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(c) Dividends. The Borrower shall not declare or pay any dividends except to the extent of funds legally available therefor from payments received by the Borrower pursuant to Section 3.02(a)(x) or Section 2.01 (or in the manner described in Section 3.01(c)(iii)). Notwithstanding the foregoing, the Borrower shall not declare or pay any dividends on any date as of which a Default or an Event of Default shall have occurred and is continuing. |
(f) Restrictions on Amendments. The Borrower shall not, and shall not permit the Seller or Servicer to, amend, modify, supplement, terminate or change: (i) the Borrower Organizational Documents or any other Transaction Document without the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), (ii) if there is an outstanding Hedge Trigger Event, any Hedging Agreement or Hedging Transaction without the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), and (iii) the Credit and Collection Policy, Underwriting Policy or Originator Program Documents, either: (A) without the prior written consent of the Administrative Agent in the case of any termination thereof or of any amendment, modification, supplement, or change thereto that could materially affect the amount or timing of the payments under any Purchased Receivables or any potential future Eligible Receivables that may be sold to the Borrower or the expected collectability of any of the foregoing, including changes in grade classifications, interest rates, payment schedules, or other fundamental loan characteristics of such Purchased Receivables or potential future Eligible Receivables, or could reasonably be expected to result in a Material Adverse Change, and (B) in all other cases, including, without limitation, routine amendments, modifications, supplements, or changes necessary for compliance with applicable Requirements of Law and made in compliance with applicable Requirements of Law, without notice to the Administrative Agent in the manner that is customary for the Borrower or Servicer to provide notice of such type to its investors (and in no event shall the Administrative Agent be notified of such amendment, modification, supplement or change later than any other investor in consumer loans on the LendingClub platform is notified of such amendment, modification, supplement or change). |
(h) Transactions with Affiliates. The Borrower shall not enter into or consummate any transaction of any kind with any of its Affiliates other than (a) the transactions contemplated hereby and by the other Transaction Documents, (b) payment of dividends permitted by Section 6.02(d), and (c) to the extent not otherwise prohibited under this Agreement, other transactions upon fair and reasonable terms materially no less favorable to Borrower than would be obtained in a comparable arms-length transaction with a Person not an Affiliate. |
(i) Protection of Title to Collateral. None of the Originator, Seller or Borrower shall change its name, chief executive office or jurisdiction of organization or form of organization in any manner unless it shall have given the Administrative Agent and Collateral Trustee at least 10 days prior written notice thereof (and, with respect to the Borrower, for any change other than a change of address, received the prior written consent of the Administrative Agent) and shall have promptly filed appropriate amendments to all previously filed financing statements or continuation statements as may be required under the applicable UCC in connection with any such change. |
(j) Anti-Money Laundering and Anti-Terrorism. The Borrower shall not, and shall not permit any other LC Group Member to, (a) become a Person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (b) engage in any dealings or transactions prohibited by Section 2 of such executive order, nor shall it otherwise become associated with any such Person in any manner violative of Section 2 of such executive order, (c) become a Person on the list of Specially Designated Nationals and Blocked Persons, (d) become subject to the limitations or prohibitions under any other U.S. Department of Treasurys Office of Foreign Assets Control regulation or executive order, (e) fail to comply, to the extent applicable, in all material respects, with (1) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto, or (2) the USA PATRIOT Act, or (f) use all or any part of the proceeds, advances or other amounts or sums evidenced by the Loans or the Loans, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended. |
(m) ERISA. The Borrower shall not fail to satisfy an exception under the Plan Asset Regulations which failure causes the assets of the Borrower to be deemed Plan Assets. Borrower shall not become subject to any State statutes, regulating investments of, and fiduciary obligations with respect to, governmental plans (as such term is defined in Section 3(32) of ERISA), that would be violated by the transactions contemplated by this Agreement. |
(a) Hedge Trigger Event. At any time (and from time to time) on or after a Hedge Trigger Event has occurred and is continuing, if the Administrative Agent sends a written notice to the Borrower, then within thirty (30) days after delivery of such notice, the Borrower shall enter into a Qualified Hedging Transaction pursuant to a Qualified Hedging Agreement to hedge interest rate risk for a notional amount equal to or about the Aggregate Loan Amount (or such other amount reasonably acceptable to the Administrative Agent, including pursuant to an amortization table to reflect projected changes in the Aggregate Loan Amount) and a strike rate as designated by the Administrative Agent; provided, however, that the Administrative Agent shall not require any new Qualified Hedging Transaction to be obtained by the Borrower at any time if the aggregate notional amount of such new Qualified Hedging Transaction and all existing Qualified Hedging Transactions (if any) at such time would exceed the Aggregate Loan Amount at such time. |
(iv) the Borrower shall be in violation, breach or default of, or shall fail to perform, observe or comply with, any covenant, obligation or agreement set forth in this Agreement or in any other Transaction Document (not otherwise specifically dealt with in this Section), and the foregoing continues unremedied for a period of thirty (30) calendar days from the earlier of knowledge of, or written notice to, the Borrower thereof; |
