LOAN AND SECURITY AGREEMENT
Exhibit 10.1
THIS LOAN AND SECURITY AGREEMENT (this “Agreement”) dated as of the Effective Date by and
among the GOLD HILL LENDERS referenced on Exhibit A attached hereto (as modified from time
to time in accordance with Section 12.1 of this Agreement, the “Gold Hill Lenders”), SILICON VALLEY
BANK, a California corporation, in its capacity as lender (“SVB”; together with the Gold Hill
Lenders, each individually, a “Lender”, and collectively, the “Lenders”), SVB in its capacity as
agent on behalf of the Lenders (the “Administrative Agent”), and LENDINGCLUB CORPORATION, a
Delaware corporation (“Borrower”), provides the terms on which Lenders shall lend to Borrower and
Borrower shall repay Lenders. The parties agree as follows:
Recitals.
A. Borrower is engaged in the business of purchasing and servicing loans made by WebBank to
Borrower Members (collectively, the “Borrower Member Loans”, and each, a “Borrower Member Loan”).
Upon the making of a Borrower Member Loan, Borrower purchases such Borrower Member Loan pursuant to
the Loan Servicing Documents. In order to fund the making and purchase of each Borrower Member
Loan, Borrower issues and sells to Lender Members, and such Lender Members purchase from Borrower,
debt securities issued pursuant to an indenture, each series of which corresponds to a specific
Borrower Member Loan (“Borrower Securities”). The Borrower Securities are repaid by Borrower
solely from the proceeds of such Borrower Member Loan and otherwise are without recourse to
Borrower.
B. Borrower has requested that Lenders extend credit to Borrower to finance certain Borrower
Member Loans, and Lenders have so agreed, but only to the extent, in accordance with the terms,
subject to the conditions and in reliance upon the representations and warranties set forth in this
Agreement.
1 ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement shall be construed following GAAP.
Calculations and determinations must be made following GAAP. Capitalized terms not otherwise
defined in this Agreement shall have the meanings set forth in Section 13. All other terms
contained in this Agreement, unless otherwise indicated, shall have the meaning provided by the
Code to the extent such terms are defined therein.
2 LOAN AND TERMS OF PAYMENT
2.1 Promise to Pay. Borrower hereby unconditionally promises to pay Lenders the outstanding
principal amount of all Credit Extensions and accrued and unpaid interest thereon as and when due
in accordance with this Agreement.
2.1.1 Loan Facility.
(a) Subject to the terms and conditions of this Agreement, Lenders agree, severally and not
jointly, to make advances to Borrower, from time to time, prior to the Commitment Termination Date
(each an “Advance” and collectively the “Advances”), in an aggregate amount not to exceed the Loan
Commitment according to each Lender’s pro rata share of the Loan Commitment (based upon the
respective Commitment Percentage of each Lender).
Each Advance must be in an amount of at least One Million Dollars ($1,000,000) not exceeding
the amount that has not yet been drawn under the Loan Commitment; provided, however, that no
Advance shall be in an amount in excess of the Advance Rate multiplied by the aggregate original
principal amount of the Eligible Loans which are financed by such Advance. After repayment, no
Advance may be reborrowed. Lenders’ obligation to lend hereunder shall terminate on the earlier of
(i) a Lender’s election on the occurrence and continuance of an Event of Default, or (ii) the
Commitment Termination Date. When Lenders makes an Advance, Borrower shall cause WebBank to
execute and deliver a listing of the notes payable to Borrower in the amount of the portion of the
Eligible Loan being financed by such Advance (the “Financed Loan Note”) and each such Financed Loan
Note will be stored electronically in the Borrower’s lending account and electronically endorsed by
WebBank to Borrower. Upon any Lender’s request, Borrower shall deliver to such Lender evidence
satisfactory to such Lender that the Financed Loan Notes for such Lender have been electronically
endorsed by WebBank to Borrower. The portion of the Eligible Loan being financed by the Advance
and evidenced by the Financed Loan Note shall become a “Financed Loan”. Borrower shall immediately
electronically endorse the Financed Loan Note or Financed Loan Notes to Administrative Agent, for
the ratable benefit of the Lenders, and to each Lender, using the Standard Assignment Forms.
(b) Borrowing Procedure. To obtain an Advance, Borrower must notify Administrative
Agent by facsimile or telephone by 12:00 p.m. Pacific Time five (5) Business Days prior to the
Funding Date of the Advance. If such notification is by telephone, Borrower must promptly confirm
the notification by delivering to Administrative Agent an Advance Form in the form attached as
Exhibit C (a “Payment Advance Form”). On the Funding Date, each Lender shall credit and/or
transfer (as applicable) to Borrower’s deposit account, an amount equal to its Commitment
Percentage multiplied by the amount of the Advance. Each Lender may make Advances under this
Agreement based on instructions from a Responsible Officer or his or her designee or without
instructions if the Advances are necessary to meet Obligations which have become due.
2.2 Termination of Commitment to Lend. Each Lender’s obligation to lend the undisbursed
portion of the Obligations shall terminate if, in such Lender’s sole discretion, there has been a
Material Adverse Change in the general affairs, management, results of operation, condition
(financial or otherwise) or the prospect of repayment of the Obligations, or there has been any
material adverse deviation by Borrower from the most recent business plan of Borrower presented to
and accepted by Administrative Agent prior to the execution of this Agreement.
2.3 Repayment of Credit Extensions.
(a) Principal and Interest Payments. Commencing on the first (1st) day of
the first (1st) month after the Funding Date, Borrower shall make equal monthly payments
of principal and interest, each in an amount sufficient to fully amortize the amount of each
outstanding Advance during the Repayment Period. Notwithstanding the forgoing, all unpaid
principal and accrued and unpaid interest is due and payable in full on the Maturity Date. An
Advance may only be prepaid in accordance with Sections 2.4, 2.5 and 2.6.
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(b) Interest Rate. Subject to Section 2.3(c), the principal amount outstanding for
each Advance shall accrue interest at a fixed per annum rate of ten percent (10%), which interest
shall be payable monthly in accordance with Section 2.3 (a) above.
(c) Default Rate. Immediately upon the occurrence and during the continuance of an
Event of Default, Obligations shall bear interest at a rate per annum which is five (5) percentage
points above the rate that is otherwise applicable thereto (the “Default Rate”). Payment or
acceptance of the increased interest rate provided in this Section 2.3(c) is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of Default or
otherwise prejudice or limit any rights or remedies of Lenders.
(d) 360-Day Year. Interest shall be computed on the basis of a 360-day year for the
actual number of days elapsed.
(e) Debit of Accounts. Administrative Agent may debit any of Borrower’s deposit
accounts, including the Operating Account, for principal and interest payments or any other amounts
Borrower owes Lenders when due. These debits shall not constitute a set-off.
(f) Payments. Unless otherwise provided, interest is payable monthly on the first
(1st) calendar day of each month. Payments of principal and/or interest received after
12:00 p.m. Pacific time are considered received at the opening of business on the next Business
Day. When a payment is due on a day that is not a Business Day, the payment is due the next
Business Day and additional fees or interest, as applicable, shall continue to accrue.
2.4 Permitted Prepayment of Advances. So long as no Event of Default has occurred and is
continuing, Borrower shall have the option to prepay all, but not less than all, of each Advance
advanced by Lenders under this Agreement, provided Borrower (a) delivers written notice to Lenders
of its election to prepay such Advance or Advances at least thirty (30) days prior to such
prepayment, and (b) pays, on the date of such prepayment (i) all outstanding principal plus accrued
and unpaid interest for such Advance or Advances, (ii) the Final Payment for such Advance or
Advances, and (iii) all other sums, if any, that shall have become due and payable for such Advance
or Advances, including interest at the Default Rate with respect to any past due amounts.
2.5 Mandatory Prepayment Upon an Acceleration. If the Advances are accelerated following the
occurrence of an Event of Default or otherwise, Borrower shall immediately pay to Lenders an amount
equal to the sum of: (i) all outstanding principal plus accrued interest, (ii) the Final Payment
plus (iii) all other sums, if any, that shall have become due and payable, including interest at
the Default Rate with respect to any past due amounts.
2.6 Mandatory Prepayment Upon Prepayment of Eligible Loans. Upon the request of any Lender,
Borrower shall pay to Administrative Agent, for the benefit of such Lenders, the aggregate amount
of Financed Loans which were repaid or Charged-off, in whole or in part, during such fiscal
quarter.
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2.7 Fees. Borrower shall pay to Administrative Agent, on behalf of Lenders:
(a) Commitment Fee. A fully earned, non-refundable commitment fee of Twenty Thousand
Dollars ($20,000), on the Effective Date
(b) Final Payment. On the earliest of (i) the Maturity Date, (ii) the termination of
the Loan Commitment or (iii) the prepayment of the Advances, Borrower shall pay, in addition to the
outstanding principal, accrued and unpaid interest, and all other amounts due on such date, an
amount equal to the Final Payment.
(c) Lenders’ and Agent’s Expenses. All Lender Expenses and Agent Expenses (including
reasonable attorneys’ fees and expenses, plus expenses for documentation and negotiation of this
Agreement, incurred through and after the Effective Date, when due.
2.8 Additional Costs. If any law or regulation increases any Lender’s costs or reduces its
income for any loan, Borrower shall pay the increase in cost or reduction in income or additional
expense; provided, however, that Borrower shall not be liable for any amount attributable to any
period before one hundred eighty (180) days prior to the date Administrative Agent notifies
Borrower of such increased costs. Lenders agree that they shall allocate any increased costs among
their customers similarly affected in good faith and in a manner consistent with Lenders’ customary
practice.
3 CONDITIONS OF LOANS
3.1 Conditions Precedent to Initial Credit Extension. Lenders’ agreement to make the initial
Credit Extension is subject to the condition precedent that Borrower shall consent to or shall have
delivered, in form and substance satisfactory to Administrative Agent, such documents, and
completion of such other matters, as Administrative Agent may reasonably deem necessary or
appropriate, including, without limitation:
(a) duly executed original signatures to the Loan Documents to which it is a party;
(b) duly executed original signatures to the Warrants;
(c) its Operating Documents and a good standing certificate of Borrower certified by the
Secretary of State of the State of Delaware and California as of a date no earlier than thirty (30)
days prior to the Effective Date;
(d) duly executed original signatures to the completed Borrowing Resolutions for Borrower;
(e) an additional Pledged CD in favor of SVB whose Value shall not be less than One Hundred
Fifty Thousand Dollars ($150,000) and an additional Pledged CD in favor of the Gold Hill Lenders
whose Value shall not be less than One Hundred Fifty Thousand Dollars ($150,000);
(f) certified copies, dated as of a recent date, of financing statement searches, as Lenders
shall request, accompanied by written evidence (including any UCC termination statements) that the
Liens indicated in any such financing statements either constitute Permitted
Liens or have been or, in connection with the initial Credit Extension, will be terminated or
released;
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(g) a copy of its Registration Rights Agreement/Investors’ Rights Agreement and any amendments
thereto;
(h) duly executed original signature to the VC/OC (Management) Letter Agreement;
(i) evidence satisfactory to Administrative Agent that the insurance policies required by
Section 6.4 hereof are in full force and effect, together with appropriate evidence showing loss
payable and/or additional insured clauses or endorsements in favor of in favor of Administrative
Agent and Lenders;
(j) results satisfactory to the Lenders from tests regarding the transfer of cash from
Lenders’ accounts on Borrower’s platform to the Operating Account; and
(k) payment of the fees and Administrative Agent and Lender Expenses then due as specified in
Section 2.7 hereof.
3.2 Conditions Precedent to all Credit Extensions. Lenders’ obligations to make each Credit
Extension, including the initial Credit Extension, are subject to the following:
(a) timely receipt of an executed Payment/Advance Form;
(b) the representations and warranties in Section 5 shall be true in all material respects on
the date of the Payment/Advance Form and on the Funding Date of each Credit Extension; provided,
however, that such materiality qualifier shall not be applicable to any representations and
warranties that already are qualified or modified by materiality in the text thereof; and provided,
further that those representations and warranties expressly referring to a specific date shall be
true, accurate and complete in all material respects as of such date, and no Default or Event of
Default shall have occurred and be continuing or result from the Credit Extension. Each Credit
Extension is Borrower’s representation and warranty on that date that the representations and
warranties in Section 5 remain true in all material respects; provided, however, that such
materiality qualifier shall not be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof; and provided, further that those
representations and warranties expressly referring to a specific date shall be true, accurate and
complete in all material respects as of such date; and
(c) in Lenders’ sole but good faith discretion, there has not been any material impairment in
the general affairs, management, results of operation, financial condition or the prospect of
repayment of the Obligations, or there has not been any material adverse deviation by Borrower from
the most recent business plan of Borrower presented to and accepted by Lenders.
3.3 Covenant to Deliver. Borrower agrees to deliver to Administrative Agent each item
required to be delivered to Administrative Agent under this Agreement as a condition to any Credit
Extension. Borrower expressly agrees that the extension of a Credit Extension prior to the receipt
by Administrative Agent of any such item shall not constitute a waiver by Lender of
Borrower’s obligation to deliver such item, and any such extension in the absence of a
required item shall be in Lenders’ sole discretion.
