Truist Bank, as Administrative Agent and The Lenders Party to the Credit Agreement (as defined below) Mail Code GA-ATL-3950
Exhibit 10.4
Truist Bank, as Administrative Agent and
The Lenders Party to the Credit Agreement (as defined below)
Mail Code GA-ATL-3950
0000 Xxxxxxxxx Xxxx, XX
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Xxxxxx.Xxxxx@xxxxxxxx.xxx
Fax: (000) 000-0000
Re: Extension of Limited Consent
Effective as of July 14, 2020
Ladies and Gentlemen:
Reference is hereby made to (i) that certain Credit Agreement dated as of January 28, 2019 (as the same has been and may hereafter be amended, restated, supplemented or otherwise modified prior to the date hereof, the “Credit Agreement”) by and among ON DECK CAPITAL, INC., a Delaware corporation, as the Company, TRUIST BANK (as successor to SUNTRUST BANK), as administrative agent for the “Revolving Lenders” party to the Credit Agreement (in such capacity, “Administrative Agent”) and each of the Lenders from time to time party thereto and (ii) that certain Limited Consent dated as of June 23, 2020 (as the same may hereafter be amended or otherwise modified prior to the date hereof, the “June Limited Consent”) by and among the Company, the Lenders and the Administrative Agent. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the June Limited Consent or, if not defined therein, the Credit Agreement.
Pursuant to the terms of the June Limited Consent, the Administrative Agent and the Lenders consented to the Payout Period Percentage Increase not being effective until the Extended Date. The Company requests, and the Administrative Agent and Lenders hereby consent, acknowledge and agree that, notwithstanding anything to the contrary contained in the Credit Agreement or the other Credit Documents (including the June Limited Consent), (i) the Extended Date shall be extended from July 14, 2020 until July 31, 2020 and (ii) as a result of the further extension of the Extended Date, the amount payable on July 17, 2020 pursuant to Section 2.6 of the Credit Agreement and after giving effect to the application of the Paydown Amount pursuant to the June Limited Consent shall be $8,125,000 (which is an amount equal to (A) the aggregate principal amount of the Revolving Loans on the Payout Period Start Date times 12.5% (the applicable Payout Period Percentage without giving effect to the Payout Period Percentage Increase) minus (B) $5,000,000 (the Paydown Amount))(such amount, the “July Paydown Amount”). Further, notwithstanding the foregoing, unless the Extended Date is further extended in writing by the parties hereto after the date hereof or the Company, the Administrative Agent and the Lenders agree (in their respective sole discretions) to effect an amendment of the Credit Agreement on or prior to July 31, 2020, the Company shall pay to the Administrative Agent for the benefit of the Lenders on or before July 31, 2020 an amount equal to $7,875,000 (which is an amount equal to (A) the aggregate principal
Exhibit 10.4
amount of the Revolving Loans on the Payout Period Start Date times 20% (the applicable Payout Period Percentage after giving effect to the Payout Period Percentage Increase) minus (B) the Paydown Amount minus (C) the July Paydown Amount) (such amount, the “Percentage Increase Amount”). The Company’s failure to pay the Percentage Increase Amount on or prior to such date shall be an immediate Event of Default under and as defined in the Credit Agreement.
This Extension of Limited Consent is a limited consent and (i) shall only be relied upon and used for the specific purpose set forth herein, (ii) shall not constitute nor be deemed to constitute (a) a waiver of any Default or Event of Default or (b) except as expressly set forth herein, a waiver or amendment of any term or condition of the Credit Agreement and the other Credit Documents (without limitation of the forgoing, for the avoidance of doubt, this Extension of Limited Consent does not waive or impact the occurrence of the Payout Period Start Date (or any effect under the Credit Agreement resulting from the occurrence thereof), the continued effect of the May APPE and the June APPE (with the exception of the amount payable on July 17, 2020, as a result of an Asset Performance Payout Event (Level 2) as expressly set forth herein) or the requirement under the Credit Agreement to pay the Revolving Loans in the amount required under Section 2.6 (as expressly modified by this Extension of Limited Consent) when due), (iii) shall not constitute nor be deemed to constitute a consent by Administrative Agent or any Lender to anything other than as expressly set forth herein, and (iv) shall not constitute a custom or course of dealing among the parties hereto. Except as otherwise expressly provided herein, the Credit Agreement and each of the other Credit Documents shall remain in full force and effect in accordance with their respective terms. Except as specifically set forth herein, Administrative Agent and the Lenders reserve all of their respective rights and remedies under the Credit Agreement and the Credit Documents.