(vi) failure of LendingClub or the Borrower to be Solvent; failure of the Seller to be in compliance with any Seller Financial Covenant; failure of the Borrower or LendingClub (in any capacity), as applicable, to be in compliance with the requirements set forth in (x) Section 3.01(e) or Section 6.01(a), and the foregoing continues unremedied for a period of five calendar days from the earlier of knowledge of, or written notice to, either the Borrower or LendingClub thereof, or (y) Section 3.01(a), Section 3.05(a), or Section 6.02; |
(xi) (A) any of the Transaction Documents or the Custodian Master Agreement shall be terminated or cease to be in full force or effect or shall cease to be the legal, valid, binding and enforceable obligation of each party thereto (other than an Agent, a Lender, or an Affiliate of any of them) without the consent of the Administrative Agent; or (B) the Borrower, LendingClub or any other party to a Transaction Document (that is not an Agent, a Lender, or an Affiliate of any of them) or any party to the Custodian Master Agreement shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of a Transaction Document or the Custodian Master Agreement, as the case may be; |
(xiii) any judgment (other than any judgment that is adequately covered by insurance) for the payment of money is (A) rendered against the Borrower in excess of $300,000, or (B) rendered against LendingClub in excess of $35,000,000, and in the event of either of the foregoing, the same remains unpaid, undischarged, unvacated, unbonded and unstayed for a period of sixty (60) days after the entry thereof; |
SECTION 7.02 Remedies. If an Event of Default has occurred and is continuing, the Agents may exercise any or all remedial and enforce all rights set forth in any Transaction Document, at law or in equity, whether against the Collateral or otherwise, including, without limitation, the taking of any Enforcement Action. In addition (and not limitation) of the foregoing, (a) if an Event of Default (other than pursuant to Section 7.01(a)(x)) has occurred, the Administrative Agent may, and at the request of the Majority Lenders shall, declare the Commitment Termination Date to have occurred and declare all Obligations to be due and payable, and (b) if an Event of Default pursuant to Section 7.01(a)(x) has occurred, the Commitment Termination Date shall automatically occur and all Obligations shall automatically become due and payable, whereupon (in the case of either the foregoing clause (a) or clause (b)), there shall be a Commitment Termination Date, all Commitments shall be terminated, and the Aggregate Loan Amount, all accrued interest thereon, and all other Obligations of the Borrower hereunder and under any other Transaction Document shall be forthwith due and payable, in the case of any of the foregoing, without further presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Transaction Document to the contrary notwithstanding. |
(a) Appointment. Each of the Lenders hereby irrevocably appoints each of the Paying Agent, Administrative Agent, and Collateral Trustee as its agent and authorizes each such Agents to take such actions on its behalf and to exercise such powers as are delegated to such Agent by the terms of the Transaction Documents, together with such actions and powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, the Agents, on behalf of the Lenders, are hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the other Transaction Documents. |
(b) Rights as Lender. The financial institution serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such financial institution and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with LendingClub or the Borrower or other Affiliate thereof as if it were not an Agent hereunder. |
(c) Specific Duties. No Agent shall have any duties or obligations except those expressly set forth in the Transaction Documents to which it is a party. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied duties, regardless of whether a Default, Event of Default, Servicer Default, Seller Default, Amortization Event or other similar event has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that such Agent is required to exercise upon receipt of instructions in writing by the Majority Lenders, and (c) except as expressly set forth in the Transaction Documents, no Agent shall have any duty to disclose, nor shall it be liable for the failure to disclose, any information relating to the Borrower that is communicated to or obtained by the financial institution serving as Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Majority Lenders or in the absence of its own gross negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default, Event of Default, Servicer Default, Seller Default, DBD Trigger Event, Amortization Event or other similar event unless and until written notice thereof is given to such Agent by the Borrower or a Lender, and no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Transaction Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Transaction Document, (iv) the validity, enforceability, effectiveness or genuineness of any Transaction Document or any other agreement, instrument or document or (v) the satisfaction of any conditions precedent, other than to confirm receipt of items expressly required to be delivered to such Agent. |
(d) Reliance. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent may also, but shall not be required to, rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. In the event that an Agent does not receive a notice, certificate, document or other information required to be delivered to it hereunder by the time set forth for such delivery herein (including, without limitation, receipt by the Paying Agent of the Servicers Monthly Settlement Certificate or a Prepayment/Release Notice), or if an Agent requests instructions from a party hereto or the Servicer with respect to any action or omission in connection with this Agreement or any other Transaction Document, the Agent shall be entitled (without incurring any liability therefor) to refrain from taking such action and continue to refrain from acting unless and until the Agent shall have received written instructions from the appropriate Person with respect to such request or from the Administrative Agent (and such Agent shall be held harmless for following the instructions of the Administrative Agent if the applicable Person fails to give such instructions). |
(f) Force Majeure. No Agent shall incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of such Agent (including but not limited to any act or provision of any present or future Requirements of Law, any act of God, war or terrorism, or the unavailability of the Federal Reserve Bank wire or other wire or communication facility). |
