SECURITY AGREEMENT: SPECIFIC RIGHTS TO PAYMENT
Exhibit 10.26
SECURITY AGREEMENT:
SPECIFIC RIGHTS TO PAYMENT
SPECIFIC RIGHTS TO PAYMENT
1. GRANT OF SECURITY INTEREST. For valuable consideration, the undersigned LENDINGCLUB
CORPORATION, (“Debtor”), hereby grants and transfers to XXXXX FARGO BANK, NATIONAL ASSOCIATION
(“Bank”) a security interest, subject to the Permitted Liens (as defined below), in the following
accounts, deposit accounts, chattel paper (whether electronic or tangible), instruments, promissory
notes, documents, payment intangibles, letter of credit rights, health-care insurance receivables
and other rights to payment in or directly related to the following (collectively called
“Collateral”):
Xxxxx Fargo Bank demand deposit account [commercial checking account] number 9789827707 and
all funds now held or hereafter deposited therein, including any interest earned thereon, if
applicable (the “Account”)
and all renewals thereof, including all securities, guaranties, warranties, indemnity agreements,
insurance policies, supporting obligations and other agreements pertaining to the same or the
property described therein, together with whatever is receivable or received when any of the
Collateral or proceeds thereof are sold, collected, exchanged or otherwise disposed of, whether
such disposition is voluntary or involuntary, including without limitation, all rights to payment,
including returned premiums, with respect to any insurance relating to any of the foregoing, and
all rights to payment with respect to any claim or cause of action affecting or relating to any of
the foregoing (hereinafter called “Proceeds”). Notwithstanding the foregoing, the Collateral and
Proceeds subject to this Agreement are expressly limited to the assets actually owned by Debtor in
the Account.
2. OBLIGATIONS SECURED. The obligations secured hereby are the payment and performance of:
(a) all present and future Indebtedness of Debtor to Bank pursuant to that certain Master Agreement
for Treasury Management Services between Debtor and Bank, together with Service Documentation as
defined therein including that certain ACH Services Service Description accepted by Debtor on April
19, 2007 (collectively, the “Treasury Agreement”); and (b) all obligations of Debtor and rights of
Bank under this Agreement. The word “Indebtedness” is used herein in its most comprehensive sense
and includes any and all advances, debts, obligations and liabilities of Debtor, or any of them,
heretofore, now or hereafter made, incurred or created, whether voluntary or involuntary and
however arising, whether due or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, including under any swap, derivative, foreign exchange, hedge, deposit,
treasury management or other similar transaction or arrangement, and whether Debtor may be liable
individually or jointly with others, or whether recovery upon such Indebtedness may be or hereafter
becomes unenforceable.
3. TERMINATION. This Agreement will terminate upon the termination of the Treasury Agreement
and the performance of all obligations of Debtor thereunder, including without limitation, the
payment of all Indebtedness of Debtor to Bank and the termination of all commitments of Bank to
extend credit to Debtor thereunder, existing at the time Bank receives written notice from Debtor
of the termination of this Agreement.
4. OBLIGATIONS OF BANK. Bank has no obligation to make any loans hereunder. So long as no
Event of Default under this Agreement has occurred and is continuing, any money received by Bank in
respect of the Collateral will be deposited into the Account. Upon
the occurrence of an Event of Default under this Agreement and for so long as it is continuing,
Bank, at its option, may deposit money received in respect of the Collateral into a non-interest
bearing account over which Debtor shall have no control, and the same shall, for all purposes, be
deemed Collateral hereunder.
5. REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants to Bank that: (a) Debtor’s
legal name is exactly as set forth on the first page of this Agreement, and all of Debtor’s
organizational documents or agreements delivered to Bank are complete and accurate in every
respect; (b) Debtor is the owner and has possession or control of the Collateral and Proceeds to
the extent set forth in Section 1 hereof; (c) to the extent set forth in Section 1 hereof, Debtor
has the exclusive right to grant a security interest in the Collateral and Proceeds; (d) to the
extent actually owned by Debtor, such Collateral and Proceeds are genuine, free from liens other
than those that are subject to a written Intercreditor Agreement between Bank and Debtor’s
creditor(s), adverse claims, setoffs, default, prepayment, defenses and conditions precedent of any
kind or character, except the lien created hereby, Permitted Liens as defined below, or as
otherwise agreed to by Bank in writing; (e) all statements contained herein and, where applicable,
in the Collateral are true and complete in all material respects; (f) except to the extent
subordinated in writing to Bank’s lien, no financing statement covering any of the Collateral or
Proceeds, and naming any secured party other than Bank as to the Collateral, is on file in any
public office as of the date hereof; (g) all persons appearing to be obligated on Collateral and
Proceeds to the best of Debtor’s knowledge have authority and capacity to contract and are bound as
they appear to be; (h) all property subject to chattel paper has been properly registered and filed
in compliance with law and to perfect the interest of Debtor in such property if perfected; and (i)
to the best of the Debtor’s knowledge, all Collateral and Proceeds comply with all applicable laws
concerning form, content and manner of preparation and execution, including where applicable
Federal Reserve Regulation Z and any State consumer credit laws. For the purposes of this
Agreement, “Permitted Liens” shall mean
| (i) | Liens for current taxes or other governmental or regulatory assessments which are not delinquent, or which are contested in good faith by the appropriate procedures and for which appropriate reserves are maintained; | ||
| (ii) | Liens in favor of Bank, Silicon Valley Bank or Gold Hill Venture Lending 03, LP; | ||
| (iii) | Bankers’ liens, rights of setoff and similar Liens incurred on deposits made in the ordinary course of business; | ||
| (iv) | Liens in favor of certain parties that entered into secured notes with the Company and which agreements grant a security interest in the proceeds of the borrower loans funded with the money obtained from such agreements in accordance with the schedule attached as Exhibit A hereto; | ||
| (v) | Materialmen’s, mechanics’, repairmen’s, employees’ or other like liens arising in the ordinary course of business and which are not delinquent for more than 45 days or are being contested in good faith by appropriate proceedings and for which appropriate reserves are maintained; | ||
| (vi) | Any judgment, attachment or similar lien, writ or execution thereof, so long as the judgment or obligation it secures has been satisfied, discharged, removed or effectively stayed and bonded against pending appeal within 10 days of the entry thereof; and | ||
| (vii) | Liens which have been disclosed in writing to Bank prior to the date hereof. |
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6. COVENANTS OF DEBTOR.
(a) Debtor agrees in general: (i) to pay Indebtedness secured hereby when due; (ii) to
indemnify Bank against all losses, claims, demands, liabilities and expenses (including reasonable
attorneys fees) of every kind caused by the Collateral subject hereto; (iii) to permit Bank to
exercise its powers set forth herein; (iv) to execute and deliver such documents as Bank deems
reasonably necessary to create, perfect and continue the security interests contemplated hereby;
(v) not to change its name, and as applicable, its chief executive office, its principal residence
or the jurisdiction in which it is organized and/or registered without giving Bank prior written
notice thereof; (vi) not to change the places where Debtor keeps any Collateral or Debtor’s records
concerning the Collateral and Proceeds without giving Bank prior written notice of the address to
which Debtor is moving same; and (vii) to cooperate with Bank in perfecting all security interests
granted herein and in obtaining such agreements from third parties as Bank deems reasonably
necessary, proper or convenient in connection with the preservation, perfection or enforcement of
any of its rights hereunder.
(b) Debtor agrees with regard to the Collateral and Proceeds, unless Bank agrees otherwise in
writing (it being specifically acknowledged herein that Bank has consented to Debtor’s grant of a
junior lien in the Collateral and Proceeds to Silicon Valley Bank): (i) that Bank is authorized to
file financing statements in the name of Debtor to perfect Bank’s security interest in Collateral
and Proceeds; (ii) [intentionally omitted]; (iii) not to permit any lien, other than Permitted
Liens, on the Collateral or Proceeds, except in favor of Bank; (iv) not to sell, hypothecate or
otherwise dispose of, nor permit the transfer by operation of law of, any of the Collateral or
Proceeds or any interest therein, nor withdraw any funds from any deposit account pledged to Bank
hereunder except, so long as no Event of Default under this Agreement has occurred and is
continuing, in the ordinary course of Debtor’s business; (v) to keep, in accordance with generally
accepted accounting principles, complete and accurate records regarding all Collateral and
Proceeds, and to permit Bank to inspect the same and make copies thereof at any reasonable time
upon at least five days prior written request; (vi) if a default under this Agreement has occurred
and is continuing, upon Bank’s written request to receive and use reasonable diligence to collect
Proceeds, in trust and as the property of Bank, and to immediately endorse as appropriate and
deliver such Proceeds to Bank daily in the exact form in which they are received together with a
collection report in form reasonably satisfactory to Bank; (vii) not to commingle Collateral or
Proceeds, or collections thereunder, with other property; (viii) if a default under this Agreement
has occurred and is continuing, and Bank elects to receive payments of Collateral and Proceeds
hereunder, to pay all expenses incurred by Bank in connection therewith, including expenses of
accounting, correspondence, collection efforts, reporting to account or contract debtors, filing,
recording, record keeping and expenses incidental thereto; and (ix) to provide any service and do
any other acts which may be necessary to keep all Collateral and Proceeds free and clear of all
defenses, rights of offset and counterclaims other than Permitted Liens.