In consideration of the Extension of Limited Consent granted hereunder (and as a condition to the effectiveness hereof), (a) Company hereby represents and warrants to Administrative Agent and the Lenders that (i) no Default or Event of Default has occurred and is continuing as of the date hereof, (ii) the representations and warranties made by the Company contained in the Credit Documents are true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of the date hereof, except to the extent such representation and warranty expressly relates to an earlier date (in which case, such representations and warranties were true and correct in all material respects as of such earlier date), (iii) the execution, delivery and performance by the Company of this letter agreement, have been duly authorized by all necessary corporate action and (iv) this letter agreement constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting, creditors’ rights generally and the effects of general principles of equity, (b) substantially concurrently with the consummation of this Extension of Limited Consent (and, in any event, not later than July 16, 2020), the Company shall pay to the Administrative Agent on behalf of the Lenders, the July Paydown Amount (and any interest owing (or would be owing) as of July 17, 2020 with respect to such principal amount) which amount shall be distributed in accordance with Section 2.12(c) of the Credit Agreement and shall permanently reduce the outstanding amount of the Revolving Credit Commitment of each Revolving Lender in accordance with their Pro Rata Share as set forth in Section 2.9 (the three Business Day prior written notice being hereby waived) and (c) agrees to pay the Percentage Increase Amount on or before July 31, 2020, to the extent
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Exhibit 10.4
payable in accordance with the terms of this Extension of Limited Consent. For the avoidance of doubt, the parties hereby agree that (x) the Paydown Amount (which was prepaid substantially concurrent with the June Limited Consent) was applied to reduce the amount of the payment due by the Company on the Interest Payment Date occurring on July 17, 2020 and (y) the July Paydown Amount to be paid substantially concurrently with the consummation of this Extension of Limited Consent shall satisfy the amount due and owing under Section 2.6 of the Credit Agreement on July 17, 2020 (except as provided in the immediately following paragraph).
The Company further agrees that within five Business Days of receipt (or such longer period as the Administrative Agent may agree), the Company will pay to the Administrative Agent all fees and expenses of the Administrative Agent invoiced in connection herewith including legal and consulting fees and expenses so invoiced. In addition to any rights and remedies under the Credit Documents, if such amounts are not received by the Administrative Agent on or prior to such date, this Extension of Limited Consent shall terminate on such date and the Payout Period Percentage Increase shall be effective, and the Percentage Increase Amount shall be payable, immediately.
This letter agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which counterparts together shall constitute one and the same instrument. Signature pages to this letter agreement may be detached from multiple separate counterparts and attached to the same document and a telecopy or pdf of any such executed signature page shall be valid as an original. This letter agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto.
This letter agreement constitutes a Credit Document and shall be a contract made under and governed by, and shall be construed and enforced in accordance with, the laws of the state of New York.
Each of the undersigned has caused this letter agreement to be duly executed and delivered as of the date first above written.
as Company By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer | ||
TRUIST BANK, as Administrative Agent By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Senior Vice President | ||
TRUIST BANK, as a Lender By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Senior Vice President | ||
SILICON VALLEY BANK, as a Lender By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Vice President | ||
FIFTH THIRD BANK, NATIONAL ASSOCIATION, as a Lender By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Senior Vice President | ||
REGIONS BANK, as a Lender By: /s/ Xxxxxxx Soo Name: Xxxxxxx Soo Title: Director CONGRESSIONAL BANK, as a Lender By: /s/ Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx Title: Executive Vice President & Chief Credit Officer BANCALLIANCE INC., as a Lender BY: ALLIANCE PARTNERS LLC, ITS ATTORNEY-IN-FACT By: /s/ Xxxx Xxxx Name: Xxxx Xxxx Title: Executive Vice President | ||
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