(g) Resignation. Subject to the appointment and acceptance of a successor Agent as provided below, any Agent may resign at any time by notifying the other Agents, the Lenders and the Borrower. Upon any such resignation, the Majority Lenders, and, so long as no Event of Default exists, with the consent of the Borrower shall have the right to appoint a successor Agent to fill such role provided that in no event shall any such successor Administrative Agent be a Defaulting Lender or a Disqualified Institution. If no successor shall have been so appointed by the Majority Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a financial institution with an office in New York, New York, or an Affiliate of any such financial institution or apply to a court of competent jurisdiction for the appointment of a successor Agent and other applicable relief. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agents resignation hereunder, the provisions of this Section shall continue in effect for the benefit of such retiring Agent in respect of any actions taken or omitted to be taken by it while acting as Agent. |
(h) No Lender Reliance. Each Lender acknowledges that it has, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agents or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement or any other Transaction Document, any related agreement or any document furnished hereunder or thereunder. |
(i) KYC. To help the U.S. government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each Person who opens an account, including applicable Know Your Customer requirements. The Borrower, on behalf of itself and each other LC Group Member, hereby acknowledges such information disclosure requirements and agrees to comply, and to cause each such other LC Group Member to comply, with all such information disclosure requests from time to time from the Agents. |
(j) No Consequential Damages. No party hereto shall be liable for any indirect, special, punitive or consequential damages (including, but not limited to, lost profits) whatsoever of any other party hereto, even if any such party has been informed of the likelihood thereof and regardless of the form of action; provided, that the foregoing shall not apply to any amounts due with respect to liability for third party damages that may be owed in connection with any indemnification obligation hereunder or under any other Transaction Document. |
SECTION 8.02 The Collateral Trustee. In addition to and not in limitation of the terms of Section 8.01, the following terms apply to the Collateral Trustee. Notwithstanding anything contained herein or in any other Transaction Document, any provisions of the Transaction Documents that empower and/or entitle the Collateral Trustee to take action or refrain from taking action, in each case, with respect to the Collateral, shall not impose or be deemed to impose on the Collateral Trustee an obligation to act independently from the instructions of the Administrative Agent (acting on behalf of the Lenders) or to monitor the contingencies that may give rise to the exercise of such power or entitlement. The Collateral Trustee shall not be required to make any calculation contemplated in this Agreement, is authorized to rely on any calculation performed by the Servicer or the Administrative Agent and shall not have any obligation to verify the accuracy thereof. The Collateral Trustee shall not be required to expend or risk any of its own funds or otherwise incur any liability (financial or otherwise) in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have grounds to believe in its sole determination that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. The Collateral Trustee shall not be under any duty to give any property held by it as Collateral Trustee any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder other than deposit of cash Collateral into the Collection Account. As to any fact or matter the manner of ascertainment of which is not specifically described herein, the Collateral Trustee shall be entitled to receive and may for all purposes hereof conclusively rely on a certificate, signed by an officer of any duly authorized Person, as to such fact or matter, and such certificate shall constitute full protection to the Collateral Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon. The Collateral Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers other than for its own gross negligence or willful misconduct. |
The Collateral Trustee shall not have any duty or responsibility in respect of (i) any recording, filing, or depositing of this Agreement or any other agreement or instrument, monitoring or filing any financing statement or continuation statement evidencing a security interest, the maintenance of any such recording, filing or depositing or any re-recording, re-filing or re- depositing of any thereof, or otherwise monitoring the perfection, continuation of perfection or the sufficiency or validity of any security interest in or related to the Collateral, (ii) the acquisition or maintenance of any insurance or (iii) the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Collateral. The Collateral Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Collateral. The Collateral Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of any of the Lenders pursuant to the provisions of this Agreement or any other Transaction Document, unless such Lenders shall have offered to the Collateral Trustee security, indemnity or prefunding satisfactory to the Collateral Trustee, in its sole discretion, against the losses, costs, expenses (including the fees and expenses of its counsel and agents) and liabilities that might be incurred by the Collateral Trustee in compliance with such request, order or direction. |
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Transaction Document; or |
By its making of a portion of the Loan, each Lender (including the respective successors and permitted assignees of each Lender), to the extent permitted by law, waives any and all claims against the Collateral Trustee for, agrees not to initiate a suit against the Collateral Trustee in respect of, and agrees that the Collateral Trustee shall not be liable for, any action that the Collateral Trustee takes, or abstains from taking, in either case in accordance with the exercise of the Write-Down and Conversion Powers by the EEA Resolution Authority with respect to the Loan. |