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4 CREATION OF SECURITY INTEREST
(a) Borrower hereby grants to Administrative Agent, for the ratable benefit of the Lenders,
and to each Lender, to secure the payment and performance in full of all of the Obligations a
continuing security interest in, and pledges to Administrative Agent, for the ratable benefit of
the Lenders, and to each Lender, the Collateral, wherever located, whether now owned or hereafter
acquired or arising, and all proceeds and products thereof. Borrower represents, warrants, and
covenants that the security interest granted herein shall be a first priority perfected security
interest in the Collateral (subject only to Permitted Liens that may have priority to
Administrative Agent’s and Lenders’ Liens as permitted under this Agreement). If Borrower shall
acquire a commercial tort claim, Borrower shall promptly notify Administrative Agent in a writing
signed by Borrower of the general details thereof and grant to Administrative Agent, for the
ratable benefit of the Lenders, and to each Lender, in such writing a security interest therein and
in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and
substance reasonably satisfactory to Administrative Agent.
(b) Borrower hereby assigns, pledges, delivers, and transfers to Administrative Agent, for the
ratable benefit of the Lenders, and to each Lender, and hereby grants to Administrative Agent, for
the ratable benefit of the Lenders, and to each Lender, a continuing first priority security
interest in and against all right, title and interest of the following, whether now or hereafter
existing or acquired by Borrower:
(i) any and all Pledged CD now or hereafter issued from time to time to Borrower by SVB in
accordance with Section 6.8, including without and general intangibles arising therefrom or
relating thereto; and all documents, instruments and agreements evidencing the same; and all
extensions, renewals, modifications and replacements of the foregoing; and any interest or other
amounts payable in connection therewith.
(ii) all proceeds of the foregoing (including whatever is receivable or received when any and
all Pledged CD or proceeds is invested, sold, collected, exchanged, returned, substituted or
otherwise disposed of, whether such disposition is voluntary or involuntary, including rights to
payment and return premiums and insurance proceeds under insurance with respect to any Pledged CD,
and all rights to payment with respect to any cause of action affecting or relating to the Pledged
CD); and
(iii) all renewals, replacements and substitutions of items of any Pledged CD.
If this Agreement is terminated, Administrative Agent’s and Lenders’ Liens in the Collateral
shall continue until the Obligations (other than inchoate indemnity obligations) are repaid in full
in cash. The parties to this Agreement do not intend that Borrower’s delivery of any Pledged CD to
Administrative Agent as herein provided will constitute an advance payment of any Obligations or
liquidated damages, nor do the parties intend that any Pledged CD increase the dollar amount of the
Obligations.
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4.2 Authorization to File Financing Statements. Borrower hereby authorizes Administrative
Agent to file financing statements, without notice to Borrower, with all appropriate jurisdictions
to perfect or protect Administrative Agent’s and Lenders’ interest or rights hereunder.
5 REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and each Lender as follows:
5.1 Due Organization, Authorization; Power and Authority. Borrower is duly existing and in
good standing as a Registered Organization in its jurisdiction of formation and is qualified and
licensed to do business and is in good standing in any jurisdiction in which the conduct of its
business or its ownership of property requires that it be qualified except where the failure to do
so could not reasonably be expected to have a material adverse effect on Borrower’s business. In
connection with this Agreement, Borrower has delivered to Administrative Agent a completed
certificate signed by Borrower, entitled “Perfection Certificate”. Borrower represents and
warrants to Administrative Agent and each Lender that (a) Borrower’s exact legal name is that
indicated on the Perfection Certificate and on the signature page hereof; (b) Borrower is an
organization of the type and is organized in the jurisdiction set forth in the Perfection
Certificate; (c) the Perfection Certificate accurately sets forth Borrower’s organizational
identification number or accurately states that Borrower has none; (d) the Perfection Certificate
accurately sets forth Borrower’s place of business, or, if more than one, its chief executive
office as well as Borrower’s mailing address (if different than its chief executive office); (e)
Borrower (and each of its predecessors) has not, in the past five (5) years, changed its
jurisdiction of formation, organizational structure or type, or any organizational number assigned
by its jurisdiction; and (f) all other information set forth on the Perfection Certificate
pertaining to Borrower and each of its Subsidiaries is accurate and complete (it being understood
and agreed that Borrower may from time to time update certain information in the Perfection
Certificate after the Effective Date to the extent permitted by one or more specific provisions in
this Agreement).
The execution, delivery and performance by Borrower of the Loan Documents to which it is a
party have been duly authorized, and do not (i) conflict with any of Borrower’s Operating
Documents, (ii) contravene, conflict with, constitute a default under or violate any material
Requirement of Law, (iii) contravene, conflict or violate any applicable order, writ, judgment,
injunction, decree, determination or award of any Governmental Authority by which Borrower or any
its Subsidiaries or any of their property or assets may be bound or affected, (iv) require any
action by, filing, registration, or qualification with, or Governmental Approval from, any
Governmental Authority (except such Governmental Approvals which have already been obtained and are
in full force and effect or (v) constitute an event of default under any material agreement by
which Borrower is bound. Borrower is not in default under any agreement to which it is a party or
by which it is bound in which the default could have a material adverse effect on Borrower’s
business.
5.2 Collateral. Borrower has good title to, has rights in, and the power to transfer each
item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and
all Liens except Permitted Liens. Borrower has no deposit accounts other than the deposit accounts
with SVB, the Clearing Account, the Trust Account, the Borrower Account, the Investor Account, the
deposit accounts, if any, described in the Perfection Certificate delivered to
Administrative Agent in connection herewith, or of which Borrower has given Lenders notice and
taken such actions as are necessary to give Administrative Agent and Lenders a perfected security
interest therein. The Eligible Loans are bona fide, existing obligations of the Loan Debtors.
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The Collateral is not in the possession of any third party bailee (such as a warehouse) except
as otherwise provided in the Perfection Certificate. None of the components of the Collateral
shall be maintained at locations other than as provided in the Perfection Certificate or as
Borrower has given Lenders notice pursuant to Section 7.2. In the event that Borrower, after the
date hereof, intends to store or otherwise deliver any portion of the Collateral to a bailee, then
Borrower will first receive the written consent of Lenders and such bailee must execute and deliver
a bailee agreement in form and substance satisfactory to Lenders in their sole discretion. Upon
any Transfer permitted under Section 7.1(e) hereof prior to an Event of Default, Administrative
Agent’s and Lenders’ Lien in such assets shall be released without any further act of
Administrative Agent, Lenders or Borrower. Administrative Agent shall take all actions reasonably
requested by Borrower, at Borrower’s expense, to evidence such release.
Administrative Agent, Lenders and Borrower hereby acknowledge and agree that, notwithstanding
anything set forth to the contrary herein, (a) the Collateral shall include all amounts deposited
into the Clearing Account, to the extent that such amounts are proceeds of Financed Loans, and (b)
the first priority security interest granted by Borrower to Administrative Agent and Lenders
pursuant to the Loan Agreement shall at all times remain in full force and effect with respect to
all proceeds of, and any other amounts received in connection with, all Financed Loans regardless
of the locations of such proceeds and amounts, including, without limitation, any such proceeds and
amounts deposited into the Clearing Account.
5.3 Financed Loans. Borrower represents and warrants for each Financed Loan:
(a) Borrower is the owner of and has the legal right to sell, transfer, assign and encumber
such Financed Loan;
(b) The amount of such Financed Loan is not disputed;
(c) Such Financed Loan is due to Borrower, is not past due or in default, has not been
previously sold, assigned, transferred, or pledged and is free of any Liens, security interests and
encumbrances other than Permitted Liens;
(d) The Financed Loan Note is in Borrower’s possession and has not been transferred to any
third party;
(e) Borrower reasonably believes no Loan Debtor is insolvent or subject to any Insolvency
Proceedings;
(f) No Borrower Member Loan is the subject of an Insolvency Proceeding and Borrower does not
anticipate any filing; and
(g) Administrative Agent and Lenders have the right to endorse and/ or require Borrower to
endorse all Financed Loan Notes.
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5.4 Litigation. There are no actions or proceedings pending or, to the knowledge of the
Responsible Officers, threatened in writing by or against Borrower or any of its Subsidiaries
involving more than Fifty Thousand Dollars ($50,000).
5.5 No Material Deviation in Financial Statements. All consolidated financial statements for
Borrower and any of its Subsidiaries delivered to Lenders fairly present in all material respects
Borrower’s consolidated financial condition and Borrower’s consolidated results of operations.
There has not been any material deterioration in Borrower’s consolidated financial condition since
the date of the most recent financial statements submitted to Lenders.
5.6 Solvency. The fair salable value of Borrower’s assets (including goodwill minus
disposition costs) exceeds the fair value of its liabilities; Borrower is not left with
unreasonably small capital after the transactions in this Agreement; and Borrower is able to pay
its debts (including trade debts) as they mature.
5.7 Regulatory Compliance.
(a) Borrower is not an “investment company” or a company “controlled” by an “investment
company” under the Investment Company Act. Borrower is not engaged as one of its important
activities in extending credit for margin stock (under Regulations T and U of the Federal Reserve
Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor
Standards Act. Neither Borrower nor any of its Subsidiaries is a “holding company” or an
“affiliate” of a “holding company” or a “subsidiary company” of a “holding company” as each term is
defined and used in the Public Utility Holding Company Act of 2005. Borrower has not violated any
laws, ordinances or rules, the violation of which could reasonably be expected to have a material
adverse effect on its business. None of Borrower’s or any of its Subsidiaries’ properties or
assets has been used by Borrower or any Subsidiary or, to the best of Borrower’s knowledge, by
previous Persons, in disposing, producing, storing, treating, or transporting any hazardous
substance other than legally. Borrower and each of its Subsidiaries 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 to continue their respective businesses as
currently conducted.
(b) In originating and/or servicing each Eligible Loan, Borrower has complied in all material
respects with all applicable federal, state and local laws, including without limitation,
securities, usury, truth-in-lending, equal credit opportunity, fair credit reporting, licensing or
other similar laws. Borrower has made commercially reasonable efforts to authenticate the identity
of each Loan Debtor and to verify information provided by the Loan Debtor in connection with each
Eligible Loan. Based on such authentication and verification, Borrower represents and warrants to
the best of its knowledge that (i) each Loan Debtor had full legal capacity to execute and deliver
all loan documents evidencing the Eligible Loan made to such Loan Debtor and (ii) each loan
document evidencing each Eligible Loan is the legal, valid and binding obligation of the applicable
Loan Debtor and is enforceable in accordance with its terms.
5.8 Subsidiaries; Investments. Borrower does not own any stock, partnership interest or other
equity securities except for Permitted Investments.
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5.9 Tax Returns and Payments; Pension Contributions. Borrower has timely filed all required
tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes,
assessments, deposits and contributions owed by Borrower. Borrower may defer payment of any
contested taxes, provided that Borrower (a) in good faith contests its obligation to pay the taxes
by appropriate proceedings promptly and diligently instituted and conducted, (b) notifies Lenders
in writing of the commencement of, and any material development in, the proceedings, (c) posts
bonds or takes any other steps required to prevent the Governmental Authority levying such
contested taxes from obtaining a Lien upon any of the Collateral that is other than a “Permitted
Lien”. Borrower is unaware of any claims or adjustments proposed for any of Borrower’s prior tax
years which could result in additional taxes becoming due and payable by Borrower. Borrower has
paid all amounts necessary to fund all present pension, profit sharing and deferred compensation
plans in accordance with their terms, and Borrower has not withdrawn from participation in, and has
not permitted partial or complete termination of, or permitted the occurrence of any other event
with respect to, any such plan which could reasonably be expected to result in any liability of
Borrower, including any liability to the Pension Benefit Guaranty Corporation or its successors or
any other governmental agency.
5.10 Use of Proceeds. Borrower shall use the proceeds of the Credit Extensions solely to
finance Borrower Member Loans assigned to Borrower in the ordinary course of business of WebBank
and Borrower, and not for working capital purposes or for personal, family, household or
agricultural purposes.
5.11 Full Disclosure. No written representation, warranty or other statement of Borrower in
any certificate or written statement given to Administrative Agent or any Lender, as of the date
such representation, warranty, or other statement was made, taken together with all such written
certificates and written statements given to Administrative Agent or any Lender, contains any
untrue statement of a material fact or omits to state a material fact necessary to make the
statements contained in the certificates or statements not misleading (it being recognized by
Lenders that the projections and forecasts provided by Borrower in good faith and based upon
reasonable assumptions are not viewed as facts and that actual results during the period or periods
covered by such projections and forecasts may differ from the projected or forecasted results).
6 AFFIRMATIVE COVENANTS
Borrower shall do all of the following:
6.1 Government Compliance.
(a) Maintain its and all its Subsidiaries’ legal existence and good standing in their
respective jurisdictions of formation and maintain qualification in each jurisdiction in which the
failure to so qualify would reasonably be expected to have a material adverse effect on Borrower’s
business or operations. Borrower shall comply, and have each Subsidiary comply, with (a) all Bank
Secrecy Act and Anti-Money Laundering laws, regulations and requirements imposed by the Office of
Foreign Assets Control (OFAC), and (b) all laws, ordinances and regulations to which it is subject,
noncompliance with which could have a material adverse effect on Borrower’s business.
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(b) Obtain and maintain all of the Governmental Approvals necessary for the performance by
Borrower of its obligations under the Loan Documents to which it is a party, the grant of a
security interest to Lenders in all of its property, the performance by Borrower of its obligations
under the Loan Servicing Documents, and the conduct of Borrower’s operations including without
limitation in any jurisdiction in which it purchases and/or sells Borrower Member Loans. Borrower
shall promptly provide copies of any such obtained Governmental Approvals to Administrative Agent.
