

  	
  European Union

  	
   

  	
  4727319

  
	
  OpenTable®

  	
   

  	
  Japan

  	
   

  	
  4964008

  
	
  OpenTableTM

  	
   

  	
  China

  	
   

  	
   

  
	
  OpenTable®

  	
   

  	
  Australia

  	
   

  	
  1086706

  
	
  OpenTable®

  	
   

  	
  Canada

  	
   

  	
  TMA672864

  
	
  OpenTable-Design®

  	
   

  	
  US

  	
   

  	
  3142265

  
	
  OpenTable-DesignTM

  	
   

  	
  European Union

  	
   

  	
  Application
  submitted

  
	
  OpenTable-DesignTM

  	
   

  	
  Japan

  	
   

  	
  Application
  submitted

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  COPYRIGHTS

  	
   

  	
   

  	
   

  	
   

  
	
  OpenTable
  Software v. 2.52©

  	
   

  	
  US

  	
   

  	
  TX5784072

  
	
  OpenTable
  Software v. 4, 4.8, 5.0

  	
   

  	
  US

  	
   

  	
  TX1327-608, 609,
  610

  
	
  OpenTable Software v
  6.0

  	
   

  	
  US

  	
   

  	
  Application
  submitted

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PATENTS

  	
   

  	
   

  	
   

  	
   

  
	
  Caching Patent

  	
   

  	
  US

  	
   

  	
  11/130965

  



 


10

















 


	
  Caching Patent

  	
   

  	
  PCT (int’l)

  	
   

  	
  PCT/US2005/039052

  
	
  Dining Feedback
  Form

  	
   

  	
  US

  	
   

  	
  11/517943

  



 


Prior Names  (Section 5.5):  Easyeats.com; Opentable.com; Opentable.com, Inc.


 


Litigation  (Section 5.6):  OpenTable, Inc. v. Smart Restaurant
Solutions, Inc., et al.


 


Inbound Licenses  (Section 5.12):  None


 


11

















 


Corporation Resolutions and
Incumbency Certification


Authority to Procure Loans


 


 


 


I certify
that I am the duly elected and qualified Secretary of OpenTable, Inc., a
Delaware Corporation (“Corporation”); that the following is a true and correct
copy of resolutions duly adopted by the Board of Directors of the Corporation
in accordance with its bylaws and applicable statutes.


 


Copy of Resolutions:


 


Be it
Resolved, That:


 


1.               Any one (1) of
the following CEO or CFO (insert titles only) of the Corporation are/is authorized,
for, on behalf of, and in the name of the Corporation to:


 


(a)          Negotiate
and procure loans, letters of credit and other credit or financial
accommodations from Comerica Bank (“Bank”), a Michigan banking corporation,
including, without limitation, that certain Loan and Security Agreement dated
as of July 30, 2007, as may subsequently be amended from time to time.


 


(b)         Discount
with the Bank, commercial or other business paper belonging to the Corporation
made or drawn by or upon third parties, without limit as to amount;


 


(c)          Purchase, sell,
exchange, assign, endorse for transfer and/or deliver certificates and/or
instruments representing stocks, bonds, evidences of Indebtedness or other
securities owned by the Corporation, whether or not registered in the name of
the Corporation;


 


(d)         Give security for any
liabilities of the Corporation to the Bank by grant, security interest,
assignment, lien, deed of trust or mortgage upon any real or personal property,
tangible or intangible of the Corporation (other than the Company’s
intellectual property);


 


(e)          Issue a warrant or
warrants to purchase the Corporation’s capital stock; and


 


(f)            Execute and deliver in
form and content as may be required by the Bank any and all notes, evidences of
Indebtedness, applications for letters of credit, guaranties, subordination
agreements, loan and security agreements, financing statements, assignments,
liens, deeds of trust, mortgages, trust receipts and other agreements,
instruments or documents to carry out the purposes of these Resolutions, any or
all of which may relate to all or to substantially all of the Corporation’s
property and assets.


