FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.5
FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Agreement”) is entered into this
18th day of May, 2009, by and among GOLD HILL VENTURE LENDING 03, LP (as modified from
time to time, “Lenders”), GOLD HILL VENTURE LENDING 03, LP (“Gold Hill”) in its capacity as
Administrative Agent on behalf of the Lenders, SILICON VALLEY BANK (“SVB”), in its capacity as
Collection Agent on behalf of the Lenders, and LENDINGCLUB CORPORATION, a Delaware corporation
(“Borrower”).
Recitals
A. Administrative Agent, Collection Agent, Lenders and Borrower have entered into that certain
Loan and Security Agreement dated as of February 19, 2008 (the “First Amendment” and as the same
may from time to time be further amended, modified, supplemented or restated, the “Loan
Agreement”).
B. Lenders have extended credit to Borrower for the purposes permitted in the Loan Agreement.
C. Borrower has requested that SVB and Gold Hill make an additional term loan in the principal
amount of Four Million Dollars ($4,000,000) (the “Supplemental Term Loan”) available to Borrower
pursuant to a Loan and Security Agreement by and among SVB, as Administrative Agent and as a
Lender, Gold Hill and Borrower dated of even date herewith.
D. SVB and Lenders have agreed to make the Supplemental Term Loan, on the condition, among
others, that Borrower enter into this Agreement, but only to the extent, in accordance with the
terms, subject to the conditions and in reliance upon the representations and warranties set forth
below.
Agreement
Now, Therefore, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to
be legally bound, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined in this Agreement shall have the
meanings given to them in the Loan Agreement.
2. Outstanding Advances. Borrower represents and warrants to Administrative Agent, Collection
Agent, and Lenders that as of the date of this Agreement, (a) the outstanding principal balance of
the Advances is Dollars ($ ), and (b) that all such
sums are due and owing to Lenders, 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 2.6 (Mandatory Prepayment Upon Prepayment of Eligible Loans). Section 2.6 is
hereby amended by deleting it in its entirety and replacing it with the following:
2.6 Mandatory Prepayment Upon Prepayment of Eligible Loans. Upon the request of
Lenders, Borrower shall pay to Collection Agent, for the benefit of Lenders, the aggregate
amount of Financed Loans which have been repaid or Charged-off, in whole or in part.
3.2 Section 6.9 (Right to Invest). Section 6.9 is hereby deleted in its entirety and replaced
with “Reserved”.
3.3 Section 8.11 (Cross-Default with SVB 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 SVB Loan Agreement and the SVB/Gold Hill Loan Agreement.
An Event of Default occurs under the SVB Loan Agreement or the Loan and Security Agreement
by and among SVB, 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 Advances, including without limitation, all principal, accrued interest
and the Final Payment, have been repaid in full in cash, a principal amount equal to Two
Hundred Fifty Thousand Dollars ($250,000) and (b) thereafter, Zero Dollars ($0.00).
“Pledged CD” shall mean the certificate of deposit number issued to
Borrower by Collection Agent which is secured by a Lien in favor of Administrative Agent,
for itself and for the benefit of the Lenders 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 SVB and Gold Hill securing the
Supplemental Term Loan as “Permitted Liens”.
3.6 Prior Amendment. That certain Second Amendment to Loan and Security Agreement by and among
Administrative Agent, Collection Agent, Lenders and Borrower dated March 12, 2009 is hereby renamed
the Third Amendment to Loan and Security Agreement.
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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 Lenders may now have or may have in the future under or in connection with
any Loan Document.
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 Administrative Agent, Collection Agent, and
Lenders to enter into this Agreement, Borrower hereby represents and warrants to Administrative
Agent, Collection Agent, and Lenders 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 Administrative Agent,
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
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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.
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 Administrative Agent of this Agreement by each party hereto and
(b) payment of Administrative Agent’s legal fees and expenses in connection with the negotiation
and preparation of this Agreement.
[Signature page follows.]
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In Witness Whereof, the parties hereto have caused this Agreement to be duly executed
and delivered as of the date first written above.
| LENDERS: | ||||
| GOLD HILL VENTURE LENDING 03, LP | ||||
| By: Gold Hill Venture Lending Partners 03, LLC | ||||
By:
|
/s/ Xxxxxx Xxxx | |||
| Name: Xxxxxx Xxxx | ||||
| Title: Managing Director | ||||
| ADMINISTRATIVE AGENT: | ||||
| GOLD HILL VENTURE LENDING 03, LP | ||||
| By: Gold Hill Venture Lending Partners 03, LLC | ||||
By:
|
/s/ Xxxxxx Xxxx
|
|||
| Title: Managing Director | ||||
| COLLECTION AGENT: | ||||
| SILICON VALLEY BANK | ||||
By:
|
/s/ Xxxx Xxxxxxx
|
|||
| Title: Relationship Manager | ||||
| BORROWER: | ||||
| LENDINGCLUB CORPORATION | ||||
By:
|
/s/ Xxxxxx Xxxxxxxxx
|
|||
| Title: Chief Executive Officer | ||||
[Signature Page to 4th Amendment to Loan and Security Agreement (GH)]