6.2 Financial Statements, Reports, Certificates.
(a) Deliver to Administrative Agent: (i) as soon as available, but no later than thirty (30)
days after the last day of each month, a company prepared consolidated balance sheet and income
statement covering Borrower’s consolidated operations for such month certified by a Responsible
Officer and in a form acceptable to Administrative Agent; (ii) as soon as available, but no later
than one hundred eighty (180) days after the last day of Borrower’s fiscal year, audited
consolidated financial statements prepared under GAAP, consistently applied, together with an
unqualified opinion on the financial statements from an independent certified public accounting
firm acceptable to Administrative Agent in its reasonable discretion; (iii) within five (5) days of
delivery, copies of all statements, reports and notices made available to Borrower’s security
holders or to any holders of Subordinated Debt; (iv) in the event that Borrower becomes subject to
the reporting requirements under the Securities Exchange Act of 1934, as amended, within five (5)
days of filing, all reports on Form 10-K, 10-Q and 8-K filed with the Securities and Exchange
Commission or a link thereto on Borrower’s or another website on the Internet; (v) a prompt report
of any legal actions pending or threatened against Borrower or any of its Subsidiaries that could
result in damages or costs to Borrower or any of its Subsidiaries of Fifty Thousand Dollars
($50,000) or more; (vi) within thirty (30) days after the last day of Borrower’s fiscal year,
copies of all annual financial projections commensurate in form and substance with those provided
to Borrower’s venture capital investors; (vii) budgets, sales projections, operating plans and
other financial information reasonably requested by Administrative Agent; (viii) copies of all Bank
Secrecy Act/Anti-Money Laundering (BSA/AML) internal and independent testing reports as requested
by Administrative Agent in its reasonable discretion; and (ix) promptly, copies of any
communications with the Securities and Exchange Commission which relate to the status of Borrower
Member Loans as “securities” under federal law.
(b) Upon Administrative Agent’s request, deliver to Administrative Agent a detailed accounting
of the current balances of the Clearing Account, Trust Account, and the Borrower Account.
(c) Within thirty (30) days after the last day of each month, deliver to Administrative Agent
with the monthly financial statements, a duly completed Compliance Certificate signed by a
Responsible Officer setting forth calculations showing compliance with the Minimum Collateral Value
Ratio set forth in this Agreement.
(d) Allow Administrative Agent to audit Borrower’s Collateral at Borrower’s expense. Such
audits shall be conducted no more often than once every twelve (12) months unless a Default or an
Event of Default has occurred and is continuing.
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(e) Upon Administrative Agent’s request, deliver to Administrative Agent a copy of the final,
signed loan documents evidencing Eligible Loans, including without limitation the Financed Loan
Notes, and assignments of such Eligible Loans by WebBank to Borrower;
(f) Upon Administrative Agent’s request, deliver to Administrative Agent, a schedule of all
Eligible Loans financed with the Advances, in form and substance acceptable to Administrative
Agent, including, without limitation, the loan amounts, the loan numbers and the names of the
borrowers and the Consumer Lenders participating in such loans.
6.3 Taxes; Pensions. Make, and cause each of its Subsidiaries to make, timely payment of all
foreign, federal, state, and local taxes or assessments (other than taxes and assessments which
Borrower is contesting pursuant to the terms of Section 5.9 hereof) and shall deliver to
Administrative Agent, on demand, appropriate certificates attesting to such payments, and pay all
amounts necessary to fund all present pension, profit sharing and deferred compensation plans in
accordance with their terms.
6.4 Insurance. Keep its business and the Collateral insured for risks and in amounts standard
for companies in Borrower’s industry and location and as Lenders and Administrative Agent may
reasonably request. Insurance policies shall be in a form, with companies, and in amounts that are
satisfactory to Administrative Agent. All property policies shall have a lender’s loss payable
endorsement showing the Administrative Agent, for the ratable benefit of each Lender, as an
additional lender loss payee and waive subrogation against the Administrative Agent and each
Lender, and all liability policies shall show each Lender, or have endorsements showing, each
Lender as an additional insured. All policies (or the loss payable and additional insured
endorsements) shall provide that the insurer shall endeavor to give the Administrative Agent on
behalf of Lenders at least thirty (30) days notice before canceling, amending, or declining to
renew its policy. At the Administrative Agent’s request, Borrower shall deliver certified copies
of policies and evidence of all premium payments. Proceeds payable under any policy shall, at
Administrative Agent’s option, be payable to Administrative Agent on behalf of Lenders on account
of the Obligations. If Borrower fails to obtain insurance as required under this Section 6.4 or to
pay any amount or furnish any required proof of payment to third persons and Lenders, Lenders may
make all or part of such payment or obtain such insurance policies required in this Section 6.4,
and take any action under the policies Lenders and Administrative Agent deem prudent.
6.5 Operating Accounts.
(a) Except as set forth is in this Section 6.5(a), maintain all of its primary operating and
investment accounts, including, without limitation, the Operating Account, with SVB and SVB’s
Affiliates. All collections on Borrower Member Loans shall be managed through the Clearing
Account, which Clearing Account shall be free of any Liens. Notwithstanding the foregoing,
Borrower may in the ordinary course of business maintain at Xxxxx Fargo Bank, N.A. (i) the Trust
Account in trust for Lender Members; (ii) the Borrower Account solely to process incidental amounts
for Borrower Members, provided that the balance of the Borrower Account shall not at any time
exceed $5,000; and (iii) the Investor Account solely to process amounts collected on Borrower
Member Loans financed by any Investor Credit Facility.
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(b) For each Collateral Account that Borrower maintains, Borrower shall cause the applicable
bank or financial institution (other than SVB) at, or with which, any Collateral Account is
maintained to execute and deliver a Control Agreement or other appropriate instrument with respect
to such Collateral Account to perfect Administrative Agent’s Liens, for the ratable benefit of each
Lender, in such Collateral Account in accordance with the terms hereunder. The provisions of the
previous sentence shall not apply to (i) deposit accounts exclusively used for payroll, payroll
taxes and other employee wage and benefit payments to or for the benefit of Borrower’s employees
and identified to Administrative Agent by Borrower.
6.6 Protection of Intellectual Property Rights. Borrower shall: (a) protect, defend and
maintain the validity and enforceability of its intellectual property; (b) promptly advise Lenders
in writing of material infringements of its intellectual property; and (c) not allow any
intellectual property material to Borrower’s business to be abandoned, forfeited or dedicated to
the public without Lenders’ written consent.
6.7 Litigation Cooperation. From the date hereof and continuing through the termination of
this Agreement, make available to Lender and Administrative Agent, without expense to Lenders or
Administrative Agent, Borrower and its officers, employees and agents and Borrower’s books and
records, to the extent that Lenders or Administrative Agent may deem them reasonably necessary to
prosecute or defend any third-party suit or proceeding instituted by or against Lenders or
Administrative Agent with respect to any Collateral or relating to Borrower.
6.8 Value of Pledged CDs. Maintain at all times Aggregate Pledged CDs with a Value of not
less than the Minimum Collateral Value. In the event that the Aggregate Pledged CDs are less than
the Minimum Collateral Value at any time, Borrower shall immediately provide Administrative Agent
with additional Pledged CDs with a Value sufficient to eliminate any such deficiency. All Pledged
CDs shall constitute part of the Collateral from and after the date of issuance by SVB.
6.9 Right to Invest. Grant to each Lender or its Affiliates (including, but not limited to,
SVB Financial Group and Gold Hill Venture Lending Partners) a right (but not an obligation) for
each Lender to purchase an aggregate amount of up to Five Hundred Thousand Dollars ($500,000) in
Borrower’s Subsequent Financing on the same terms, conditions and pricing offered to its investors
(the “Subsequent Financing Investment”). Borrower shall give Lenders and Administrative Agent at
least thirty (30) days prior written notice of the Subsequent Financing containing the terms,
conditions and pricing of the Subsequent Financing delivered to each Lender’s address set forth in
Section 10 hereof. The right granted hereunder shall survive the termination of this Agreement.
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6.10 Clearing Account; Lockbox; Collections. Prior to the occurrence and continuance of an
Event of Default, Borrower shall have the right to collect all payments and other amounts received
in connection with Borrower Member Loans (“Loan Collections”); provided, however, that Borrower
shall have the right to collect all payments and other amounts received in connection with Borrower
Member Loans which are not Financed Loans without regard to whether an Event of Default has
occurred and is continuing. Upon receipt by Borrower of any Loan Collections, Borrower shall
immediately deposit such Loan Collections into the
Clearing Account (or shall receive such payments and other amounts directly into the Clearing
Account) and deliver to Administrative Agent a detailed breakdown of such Loan Collections showing
the interests of each Lender in such Loan Collections. Borrower shall, within four (4) days of
such time as Loan Collections are deposited into the Clearing Account, distribute such Loan
Collections as follows:
(a) With respect to any Loan Collections received in connection with a Financed Loan,
(i) when directed by Administrative Agent, into a lockbox account that Administrative Agent
controls (the “Lockbox Account”) and (ii) at all other times, into the Operating Account.
Provided no Event of Default exists, Borrower shall transfer all amounts deposited into the
Lockbox Account from the Lockbox Account to the Operating Account within one (1) Business
Day of receipt in the Lockbox Account. All Financed Loans and the proceeds thereof are
Collateral and immediately upon the occurrence of an Event of Default, Administrative Agent
may without notice apply all Loan Collections from Financed Loans and other proceeds of such
Financed Loans and the balance of the Lockbox Account to the Obligations. This Section does
not impose any affirmative duty on SVB or Administrative Agent to perform any act other than
as specifically set forth herein.
(b) With respect to any Loan Collections received in connection with Borrower Member
Loans which are not Financed Loans and which are not financed by the Investor Credit
Facility, into the Trust Account.
(c) With respect to any Loan Collections received in connection with Eligible Loans
financed by the Investor Credit Facility, into the Investor Account.
(d) With respect to any amounts received in connection with Borrower Member Loans
attributable to Borrower’s service or collection charges, into the Operating Account.
Notwithstanding the foregoing provisions of this Section 6.9, Borrower shall immediately upon
receipt deposit amounts due to Borrower for origination fees charged by Borrower for Borrower
Member Loans into the Operating Account (or shall receive such payments and other amounts directly
into the Operating Account).
6.11 Control of Financed Loans. Borrower shall create and store a single authoritative copy
of each Financed Loan Note which authoritative copy shall (a) identify Borrower as the assignee of
such note or notes, and (b) be unique, identifiable and unalterable except to the extent that (i)
copies or revisions that add or change an identified assignee of such authoritative copy can only
be made with the participation of Borrower, (ii) each copy of the authoritative copy is readily
identifiable as a copy that is not the authoritative copy, and (iii) any revision of the
authoritative copy is readily identifiable as an authorized or unauthorized revision.
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6.12 Portfolio Financial Servicing Company Contract. Within thirty (30) days after the
Effective Date, Borrower shall make commercially reasonable efforts to deliver to Lenders a duly
executed amendment to the Portfolio Financial Servicing Company Contract by and
between Borrower and Portfolio Financial Servicing Company in form and substance satisfactory
to the Lenders in their reasonable discretion and granting the Lenders third party beneficiary
rights under the Portfolio Financial Servicing Company Contract with respect to servicing of the
Financed Loans on terms acceptable to the Lenders in their reasonable discretion.
6.13 Further Assurances. Borrower shall execute any further instruments and take further
action as the Administrative Agent reasonably requests to perfect or continue Administrative
Agent’s Liens, for the ratable benefit of each Lender, in the Collateral, or to effect the purposes
of this Agreement.
7 NEGATIVE COVENANTS
Borrower shall not do any of the following without the Administrative Agent’s prior written
consent:
7.1 Dispositions. Convey, sell, lease, transfer or otherwise dispose of (collectively,
“Transfer”), or permit any of its Subsidiaries to Transfer, all or any part of its business or
property, except for Transfers (a) of Inventory and cash to trade creditors, both in the ordinary
course of business; (b) of worn-out or obsolete Equipment; (c) in connection with Permitted Liens
and Permitted Investments; and (d) of non-exclusive licenses for the use of the property of
Borrower or its Subsidiaries in the ordinary course of business; (e) Transfers in the ordinary
course of business of any Borrower Member Loans which are not Financed Loans; and (f) Transfers of
amounts received in connection with Borrower Member Loans which are not Financed Loans in
accordance with Section 6.9(b) of this Agreement; and (g) issuance and sale of Borrower Securities.
7.2 Changes in Business, Management, Ownership, or Business Locations. (a) Engage in or
permit any of its Subsidiaries to engage in any business other than the businesses currently
engaged in by Borrower and such Subsidiary, as applicable, or reasonably related thereto; (b)
liquidate or dissolve; or (c) (i) have a change of management in which any Key Person ceases to
hold such offices with Borrower or (ii) enter into any transaction or series of related
transactions in which the stockholders of Borrower who were not stockholders immediately prior to
the first such transaction own more than forty-nine percent (49%) of the voting stock of Borrower
immediately after giving effect to such transaction or related series of such transactions (other
than by the sale of Borrower’s equity securities in a public offering or to venture capital
investors so long as Borrower identifies to Administrative Agent the venture capital investors
prior to the closing of the transaction). Borrower shall not, without at least thirty (30) days
prior written notice to Administrative Agent: (1) add any new offices or business locations,
including warehouses (unless such new offices or business locations contain less than Ten Thousand
Dollars ($10,000) in Borrower’s assets or property), (2) change its jurisdiction of organization,
(3) change its organizational structure or type, (4) change its legal name, or (5) change any
organizational number (if any) assigned by its jurisdiction of organization.