7. POWERS OF BANK. Debtor appoints Bank its true attorney in fact to perform any of the
following powers, which are coupled with an interest, are irrevocable until termination of this
Agreement and may be exercised from time to time by Bank’s officers and employees, or any of them,
effective immediately upon the occurrence and during the continuance of an Event of Default under
this Agreement : (a) to perform any obligation of Debtor hereunder in Debtor’s name or otherwise;
(b) to give notice to account debtors or others of Bank’s rights in the Collateral and Proceeds, to
enforce or forebear from enforcing the same and make extension or modification agreements with
respect thereto; (c) to release persons liable on Collateral or Proceeds and to give receipts and
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acquittances and compromise disputes in connection
therewith; (d) to release or substitute security; (e) to resort to security in any order; (f) to
prepare, execute, file, record or deliver notes, assignments, schedules, designation statements,
financing statements, continuation statements, termination statements, statements of assignment,
applications for registration or like papers to perfect, preserve or release Bank’s interest in the
Collateral and Proceeds; (g) to receive, open and read mail addressed to Debtor; (h) to take cash,
instruments for the payment of money and other property to which Bank is entitled; (i) to verify
facts concerning the Collateral and Proceeds by inquiry of obligors thereon, or otherwise, in its
own name or a fictitious name; (j) to endorse, collect, deliver and receive payment under
instruments for the payment of money constituting or relating to Proceeds; (k) to prepare, adjust,
execute, deliver and receive payment under insurance claims, and to collect and receive payment of
and endorse any instrument in payment of loss or returned premiums or any other insurance refund or
return, and to apply such amounts received by Bank, at Bank’s sole option, toward repayment of the
Indebtedness; (l) to exercise all rights, powers and remedies which Debtor would have, but for this
Agreement, with respect to all Collateral and Proceeds subject hereto; (m) to make withdrawals from
and to close deposit accounts or other accounts with any financial institution, wherever located,
into which Proceeds may have been deposited, and to apply funds so withdrawn to payment of the
Indebtedness; (n) to preserve or release the interest evidenced by chattel paper to which Bank is
entitled hereunder and to endorse and deliver any evidence of title incidental thereto; and (o) to
do all acts and things and execute all documents in the name of Debtor or otherwise, deemed by Bank
as necessary, proper and convenient in connection with the preservation, perfection or enforcement
of its rights hereunder.
8. PAYMENT OF PREMIUMS, TAXES, CHARGES, LIENS AND ASSESSMENTS. Debtor agrees to pay, prior to
delinquency, all insurance premiums, taxes, charges, liens and assessments against the Collateral
and Proceeds except those being contested in good faith by Debtor for which appropriate reserves
have been made, and upon the failure of Debtor to do so after written request by Bank, Bank, at its
option, may pay any of them and shall be the sole judge of the legality or validity thereof and the
amount necessary to discharge the same. Any such payments made by Bank shall be obligations of
Debtor to Bank, due and payable immediately upon demand, together with interest at a rate
determined in accordance with the provisions of this Agreement, and shall be secured by the
Collateral and Proceeds, subject to all terms and conditions of this Agreement.