By its making of a portion of the Loan, each Lender (including the respective successors and permitted assignees of each Lender), acknowledges and agrees that, upon the exercise of any Write-Down and Conversion Powers by the EEA Resolution Authority, (a) the Collateral Trustee shall not be required to take any further directions from the Administrative Agent or the Lenders under the terms of this Agreement unless secured or indemnified to its satisfaction, that they may not direct the Collateral Trustee to take any action whatsoever, including without limitation, any challenge to the exercise of a Write-Down and Conversion Powers or a request to call a meeting or take any other action under this Agreement in connection with the exercise of a Write-Down and Conversion Powers unless secured or indemnified to its satisfaction and (b) this Agreement shall not impose any duties upon the Collateral Trustee whatsoever with respect to the exercise of any Write-Down and Conversion Powers by the EEA Resolution Authority. |
(a) Generally. No supplement, amendment, modification, or waiver to or of this Agreement, any other Transaction Document, or any provision hereof or thereof, and no consent to any departure by the Borrower, Seller, Servicer or other party herefrom or therefrom, shall in any event be effective unless the same shall be in writing and signed by (i) with respect to this Agreement and any other Transaction Document to which the Borrower is a party, the Borrower, (ii) with respect to this Agreement and any other Transaction Document to which the Seller or the Servicer is a party, the Seller or the Servicer, as the case may be, (iii) the Administrative Agent, (iv) the Majority Lenders, (v) each Lender whose consent is required pursuant to subsection (b) of this Section, and (vi) any Agent (other than the Administrative Agent), but solely to the extent that, in the reasonable judgment of the Administrative Agent, the rights, duties, immunities or liabilities of such Agent would be adversely affected thereby; provided, that if, in the judgment of such other Agent, the rights, duties, immunities or liabilities of such Agent would be adversely affected thereby, then such supplement, amendment, modification, waiver or consent shall not be effective against such Agent until such Agent has given its written consent thereto. |
(b) Lender Consents. Without the written consent of each Lender affected thereby, no supplement, amendment, modification, waiver or consent shall: (i) change the currency, outstanding amount (other than the waiver of the Default Margin in the determination of the Interest Rate) or required payment date of any payment of principal, interest, fee or other Obligation due hereunder or under any other Transaction Document; provided, that this subsection shall not apply to the waiver of any Default or Event of Default, even if the foregoing would have such an effect; (ii) change the Commitment (if any) or Loan Amount of such Lender; (iii) release the Lien on any Collateral other than as expressly contemplated by the terms of this Agreement or any other Transaction Document; (iv) change the definition of Interest Rate, Unused Fee, Majority Lenders, Eligible Receivable, Borrowing Base Deficiency, Final Maturity Date, Settlement Date, Commitment Termination Date or Required Reserve Account Deposit Amount (or the definitions used therein); (v) change any provision that expressly requires the consent of, or provides certain rights or powers to, the Majority Lenders; (vi) impair the right of such Lender to institute a suit or take other action against the Borrower to collect the indebtedness owed to it pursuant to the provisions of this Agreement; (vii) change the Facility Limit (or the definition thereof); (viii) change any section hereof specific to a Conduit Lender (with respect to any Lender that is a Conduit Lender); or (x) modify this Section 9.01. |
(c) No Deemed Waiver or Limitation/Exclusivity of Remedies. Any waiver, consent or approval given by the Administrative Agent or any party hereto (other than any waiver, consent or approval which is contemplated by the express terms of this Agreement or any other Transaction Document) shall be effective only in the specific instance and for the specific purpose for which given, and no waiver by a party of any breach or default under this Agreement or any other Transaction Document shall be deemed a waiver of any other breach or default. No failure on the part of the Administrative Agent or any party hereto to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder, or any abandonment or discontinuation of steps to enforce the right, power or privilege, preclude any other or further exercise thereof or the exercise of any other right. Any waiver consent or approval given by the Administrative Agent under this Agreement, and in accordance with this Agreement, or any other Transaction Document shall be binding upon each Lender and their respective successors and permitted assigns. No notice to or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in the same, similar or other circumstances. The remedies herein provided are cumulative and not exclusive of any remedies provided by law. |
(a) Confidentiality. The Borrower shall, and shall cause each other LC Group Member, to keep all economic terms of this Agreement and the other Transaction Documents confidential, except that such terms may be disclosed (i) to the Borrowers or such other LC Group Members Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such terms and instructed to keep such terms confidential); (ii) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners); (iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; (iv) to any other party hereto; (v) in connection with the exercise of any remedies hereunder or under any other Transaction Document or any action or proceeding relating to this Agreement or any other Transaction Document or the enforcement of rights hereunder or thereunder; (vi) subject to an agreement containing provisions substantially the same as those of this Section, to any actual or prospective party (or its Related Parties) to any swap, derivative or other hedging transaction of the Borrower permitted hereunder to the extent that payments thereunder are to be made by reference to the terms hereof; (vii) on a confidential basis to any rating agency; (viii) with the consent of the Administrative Agent; or (ix) to the extent such term (A) becomes publicly available other than as a result of a breach of this Section, or (B) becomes available to the Borrower or other LC Group Member on a nonconfidential basis from a source other than the Administrative Agent. Any Person required to maintain the confidentiality of such terms as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such terms as such Person would accord to its own confidential information. |