7.3 Mergers or Acquisitions. Merge or consolidate, or permit any of its Subsidiaries to merge
or consolidate, with any other Person, or acquire, or permit any of its Subsidiaries to acquire,
all or substantially all of the capital stock or property of another Person. A Subsidiary may
merge or consolidate into another Subsidiary or into Borrower.
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7.4 Indebtedness. Create, incur, assume, or be liable for any Indebtedness, or permit any
Subsidiary to do so, other than Permitted Indebtedness.
7.5 Encumbrance. Create, incur, allow, or suffer any Lien on any of its property, or assign
or convey any right to receive income, including the sale of any Accounts, or permit any of its
Subsidiaries to do so, except for Permitted Liens, permit any Collateral not to be subject to the
first priority security interest granted herein, or enter into any agreement, document, instrument
or other arrangement (except with or in favor of Administrative Agent or Lenders) with any Person
which directly or indirectly prohibits or has the effect of prohibiting Borrower from assigning,
mortgaging, pledging, granting a security interest in or upon, or encumbering any of Borrower’s
intellectual property, except as is otherwise permitted in Section 7.1 hereof and the definition of
“Permitted Lien” herein.
7.6 Maintenance of Collateral Accounts. Maintain any Collateral Account except pursuant to
the terms of Section 6.5(b) hereof.
7.7 Distributions; Investments. (a) Pay any dividends or make any distribution or payment or
redeem, retire or purchase any capital stock provided that (i) Borrower may convert any of its
convertible securities into other securities pursuant to the terms of such convertible securities
or otherwise in exchange thereof, (ii) Borrower may pay dividends solely in common stock; and (iii)
Borrower may repurchase the stock of former employees or consultants pursuant to stock repurchase
agreements so long as an Event of Default does not exist at the time of such repurchase and would
not exist after giving effect to such repurchase, provided such repurchase does not exceed in the
aggregate of Fifty Thousand Dollars ($50,000) per fiscal year; or (b) directly or indirectly make
any Investment other than Permitted Investments, or permit any of its Subsidiaries to do so.
7.8 Transactions with Affiliates. Directly or indirectly enter into or permit to exist any
material transaction with any Affiliate of Borrower, except for 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.
7.9 Subordinated Debt. (a) Make or permit any payment on any Subordinated Debt, except under
the terms of the subordination, intercreditor, or other similar agreement to which such
Subordinated Debt is subject, or (b) amend any provision in any document relating to the
Subordinated Debt which would increase the amount thereof or adversely affect the subordination
thereof to Obligations owed to Lenders.
7.10 Compliance. Become an “investment company” or a company controlled by an “investment
company”, under the Investment Company Act of 1940 or undertake as one of its important activities
extending credit to purchase or carry margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System), or use the proceeds of any Credit Extension for that
purpose; fail to meet the minimum funding requirements of ERISA, permit a Reportable Event or
Prohibited Transaction, as defined in ERISA, to occur; fail to comply with the Federal Fair Labor
Standards Act or any federal or state securities laws, or violate any other law or regulation, if
the violation could reasonably be expected to have a material adverse effect on Borrower’s
business, or permit any of its Subsidiaries to do so; withdraw or permit any
Subsidiary to withdraw from participation in, permit partial or complete termination of, or
permit the occurrence of any other event with respect to, any present pension, profit sharing and
deferred compensation plan which could reasonably be expected to result in any liability of
Borrower, including any liability to the Pension Benefit Guaranty Corporation or its successors or
any other governmental agency.
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7.11 Possession of Loan Documents. Borrower shall maintain possession of all electronic loan
documents evidencing Financed Loans, including without limitation the Financed Loan Notes
(electronically endorsed to Administrative Agent), and shall not transfer such loan documents to
any Person. Administrative Agent acknowledges that Borrower will issue Borrower Securities to
Lender Members.
7.12 Modification of Standard Forms and Loan Documents. Borrower shall not make any
modifications or alterations to the Standard Assignment Forms, Standard Loan Forms, Loan Servicing
Documents, or any loan documents evidencing Financed Loans, including without limitation the
Financed Loan Notes, except for modifications and alterations that are agreed to by Administrative
Agent in writing.
7.13 Modification of Portfolio Financial Servicing Company Contract. Borrower shall not make
any modifications or alterations to the Portfolio Financial Servicing Company Contract without the
prior written consent of Administrative Agent.
8 EVENTS OF DEFAULT
Any one of the following shall constitute an event of default (an “Event of Default”) under
this Agreement:
8.1 Payment Default. Borrower fails to (a) make any payment of principal or interest on any
Credit Extension on its due date, or (b) pay any other Obligations within three (3) Business Days
after such Obligations are due and payable (which three (3) day grace period shall not apply to
payments due on the Maturity Date). During the cure period, the failure to cure the payment
default is not an Event of Default (but no Credit Extension will be made during the cure period);
8.2 Covenant Default.
(a) Borrower fails or neglects to perform any obligation in Section 6 or violates any covenant
in Section 7; or
(b) Borrower fails or neglects to perform, keep, or observe any other term, provision,
condition, covenant or agreement contained in this Agreement or any Loan Documents, or in any other
present or future agreement between Borrower and any Lender and as to any default (other than those
specified in this Section 8) under such other term, provision, condition, covenant or agreement
that can be cured, has failed to cure the default within ten (10) days after the occurrence
thereof; provided, however, that if the default cannot by its nature be cured within the ten (10)
day period or cannot after diligent attempts by Borrower be cured within such ten (10) day period,
and such default is likely to be cured within a reasonable time, then Borrower shall have an
additional period (which shall not in any case exceed thirty (30)
days) to attempt to cure such default, and within such reasonable time period the failure to
cure the default shall not be deemed an Event of Default (but no Credit Extensions shall be made
during such cure period). Grace periods provided under this section shall not apply, among other
things, to financial covenants or any other covenants set forth in subsection (a) above;
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8.3 Material Adverse Change. A Material Adverse Change occurs;
8.4 Attachment. (a) Any material portion of Borrower’s assets is attached, seized, levied on,
or comes into possession of a trustee or receiver; (b) the service of process seeking to attach, by
trustee or similar process, any funds of Borrower or of any entity under control of Borrower
(including a Subsidiary) on deposit with Lenders and/or Administrative Agent or any Affiliate of
Administrative Agent; (c) Borrower is enjoined, restrained, or prevented by court order from
conducting any part of its business; or (d) a notice of lien, levy, or assessment is filed against
any of Borrower’s assets by any government agency, and the same under clauses (a) through (d)
hereof are not, within ten (10) days after the occurrence thereof, discharged or stayed (whether
through the posting of a bond or otherwise); provided, however, no Credit Extensions shall be made
during any ten (10) day cure period;
8.5 Insolvency (a) Borrower is unable to pay its debts (including trade debts) as they become
due or otherwise becomes insolvent; (b) Borrower begins an Insolvency Proceeding; or (c) an
Insolvency Proceeding is begun against Borrower and not dismissed or stayed within forty-five (45)
days (but no Credit Extensions shall be made while of any of the conditions described in clause (a)
exist and/or until any Insolvency Proceeding is dismissed);
8.6 Other Agreements. There is a default 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 Fifty Thousand
Dollars ($50,000) or that could have a material adverse effect on Borrower’s business;
8.7 Judgments. One or more judgments, orders, or decrees for the payment of money in an
amount, individually or in the aggregate, of at least Fifty Thousand Dollars ($50,000) (not covered
by independent third-party insurance as to which liability has been accepted by such insurance
carrier) shall be rendered against Borrower and shall remain unsatisfied, unvacated, or unstayed
for a period of ten (10) days after the entry thereof (provided that no Credit Extensions will be
made prior to the satisfaction, vacation, or stay of such judgment, order, or decree);
8.8 Misrepresentations. Borrower or any Person acting for Borrower makes any representation,
warranty, or other statement now or later in this Agreement, any Loan Document or in any writing
delivered to Administrative Agent and/or Lenders or to induce Administrative Agent and/or Lenders
to enter this Agreement or any Loan Document, and such representation, warranty, or other statement
is incorrect in any material respect when made;
8.9 Subordinated Debt. A default or breach occurs under any agreement between Borrower and
any creditor of Borrower that signed a subordination, intercreditor, or other similar agreement
with Administrative Agent and/or Lenders, or any creditor that has signed such an agreement with
Administrative Agent and/or Lenders breaches any terms of such agreement; or
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8.10 Governmental Approvals. Any Governmental Approval held by Borrower on the Effective
Date or thereafter shall have been (a) revoked, rescinded, suspended, modified in an adverse manner
or not renewed in the ordinary course for a full term or (b) subject to any decision by a
Governmental Authority that designates a hearing with respect to any applications for renewal of
any such Governmental Approval or that could result in the Governmental Authority taking any of the
actions described in clause (a) above, and such decision or such revocation, rescission,
suspension, modification or non-renewal (i) has, or could reasonably be expected to have, a
Material Adverse Change, or (ii) adversely affects the legal qualifications of Borrower or any of
its Subsidiaries to hold such Governmental Approval in any applicable jurisdiction and such
revocation, rescission, suspension, modification or non-renewal could reasonably be expected to
affect the status of or legal qualifications of Borrower or any of its Subsidiaries to hold any
Governmental Approval in any other jurisdiction. Any Governmental Authority, including, without
limitation, the Securities and Exchange Commission, renders any order, writ, judgment, injunction,
decree, or determination with respect to Borrower or any of its Subsidiaries, that could reasonably
be expected to have a material adverse effect on any of the Governmental Approvals or otherwise on
the operations of Borrower or any of its Subsidiaries.
8.11 Cross-Default with SVB Loan Agreement or Gold Hill Loan Agreement. An Event of Default
occurs under the SVB Loan Agreement or the Gold Hill Loan Agreement.
8.12 Cross-Default with Loan Servicing Documents. Borrower commits a breach of any material
obligations under the Loan Servicing Documents, or the Loan Servicing Documents are terminated.
9 LENDERS’ RIGHTS AND REMEDIES
9.1 Rights and Remedies. While an Event of Default occurs and continues Administrative Agent
may, without notice or demand, do any or all of the following:
(a) declare all Obligations immediately due and payable (but if an Event of Default described
in Section 8.5 occurs all Obligations are immediately due and payable without any action by
Administrative Agent and/or Lenders);
(b) stop advancing money or extending credit for Borrower’s benefit under this Agreement or
under any other agreement between Borrower and Administrative Agent and/or Lenders;
(c) settle or adjust disputes and claims directly with Account Debtors for amounts on terms
and in any order that Administrative Agent considers advisable, notify any Person owing Borrower
money of Administrative Agent’s security interest in such funds, and verify the amount of such
account. Borrower shall collect all payments in trust for Administrative Agent for the benefit of
Lenders and, if requested by Administrative Agent, immediately deliver the payments to Lenders in
the form received from the account debtor, with proper endorsement for deposit;
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(d) make any payments and do any acts it considers necessary or reasonable to protect the
Collateral and/or its security interest in the Collateral. Borrower shall assemble the Collateral
if Administrative Agent requests and make it available as Administrative Agent
designates. Administrative Agent may enter premises where the Collateral is located, take and
maintain possession of any part of the Collateral, and pay, purchase, contest, or compromise any
Lien which appears to be prior or superior to its security interest and pay all expenses incurred.
Borrower grants Administrative Agent for the benefit of Lenders a license to enter and occupy any
of its premises, without charge, to exercise any of Administrative Agent’s rights or remedies;
(e) apply to the Obligations any (i) balances and deposits of Borrower it holds, or (ii) any
amount held by Administrative Agent or Lenders owing to or for the credit or the account of
Borrower;
(f) ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for
sale, and sell the Collateral. Administrative Agent is hereby granted a non-exclusive,
royalty-free license or other right to use without charge, Borrower’s labels, patents, copyrights,
mask works, rights of use of any name, trade secrets, trade names, trademarks, service marks, and
advertising matter, or any similar property as it pertains to the Collateral, in completing
production of, advertising for sale, and selling any Collateral and, in connection with
Administrative Agent’s exercise of its rights under this Section, Borrower’s rights under all
licenses and all franchise agreements inure to Administrative Agent for benefit of Lenders;
(g) place a “hold” on any account maintained with Administrative Agent and/or deliver a notice
of exclusive control, any entitlement order, or other directions or instructions pursuant to any
Control Agreement or similar agreements providing control of any Collateral;
(h) demand and receive possession of Borrower’s Books; and
(i) exercise all rights and remedies available to Lenders under the Loan Documents or at law
or equity, including all remedies provided under the Code (including disposal of the Collateral
pursuant to the terms thereof).