9. EVENTS OF DEFAULT. The occurrence of any of the following shall constitute an “Event of
Default” under this Agreement: (a) any default in the payment or performance of any obligation, or
any defined event of default, under (i) any material contract or instrument evidencing any
Indebtedness unless Debtor is disputing such contract or instrument in good faith and has
adequately reserved for such obligation on its financial statements, or (ii) any other agreement
between Debtor and Bank, including without limitation any loan agreement, relating to or executed
in connection with any Indebtedness; (b) any representation or warranty made by Debtor herein shall
prove to be incorrect, false or misleading in any material respect when made; (c) Debtor shall fail
to observe or perform any material obligation or agreement contained herein; (d) any material
impairment of the rights of Bank in any Collateral or Proceeds, or any attachment or like levy on
the Account, the Collateral or the Proceeds other than Permitted Liens; and (e) Bank, in good
faith, believes any or all of the Collateral and/or Proceeds to be in danger of misuse,
dissipation, commingling, loss, theft, damage or destruction, or otherwise in jeopardy or
unsatisfactory in character or value.
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10. REMEDIES. Upon the occurrence and continuance of any Event of Default, Bank shall have
the right to declare immediately due and payable all or any Indebtedness
secured hereby and to terminate any commitments to make loans or otherwise extend credit to Debtor.
Bank shall have all other rights, powers, privileges and remedies granted to a secured party upon
default under the California Uniform Commercial Code or otherwise provided by law, including
without limitation, the right (a) to contact all persons obligated to Debtor on any Collateral or
Proceeds and to instruct such persons to deliver all Collateral and/or Proceeds directly to Bank,
and (b) to sell, lease, license or otherwise dispose of any or all Collateral. All rights, powers,
privileges and remedies of Bank shall be cumulative. No delay, failure or discontinuance of Bank
in exercising any right, power, privilege or remedy hereunder shall affect or operate as a waiver
of such right, power, privilege or remedy; nor shall any single or partial exercise of any such
right, power, privilege or remedy preclude, waive or otherwise affect any other or further exercise
thereof or the exercise of any other right, power, privilege or remedy. Any waiver, permit,
consent or approval of any kind by Bank of any default hereunder, or any such waiver of any
provisions or conditions hereof, must be in writing and shall be effective only to the extent set
forth in writing. It is agreed that public or private sales or other dispositions, for cash or on
credit, to a wholesaler or retailer or investor, or user of property of the types subject to this
Agreement, or public auctions, are all commercially reasonable since differences in the prices
generally realized in the different kinds of dispositions are ordinarily offset by the differences
in the costs and credit risks of such dispositions. While an Event of Default exists and is
continuing: (a) Debtor will deliver to Bank from time to time, as requested by Bank, current lists
of all Collateral and Proceeds; (b) Debtor will not dispose of any Collateral or Proceeds except on
terms approved by Bank; (c) Bank may, at any time and at Bank’s sole option, liquidate any time
deposits pledged to Bank hereunder and apply the Proceeds thereof to payment of the Indebtedness,
whether or not said time deposits have matured and notwithstanding the fact that such liquidation
may give rise to penalties for early withdrawal of funds; and (d) at Bank’s request, Debtor will
assemble and deliver all Collateral and Proceeds, and books and records pertaining thereto, to Bank
at a reasonably convenient place designated by Bank. Debtor further agrees that Bank shall have no
obligation to process or prepare any Collateral for sale or other disposition.
11. DISPOSITION OF COLLATERAL AND PROCEEDS; TRANSFER OF INDEBTEDNESS. In disposing of
Collateral hereunder, Bank may disclaim all warranties of title, possession, quiet enjoyment and
the like. Any proceeds of any disposition of any Collateral or Proceeds, or any part thereof, may
be applied by Bank to the payment of expenses incurred by Bank in connection with the foregoing,
including reasonable attorneys’ fees, and the balance of such proceeds may be applied by Bank
toward the payment of the Indebtedness in such order of application as Bank may from time to time
elect. Upon the transfer of all or any part of the Indebtedness, Bank may transfer all or any part
of the Collateral or Proceeds and shall be fully discharged thereafter from all liability and
responsibility with respect to any of the foregoing so transferred, and the transferee shall be
vested with all rights and powers of Bank hereunder with respect to any of the foregoing so
transferred; but with respect to any Collateral or Proceeds not so transferred Bank shall retain
all rights, powers, privileges and remedies herein given.