 


2.               Said Bank be and it
is authorized and directed to pay the proceeds of any such loans or discounts
as directed by the persons so authorized to sign, whether so payable to the
order of any of said persons in their individual capacities or not, and whether
such proceeds are deposited to the individual credit of any of said persons or
not;


 


3.               Any and all
agreements, instruments and documents previously executed and acts and things
previously done to carry out the purposes of these Resolutions are ratified,
confirmed and approved as the act or acts of the Corporation.


 


4.               These Resolutions
shall continue in force, and the Bank may consider the holders of said offices
and their signatures to be and continue to be as set forth in a certified copy
of these Resolutions delivered to the Bank, until notice to the contrary in
writing is duly served on the Bank (such notice to have no effect on any action
previously taken by the Bank in reliance on these Resolutions).


 


5.               Any person,
corporation or other legal entity dealing with the Bank may rely upon a
certificate signed by an officer of the Bank to effect that these Resolutions
and any agreement, instrument or document executed pursuant to them are still
in full force and effect and binding upon the Corporation.


 


6.               The Bank may
consider the holders of the offices of the Corporation and their signatures,
respectively, to be and continue to be as set forth in the Certificate of the
Secretary of the Corporation until notice to the contrary in writing is duly
served on the Bank.


 


I
further certify that the above Resolutions are in full force and effect as of
the date of this Certificate; that these Resolutions and any borrowings or
financial accommodations under these Resolutions have been properly noted in
the corporate books and records, and have not been rescinded, annulled, revoked
or modified; that neither the foregoing Resolutions nor any actions to be taken
pursuant to them are or will be in contravention of any provision of the
certificate of incorporation or bylaws of the Corporation or of any agreement,
indenture or other instrument to which the Corporation is a party or by which
it is bound; and that neither the certificate of incorporation nor bylaws of
the Corporation nor any agreement, indenture or other instrument to which the
Corporation is a party or by which it is bound require the vote or consent of
shareholders of the Corporation to authorize any act, matter or thing described
in the foregoing Resolutions.


 


1

















 


I
further certify that the following named persons have been duly elected to the
offices set opposite their respective names, that they continue to hold these
offices at the present time, and that the signatures which appear below are the
genuine, original signatures of each respectively:


 


(PLEASE SUPPLY GENUINE SIGNATURES OF AUTHORIZED SIGNERS BELOW)


 


	
  NAME (Type or Print)

  	
   

  	
  TITLE

  	
   

  	
  SIGNATURE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Jeff Jordan

  	
   

  	
  CEO

  	
   

  	
  /s/ Jeff Jordan

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Matt Roberts

  	
   

  	
  CFO

  	
   

  	
  /s/ Matt Roberts

  
	
                           

  	
   

  	
                           

  	
   

  	
                           

  
	
                           

  	
   

  	
                           

  	
   

  	
                           

  
	
                           

  	
   

  	
                           

  	
   

  	
                           

  



 


 


In
Witness Whereof, I have affixed my name as Secretary and have caused the
corporate seal (where available) of said Corporation to be affixed on July 30,
2007.


 


	
   

  	
              /s/
  Matt Roberts

  
	
   

  	
                 Secretary

  



 


***


 


	
  The Above Statements are Correct.

  	
          /s/
  Jeff Jordan

  	
   

  
	
   

  	
  SIGNATURE OF OFFICER OR DIRECTOR OR, IF NONE. A
  SHAREHOLDER OTHER 

  
	
   

  	
  THAN SECRETARY WHEN SECRETARY IS AUTHORIZED TO SIGN
  ALONE.

  



 


Failure
to complete the above when the Secretary is authorized to sign alone shall
constitute a certification by the Secretary that the Secretary is the sole
Shareholder, Director and Officer of the Corporation.