9.2 Power of Attorney. Borrower hereby irrevocably appoints Administrative Agent as its
lawful attorney-in-fact, exercisable upon the occurrence and during the continuance of an Event of
Default, to: (a) endorse Borrower’s name on any (i) checks or other forms of payment or security,
including without limitation, forms of payment received in connection with Financed Loans and (ii)
notes or other negotiable instruments issued or assigned to Borrower in connection with Financed
Loans, including without limitation, the Financed Loan Notes; (b) sign Borrower’s name on any
invoice or xxxx of lading for any Account or drafts against Account Debtors; (c) settle and adjust
disputes and claims about the Accounts directly with Account Debtors, for amounts and on terms
Administrative Agent determines reasonable; (d) make, settle, and adjust all claims under
Borrower’s insurance policies; (e) pay, contest or settle any Lien, charge, encumbrance, security
interest, and adverse claim in or to the Collateral, or any judgment based thereon, or otherwise
take any action to terminate or discharge the same; and (f) transfer the Collateral into the name
of Administrative Agent for the benefit of Lenders or a third party as the Code permits. Borrower
hereby appoints Administrative Agent as its lawful attorney-in-fact to sign Borrower’s name on any
documents necessary to perfect or continue the perfection of any security interest in the
Collateral regardless of whether an Event of Default has occurred until all Obligations have been
satisfied in full and Administrative Agent and Lenders are under no
further obligation to make Credit Extensions hereunder. Administrative Agent’s foregoing
appointment as Borrower’s attorney in fact, and all of Administrative Agent’s rights and powers,
coupled with an interest, are irrevocable until all Obligations have been fully repaid and
performed and Lenders’ and Administrative Agent’s obligation to provide Credit Extensions
terminates.
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9.3 Protective Payments. If Borrower fails to obtain the insurance called for by Section 6.4
or fails to pay any premium thereon or fails to pay any other amount which Borrower is obligated to
pay under this Agreement or any other Loan Document, Administrative Agent on behalf of Lenders may
obtain such insurance or make such payment, and all amounts so paid by Administrative Agent on
behalf of Lenders are Lender Expenses and immediately due and payable, bearing interest at the then
highest applicable rate, and secured by the Collateral. Administrative Agent will make reasonable
efforts to provide Borrower with notice of Lenders obtaining such insurance at the time it is
obtained or within a reasonable time thereafter. No payments by Administrative Agent are deemed an
agreement to make similar payments in the future or Administrative Agent’s and Lenders’ waiver of
any Event of Default.
9.4 Application of Payments and Proceeds. Borrower shall have no right to specify the order
or the accounts to which Administrative Agent shall allocate or apply any payments required to be
made by Borrower to Administrative Agent on behalf of the Lenders or otherwise received by
Administrative Agent on behalf of Lenders under this Agreement when any such allocation or
application is not specified elsewhere in this Agreement. If an Event of Default has occurred and
is continuing, Administrative Agent may apply any funds in its possession, whether from Borrower
account balances, payments, proceeds realized as the result of any collection of Accounts or other
disposition of the Collateral, or otherwise, to the Obligations in such order as Administrative
Agent shall determine in its sole discretion. Any surplus shall be paid to Borrower or other
Persons legally entitled thereto; Borrower shall remain liable to Administrative Agent and Lenders
for any deficiency. If Administrative Agent and/or Lenders, in its good faith business judgment,
directly or indirectly enters into a deferred payment or other credit transaction with any
purchaser at any sale of Collateral, Administrative and/or Lenders shall have the option,
exercisable at any time, of either reducing the Obligations by the principal amount of the purchase
price or deferring the reduction of the Obligations until the actual receipt by Administrative
Agent of cash therefor.
9.5 Agent Expenses. Any amounts paid by Administrative Agent as provided herein are Agent
Expenses and are immediately due and payable and shall bear interest at the then applicable rate
and be secured by the Collateral. No payments by Administrative Agent shall be deemed an agreement
to make similar payments in the future or a waiver of any Event of Default.
9.6 Agent’s Liability for Collateral. So long as Agent and Lenders comply with reasonable
banking practices regarding the safekeeping of the Collateral, Administrative Agent and Lenders
shall not be liable or responsible for: (a) the safekeeping of the Collateral; (b) any loss or
damage to the Collateral; (c) any diminution in the value of the Collateral; or (d) any act or
default of any carrier, warehouseman, bailee, or other Person. Borrower bears all risk of loss,
damage or destruction of the Collateral.
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9.7 No Waiver; Remedies Cumulative. Administrative Agent’s and/or Lenders’ failure, at any
time or times, to require strict performance by Borrower of any provision of this Agreement or any
other Loan Document shall not waive, affect, or diminish any right of Administrative Agent or
Lenders thereafter to demand strict performance and compliance herewith or therewith. No waiver
hereunder shall be effective unless signed by each Lender and then is only effective for the
specific instance and purpose for which it is given. Administrative Agent’s and Lenders’ rights
and remedies under this Agreement and the other Loan Documents are cumulative. Administrative
Agent and Lenders have all rights and remedies provided under the Code, by law, or in equity.
Administrative Agent’s and/or Lenders’ exercise of one right or remedy is not an election, and
Administrative Agent’s and/or Lenders’ waiver of any Event of Default is not a continuing waiver.
Administrative Agent’s and/or Lenders’ delay in exercising any remedy is not a waiver, election, or
acquiescence.
9.8 Demand Waiver. Borrower waives demand, notice of default or dishonor, notice of payment
and nonpayment, notice of any default, nonpayment at maturity, release, compromise, settlement,
extension, or renewal of accounts, documents, instruments, chattel paper, and guarantees held by
Administrative Agent or any Lender on which Borrower is liable.
10 NOTICES
All notices, consents, requests, approvals, demands, or other communication (collectively,
“Communication”) by any party to this Agreement or any other Loan Document must be in writing and
shall be deemed to have been validly served, given, or delivered: (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the U.S. mail, first class, registered or
certified mail return receipt requested, with proper postage prepaid; (b) upon transmission, when
sent by electronic mail or facsimile transmission; (c) one (1) Business Day after deposit with a
reputable overnight courier with all charges prepaid; or (d) when delivered, if hand-delivered by
messenger, all of which shall be addressed to the party to be notified and sent to the address,
facsimile number, or email address indicated below. A party may change its address or facsimile
number by giving the other party written notice thereof in accordance with the terms of this
Section 10.
| If to Borrower: | LendingClub Corporation | |||
| 000 Xxxxx Xxxxx Xxxx | ||||
| Xxxxxxxxx, Xxxxxxxxxx 00000 | ||||
| Attn: Xxxxxx Xxxxxxxxx, President | ||||
| Fax: (000) 000-0000 | ||||
| Email: xxxxxxxxxx@xxxxxxxxxxx.xxx | ||||
| If to Administrative | Silicon Valley Bank | |||
| Agent or SVB: | 0000 Xxxxxx Xxxxx | |||
| Xxxxx Xxxxx, Xxxxxxxxxx 00000 | ||||
| Attn: Xxxx Xxxxxxx, Relationship Manager | ||||
| Fax: (000) 000-0000 | ||||
| Email: xxxxxxxx@xxx.xxx |
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| If to Gold Hill | Gold Hill Venture Lending 03, LP | |||
| Lenders: | Xxx Xxxxxxx Xxxx., Xxxxx 000 | |||
| Xxx Xxxx, Xxxxxxxxxx 00000 | ||||
| Attn: Xxx Xxxx | ||||
| Fax: (000) 000-0000 | ||||
| Email: XXxxx@xxxxxxxxxxxxxxx.xxx | ||||
| with a copy to: | Xxxxxxxx Xxxxxxx LLP | |||
| 0000 Xxxxxxxxxxxxx Xxxxx | ||||
| Xxxxx 000 | ||||
| XxXxxx, Xxxxxxxx 00000 | ||||
| Attn: Xxxxxxx Xxxxxx, Esq. | ||||
| Fax: (000) 000-0000 | ||||
| Email: xxxxxxx.xxxxxx@xxxxxxxxxxxxxxx.xxx |
11 CHOICE OF LAW, VENUE, JURY TRIAL WAIVER AND JUDICIAL REFERENCE
California law governs the Loan Documents without regard to principles of conflicts of law.
Borrower, Lenders and Administrative Agent each submit to the exclusive jurisdiction of the State
and Federal courts in Santa Xxxxx County, California; provided, however, that nothing in this
Agreement shall be deemed to operate to preclude Lenders or Administrative Agent from bringing suit
or taking other legal action in any other jurisdiction to realize on the Collateral or any other
security for the Obligations, or to enforce a judgment or other court order in favor of
Administrative Agent or Lenders. Borrower expressly submits and consents in advance to such
jurisdiction in any action or suit commenced in any such court, and Borrower hereby waives any
objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non
conveniens and hereby consents to the granting of such legal or equitable relief as is deemed
appropriate by such court. Borrower hereby waives personal service of the summons, complaints, and
other process issued in such action or suit and agrees that service of such summons, complaints,
and other process may be made by registered or certified mail addressed to Borrower at the address
set forth in Section 10 of this Agreement and that service so made shall be deemed completed upon
the earlier to occur of Borrower’s actual receipt thereof or three (3) days after deposit in the
U.S. mails, proper postage prepaid.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BORROWER, ADMINISTRATIVE AGENT, AND LENDERS
EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON
THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT,
BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER
INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
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WITHOUT INTENDING IN ANY WAY TO LIMIT THE PARTIES’ AGREEMENT TO WAIVE THEIR RESPECTIVE RIGHT
TO A TRIAL BY JURY, if the above waiver of the right to a trial by jury is not enforceable, the
parties hereto agree that any and all disputes or controversies of any nature between them arising
at any time shall be decided by a reference to a private judge, mutually selected by the parties
(or, if they cannot agree, by the Presiding Judge of
the Santa Xxxxx County, California Superior Court) appointed in accordance with California
Code of Civil Procedure Section 638 (or pursuant to comparable provisions of federal law if the
dispute falls within the exclusive jurisdiction of the federal courts), sitting without a jury, in
Santa Xxxxx County, California; and the parties hereby submit to the jurisdiction of such court.
The reference proceedings shall be conducted pursuant to and in accordance with the provisions of
California Code of Civil Procedure §§ 638 through 645.1, inclusive. The private judge shall have
the power, among others, to grant provisional relief, including without limitation, entering
temporary restraining orders, issuing preliminary and permanent injunctions and appointing
receivers. All such proceedings shall be closed to the public and confidential and all records
relating thereto shall be permanently sealed. If during the course of any dispute, a party desires
to seek provisional relief, but a judge has not been appointed at that point pursuant to the
judicial reference procedures, then such party may apply to the Santa Xxxxx County, California
Superior Court for such relief. The proceeding before the private judge shall be conducted in the
same manner as it would be before a court under the rules of evidence applicable to judicial
proceedings. The parties shall be entitled to discovery which shall be conducted in the same
manner as it would be before a court under the rules of discovery applicable to judicial
proceedings. The private judge shall oversee discovery and may enforce all discovery rules and
order applicable to judicial proceedings in the same manner as a trial court judge. The parties
agree that the selected or appointed private judge shall have the power to decide all issues in the
action or proceeding, whether of fact or of law, and shall report a statement of decision thereon
pursuant to the California Code of Civil Procedure § 644(a). Nothing in this paragraph shall limit
the right of any party at any time to exercise self-help remedies, foreclose against collateral, or
obtain provisional remedies. The private judge shall also determine all issues relating to the
applicability, interpretation, and enforceability of this paragraph.
12 GENERAL PROVISIONS
12.1 Successors and Assigns. This Agreement binds and is for the benefit of the successors
and permitted assigns of each party. Borrower may not assign this Agreement or any rights or
obligations under it without Lenders’ prior written consent (which may be granted or withheld in
Lenders’ discretion). Lenders and Administrative Agent 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, Lenders’ and Administrative Agent’s obligations, rights, and benefits under this
Agreement and the other Loan Documents or any related agreement, including, without limitation, an
assignment to any Affiliate or related party.
12.2 Indemnification. Borrower agrees to indemnify, defend and holds the Administrative Agent
and the Lenders and their respective directors, officers, employees, agents, attorneys, or any
other Person affiliated with or representing Administrative Agent or the Lenders harmless against:
(a) all obligations, demands, claims, and liabilities (collectively, “Claims”) asserted by any
other party in connection with the transactions contemplated by the Loan Documents; and (b) all
losses, Agent Expenses, or Lender Expenses incurred, or paid by Lenders and/or Administrative Agent
from, following, or arising from transactions between Lenders and Borrower (including reasonable
attorneys’ fees and expenses), except for Claims and/or losses directly caused by Lenders’ or
Administrative Agent’s gross negligence or willful misconduct.
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12.3 Right of Set-Off. Borrower and any guarantor hereby grant to Administrative Agent for
the ratable benefit of Lenders, a lien, security interest and right of set-off as security for all
Obligations to Administrative Agent and each Lender, hereunder, whether now existing or hereafter
arising upon and against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of Administrative Agent or any entity under the control
of the Administrative Agent (including an Administrative Agent subsidiary) or in transit to any of
them. At any time after the occurrence and during the continuance of an Event of Default, without
demand or notice, Administrative Agent may set-off the same or any part thereof and apply the same
to any liability or obligation of Borrower and any guarantor even though unmatured and regardless
of the adequacy of any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE
ADMINISTRATIVE AGENT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH
SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS,
CREDITS OR OTHER PROPERTY OF THE BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED.
12.4 Time of Essence. Time is of the essence for the performance of all Obligations in this
Agreement.
12.5 Severability of Provisions. Each provision of this Agreement is severable from every
other provision in determining the enforceability of any provision.
12.6 Amendments in Writing; Integration. All amendments to this Agreement must be in writing
and signed by each Lender and Borrower. This Agreement and the Loan Documents represent the entire
agreement about this subject matter and supersede prior negotiations or agreements. All prior
agreements, understandings, representations, warranties, and negotiations between the parties about
the subject matter of this Agreement and the Loan Documents merge into this Agreement and the Loan
Documents.