(c) No Public Announcements. Except as required by any applicable Requirements of Law or as set forth in subsection (b) of this Section, no party shall publish any press release (including, without limitation, publicly announcing the consummation of the transactions contemplated by the Transaction Documents) naming any other party without the prior written consent of such other party. |
(d) References to [***]*. Except as permitted by Section 9.02(a), no printed or other material in any language, including prospectuses, notices, reports, and promotional material (other than materials prepared and used solely for internal purposes in connection with this Agreement or the other Transaction Documents and materials expressly prepared and used pursuant to the terms hereof or thereof) which mentions [***]*, or [***]* or [***]* by name in its capacity as Administrative Agent or any other capacity under this Agreement or the other Transaction Documents shall be issued by or on behalf of any party hereto without the prior written consent of [***]*, |
(e) Confidentiality. Each Agent and the Lenders agree to maintain the confidentiality of the Information, except that Information may be disclosed (i) to any Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Persons Affiliates, and any of such Persons successors and permitted assigns (any of the foregoing, its Related Parties) (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (ii) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners); (iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; (iv) to any other party hereto; (v) in connection with the exercise of any remedies hereunder or under any other Transaction Document or any action or proceeding relating to this Agreement or any other Transaction Document or the enforcement of rights hereunder or thereunder; (vi) subject to an agreement containing provisions substantially the same as those of this Section, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, in each case, other than a Disqualified Institution, or (B) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder (it being understood that the list of Disqualified Institutions may be disclosed to any assignee or Participant, or prospective assignee or Participant (other than any Disqualified Institution), in reliance on this clause (vi)); (vii) on a confidential basis to any rating agency; (viii) with the consent of the Borrower; or (ix) to the extent such Information (A) becomes publicly available other than as a result of a breach of this Section, or (B) becomes available to such Agent or such Lender or any of their respective Related Parties on a nonconfidential basis from a source other than the Borrower. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. In addition, the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents and the Lenders in connection with the administration of this Agreement, the other Transaction Documents, and the Commitments. |
(f) Protection of Individual Obligor Information. In addition to its general obligation to comply with the applicable Requirements of Law and the obligations of Section 9.02(a), each party hereto that has access to Obligor Information shall (and, in the case of the Borrower, shall cause the Servicer to) comply with all applicable Privacy Requirements with respect to such Obligor Information. |
(g) Damages. The parties hereto agree that any breach or threatened breach of this Section 9.02 could cause not only financial harm, but also irreparable harm to the other parties, and that money damages may not provide an adequate remedy for such harm. In the event of a breach or threatened breach of this Section 9.02 by any party, each other party shall, in addition to any other rights and remedies it may have, be entitled to (1) in the case of the Administrative Agent or the Borrower, terminate this Agreement immediately (but subject to Section 9.04); (2) seek equitable relief, including, without limitation, an injunction (without the necessity of posting any bond or surety) to restrain such breach; and (3) pursue all other remedies such other parties may have at law or in equity. |
(h) Post-Termination. Following the termination of this Agreement, each party shall retain copies or materials containing confidential or proprietary information (including Information, as applicable) of any other party and any Obligor Information on a confidential basis and shall use the foregoing solely for internal document retention and audit purposes or as required by applicable Requirements of Law. Any Information retained pursuant to this provision shall remain subject to the terms of this Agreement. |
(b) Restrictions on Borrower Assignments. The Borrower may not assign its rights or obligations hereunder, under any other Transaction Document, or in connection herewith or therewith, or any interest herein or therein (voluntarily, by operation of law or otherwise) without the prior written consent of the Administrative Agent and the satisfaction of the know your customer requirements of the Administrative Agent; provided, that the Borrower may transfer or sell Receivables in connection with a Release or as otherwise permitted hereunder or under any other Transaction Document. |
(c) No Implied Third Party Beneficiary. Nothing expressed herein is intended or shall be construed to give any Person any legal or equitable right, remedy or claim under or in respect of this Agreement except as expressly set forth herein; provided, that the Priority of Payments shall inure to the benefit of each related recipient of distributions thereunder. |
(d) Collateral Assignments By Lender. Notwithstanding anything to the contrary set forth herein, and without any requirement to comply with any other section hereof or to receive the consent of Borrower or any other Person (except as expressly set forth in this subsection (d)), each Lender may, at any time, pledge, collaterally assign and grant a security interest in and Lien on all or any portion of its rights and interests under this Agreement, any other Transaction Document, its Loan (or any portion thereof) and all rights to receive payments hereunder: (i) to any Federal Reserve Bank or any other Governmental Authority in accordance with any applicable Requirements of Law, (ii) to any collateral trustee or collateral agent, and (iii) with the prior written consent of the Administrative Agent, such consent not to be unreasonably withheld (but subject to satisfaction of know your customer requirements of the Administrative Agent), to any other Person. No such assignment shall relieve the assigning Lender of any of its obligations hereunder, including, without limitation, with respect to any Committed Lender, its Commitment to fund Advances. |