 


2

















 


COMERICA
BANK


Member
FDIC


 


ITEMIZATION
OF AMOUNT FINANCED


DISBURSEMENT
INSTRUCTIONS


(Revolver)


 


	
  Name(s): 
  OPENTABLE, INC.                                                                                            Date:  July 30, 2007

  
	
   

  	
   

  
	
  $

  	
  credited to deposit
  account No.                       
  when Advances are requested or disbursed to Borrower by cashiers check or
  wire transfer

  
	
   

  
	
  Amounts paid to others
  on your behalf:

  
	
   

  
	
  $

  	
  to Comerica Bank for
  Loan Fee

  
	
  $

  	
  to Comerica Bank for
  Document Fee

  
	
  $ 

  	
  to Comerica Bank for
  accounts receivable audit (estimate)

  
	
  $ 

  	
  to Bank counsel fees
  and expenses

  
	
  $

  	
  to
                                

  
	
  $

  	
  to
                                

  
	
  $

  	
  TOTAL (AMOUNT FINANCED)

  
	
   

  	
   

  



 


Upon consummation of this transaction, this document will also serve as
the authorization for Comerica Bank to disburse the loan proceeds as stated above.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature

  	
   

  	
  Signature

  



 


1














 





 


Agreement to Furnish Insurance


 


(Herein called “Bank”)


 


Borrower(s): OPENTABLE,
INC.


 


I understand that the
Security Agreement or Deed of Trust which I executed in connection with this
transaction requires me to provide a physical damage insurance policy including
a Lenders Loss Payable Endorsement in favor of the Bank as shown below, within
ten (10) days from the date of this agreement.


 


The following minimum
insurance must be provided according to the terms of the security documents.


 


	
  o

  	
   

  	
  AUTOMOBILES,
  TRUCKS, RECREATIONAL VEHICLES

  	
  o

  	
  MACHINERY &
  EQUIPMENT: MISCELLANEOUS PERSONAL PROPERTY

  
	
   

  	
   

  	
   

  	
  Comprehensive &
  Collision

  	
   

  	
  Fire &
  Extended Coverage

  
	
   

  	
   

  	
   

  	
  Lender’s
  Loss Payable Endorsement

  	
   

  	
  Lender’s
  Loss Payable Endorsement

  
	
   

  	
   

  	
   

  	
   

  	
  o

  	
  Breach
  of Warranty Endorsement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o

  	
   

  	
  BOATS

  	
  o

  	
  AIRCRAFT

  
	
   

  	
   

  	
   

  	
  All
  Risk Hull Insurance

  	
   

  	
  All
  Risk Ground & Flight Insurance

  
	
   

  	
   

  	
   

  	
  Lender’s
  Loss Payable Endorsement

  	
   

  	
  Lender’s
  Loss Payable Endorsement

  
	
   

  	
   

  	
   

  	
  o

  	
  Breach
  of Warranty Endorsement

  	
   

  	
  o

  	
  Breach
  of Warranty Endorsement

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MOBILE
  HOMES

  	
   

  	
  REAL
  PROPERTY

  
	
   

  	
   

  	
   

  	
  Fire,
  Theft & Combined Additional Coverage

  	
   

  	
  Fire &
  Extended Coverage

  
	
   

  	
   

  	
   

  	
  Lender’s
  Loss Payable Endorsement

  	
   

  	
  Lender’s
  Loss Payable Endorsement

  
	
   

  	
   

  	
   

  	
  o

  	
  Earthquake

  	
   

  	
  o

  	
  All
  Risk Coverage

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  o

  	
  Special
  Form Risk Coverage

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  o

  	
  Earthquake

  	
   

  
	
  o

  	
   

  	
  INVENTORY

  	
   

  	
  o

  	
  Other

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  o

  	
   

  	
  Other

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
										



 


I
may obtain the required insurance from any company that is acceptable to the
Bank, and will deliver proof of such coverage with an effective date of July 30,
2007 or earlier.


 


I
understand and agree that if I fail to deliver proof of insurance to the Bank
at the address below, or upon the lapse or cancellation of such insurance, the
Bank may procure Lender’s Single Interest Insurance or other similar coverage
on the property.  If the Bank procures
insurance to protect its interest in the property described in the security
documents, the cost for the insurance will be added to my indebtedness as
provided in the security documents. 
Lender’s Single Interest Insurance shall cover only the Bank’s interest
as a secured party, and shall become effective at the earlier of the funding
date of this transaction or the date my insurance was canceled or expired.  I UNDERSTAND THAT LENDER’S SINGLE INTEREST
INSURANCE WILL PROVIDE ME WITH ONLY LIMITED PROTECTION AGAINST PHYSICAL DAMAGE
TO THE COLLATERAL, UP TO THE BALANCE OF THE LOAN, HOWEVER, MY EQUITY IN THE
PROPERTY WILL NOT BE INSURED.  FURTHER,
THE INSURANCE WILL NOT PROVIDE MINIMUM PUBLIC LIABILITY OR PROPERTY DAMAGE
INDEMNIFICATION AND DOES NOT MEET THE REQUIREMENTS OF THE FINANCIAL
RESPONSIBILITY LAW.