12.7 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, are an
original, and all taken together, constitute one Agreement.
12.8 Survival. All covenants, representations and warranties made in this Agreement continue
in full force until this Agreement has terminated pursuant to its terms and all Obligations (other
than inchoate indemnity obligations and any other obligations which, by their terms, are to survive
the termination of this Agreement) have been satisfied. The obligation of Borrower in Section 12.2
to indemnify each Lender and Administrative Agent shall survive until the statute of limitations
with respect to such claim or cause of action shall have run.
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12.9 Confidentiality. In handling any confidential information, Lenders and Administrative
Agent shall exercise the same degree of care that it exercises for its own proprietary information,
but disclosure of information may be made: (a) to Lenders’ and Administrative Agent’s Subsidiaries
or Affiliates in connection with their business with Borrower; (b) to prospective transferees or
purchasers of any interest in the Credit Extensions (provided, however, Lenders and Administrative
Agent shall use commercially reasonable
efforts to obtain such prospective transferee’s or purchaser’s agreement to the terms of this
provision); (c) as required by law, regulation, subpoena, or other order; (d) as required in
connection with Lenders’ and Administrative Agent’s examination or audit; and (e) as Administrative
Agent and Lenders consider appropriate in exercising remedies under this Agreement. Confidential
information does not include information that either: (i) is in the public domain or in Lenders’
and/or Administrative Agent’s possession when disclosed to Lenders and/or Administrative Agent, or
becomes part of the public domain after disclosure to Lenders and/or Administrative Agent; or (ii)
is disclosed to Lenders and/or Administrative Agent by a third party, if Lenders and/or
Administrative Agent do not know that the third party is prohibited from disclosing the
information.
12.10 Attorneys’ Fees, Costs and Expenses. In any action or proceeding between Borrower and
Administrative Agent or any Lender arising out of or relating to the Loan Documents, the prevailing
party shall be entitled to recover its reasonable attorneys’ fees and other costs and expenses
incurred, in addition to any other relief to which it may be entitled.
13 DEFINITIONS
13.1 Definitions. As used in this Agreement, the following terms have the following meanings:
“Account” is any “account” as defined in the Code with such additions to such term as may
hereafter be made, and includes, without limitation, all accounts receivable and other sums owing
to Borrower.
“Account Debtor” is any “account debtor” as defined in the Code with such additions to such
term as may hereafter be made.
“Administrative Agent” means, SVB, not in its individual capacity, but solely in its capacity
as administrative agent on behalf of and for the benefit of the Lenders.
“Advance” or “Advances” is defined in Section 2.1.1(a).
“Affiliate” of any Person is a Person that owns or controls directly or indirectly the Person,
any Person that controls or is controlled by or is under common control with the Person, and each
of that Person’s senior executive officers, directors, partners and, for any Person that is a
limited liability company, that Person’s managers and members.
“Advance Rate” means eighty percent (80%); provided, however, that Lenders may decrease the
foregoing percentage in the case of a Material Adverse Change.
“Aggregate Obligations” means the Obligations hereunder, the Gold Hill Loan Agreement
Obligations and the SVB Loan Agreement Obligations.
“Aggregate Pledged CDs” means the Pledged CDs, the certificate of deposit number
issued to Borrower by SVB which is secured by a Lien in favor of Gold Hill Venture Lending 03, LP
with respect to the Gold Hill Loan Agreement Obligations, the certificate of deposit number
issued to Borrower by SVB which is secured by a
Lien in favor of SVB with respect to the SVB Loan Agreement Obligations, and any future
replacements, substitutions or renewals of any of the foregoing.
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“Agent Expenses” are all audit fees and expenses and reasonable costs or expenses (including
reasonable attorneys’ fees and expenses) for preparing, negotiating, administering, defending and
enforcing the Loan Documents (including appeals or Insolvency Proceedings).
“Agreement” is defined in the preamble hereof.
“Borrower” is defined in the preamble hereof.
“Borrower Account” is Borrower’s account number 4121529796, maintained with Xxxxx Fargo Bank,
N.A.
“Borrower’s Books” are all Borrower’s books and records including ledgers, federal and state
tax returns, records regarding Borrower’s assets or liabilities, the Collateral, business
operations or financial condition, and all computer programs or storage or any equipment containing
such information.
“Borrower Member” means a registered member on Borrower’s website who has borrowed money from
WebBank through Borrower’s platform.
“Borrower Member Loan” means a loan originated by WebBank to a Borrower Member through
Borrower’s platform.
“Borrower Member Note” means an electronic promissory note evidencing a Borrower Member Loan
to the extent such Borrower Member Loan is financed through the sale of Borrower Securities to
Lender Members and not by Advances.
“Borrower Securities” has the meaning set forth in Recital A.
“Borrowing Resolutions” are, with respect to any Person, those resolutions substantially in
the form attached hereto as Exhibit D.
“Business Day” is any day that is not a Saturday, Sunday or a day on which Administrative
Agent is closed.
“Cash Equivalents” means (a) marketable direct obligations issued or unconditionally
guaranteed by the United States or any agency or any State thereof having maturities of not more
than one (1) year from the date of acquisition; (b) commercial paper maturing no more than one (1)
year after its creation and having the highest rating from either Standard & Poor’s Ratings Group
or Xxxxx’x Investors Service, Inc.; and (c) certificates of deposit with Administrative Agent
maturing no more than one (1) year after issue.
“Charge-off” shall mean any Financed Loan that is more than one hundred twenty (120) days past
due, or is in default, or which under standard procedures in Borrower’s industry should be
characterized as a “charge-off” by Borrower in its records for any other reason, and shall
include any Financed Loan with respect to which Administrative Agent has knowledge that such
Financed Loan will likely be characterized as a Charge-off with the passage of time.
27
“Clearing Account” is Borrower’s account number 4121753776, maintained with Xxxxx Fargo Bank,
N.A.
“Code” is the Uniform Commercial Code, as the same may, from time to time, be enacted and in
effect in the State of California; provided, that, to the extent that the Code is used to define
any term herein or in any Loan Document and such term is defined differently in different Articles
or Divisions of the Code, the definition of such term contained in Article or Division 9 shall
govern; provided further, that in the event that, by reason of mandatory provisions of law, any or
all of the attachment, perfection, or priority of, or remedies with respect to, Administrative
Agent’s Lien, for the ratable benefit of each Lender, on any Collateral is governed by the Uniform
Commercial Code in effect in a jurisdiction other than the State of California, the term “Code”
shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely
for purposes on the provisions thereof relating to such attachment, perfection, priority, or
remedies and for purposes of definitions relating to such provisions.
“Collateral” is any and all properties, rights and assets of Borrower described on Exhibit
B.
“Collateral Account” is any Deposit Account, Securities Account, or Commodity Account, but
shall not include the Clearing Account, the Trust Account, the Borrower Account, or the Investor
Account.
“Commitment Percentage” means the applicable percentage set forth in Schedule A
attached hereto.
“Commitment Termination Date” is September 30, 2009.
“Commodity Account” is any “commodity account” as defined in the Code.
“Communication” is defined in Section 10.
“Compliance Certificate” is that certain certificate in the form attached hereto as
Exhibit E.
“Consumer Lender” has the meaning set forth in Recital A.
“Contingent Obligation” is, for any Person, any direct or indirect liability, contingent or
not, of that Person for (a) any indebtedness, lease, dividend, letter of credit or other obligation
of another such as an obligation directly or indirectly guaranteed, endorsed, co-made, discounted
or sold with recourse by that Person, or for which that Person is directly or indirectly liable;
(b) any obligations for undrawn letters of credit for the account of that Person; and (c) all
obligations from any interest rate, currency or commodity swap agreement, interest rate cap or
collar agreement, or other agreement or arrangement designated to protect a Person against
fluctuation in interest rates, currency exchange rates or commodity prices; but “Contingent
Obligation” does
not include endorsements in the ordinary course of business. The amount of a Contingent
Obligation is the stated or determined amount of the primary obligation for which the Contingent
Obligation is made or, if not determinable, the maximum reasonably anticipated liability for it
determined by the Person in good faith; but the amount may not exceed the maximum of the
obligations under any guarantee or other support arrangement.
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“Control Agreement” is any control agreement entered into among the depository institution at
which Borrower maintains a Deposit Account or a Pledged CD or the securities intermediary or
commodity intermediary at which Borrower maintains a Securities Account or a Commodity Account,
Borrower, and Lenders pursuant to which Lenders obtain control (within the meaning of the Code)
over such Deposit Account, Pledged CD, Securities Account, or Commodity Account.
“Credit Extension” is any Advance, or any other extension of credit by any Lender for
Borrower’s benefit.
“Default” means any event which with notice or passage of time or both, would constitute an
Event of Default.
“Default Rate” is defined in Section 2.3(c).
“Deposit Account” is any “deposit account” as defined in the Code.
“Dollars,” “dollars” and “$” each mean lawful money of the United States.
“Effective Date” is the date Lenders execute this Agreement as indicated on the signature page
hereof.
“Eligible Loans” means each Borrower Member Loan (a) evidenced by loan documents, including
without limitation a note, borrower agreement, and loan agreement, which loan documents (i) are in
form and substance substantially identical to the Standard Loan Forms attached hereto and (ii)
constitute the legal, valid and binding obligation of the applicable Person, and (b) for which
Borrower has arranged funding from at least ten (10) Lender Members through the sale of Borrower
Securities associated with the Borrower Member Loan in an amount equal to at least twenty percent
(20%) of the principal amount of such Borrower Member Loan, and (ii) pledges to Administrative
Agent, for the ratable benefit of the Lenders, and to each Lender, Borrower’s interest in the
promissory note evidencing the portion of the Borrower Member Loan financed through an Advance.
“Equipment” is all “equipment” as defined in the Code with such additions to such term as may
hereafter be made, and includes without limitation all machinery, fixtures, goods, vehicles
(including motor vehicles and trailers), and any interest in any of the foregoing.
“ERISA” is the Employee Retirement Income Security Act of 1974, and its regulations.
“Event of Default” is defined in Section 8.
29
“Final Payment” is an amount equal to one percent (1%) multiplied by the aggregate Loan Amount
of all Advances.
“Financed Loan” has the meaning set forth in Section 2.1.1(a).
“Financed Loan Note” has the meaning set forth in Section 2.1.1(a).
“Funding Date” is any date on which a Credit Extension is made to or on account of Borrower
which shall be a Business Day.
“GAAP” is generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other Person as may be approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the date of determination.
“General Intangibles” is all “general intangibles” as defined in the Code in effect on the
date hereof, and includes without limitation, all copyright rights, copyright applications,
copyright registrations and like protections in each work of authorship and derivative work,
whether published or unpublished, any patents, trademarks, service marks and, to the extent
permitted under applicable law, any applications therefor, whether registered or not, any trade
secret rights, including any rights to unpatented inventions, payment intangibles, royalties,
contract rights, goodwill, franchise agreements, purchase orders, customer lists, route lists,
telephone numbers, domain names, claims, income and other tax refunds, security and other deposits,
options to purchase or sell real or personal property, rights in all litigation presently or
hereafter pending (whether in contract, tort or otherwise), insurance policies (including without
limitation key man, property damage, and business interruption insurance), payments of insurance
and rights to payment of any kind.
“Gold Hill Loan Agreement” means that certain Loan and Security Agreement dated as of February
19, 2008 by and among Borrower, the Gold Hill Lenders, Gold Hill Venture Lending 03, LP as
Administrative Agent, and SVB as Collection Agent, as the same may be amended, restated, or
otherwise modified from time to time.
“Gold Hill Loan Agreement Obligations” means the outstanding balance of the Advances (as
defined in the Gold Hill Loan Agreement).
“Governmental Approval” is any consent, authorization, approval, order, license, franchise,
permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or
other act by or in respect of, any Governmental Authority.
“Governmental Authority” is any nation or government, any state or other political subdivision
thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions
of or pertaining to government, any securities exchange and any self-regulatory organization.
30
“Indebtedness” is (a) indebtedness for borrowed money or the deferred price of property or
services, such as reimbursement and other obligations for surety bonds and letters of credit, (b)
obligations evidenced by notes, bonds, debentures or similar instruments, (c) capital lease
obligations, and (d) Contingent Obligations.
“Insolvency Proceeding” is any proceeding by or against any Person under the United States
Bankruptcy Code, or any other bankruptcy or insolvency law, including assignments for the benefit
of creditors, compositions, extensions generally with its creditors, or proceedings seeking
reorganization, arrangement, or other relief.
“Intercreditor Agreement” means any duly executed intercreditor agreement between any Investor
and Lenders, and Administrative Agent and satisfactory to Administrative Agent.
“Inventory” is all “inventory” as defined in the Code in effect on the date hereof, and
includes without limitation all merchandise, raw materials, parts, supplies, packing and shipping
materials, work in process and finished products, including without limitation such inventory as is
temporarily out of Borrower’s custody or possession or in transit and including any returned goods
and any documents of title representing any of the above.
“Investment” is any beneficial ownership interest in any Person (including stock, partnership
interest or other securities), and any loan, advance or capital contribution to any Person.
“Investor” means a creditor of Borrower that has signed an Intercreditor Agreement and
received a secured promissory note from Borrower.
“Investor Account” is Borrower’s account number 4121713937, maintained with Xxxxx Fargo Bank,
N.A.