(e) Lender Assignments. Subject to subsection (d) of this Section, a Lender (with the consent of the Administrative Agent, such consent not to be unreasonably withheld, and the satisfaction of know your customer requirements of the Administrative Agent) may proportionately assign all or any portion of its Commitment (if any) and its Loan, and its rights, interests and obligations as Lender under this Agreement and the Transaction Documents, (i) if there is no Event of Default: (A) to any Eligible Assignee, collateral agent or collateral trustee, without the consent of Borrower or any other Person (other than the Administrative Agent as set forth above), or (B) otherwise, to (x) any Person (other than a Disqualified Institution) with the consent of the Borrower, which consent shall not be unreasonably withheld, conditioned, or delayed, or (y) to any Disqualified Institution with the consent of the Borrower (in its sole and absolute discretion); and (ii) on or after the occurrence and continuation of an Event of Default, to any Person (whether or not an Eligible Assignee) other than a Disqualified Institution without the consent of the Borrower or any Person (other than the Administrative Agent as set forth above). In connection with any such assignment, such Lender shall have the right, in its sole discretion, to divide and/or credit tranche its Loan (or any portion thereof) in any manner; provided that, subject to Section 7.03 (with respect to any securitization), neither the Borrower nor any other LC Group Member shall be required to take any action in connection therewith, other than, if applicable, with respect to the Borrowers right to consent to such assignment pursuant to the terms of this Section. Any assignment pursuant to this subsection (e) shall be effective when an Assignment and Assumption Agreement executed by the assignor Lender, assignee Lender and the Administrative Agent has been delivered to the Administrative Agent and recorded in the Register. Notwithstanding the foregoing, if any Regulatory Requirement has made it unlawful for any Lender to make, hold or maintain any Loan hereunder, or otherwise to perform the transactions contemplated to be performed by it pursuant to this Agreement and the other Transaction Documents, then (1) such Lender shall so notify the Borrower and the Administrative Agent; and (2) the obligation of such Lender to fund any Advance shall be suspended. |
(f) Lender Participations. A Lender, may, at its sole cost and expense and in accordance with applicable law, at any time sell to one or more entities (Participants) (other than a Disqualified Institution) participating interests in this Agreement and the other Transaction Documents, its Commitment (if any), its Loan, and any other interest of such Lender hereunder or thereunder; provided, that any such participation shall require (i) the prior written consent of the Administrative Agent, and (ii) the satisfaction of know your customer requirements of the Administrative Agent; provided, further, that no such consent of the Administrative Agent shall be required so long as the agreement or instrument pursuant to which a Lender sells such a participation provides that such Lender shall retain the sole right (and the applicable Participant shall have no such rights) (A) to enforce its rights under this Agreement and any other Transaction Document and (B) to approve any amendment, modification or waiver of any provision of this Agreement or any other Transaction Document. In connection with any such participation, such Lender shall have the right, in its sole discretion, to credit tranche the Loans; provided that, subject to Section 7.03 (with respect to any securitization), neither the Borrower nor any other LC Group Member shall be required to take any action in connection therewith. In the event of any such sale by a Lender of participating interests to a Participant, such Lenders obligations under this Agreement to the Borrower shall remain unchanged, such Lender shall remain solely responsible for the performance thereof and the Borrower shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement and the other Transaction Documents. The Borrower hereby agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement and the other Transaction Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement and the other Transaction Documents; provided, that such Participant shall only be entitled to such right of set off if it shall have agreed in the agreement pursuant to which it shall have acquired its participating interest to share with such Lender the proceeds thereof. The Borrower also each hereby agrees that each Participant shall be entitled to the benefits of Sections 2.07, 2.08, and 9.06 with respect to its participation in the Loans outstanding from time to time (subject to the requirements and limitations set forth therein); provided, that such Lender and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than such Lender would have been entitled to receive had no such transfer occurred. Each Lender that sells a participating interest in any Loan or other interest to a Participant shall, as agent of the Borrower solely for the purpose of this Section 9.03, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participants interest in the Loan or other Obligations (the Participant Register); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participants interest in any Commitment, Loans, or other Obligations) to any Person except to the extent that such disclosure is necessary to establish that such foregoing is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, no Agent (in its capacity as an Agent) shall have any responsibility for maintaining any Participant Register. |
SECTION 9.05 Transaction Documents; Entire Agreement. This Agreement shall be deemed to be a Transaction Document for all purposes hereof, of the Security Agreement and of the other Transaction Documents. This Agreement, together the other Transaction Documents, including the exhibits, schedules and other attachments hereto and thereto, contain a final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all previous oral statements and other writings with respect thereto. The provisions of this Agreement are intended to be and shall be enforceable under Section 510(a) of the Bankruptcy Code. |