 


CALIFORNIA
CIVIL CODE SECTION 2955.5. HAZARD INSURANCE DISCLOSURE:  No lender shall require a borrower, as a
condition of receiving or maintaining a loan secured by real property, to
provide hazard insurance coverage against risks to the improvements on that
real property in an amount exceeding the replacement value of the improvements
on the property.


 


	
   

  	
  Bank
  Address for Insurance Documents:

  
	
   

  	
   

  	
   

  
	
   

  	
  1.

  	
  Comerica Bank

  
	
   

  	
  2.

  	
  (Address of
  Processing Area)

  



 


I
acknowledge having read the provisions of this agreement, and agree to its
terms.  I authorize the Bank to provide
to any person (including any insurance agent or company) any information
necessary to obtain the insurance coverage required.


 


2

















 


	
  OWNER(S) OF
  COLLATERAL: 

  	
  DATED:

  	
   

  



 


 


 


 


	
  INSURANCE
  VERIFICATION

  	
   

  
	
   

  	
   

  
	
  Date

  	
   

  	
  Phone

  
	
  Agents Name

  	
   

  	
  Person Talked To

  
	
  Agents Address

  	
   

  
	
  Insurance Company

  	
   

  
	
  Policy Number(s)

  	
   

  
	
  Effective Dates: From

  	
  To:

  
	
  Deductible $

  	
  Comments:

  



 


3

















 


	
  COMERICA BANK

  	
   

  



AUTOMATIC
DEBIT AUTHORIZATION


	
  Member FDIC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  To:  Comerica Bank

  
	
   

  
	
  Re:  Loan #  

  	
                                          

  	
   

  
	
   

  
	
  You are hereby
  authorized and instructed to charge account No.                                                           in
  the name of 

  
	
  OPENTABLE, INC.

  	
   

  	
   

  
	
  for principal, interest
  and other payments due on above referenced loan as set forth below and credit
  the loan referenced above.

  
	
   

  
	
  x           Debit each interest payment as it
  becomes due according to the terms of the Loan and Security Agreement and any
  renewals or amendments thereof.

  
	
   

  
	
  x           Debit each principal payment as it
  becomes due according to the terms of the Loan and Security Agreement and any
  renewals or amendments thereof.

  
	
   

  
	
  x           Debit each payment for Bank
  Expenses as it becomes due according to the terms of the Loan and Security
  Agreement and any renewals or amendments thereof.

  
	
   

  
	
  This Authorization is
  to remain in full force and effect until revoked in writing.

  
	
   

  
						



 


	
  Borrower Signature:

  	
   

  	
  Date: July 30,
  2007

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


4














 


USA PATRIOT ACT


 


NOTICE


OF


CUSTOMER
IDENTIFICATION


 


IMPORTANT INFORMATION
ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT


 


To help the government fight the funding of terrorism
and money laundering activities, Federal law requires all financial
institutions to obtain, verify, and record information that identifies each
person who opens an account.


 


WHAT THIS MEANS FOR YOU: when you open an account, we
will ask your name, address, date of birth, and other information that will
allow us to identify you.  We may also
ask to see your driver’s license or other identifying documents.


 


5

















 


Secured Party:  Comerica Bank


 


Debtor:  OpenTable, Inc.


