SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit 10.4
SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT
AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Agreement”)
is entered into this 18th day of May, 2009, by and among SILICON VALLEY BANK (“Lender”),
and LENDINGCLUB CORPORATION, a Delaware corporation (“Borrower”).
Recitals
A. Lender and Borrower have entered into that certain Amended and Restated Loan and Security
Agreement dated October 7, 2008 (as the same may from time to time be further amended, modified,
supplemented or restated, the “Loan Agreement”).
B. Lender has extended credit to Borrower for the purposes permitted in the Loan Agreement.
C. Borrower has requested that SVB and Gold Hill Venture Lending 03, LP. (“Gold Hill”) make an
additional term loan in the principal amount of Four Million Dollars ($4,000,000) (the
“Supplemental Term Loan”) available to Borrower pursuant to a Loan and Security Agreement by and
among Lender, as Administrative Agent and as a Lender, Gold Hill and Borrower dated of even date
herewith.
D. Lender and Gold Hill have agreed to make the Supplemental Term Loan, on the condition,
among others, that Borrower enter into this Agreement, but only to the extent, in accordance with
the terms, subject to the conditions and in reliance upon the representations and warranties set
forth below.
Agreement
Now, Therefore, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to
be legally bound, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined in this Agreement shall have the
meanings given to them in the Loan Agreement.
2. Outstanding Advances. Borrower represents and warrants to Lender that as of the date of
this Agreement, (a) the outstanding principal balance of the Credit Extensions is
Dollars ($ ), and (b) that all such sums are due and
owing to Lender, without offset or defense of any kind or nature and in the event Borrower has any
offsets or defenses thereto, Borrower hereby irrevocably waives all such offsets and defenses.
Borrower acknowledges and agrees that there is no further availability to request Advances.
3. Amendments to Loan Agreement.
3.1 Section 2.4 (Mandatory Prepayment Upon Prepayment of Eligible Loans). Section 2.4 is
hereby amended by deleting it in its entirety and replacing it with the following:
2.4 Mandatory Prepayment Upon Prepayment of Eligible Loans. Upon the request of Bank,
Borrower shall pay to Bank, the aggregate amount of Financed Loans which have been repaid or
Charged-off, in whole or in part.
3.2 Section 6.8 (Right to Invest). Section 6.8 is hereby deleted in its entirety and replaced
with “Reserved”.
3.3 Section 8.11 (Cross-Default with Gold Hill Loan Agreement). Section 8.11 is hereby
amended by deleting it in its entirety and replacing it with the following:
8.11 Cross-Default with the Gold Hill Loan Agreement and the SVB/Gold Hill Loan
Agreement. An Event of Default occurs under the Gold Hill Loan Agreement or the Loan and
Security Agreement by and among Bank, as Administrative Agent and as a Lender, Gold Hill and
Borrower dated May 18, 2009.
3.4 Section 13 (Definitions). Section 13 is amended by deleting the following terms and their
respective definitions and replacing them with the following:
“Minimum Collateral Value” means (a) from May 18, 2009 until all of the Obligations
with respect to the Growth Capital Advances and Supplemental Growth Capital Advances,
including without limitation, all principal, accrued interest, the Final Payment and the
Supplemental Final Payment, have been repaid in full in cash, a principal amount equal to
One Hundred Fifty Thousand Dollars ($150,000) and (b) thereafter, Zero Dollars ($0.00).
“Pledged CD” shall mean the certificate of deposit number issued to
Borrower by Bank which is secured by a Lien in favor of Bank with respect to the Obligations
under this Agreement.
3.5 Supplemental Term Loan. The Loan Agreement is hereby amended to include the Supplemental
Term Loan as “Permitted Indebtedness” and the Liens in favor of Bank and Gold Hill securing the
Supplemental Term Loan as “Permitted Liens”.
3.6 Prior Amendment. That certain Third Amendment to Loan and Security Agreement by and
between Lender and Borrower dated March 12, 2009 is hereby renamed the First Amendment to Amended
and Restated Loan and Security Agreement.
4. Limitation of Amendment.
4.1 This Agreement is effective for the purposes set forth herein and shall be limited
precisely as written and shall not be deemed to (a) be a consent to any amendment, waiver or
modification of any other term or condition of any Loan Document, or (b) otherwise
prejudice any right or remedy which Lender may now have or may have in the future under or in
connection with any Loan Document.
2
4.2 This Agreement shall be construed in connection with and as part of the Loan Documents and
all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan
Documents are hereby ratified and confirmed and shall remain in full force and effect.
5. Representations and Warranties. To induce Lender to enter into this Agreement, Borrower
hereby represents and warrants to Lender as follows:
5.1 Immediately after giving effect to this Agreement (a) the representations and warranties
contained in the Loan Documents are true, accurate and complete in all material respects as of the
date hereof (except to the extent such representations and warranties relate to an earlier date, in
which case they are true and correct as of such date), and (b) no Event of Default has occurred and
is continuing;
5.2 Borrower has the power and authority to execute and deliver this Agreement and to perform
its obligations under the Loan Agreement;
5.3 Borrower has previously delivered its organizational documents to Lender, which remain
true, accurate and complete and have not been amended, supplemented or restated since their
delivery and are and continue to be in full force and effect;
5.4 The execution and delivery by Borrower of this Agreement and the performance by Borrower
of its obligations under the Loan Agreement have been duly authorized by all necessary action on
the part of Borrower;
5.5 The execution and delivery by Borrower of this Agreement and the performance by Borrower
of its obligations under the Loan Agreement do not and will not contravene (a) any law or
regulation binding on or affecting Borrower, (b) any contractual restriction with a Person binding
on Borrower, (c) any order, judgment or decree of any court or other governmental or public body or
authority, or subdivision thereof, binding on Borrower, or (d) the organizational documents of
Borrower;
5.6 The execution and delivery by Borrower of this Agreement and the performance by Borrower
of its obligations under the Loan Agreement do not require any order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or exemption by any
governmental or public body or authority, or subdivision thereof, binding on Borrower, except as
already has been obtained or made; and
5.7 This Agreement has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against Borrower in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or
other similar laws of general application and equitable principles relating to or affecting
creditors’ rights.
3
6. Counterparts. This Agreement may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same instrument.
7. Effectiveness. This Agreement shall be deemed effective upon the following conditions: (a)
the due execution and delivery to Lender of this Agreement by each party hereto and (b) payment of
Lender’s legal fees and expenses in connection with the negotiation and preparation of this
Agreement.
[Signature page follows.]
4
In Witness Whereof, the parties hereto have caused this Agreement to be duly executed
and delivered as of the date first written above.
| LENDER: | ||||
| SILICON VALLEY BANK | ||||
By:
|
/s/ Xxxx Xxxxxxx
|
|||
| Title: Relationship Manager | ||||
| BORROWER: | ||||
| LENDINGCLUB CORPORATION | ||||
By:
|
/s/ Xxxxxx Xxxxxxxxx
|
|||
| Title: Chief Executive Officer | ||||
[Signature Page to 2nd Amendment to Amended and Restated Loan and Security Agreement (SVB)]