(i) The Borrower agrees to pay, promptly and in any event on the next Settlement Date subject to the Priority of Payments, the reasonable and documented out-of-pocket costs, fees and expenses of the Administrative Agent, Paying Agent, and Collateral Trustee, in connection with: (i) the negotiation, preparation, execution, delivery, and administration of this Agreement and the other Transaction Documents, (ii) any required filings or recordings with any applicable Governmental Authority, and (iii) subject to the terms of Sections 5.02(g) and 6.01(i), the periodic due diligence reviews, AUP Letters, any other periodic auditing or inspection, and ongoing monitoring of the Facility which, if no Amortization Event, Default or Event of Default has occurred and is continuing, shall not exceed, in aggregate, $200,000 per contract year with respect to amounts charged therefor by or reimbursable to the Administrative Agent, (iv) legal services (but subject to any mutually agreed fee cap for the legal fees arising in connection with the initial negotiating, documenting and closing of the Transaction Documents). |
(ii) The Borrower agrees to pay, promptly and in any event on the next Settlement Date subject to the Priority of Payments, all reasonable documented out-of-pocket costs, fees and expenses (including reasonable legal costs, fees and expenses) incurred by the Administrative Agent, Paying Agent, Collateral Trustee, Backup Servicer, or any Lender as a consequence of, or in connection with, (A) any amendments, waivers, consents, supplements or other modifications to this Agreement or any other Transaction Document (provided, that the Lenders shall not hire separate outside counsel from the Administrative Agent in connection with an amendment, waiver, consent, supplement or other modification unless, in the reasonable judgment of such Lender, its interests may be in conflict or different than the interests of the Administrative Agent or the other Lenders), (B) the negotiation of any restructuring or work-out, whether or not consummated, of the Transaction Documents, (C) the replacement of, or the addition of a new Person as, the Originator, Servicer, Backup Servicer, Sub-Backup Servicer, Account Bank, or Custodian (provided, that the Lenders shall not hire separate outside counsel from the Administrative Agent in connection with such replacement unless, in the reasonable judgment of such Lender, its interests may be in conflict or different than the interests of the Administrative Agent or the other Lenders), (D) the enforcement or potential enforcement of this Agreement or any other Transaction Document against the Borrower, Seller or Servicer or protection or exercise of the rights and remedies of any such Person under any Transaction Document, including, without limitation, the taking of any Enforcement Action, and (E) any stamp, documentary or other Taxes which may be payable by such Person in connection with the execution or delivery of this Agreement or any other Transaction Document or the making of the Loan. |
(b) Borrower Indemnification. The Borrower hereby agrees to indemnify and hold harmless the Administrative Agent, the Collateral Trustee, the Paying Agent, the Custodian, the Backup Servicer, each Lender, their Affiliates, and the officers, directors, employees and agents of each of them (collectively, the Indemnified Parties) from and against any and all actions, causes of action, claims, suits, losses, costs, expenses, liabilities and damages, as incurred (including, without limitation, any liability in connection with the making of any Loan), including, without limitation, reasonable documented attorneys fees and disbursements (collectively, the Indemnified Liabilities), incurred by or asserted against the Indemnified Parties or any of them (whether in prosecuting or defending against such actions, suits or claims or otherwise) as a result of, or arising out of, or relating to (i) any transaction financed or to be financed in whole or in part (including, without limitation, any Purchased Receivable constituting part of the Collateral), directly or indirectly, with the proceeds of any Loan including, without limitation, any claim, suit or action related to such transaction; or (ii) this Agreement or any other Transaction Document, or the entering into and performance of this Agreement or any other Transaction Document by any of the Indemnified Parties; excluding, however, any such Indemnified Liabilities arising as a result of the gross negligence or willful misconduct of the Indemnified Party seeking indemnification hereunder, as based on the final determination by a court of competent jurisdiction. |
(c) Additional Terms; Survival. If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Borrower agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities to which the Borrower is liable pursuant to clause (b), which is permissible under applicable law (but subject to the limitations and exclusions applicable to the indemnity by such Person). The indemnity set forth in this Section 9.06 shall in no event include indemnification for any Taxes (which indemnification is provided in Section 2.08), other than Taxes described in clause (ii) of subsection (a) above and Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. |
(d) Payments. Upon the written request of an Indemnified Party pursuant to this Section 9.06, the Borrower shall promptly reimburse such an Indemnified Party for the amount of any such Indemnified Liabilities incurred by such an Indemnified Party, which shall be payable on the next Settlement Date subject to the Priority of Payments. The provisions of this Section 9.06 shall survive the termination of this Agreement or any resignation or removal of any Indemnified Party. |
(a) Notices Generally. All notices, amendments, waivers, consents and other communications provided to any party hereto under this Agreement shall be in writing and addressed, delivered or transmitted to such party at its address set forth below its signature hereto (or, in the case of any assignee Lender, in the applicable Assignment and Assumption Agreement) or at such other address as may be designated by such party in a notice to the other parties and, in the case of any such notice, waiver, amendment, consent or other communication sent to any party other than the Administrative Agent, with a copy thereof to the Administrative Agent. Any notice, if mailed and properly addressed with postage prepaid or if properly addressed and sent by pre-paid courier service, shall be deemed given when received. Notices delivered through electronic communications, to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b). The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. |