 


EXHIBIT
A to UCC Financing Statement


 


COLLATERAL
DESCRIPTION ATTACHMENT TO UCC NATIONAL FINANCING FORM


 


All personal property of
Debtor of every kind, whether presently existing or hereafter created or
acquired, and wherever located, including but not limited to: (a) all
accounts (including health-care-insurance receivables), chattel paper
(including tangible and electronic chattel paper), deposit accounts, documents
(including negotiable documents), equipment (including all accessions and
additions thereto), general intangibles (including payment intangibles and
software), goods (including fixtures), instruments (including promissory
notes), inventory (including all goods held for sale or lease or to be
furnished under a contract of service, and including returns and
repossessions), investment property (including securities and securities
entitlements), letter of credit rights, money, and all of Debtor’s books and
records with respect to any of the foregoing, and the computers and equipment
containing said books and records; and (b) any and all cash proceeds
and/or noncash proceeds thereof, including, without limitation, insurance
proceeds, and all supporting obligations and the security therefor or for any
right to payment.  All terms above have
the meanings given to them in the California Uniform Commercial Code, as
amended or supplemented from time to time.


 


Notwithstanding the
foregoing, the Collateral shall not include any Intellectual Property (as
defined in the Loan and Security Agreement), now owned or hereafter acquired,
or any claims for damages by way of any past, present and future infringement
of any of the foregoing; provided, however, that the Collateral shall include
all accounts and general intangibles that consist of rights to payment from the
sale, licensing or disposition of all or any part of, or rights in, the Intellectual
Property (the “Rights to Payment”). 
Notwithstanding the foregoing, if a judicial authority (including a U.S.
Bankruptcy Court) holds that a security interest in the underlying Intellectual
Property is necessary to have a security interest in the Rights to Payment,
then the Collateral shall automatically, and effective as of July 30,
2007, include the Intellectual Property soley to the extent necessary to permit
perfection of Bank’s security interest in the Rights to Payment.


 














 


FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT


 


This First Amendment to Loan and Security
Agreement (this “Amendment”) is entered into as of September 18, 2008, by
and between COMERICA BANK (“Bank”) and OPENTABLE, INC.  (“Borrower”).


 


RECITALS


 


Borrower and Bank are parties to that certain
Loan and Security Agreement dated as of July 30, 2007, as amended from
time to time (the “Agreement”).  The
parties desire to amend the Agreement in accordance with the terms of this
Amendment.


 


NOW, THEREFORE, the parties agree as follows:


 


1.             The
following defined terms in Section 1.1 of the Agreement hereby are added,
amended or restated as follows:


 


“ACH Sublimit” means a sublimit for Automated
Clearing House transactions under the Revolving Line not to exceed $2,000,000,
less any amounts outstanding under the Credit Card Services Sublimit, the
Foreign Exchange Sublimit, and the Letter of Credit Sublimit in excess of
$1,000,000.


 


“Credit Card Services Sublimit” means a
sublimit for corporate credit cards and e-commerce or merchant account services
under the Revolving Line not to exceed $200,000, less any amounts outstanding
under the ACH Sublimit, the Foreign Exchange Sublimit, and the Letter of Credit
Sublimit in excess of $2,800,000.


 


“Foreign Exchange Sublimit” means a sublimit
for foreign exchange contracts under the Revolving Line not to exceed
$1,000,000; less any amounts outstanding under the ACH Sublimit, the Credit
Cards Sublimit, and the Letter of Credit Sublimit in excess of $2,000,000.


 


“Letter of Credit Sublimit” means a sublimit
for Letters of Credit under the Revolving Line not to exceed $1,000,000 less
any amounts outstanding under the ACH Sublimit, the Credit Cards Sublimit, and
the Foreign Exchange Sublimit in excess of $2,000,000.


 


“Revolving Line” means a Credit Extension of
up to $3,000,000 (inclusive of any amounts outstanding under the ACH Sublimit,
the Credit Card Services Sublimit, the Foreign Exchange Sublimit, and the
Letter of Credit Sublimit).


 


“Revolving Maturity Date” means July 30,
2009.


 


2.             The
defined terms “Borrowing Base”, “Eligible Accounts” and “Eligible Foreign
Accounts” are hereby deleted from the Agreement in their entirety.