“Investor Collateral” has the meaning set forth in an Intercreditor Agreement.
“Investor Credit Facility” means any Subordinated Debt facility under which Lenders other than
SVB, Gold Hill, or other Lenders under the Loan Agreement advance funds to Borrower.
“Key Person” is any of Borrower’s President and Chief Executive Officer, and Chief Operating
Officer, who are, as of the Effective Date, Xxxxxx Xxxxxxxxx and Xxxx Xxxxxxx, respectively.
“Lender Expenses” are all audit fees and expenses, costs, and expenses (including reasonable
attorneys’ fees and expenses) for preparing, negotiating, administering, defending and enforcing
the Loan Documents (including, without limitation, those incurred in connection with appeals or
Insolvency Proceedings) or otherwise incurred with respect to Borrower.
“Lender Member” means a registered member on Borrower’s website who has funded a portion of
one or more designated Borrower Member Loans by purchasing Borrower’s securities offered through
Borrower’s platform.
31
“Lien” is a claim, mortgage, deed of trust, levy, charge, pledge, security interest or other
encumbrance of any kind, whether voluntarily incurred or arising by operation of law or otherwise
against any property.
“Loan Amount” in respect of each Advance is the original principal amount of such Advance.
“Loan Collections” has the meaning set forth in Section 6.9.
“Loan Commitment” is Four Million Dollars ($4,000,000).
“Loan Debtors” means each Person obligated to make payments to WebBank in connection with an
Eligible Loan.
“Loan Documents” are, collectively, this Agreement, the Warrants, the Perfection Certificate,
any note, or notes or guaranties executed by Borrower, and any other present or future agreement
between Borrower and/or for the benefit of Lenders and/or Administrative Agent in connection with
this Agreement, all as amended, restated, or otherwise modified.
“Loan Servicing Documents” means the Loan Account Program Agreement dated December 10, 2007,
and the Loan Sale Agreement dated December 10, 2007, between Borrower and WebBank, as amended or
updated, both attached hereto as Exhibit I.
“Lockbox Account” is defined in Section 6.10 hereof.
“Material Adverse Change” is (a) a material impairment in the perfection or priority of
Administrative Agent’s and Lenders’ security interest in the Collateral or in the value of such
Collateral; (b) a material adverse change in the business, operations, or financial condition of
Borrower; or (c) a material impairment of the prospect of repayment of any portion of the
Obligations.
“Maturity Date” is, for each Advance, the last day of the Repayment Period for such Advance.
“Minimum Collateral Value” means an aggregate principal amount equal to the greater of (a)
Seven Hundred Thousand Dollars ($700,000) or (b) the amount necessary to cause the Minimum
Collateral Value Ratio, tested as of the last day of each quarter, to be equal to or greater than
1.05 to 1.00.
“Minimum Collateral Value Ratio” means as of the date of measurement, the ratio of (a) the sum
of (i) the Value of the Aggregate Pledged CDs plus (ii) the outstanding principal balance of
Financed Loans that meet all of the representations and warranties in Section 5.3 hereof, divided
by (b) the outstanding Aggregate Obligations.
“Obligations” are Borrower’s obligation to pay when due any debts, principal, interest, Agent
Expenses and other amounts Borrower owes Administrative Agent or any Lender now or later, whether
under this Agreement, the Loan Documents, or otherwise, including, without limitation, all
obligations relating to letters of credit (including reimbursement obligations for
drawn and undrawn letters of credit), cash management services, and foreign exchange
contracts, if any, and including interest accruing after Insolvency Proceedings begin and debts,
liabilities, or obligations of Borrower assigned to Lenders and/or Administrative Agent, and the
performance of Borrower’s duties under the Loan Documents.
32
“Operating Account” is Borrower’s account number 4121583421 with Silicon Valley Bank.
“Operating Documents” are, for any Person, such Person’s formation documents, as certified
with the Secretary of State of such Person’s state of formation on a date that is no earlier than
thirty (30) days prior to the Effective Date, and, (a) if such Person is a corporation, its bylaws
in current form, (b) if such Person is a limited liability company, its limited liability company
agreement (or similar agreement), and (c) if such Person is a partnership, its partnership
agreement (or similar agreement), each of the foregoing with all current amendments or
modifications thereto.
“Payment/Advance Form” is that certain form attached hereto as Exhibit C.
“Perfection Certificate” is defined in Section 5.1.
“Permitted Indebtedness” is:
(a) Borrower’s Indebtedness to the Administrative Agent and the Lenders under this Agreement
and the other Loan Documents;
(b) Indebtedness existing on the Effective Date and shown on the Perfection Certificate;
(c) Subordinated Debt;
(d) unsecured Indebtedness to trade creditors incurred in the ordinary course of business;
(e) Indebtedness incurred as a result of endorsing negotiable instruments received in the
ordinary course of business;
(f) Indebtedness secured by Permitted Liens;
(g) Indebtedness not to exceed a principal amount of $3,000,000 in favor of SVB under the SVB
Loan Agreement, and Indebtedness not to exceed a principal amount of $5,000,000 in favor of Gold
Hill under the Gold Hill Loan Agreement;
(h) Indebtedness to Lender Members consisting of the issuance of Borrower Securities provided
that such Indebtedness is unsecured and the recourse of Lender Members with respect to Borrower is
limited solely to the extent of amounts actually received by Borrower in connection with Borrower
Member Loans which are not Financed Loans; and
33
(i) extensions, refinancings, modifications, amendments and restatements of any items of
Permitted Indebtedness (a) through (g) above, provided that the principal amount thereof is not
increased or the terms thereof are not modified to impose more burdensome terms upon Borrower or
its Subsidiary, as the case may be.
“Permitted Investments” are:
(a) Investments shown on the Perfection Certificate and existing on the Effective Date;
(b) Cash Equivalents;
(c) Investments consisting of the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of Borrower;
(d) Investments consisting of deposit accounts in which Lenders have a perfected security
interest;
(e) Investments accepted in connection with Transfers permitted by Section 7.1;
(f) Investments of Subsidiaries in or to other Subsidiaries or Borrower and Investments by
Borrower in Subsidiaries not to exceed Fifty Thousand Dollars ($50,000) in the aggregate in any
fiscal year;
(g) Investments 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 plans or agreements approved by Borrower’s Board of Directors;
(h) 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 business;
(i) 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 paragraph (i) shall not apply to Investments of Borrower in any Subsidiary; and
(j) Borrower Member Loans.
“Permitted Liens” are:
(a) Liens existing on the Effective Date and shown on the Perfection Certificate or arising
under this Agreement and the other Loan Documents;
34
(b) Liens for taxes, fees, assessments or other government charges or levies, either not
delinquent or being contested in good faith and for which Borrower maintains adequate reserves on
its Books, provided that no notice of any such Lien has been filed or recorded under the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations adopted thereunder;
(c) purchase money Liens (i) on Equipment acquired or held by Borrower incurred for financing
the acquisition of the Equipment securing no more than Fifty Thousand Dollars ($50,000) in the
aggregate amount outstanding, or (ii) existing on Equipment when acquired, if the Lien is
confined to the property and improvements and the proceeds of the Equipment;
(d) Liens of carriers, warehousemen, suppliers, or other Persons that are possessory in nature
arising in the ordinary course of business so long as such Liens attach only to Inventory and which
are not delinquent or remain payable without penalty or which are being contested in good faith and
by appropriate proceedings which proceedings have the effect of preventing the forfeiture or sale
of the property subject thereto;
(e) Liens to secure payment of workers’ compensation, employment insurance, old-age pensions,
social security and other like obligations incurred in the ordinary course of business (other than
Liens imposed by ERISA);
(f) Liens incurred in the extension, renewal or refinancing of the indebtedness secured by
Liens described in (a) through (c), but any extension, renewal or replacement Lien must be
limited to the property encumbered by the existing Lien and the principal amount of the
indebtedness may not increase;
(g) leases or subleases of real property granted in the ordinary course of business, and
leases, subleases, non-exclusive licenses or sublicenses of property (other than real property or
intellectual property) granted in the ordinary course of Borrower’s business, if the
leases, subleases, licenses and sublicenses do not prohibit granting Lenders a security interest;
(h) non-exclusive license of intellectual property granted to third parties in the ordinary
course of business;
(i) Liens arising from attachments or judgments, orders, or decrees in circumstances not
constituting an Event of Default under Sections 8.4 and 8.7;
(j) Liens in favor of other financial institutions arising in connection with Borrower’s
deposit and/or securities accounts held at such institutions, provided that Lenders has a perfected
security interest in the amounts held in such securities accounts;
(k) Liens in favor of SVB to secure the Indebtedness owed to SVB under the SVB Loan Agreement,
and Liens in favor of Gold Hill to secure the Indebtedness owed to Gold Hill under the Gold Hill
Loan Agreement; and
(l) Interests of Lender Members and Borrower Members in proceeds of the Trust Account, the
Clearing Account, and the Borrower Account, and interests of the lender(s) under the Investor
Credit Facility in proceeds of the Investor Account and in Borrower Member Loans
financed by the Investor Credit Facility and proceeds thereof provided that (i) all such
interests of Lender Members, Borrower Members and lender(s) under the Investor Credit Facility are
limited solely to amounts received by Borrower in connection with such Borrower Member Loans; (ii)
the Lender Members, Borrower Members and lender(s) under the Investor Credit Facility do not have
any Liens on the Trust Account, the Clearing Account, the Borrower Account, or the Investor
Account; and (iii) except with respect to Investor Collateral pursuant to the Intercreditor
Agreement, the interests of all lender(s) under the Investor Credit Facility are subordinated in
lien and payment priority to the interest of Administrative Agent and the Lenders.
35
“Person” is any individual, sole proprietorship, partnership, limited liability company, joint
venture, company, trust, unincorporated organization, association, corporation, institution, public
benefit corporation, firm, joint stock company, estate, entity or government agency.
“Pledged CD” shall mean each certificate of deposit now or hereafter issued by SVB to Borrower
which are pledged pursuant to this Agreement to secure the Obligations.
“Portfolio Financial Servicing Company Contract” means the Backup and Successor Servicing
Contract between Borrower and Portfolio Financial Servicing Company dated September 15, 2008 as
amended from time to time.
“Registered Organization” is any “registered organization” as defined in the Code with such
additions to such term as may hereafter be made.
“Repayment Period” is a period of time equal to thirty-six (36) consecutive months commencing
on the first (1st) Business Day of the first (1st) month following each
Funding Date.
“Requirement of Law” is as to any Person, the organizational or governing documents of such
Person, and any law (statutory or common), treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” is any of the Chief Executive Officer, President, Chief Financial
Officer, Chief Operating Officer and Controller of Borrower.
“Securities Account” is any “securities account” as defined in the Code.
“Standard Assignment Forms” means the form of assignment or endorsement attached hereto as
Exhibit G, with no modifications or alterations to such terms except such modifications and
alterations that are agreed to by Administrative Agent in writing.
“Standard Loan Forms” means the form of promissory note, loan agreement, borrower agreement,
note purchase agreement and declaration of trust attached hereto as Exhibit H, with no
modifications or alterations to such terms except such modifications and alterations that are
agreed to by Administrative Agent in writing.
36
“Subsequent Financing” means the first round of private equity financing following the
Effective Date in which the Borrower receives, in the aggregate, at least Two Million Dollars
($2,000,000.00) of net proceeds excluding any bridge debt financing except to the extent
actually converted to equity in Borrower.
“Subsequent Financing Investment” has the meaning set forth in Section 6.9.
“Subsidiary” means, with respect to any Person, any Person of which more than 50.0% of the
voting stock or other equity interests (in the case of Persons other than corporations) is owned or
controlled directly or indirectly by such Person or one or more of Affiliates of such Person.
“Subordinated Debt” is indebtedness incurred by Borrower subordinated to all of Borrower’s
debt to Lenders (pursuant to a subordination, intercreditor, or other similar agreement entered
into between Administrative Agent, Borrower and the subordinated creditor), on terms acceptable to
Administrative Agent.
“SVB” means Silicon Valley Bank.
“SVB Loan Agreement” means that certain Amended and Restated Loan and Security Agreement dated
as of October 7, 2008 by and between SVB and Borrower, as the same may be amended, restated, or
otherwise modified from time to time.
“SVB Hill Loan Agreement Obligations” means the outstanding balance of the Credit Extensions
(as defined in the SVB Loan Agreement).
“Transfer” is defined in Section 7.1.
“Trust Account” is Borrower’s account number 4121689061, maintained with Xxxxx Fargo Bank,
N.A. in trust for Lender Members.
“Value” shall mean with respect to any Pledged CD on any date, a dollar value at the face
amount thereof.
“Warrants” means each Warrant to Purchase Stock each dated as of even date herewith executed
by Borrower in favor of the Lenders.
“WebBank” means WebBank, a Utah-chartered industrial bank, and its successors and
assigns.
