Exhibit 10.1
SECOND AMENDMENT TO LOAN AND SECURITY
AGREEMENT
This Second Amendment to Loan and
Security Agreement (the “Amendment”) is entered into as
of June 23, 2009, 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, including, without limitation,
by that certain First Amendment to Loan and Security Agreement
dated as of September 18, 2008, the
“Agreement”). All indebtedness owing by Borrower
to Bank shall hereinafter be referred to as the
“Indebtedness.” The parties desire to amend the
Agreement in accordance with the terms of this
Amendment.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
AGREEMENT
I.
Incorporation by
Reference . The
Recitals and the documents referred to therein are incorporated
herein by this reference. Except as otherwise noted, the
terms not defined herein shall have the meaning set forth in the
Agreement.
II.
Amendment to the
Agreement .
Subject to the satisfaction of the conditions precedent as set
forth in Article IV hereof, the Agreement is hereby amended as
set forth below.
A.
Section 2.3(a) of the
Agreement is hereby amended and restated in its entirety to read as
follows:
“(a)
Interest Rates
. Except as set forth in
Section 2.3(b), the Advances shall bear interest, on the
outstanding daily balance thereof, at the rate set forth in the
Prime Referenced Rate Addendum.”
B.
Section 2.5(a) of the
Agreement is hereby amended and restated in its entirety to read as
follows:
“(a)
Facility Fee
. On June 12, 2009 a fee
equal to $7,500, which shall be nonrefundable;”
C.
Section 6.2(i) and
Section 6.2(b) of the Agreement are hereby amended and
restated in their entirety to read as follows:
“(i) as soon as
available, but in any event within 45 days after the end of each
calendar quarter, 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;
(b) Within 45 days after the
last day of each quarter, 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.”
D.
Section 6.7 of the Agreement is
hereby amended and restated in its entirety to read as
follows:
“6.7
Adjusted Quick Ratio
. Borrower shall maintain a
quarterly Adjusted Quick Ratio of 2.00:1.00, to be tested on a
quarterly basis. Adjusted Quick Ratio is defined as Cash plus
Accounts to Current Liabilities minus Deferred
Revenue.”
D.
Bank’s contact person set
forth in Section 10 of the Agreement is hereby changed from
“Phil Koblis” to “Kim Crosslin”.
E.
The following defined terms are
hereby alphabetically added to Exhibit A to the
Agreement or are hereby amended and restated in their entirety to
read as follows:
“Current Liabilities”
means, as of any applicable date, all amounts that should, in
accordance with GAAP, be included as current liabilities on the
consolidated balance sheet of Borrower and its Subsidiaries, as at
such date.
“Deferred Revenue” means
all amounts received in advance of performance under maintenance
contracts and not yet recognized as revenue.
“Prime Referenced Rate
Addendum” means that certain Pricing Referenced Rate Addendum
to Loan and Security Agreement dated June 23, 2009 between
Borrower and Bank, and attached hereto as Exhibit F
.
“Revolving Maturity
Date” means July 20, 2010.
F.
Exhibit E
(Compliance Certificate) to the
Agreement is hereby replaced with Exhibit E attached
hereto.
III.
Legal Effect
.
|
A.
|
The Agreement is hereby amended wherever
necessary to reflect the changes described above. Borrower agrees
that it has no defenses against the obligations to pay any amounts
under the Indebtedness.
|
|
|
|
|
B.
|
Borrower understands and agrees that in
modifying the existing Indebtedness, Bank is relying upon
Borrower’s representations, warranties, and agreements, as
set forth in the Agreement and the other Loan Documents.
Except as expressly modified pursuant to this Amendment, the terms
of the Agreement and the other Loan Documents remain unchanged, and
in full force and effect. Bank’s agreement to
modifications to the existing Indebtedness pursuant to this
Amendment in no way shall obligate Bank to make any future
modifications to the Indebtedness. Nothing in this Amendment
shall constitute a satisfaction of the Indebtedness. It is
the intention of Bank and Borrower to retain as liable parties, all
makers and endorsers of the Agreement and the other Loan Documents,
unless the party is expressly released by Bank in writing. No
maker, endorser, or guarantor will be released by virtue of this
Amendment. The terms of this paragraph apply not only to this
Amendment, but also to all subsequent loan modification
requests.
|
|
|
|
|
C.
|
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. This is an
integrated Amendment and supersedes all prior negotiations and
agreements regarding the subject matter hereof. All
modifications hereto must be in writing and signed by the
parties.
|
IV.
Conditions
Precedent .
Except as specifically set forth in
this Amendment, all of the terms and conditions of the Agreement
and the other Loan Documents remain in full force and effect.
The effectiveness of this Amendment is conditioned upon receipt by
Bank of:
|
A.
|
This Amendment, duly executed by
Borrower;
|
|
|
|
|
B.
|
Corporation Resolutions and Incumbency
Certification, duly executed by Borrower;
|
|
|
|
|
C.
|
The Prime Referenced Rate Addendum, duly
executed by Borrower;
|
|
D.
|
A Facility Fee from Borrower in the amount of
$7,500;
|
|
|
|
|
E.
|
A legal fee from Borrower in the amount of $750;
and
|
|
|
|
|
F.
|
Such other documents, and completion of such
other matters, as Bank may reasonably deem necessary or
appropriate.
|
IN WITNESS WHEREOF, the
undersigned have executed this Amendment as of the first date above
written.
|
|
OPENTABLE, INC.
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Matt Roberts
|
|
|
Name: Matt Roberts
|
|
|
Title: CFO
|
|
|
|
|
|
|
|
|
|
|
COMERICA BANK
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Kim Crosslin
|
|
|
Name: Kim Crosslin
|
|
|
Title: VP
|
EXHIBIT F
Prime Referenced Rate Addendum
To
Loan and Security
Agreement
This Prime Referenced Rate Addendum
to Loan and Security Agreement (this “Addendum”) is
entered into as of June 23, 2009, by and between Comerica Bank
(“Bank”) and OpenTable, Inc.
(“Borrower”). This Addendum supplements the terms
of the Loan and Security Agreement dated as of July 30, 2007
(as the same may be amended, modified, supplemented, extended or
restated from time to time, including without limitation by that
certain First Amendment to Loan and Security Agreement dated as of
September 18, 2008, and that certain Second Amendment to Loan
and Security Agreement dated as of June 23, 2009,
collectively, the “Agreement”).
1.
Definitions
. As used
in this Addendum, the following terms shall have the following
meanings. Initially capitalized terms used and not defined in
this Addendum shall have the meanings ascribed thereto in the
Agreement.
a.
“Applicable
Margin” means one half of one percent (0.50%) per
annum.
b.
“Business
Day” means any day, o