 


3.             Section 2.1(b)(i) of
the Agreement is hereby amended and restated in its entirety to read as
follows:


 


“(b)         Amount. 
Subject to and upon the terms and conditions of this Agreement (1) Borrower
may request Advances in an aggregate outstanding amount not to exceed the
Revolving Line, less any amounts outstanding under the Letter of Credit
Sublimit, the Credit Card Services Sublimit, the ACH Sublimit, and the Foreign
Exchange Sublimit, and (2) amounts borrowed pursuant to this Section 2.1(b) may
be repaid and reborrowed at any time prior to the Revolving Maturity Date, at
which time all Advances under this Section 2.1(b) shall be
immediately due and payable.  Borrower
may prepay any Advances without penalty or premium.”


 


4.             Section 2.1(b)(vi) of
the Agreement is hereby amended and restated in its entirety to read as
follows:


 


1

















 


“(vi)        Foreign Exchange Sublimit.  Subject to and upon the terms and conditions
of this Agreement and any other agreement that Borrower may enter into with the
Bank in connection with foreign exchange transactions (“FX Contracts”),
Borrower may request Bank to enter into FX Contracts with Borrower due not
later than the Revolving Maturity Date. 
Borrower shall pay any standard issuance and other fees that Bank
notifies Borrower in advance that will be charged for issuing and processing FX
Contracts for Borrower.  The FX Amount
shall at all times be equal to or less than the Foreign Exchange Sublimit.  The “FX Amount” shall equal the amount
determined by multiplying (i) the aggregate amount, in United States
Dollars, of FX Contracts between Borrower and Bank remaining outstanding as of
any date of determination by (ii) the applicable Foreign Exchange Reserve
Percentage as of such date.  The “Foreign
Exchange Reserve Percentage” shall be a percentage as determined by Bank, in
its sole discretion from time to time. 
The initial Foreign Exchange Reserve Percentage shall be ten percent
(10%).”


 


5.             Section 2.2
of the Agreement is hereby amended and restated in its entirety to read as
follows:


 


“2.2         Intentionally Omitted.”


 


6.             Section 2.5(a) of
the Agreement is hereby amended and restated in its entirety to read as
follows:


 


“(a)         Facility Fee.  On September 18, 2008 a fee equal to
$7,500, which shall be nonrefundable;”


 


7.             Section 5.3
of the Agreement is hereby amended and restated in its entirety to read as
follows:


 


“5.3         Collateral.  Borrower has rights in or the power to
transfer the Collateral, and its title to the Collateral is free and clear of
Liens, adverse claims, and restrictions on transfer or pledge except for
Permitted Liens.  All Collateral is
located solely in the Collateral States. 
All Inventory is in all material respects of good and merchantable
quality, free from all material defects, except for Inventory for which
adequate reserves have been made.  Except
as set forth in the Schedule, none of the Collateral is maintained or invested
with a Person other than Bank or Bank’s Affiliates.”


 


8.             Section 6.2(ii) of
the Agreement is hereby amended and restated in its entirety to read as
follows:


 


“(ii) as soon as available, but in any
event within 150 days after the end of Borrower’s fiscal year, audited
consolidated and consolidating financial statements of Borrower prepared in
accordance with GAAP, consistently applied, together with an opinion which is
unqualified or otherwise consented to in writing by Bank on such financial
statements of an independent certified public accounting firm reasonably
acceptable to Bank; (provided however for Borrower’s 2006 and 2007 fiscal years
such audited financial statements shall be delivered to Bank no later than December 31,
2008);”


 


9.             Section 6.2(a) of
the Agreement is hereby amended and restated in its entirety to read as
follows:


 


“(a)         Within 30 days after the last day of each
calendar quarter, Borrower shall deliver to Bank aged listings by invoice date
of accounts receivable and accounts payable.”


 


10.           The
last paragraph of Section 6.2 of the Agreement is hereby amended and
restated in its entirety to read as follows


 


“Borrower may deliver to Bank on an
electronic basis any certificates, reports or information required pursuant to
this Section 6.2, and Bank shall be entitled to rely on the information
contained in the electronic files, provided that Bank in good faith believes
that the files were delivered by a Responsible Officer.  If Borrower delivers this information
electronically, it shall also deliver to Bank by U.S. Mail, reputable overnight
courier service, hand delivery, facsimile or .pdf file within 5 Business Days
of submission of the unsigned electronic copy the certification of monthly financial
statements and the Compliance Certificate, each bearing the physical signature
of the Responsible Officer.”