12. STATUTE OF LIMITATIONS. Until all Indebtedness shall have been paid in full and all
commitments by Bank to extend credit to Debtor have been terminated, the power of sale or other
disposition and all other rights, powers, privileges and remedies granted to Bank hereunder shall
continue to exist and may be exercised by Bank at any time and from time to time irrespective of
the fact that the Indebtedness or any part thereof may have become barred by any statute of
limitations, or that the personal liability of Debtor may have ceased, unless such liability shall
have ceased due to the payment in full of all Indebtedness secured hereunder.
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13. MISCELLANEOUS. When there is more than one Debtor named herein: (a) the word “Debtor”
shall mean all or any one or more of them as the context requires; (b) the obligations of each
Debtor hereunder are joint and several; and (c) until all Indebtedness shall have been paid in
full, no Debtor shall have any right of subrogation or contribution, and each Debtor hereby waives
any benefit of or right to participate in any of the Collateral or Proceeds or any other security
now or hereafter held by Bank. Debtor hereby waives any right to require Bank to (i) proceed
against Debtor or any other person, (ii) marshal assets or proceed against or exhaust any security
from Debtor or any other person, (iii) perform any obligation of Debtor with respect to any
Collateral or Proceeds, and (d) make any presentment or demand, or give any notice of nonpayment or
nonperformance, protest, notice of protest or notice of dishonor hereunder or in connection with
any Collateral or Proceeds. Debtor further waives any right to direct the application of payments
or security for any Indebtedness of Debtor or indebtedness of customers of Debtor.
14. NOTICES. All notices, requests and demands required under this Agreement must be in
writing, addressed to Bank at the address specified in any other loan documents entered into
between Debtor and Bank and to Debtor at the address of its chief executive office (or principal
residence, if applicable) specified below or to such other address as any party may designate by
written notice to each other party, and shall be deemed to have been given or made as follows: (a)
if personally delivered, upon delivery; (b) if sent by mail, upon the earlier of the date of
receipt or three (3) days after deposit in the U.S. mail, first class and postage prepaid; and (c)
if sent by telecopy or electronic mail, upon receipt.
15. COSTS, EXPENSES AND ATTORNEYS’ FEES. Debtor shall pay to Bank immediately upon demand the
full amount of all payments, advances, charges, costs and expenses, including reasonable attorneys’
fees (to include outside counsel fees and all allocated costs of Bank’s in-house counsel), expended
or incurred by Bank in connection with (a) the perfection and preservation of the Collateral or
Bank’s interest therein, and (b) the realization, enforcement and exercise of any right, power,
privilege or remedy conferred by this Agreement, whether incurred at the trial or appellate level,
in an arbitration proceeding or otherwise, and including any of the foregoing incurred in
connection with any bankruptcy proceeding (including without limitation, any adversary proceeding,
contested matter or motion brought by Bank or any other person) relating to Debtor or in any way
affecting any of the Collateral or Bank’s ability to exercise any of its rights or remedies with
respect thereto. Notwithstanding the above, Debtor shall not be required to reimburse Bank
expenses to document and negotiate this Agreement, the Deposit Account Control Agreement and
Intercreditor Agreement with Silicon Valley Bank and related documents and search and filing fees
in excess of $7,500. All of the foregoing shall be paid by Debtor with interest from the date of
demand until paid in full at a rate per annum equal to the greater of ten percent (10%) or Bank’s
Prime Rate in effect from time to time.
16. SUCCESSORS; ASSIGNS; AMENDMENT. This Agreement shall be binding upon and inure to the
benefit of the heirs, executors, administrators, legal representatives, successors and assigns of
the parties, and may be amended or modified only in writing signed by Bank and Debtor.
17. OBLIGATIONS OF MARRIED PERSONS. Any married person who signs this Agreement as Debtor
hereby expressly agrees that recourse may be had against his or her separate property for all his
or her Indebtedness to Bank secured by the Collateral and Proceeds under this Agreement.
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18. SEVERABILITY OF PROVISIONS. If any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of such provision or
any remaining provisions of this Agreement.
19. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
Debtor warrants that Debtor is an organization registered under the laws of Delaware.
Debtor warrants that its chief executive office (or principal residence, if applicable) is
located at the following address: 000 Xxxxxxxxxx Xxx, Xxxxxxx Xxxx XX 00000.
IN WITNESS WHEREOF, this Agreement has been duly executed as of April 15, 2010.
LENDINGCLUB CORPORATION
By:
|
/s/ Xxxxxx Xxxxxxxxx | |||
| Name: | ||||
| Its: | ||||
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