37
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the
Effective Date.
| BORROWER: | ||||||||
| LENDINGCLUB CORPORATION | ||||||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||||||
| Name: | Xxxxxx Xxxxxxxxx | |||||||
| Title: | Chief Executive Officer | |||||||
| AGENT: | ||||||||
| SILICON VALLEY BANK | ||||||||
| By: | /s/ Xxxx Xxxxxxx | |||||||
| Name: | Xxxx Xxxxxxx | |||||||
| Title: | Relationship Manager | |||||||
| LENDERS: | ||||||||
| SILICON VALLEY BANK | ||||||||
| By: | /s/ Xxxx Xxxxxxx | |||||||
| Name: | Xxxx Xxxxxxx | |||||||
| Title: | Relationship Manager | |||||||
| GOLD HILL VENTURE LENDING 03, LP | ||||||||
| By: | Gold Hill Venture Lending Partners 03, LLC, | |||||||
| its General Partner | ||||||||
| By: | /s/ Xxxxxx Xxxx | |||||||
| Name: Xxxxxx Xxxx Managing Director |
||||||||
Effective Date as of May 18, 2009.
[Signature Page to Loan and Security Agreement]
EXHIBIT A
Gold Hill Venture Lending 03, LP
Exhibit A Page 1
EXHIBIT B
The Collateral consists of all of Borrower’s right, title and interest in and to the following
personal property:
All goods, Accounts (including health-care receivables), Equipment, Inventory, contract
rights, including without limitation, rights under the Portfolio Financial Servicing Company
Contract, or rights to payment of money, leases, license agreements, franchise agreements, General
Intangibles (except as provided below), commercial tort claims, documents, instruments (including
any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, all
Pledged CDs, fixtures, letters of credit rights (whether or not the letter of credit is evidenced
by a writing), securities, and all other investment property, supporting obligations, and financial
assets, whether now owned or hereafter acquired, wherever located; and
All Borrower’s Books relating to the foregoing and any and all claims, rights and interests in
any of the above and all substitutions for, additions, attachments, accessories, accessions and
improvements to and replacements, products, proceeds and insurance proceeds of any or all of the
foregoing.
Notwithstanding the foregoing, the Collateral does not include any of the following, whether
now owned or hereafter acquired: any copyright rights, copyright applications, copyright
registrations and like protections in each work of authorship and derivative work, whether
published or unpublished, any patents, patent applications and like protections, including
improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part
of the same, trademarks, service marks and, to the extent permitted under applicable law, any
applications therefor, whether registered or not, and the goodwill of the business of Borrower
connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to
unpatented inventions, and any claims for damage by way of any past, present, or future
infringement of any of the foregoing; provided, however, the Collateral shall include all Accounts,
license and royalty fees and other revenues, proceeds, or income arising out of or relating to any
of the foregoing.
Borrower has agreed not to encumber any of its copyright rights, copyright applications,
copyright registrations and like protections in each work of authorship and derivative work,
whether published or unpublished, any patents, patent applications and like protections, including
improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part
of the same, trademarks, service marks and, to the extent permitted under applicable law, any
applications therefor, whether registered or not, and the goodwill of the business of Borrower
connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to
unpatented inventions, and any claims for damage by way of any past, present, or future
infringement of any of the foregoing, without Administrative Agent’s prior written consent.
In addition, notwithstanding the foregoing, the Collateral does not include (a) any Borrower
Member Note, (b) the Clearing Account, (c) the Trust Account, (d) the Borrower Account, (e) any
Borrower Securities, or (f) proceeds of any of the foregoing items (a), (b), (c), (d), or (e)
except to the extent that they are proceeds of Financed Loans or otherwise deposited in a
Collateral Account (which amounts shall at all times be part of the Collateral).
Exhibit B Page 1
EXHIBIT C
Loan Payment/Advance Request Form
Deadline for same day processing is Noon P.S.T.
| Fax To: | Date: |
LOAN PAYMENT:
LENDINGCLUB CORPORATION
From Account #
|
To Account # | |||||||
| (Deposit Account #) | (Loan Account #) | |||||||
Principal $
|
and/or Interest $ | |||||||
Authorized Signature:
|
Phone Number: | |||||||||
Print Name/Title: |
||||||||||
Loan Advance:
Complete Outgoing Wire Request section below if all or a portion of the funds from this loan
advance are for an outgoing wire.
From Account #
|
To Account # | |||||||
| (Loan Account #) | (Deposit Account #) | |||||||
Amount of Advance $ |
||||||||
All Borrower’s representations and warranties in the Loan and Security Agreement are true, correct
and complete in all material respects on the date of the request for an advance; provided, however,
that such materiality qualifier shall not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text thereof; and provided, further that
those representations and warranties expressly referring to a specific date shall be true, accurate
and complete in all material respects as of such date:
Authorized Signature:
|
Phone Number : | |||||
Print Name/Title: |
||||||
Outgoing Wire Request:
Complete only if all or a portion of funds from the loan advance above is to be wired.
Deadline for same day processing is noon, P.S.T.
Complete only if all or a portion of funds from the loan advance above is to be wired.
Deadline for same day processing is noon, P.S.T.
Beneficiary Name:
|
Amount of Wire: $ | |||||||||
Beneficiary Bank:
|
Account Number: | |||||||||
City and State: |
||||||||||
| Beneficiary Bank Transit (ABA) #: | Beneficiary Bank Code (Swift, Sort, Chip, etc.): | |||||||||
| (For International Wire Only) | ||||||||||
Intermediary Bank:
|
Transit (ABA) #: | |||||||||
For Further
Credit to: |
||||||||||
Special
Instruction: |
||||||||||
By signing below, I (we) acknowledge and agree that my (our) funds transfer request shall be
processed in accordance with and subject to the terms and conditions set forth in the agreements(s)
covering funds transfer service(s), which agreements(s) were previously received and executed by me
(us).
Authorized Signature:
|
2nd Signature (if required): | |||||||||
Print Name/Title:
|
Print Name/Title: | |||||||||
Telephone #:
|
Telephone #: | |||||||||
Exhibit C Page 1
EXHIBIT D
BORROWING RESOLUTIONS
CORPORATE BORROWING CERTIFICATE
Borrower:
|
Lending Club Corporation | Date: May _____, 2009 | ||
Lenders:
|
Gold Hill Venture Lending 03, LP | |||
| Silicon Valley Bank |
I hereby certify as follows, as of the date set forth above:
1. I am the Secretary, Assistant Secretary or other officer of the Borrower. My title is as set
forth below.
2. Borrower’s exact legal name is set forth above. Borrower is a corporation existing under the
laws of the State of Delaware.
3. Attached hereto are true, correct and complete copies of Borrower’s Articles/Certificate of
Incorporation (including amendments), as filed with the Secretary of State of the state in which
Borrower is incorporated as set forth in paragraph 2 above. Such Articles/Certificate of
Incorporation have not been amended, annulled, rescinded, revoked or supplemented, and remain in
full force and effect as of the date hereof.
4. The following resolutions were duly and validly adopted by Borrower’s Board of Directors at a
duly held meeting of such directors (or pursuant to a unanimous written consent or other authorized
corporate action). Such resolutions are in full force and effect as of the date hereof and have
not been in any way modified, repealed, rescinded, amended or revoked, and Lenders may rely on them
until Lenders receive written notice of revocation from Borrower.
Resolved, that any one of the following officers or employees of Borrower, whose names,
titles and signatures are below, may act on behalf of Borrower:
| Authorized to | ||||||
| Add or Remove | ||||||
| Name | Title | Signature | Signatories | |||
| o | ||||||
| o | ||||||
| o | ||||||
| o |
Resolved Further, that any one of the persons designated above with a checked box
beside his or her name may, from time to time, add or remove any individuals to and from the
above list of persons authorized to act on behalf of Borrower.
Exhibit D Page 1
Resolved Further, that such individuals may, on behalf of Borrower:
Borrow Money. Borrow money from Silicon Valley Bank and Gold Hill Venture Lending 03, LP
(collectively, “Lenders” and each a “Lender”).
Execute Loan Documents. Execute any loan documents Lenders and Silicon Valley Bank, as
Agent, requires.
Grant Security. Grant each Lender and Silicon Valley Bank, as Agent for the benefit of the
Lenders, a security interest in any of Borrower’s assets.
Negotiate Items. Negotiate or discount all drafts, trade acceptances, promissory notes, or
other indebtedness in which Borrower has an interest and receive cash or otherwise use the
proceeds.
Letters of Credit. Apply for letters of credit from Lenders.
Foreign Exchange Contracts. Execute spot or forward foreign exchange contracts.
Issue Warrants. Issue warrants for Borrower’s capital stock.
Further Acts. Designate other individuals to request advances, pay fees and costs and
execute other documents or agreements (including documents or agreement that waive Borrowers
right to a jury trial) they believe to be necessary to effectuate such resolutions.
Resolved Further, that all acts authorized by the above resolutions and any prior acts
relating thereto are ratified.
5. The persons listed above are Borrower’s officers or employees with their titles and signatures
shown next to their names.
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
*** If the Secretary, Assistant Secretary or other certifying officer executing above is
designated by the resolutions set forth in paragraph 4 as one of the authorized signing officers,
this Certificate must also be signed by a second authorized officer or director of Borrower.
I, the of Borrower, hereby certify as to paragraphs 1 through 5
above, as of the date set forth
[print title]
above.
[print title]
above.
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
Exhibit D Page 2
EXHIBIT E
COMPLIANCE CERTIFICATE
TO:
|
SILICON VALLEY BANK, AS ADMINISTRATIVE AGENT | Date: | ||
FROM:
|
LENDINGCLUB CORPORATION | |||
The undersigned authorized officer of LENDINGCLUB CORPORATION (“Borrower”) certifies that
under the terms and conditions of the Loan and Security Agreement among Borrower, Lenders, and
Administrative Agent (the “Agreement”), (1) Borrower is in complete compliance for the period
ending with all required covenants except as noted below, (2) there are no Events
of Default, (3) all representations and warranties in the Agreement are true and correct in all
material respects on this date except as noted below; provided, however, that such materiality
qualifier shall not be applicable to any representations and warranties that already are qualified
or modified by materiality in the text thereof; and provided, further that those representations
and warranties expressly referring to a specific date shall be true, accurate and complete in all
material respects as of such date, (4) Borrower, and each of its Subsidiaries, has timely filed all
required tax returns and reports, and Borrower has timely paid all foreign, federal, state and
local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted
pursuant to the terms of Section 5.9 of the Agreement, and (5) no Liens have been levied or claims
made against Borrower relating to unpaid employee payroll or benefits of which Borrower has not
previously provided written notification to Administrative Agent. Attached are the required
documents supporting the certification. The undersigned certifies that these are prepared in
accordance with GAAP consistently applied from one period to the next except as explained in an
accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested
at any time or date of determination that Borrower is not in compliance with any of the terms of
the Agreement, and that compliance is determined not just at the date this certificate is
delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given
them in the Agreement.
Please indicate compliance status by circling Yes/No under “Complies” column.
| Reporting Covenant | Required | Complies | ||||
Monthly financial statements with Compliance Certificate
|
Monthly within 30 days | Yes | No | |||
Annual financial statement (CPA Audited) + XX
|
XXX within 180 days | Yes | No | |||
10-Q, 10-K and 8-K
|
Within 5 days after filing with SEC | Yes | No | |||
Annual financial projections
|
FYE within 30 days | Yes | No | |||
BSA/AML internal and independent testing reports
|
Time to time as requested by Administrative Agent in its reasonable discretion | Yes | No | |||
| Financial Covenant | Required | Actual | Complies | |||||
Maintain on a Quarterly Basis: |
||||||||
Minimum Collateral Value Ratio
|
1:05:1.0 | _____ :1.0 | Yes | No | ||||
The following financial covenant analysis and information set forth in Schedule 1 attached
hereto are true and accurate as of the date of this Certificate.
The following are the exceptions with respect to the certification above: (If no exceptions
exist, state “No exceptions to note.”)
| LendingClub Corporation | AGENT USE ONLY | |||||||||||
By:
|
Received by: | |||||||||||
| Name: | ||||||||||||
| Title: | Date: | |||||||||||
| Verified: | ||||||||||||
| Date: | ||||||||||||
| Compliance Status: Yes No | ||||||||||||
Exhibit E Page 1
Schedule 1 to Compliance Certificate
Financial Covenants of Borrower
Dated: ____________________
In the event of a conflict between this Schedule and the Loan Agreement, the terms of the Loan
Agreement shall govern.
I. Minimum Collateral Value Ratio (Section 6.8)
Required: 1.05:1.00
Actual:
A. Value of all CDs pledged to Lenders |
$ | |||
B. Outstanding principal balance of Financed Loans |
$ | |||
C. The sum of lines A and B |
$ | |||
D. Outstanding balance owing to Lenders under the 2009 Loan
Agreement, SVB Loan Agreement and Gold Hill Loan Agreement |
$ | |||
E. Minimum Collateral Value Ratio (Line C divided by line D ) |
$ | |||
Is line E equal to or greater than 1.05:1:00?
No, not in compliance
|
Yes, in compliance |
Exhibit E Page 2
Exhibit F
[Reserved]
Exhibit F Page 1
Exhibit G
Standard Assignment Forms
Standard Assignment Forms
[see attached]
Exhibit G Page 1
Exhibit H
Standard Loan Forms
[see attached]
Exhibit H
Exhibit I
Loan Servicing Documents
[see attached]
Exhibit I
SCHEDULE A
COMMITMENT PERCENTAGES
| Growth Capital | ||||||||
| Commitment | Growth Capital | |||||||
| Lender | Percentage | Commitment | ||||||
Gold Hill Venture Lending 03, LP |
50 | % | $ | 2,000,000 | ||||
Silicon Valley Bank |
50 | % | $ | 2,000,000 | ||||
TOTAL: |
100 | % | $ | 4,000,000 | ||||
Schedule A