 


2

















 


11.           Section 6.7
of the Agreement is hereby amended and restated in its entirety to read as follows:


 


“6.7         Minimum Revenue.


 


(a)           During the measurement
periods beginning June 30, 2008 up to and including December 31,
2008, Borrower shall maintain minimum revenues for the Rolling 3-Month Revenue
Period preceding the date of measurement, of not less than the following:


 


(i)            $10,495,000 for the period ending June 30,
2008;


(ii)           $10,700,000 for the period ending July 31,
2008;


(iii)          $10,930,000 for the period ending August 31,
2008;


(iv)          $11,070,000 for the period ending September 30,
2008;


(v)           $11,320,000 for the period ending October 31,
2008;


(vi)          $11,500,000 for the period ending November 30,
2008; and


(vii)         $12,265,000 for the period ending December 31,
2008.


 


(b)           During the measurement
periods beginning on January 31, 2009 and continuing each month
thereafter, Borrower shall maintain minimum revenues of not less than eighty
percent (80%) of Borrower’s Board approved Plan for each month in the then
current fiscal year, for the Rolling 3-Month Revenue Period preceding the date
of measurement.


 


Upon receipt of Borrower’s board of directors
approved 2009 plan, Borrower and Bank shall mutually agree to modify the
foregoing Revenue covenant in accordance with such plan.”


 


12.           Exhibit D
to the Agreement is hereby deleted from the Agreement in its entirety


 


13.           Exhibit E
to the Agreement is hereby replaced with Exhibit E attached hereto.


 


14.           No
course of dealing on the part of Bank or its officers, nor any failure or delay
in the exercise of any right by Bank, shall operate as a waiver thereof, and
any single or partial exercise of any such right shall not preclude any later
exercise of any such right.  Bank’s
failure at any time to require strict performance by Borrower of any provision
shall not affect any right of Bank thereafter to demand strict compliance and
performance.  Any suspension or waiver of
a right must be in writing signed by an officer of Bank.


 


15.           Unless
otherwise defined, all initially capitalized terms in this Amendment shall be
as defined in the Agreement.  The
Agreement, as amended hereby, shall be and remain in full force and effect in
accordance with its respective terms and hereby is ratified and confirmed in
all respects.  Except as expressly set
forth herein, the execution, delivery, and performance of this Amendment shall
not operate as a waiver of, or as an amendment of, any right, power, or remedy
of Bank under the Agreement, as in effect prior to the date hereof.


 


16.           Borrower
represents and warrants that the Representations and Warranties contained in
the Agreement are true and correct as of the date of this Amendment, and that
no Event of Default has occurred and is continuing.


 


17.           As
a condition to the effectiveness of this Amendment, Bank shall have received,
in form and substance satisfactory to Bank, the following:


 


(a)           this Amendment, duly
executed by Borrower;


 


(b)           signed Acknowledgement
in the form attached hereto as Annex A;


 


(c)           a Certificate of the
Secretary of Borrower with respect to incumbency and resolutions authorizing
the execution and delivery of this Amendment;


 


3

















 


(d)           a facility fee in the
amount of Seven Thousand Five Hundred Dollars ($7,500), which may be debited
from any of Borrower’s accounts;


 


(e)           all reasonable Bank
Expenses incurred through the date of this Amendment, which may be debited from
any of Borrower’s accounts; and


 


(f)            such other documents,
and completion of such other matters, as Bank may reasonably deem necessary or
appropriate.


 


18.           This
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one instrument.


 


4

















 


IN WITNESS WHEREOF, the undersigned have
executed this Amendment as of the first date above written.


 


	
   

  	
  OPENTABLE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Matt Roberts

  
	
   

  	
   

  
	
   

  	
  Title: 

  	
  CFO

  
	
   

  	
   

  
	
   

  	
  COMERICA BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Kim Crosslin

  
	
   

  	
   

  
	
   

  	
  Title: 

  	
  Vice President

  
				



 


 


[Signature Page to
First Amendment to Loan & Security Agreement]


 

















 


ANNEX A


 


COMERICA BANK
MERGER ACKNOWLEDGMENT


 


The undersigned is a party to certain
documents, instruments and/or agreements (collectively, the “Documents”) with
or between the undersigned and Comerica Bank, a Michigan banking corporation
(the “Merged Bank”).  The Merged Bank has
been, or will be, merged with and into Comerica Bank, a Texas banking
association (the “Surviving Bank”).  The
undersigned hereby acknowledges and agrees that any reference in the Documents
to Comerica Bank, a Michigan banking corporation, shall mean Comerica Bank, a
Texas banking association, as successor by merger to the Merged Bank.


 


	
   

  	
   

  	
  /s/ Matt Roberts

  
	
  September 18, 2008

  	
   

  	
  OPENTABLE,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CFO

  
	
   

  	
   

  	
  Title (if applicable)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Matt Roberts

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Matt Roberts

  
	
   

  	
   

  	
  Name

  



 

















 


EXHIBIT E

COMPLIANCE CERTIFICATE


 


	
  TO:

  	
  COMERICA
  BANK

  
	
  FROM:

  	
  OPENTABLE,
  INC.

  



 


The undersigned authorized officer of
OPENTABLE, INC. hereby certifies that in accordance with the terms and
conditions of the Loan and Security Agreement between Borrower and Bank (the “Agreement”),
(i) Borrower is in complete compliance for the period ending                           
with all required covenants except as noted below and (ii) all
representations and warranties of Borrower stated in the Agreement are true and
correct as of the date hereof.  Attached
herewith are the required documents supporting the above certification.  The Officer further certifies that these are
prepared in accordance with Generally Accepted Accounting Principles (GAAP) and
are consistently applied from one period to the next except as explained in an
accompanying letter or footnotes.


 


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


 


	
  Reporting Covenant

  	
   

  	
  Required

  	
   

  	
  Complies

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Monthly
  financial statements

  	
   

  	
  Monthly within 30 days

  	
   

  	
  o  Yes

  	
   

  	
  o  No

  
	
  Annual
  (CPA Audited) 2006 and 2007

  	
   

  	
  12/31/08

  	
   

  	
  o  Yes

  	
   

  	
  o  No

  
	
  Annual
  (CPA Audited)

  	
   

  	
  FYE within 150 days

  	
   

  	
  o  Yes

  	
   

  	
  o  No

  
	
  10K
  and 10Q

  	
   

  	
  (as applicable)

  	
   

  	
  o  Yes

  	
   

  	
  o  No

  
	
  A/R &
  A/P Agings

  	
   

  	
  Quarterly within 30 days

  	
   

  	
  o  Yes

  	
   

  	
  o  No

  
	
  Compliance
  Certificate

  	
   

  	
  Monthly within 30 days

  	
   

  	
  o  Yes

  	
   

  	
  o  No

  
	
  Board
  approved annual projections

  	
   

  	
  FYE within 30 days

  	
   

  	
  o  Yes

  	
   

  	
  o  No

  



 


	
  Financial Covenant

  	
   

  	
  Required

  	
   

  	
  Actual

  	
   

  	
  Complies

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Measured
  on a Monthly Basis:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Minimum Revenues (Rolling 3 month)

  	
   

  	
  See
  Section 6.7 of the Agreement

  	
   

  	
  $         

  	
   

  	
  o  Yes

  	
   

  	
  o  No

  



 


	
  Comments Regarding Exceptions: See Attached.

  	
   

  	
  BANK USE ONLY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Received by: 

  	
   

  
	
  Sincerely,

  	
   

  	
                                        AUTHORIZED
  SIGNER

  



 


	
   

  	
   

  	
  Date:  

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Verified:  

  	
   

  
	
  SIGNATURE

  	
   

  	
                                       AUTHORIZED
  SIGNER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:  

  	
   

  
	
   

  	
   

  	
   

  
	
  TITLE

  	
   

  	
  Compliance Status

  	
  o  Yes

  	
  o  No

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DATE