(c) Each Person that is an Agent, in any capacity of such Person hereunder or under any other Transaction Document (in all applicable capacities, a Recipient), agrees to accept and act upon instructions or directions pursuant to this Agreement, any other Transaction Document, and any document executed in connection herewith or therewith, sent by unsecured email, facsimile transmission or other similar unsecured electronic methods; provided however, that the Borrower shall, and shall cause the Seller and Servicer (if applicable) to, provide to such Recipient an incumbency certificate listing persons designated to provide such instructions or directions, which incumbency certificate shall be amended whenever a person is added or deleted from the listing; provided, further, however, that such Recipient may, but is not required to, take action without any such incumbency certificate and shall have no liability whatsoever for failure to have such incumbency certificate or to verify that the sending party of the Borrower, Seller or Servicer, as applicable, is on such incumbency certificate. If the Borrower, Seller or Servicer elects to give any such Recipient email or facsimile instructions (or instructions by a similar electronic method) and such Recipient in its discretion elects to act upon such instructions, such Recipients reasonable understanding of such instructions shall be deemed controlling. No Recipient shall be liable for any losses, costs or expenses arising directly or indirectly from its reliance upon and compliance with such instructions notwithstanding such instructions conflicting with or being inconsistent with a subsequent written instruction. The Borrower hereby agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to any Recipient, including without limitation the risk of such Recipient acting on unauthorized instructions, and the risk of interception and misuse by third parties, and acknowledges and agrees that there may be more secure methods of transmitting such instructions than the method(s) selected by it and agrees that the security procedures (if any) to be followed in connection with its transmission of such instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances. |
SECTION 9.08 Severability of Provisions. Any covenant, provision, agreement or term of this Agreement that is prohibited or is held to be void or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of the prohibition or unenforceability without invalidating the remaining provisions of this Agreement. |
SECTION 9.09 Tax Characterization. Each party to this Agreement (a) acknowledges that it is the intent of the parties to this Agreement that, for accounting purposes and for all Federal, State and local income and franchise tax purposes, the Loans will be treated as evidence of indebtedness issued by the Borrower, (b) agrees to treat the Loans for all such purposes as indebtedness and (c) agrees that the provisions of the Transaction Documents shall be construed to further these intentions. |
SECTION 9.10 Full Recourse to Borrower. The obligations of the Borrower under this Agreement and the other Transaction Documents shall be full recourse obligations of the Borrower. Notwithstanding the foregoing, no recourse shall be had for the payment of any amount owing in respect of this Agreement, including the payment of any fee hereunder or any other obligation or claim arising out of or based upon this Agreement, against any member, employee, officer, manager or director of the Borrower; provided, however, that nothing in this Section 9.10 shall relieve LendingClub (in any capacity) or any other Person from any liability that it may otherwise have as expressly set forth in this Agreement or any other Transaction Document to which it is a party. |
SECTION 9.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. |
SECTION 9.14 Counterparts; Electronic Delivery. This Agreement may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original, and all of which together shall constitute one and the same instrument. Any signature page to this Agreement containing a manual signature may be delivered by facsimile transmission or other electronic communication device (such as pdf attachment to an email) capable of transmitting or creating a printable written record, and when so delivered shall have the effect of delivery of an original manually signed signature page. |
(a) Against Borrower. Notwithstanding any prior termination of this Agreement, prior to the date that is one year and one day after Payment in Full, none of the Custodian, Collateral Trustee, or any Lender will institute against, join any other Person in instituting against, acquiesce, petition or otherwise invoke, or cause the Borrower to invoke, the process of any court or governmental authority for the purpose of commencing or sustaining an Insolvency Proceeding or other case against the Borrower under any federal or State bankruptcy, insolvency or other Debtor Relief Law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for the Borrower or any substantial part of its property, or for ordering the winding up or liquidation of the affairs of the Borrower. The Borrower hereby agrees that it shall receive the foregoing agreement from each counterparty to any contract entered into by the Borrower. |
(b) Against Conduit Lenders. Notwithstanding any prior termination of this Agreement, each party hereto hereby agree that prior to the date that is one year and one day (or such longer preference or disgorgement period as may be in effect from time to time) after the date upon which the latest maturing commercial paper note or other debt security issued by a Conduit Lender is paid in full, such party will not institute against, join any other Person in instituting against, petition or otherwise invoke the process of any court or governmental authority for the purpose of commencing or sustaining an Insolvency Proceeding or other case against such Conduit Lender under any federal or State bankruptcy, insolvency or other Debtor Relief Law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for such Conduit Lender or any substantial part of its property, or for ordering the winding up or liquidation of the affairs of such Conduit Lender. |
(b) All representations and warranties set forth in Section 4.01 of the Credit Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) on the date hereof and will be true and correct on the Advance Date, both before and after giving effect to the Advance (and the simultaneous acquisition by the Borrower of new Receivables) (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects)) as of such earlier date). |
Reference is made to that certain Warehouse Credit Agreement, dated as of October 10, 2017 (as amended, supplemented, restated or otherwise modified from time to time in accordance with the terms thereof, the Credit Agreement), among LendingClub Warehouse I LLC (the Borrower), Wilmington Trust, National Association, as Paying Agent and Collateral Trustee, the Lenders from time to time party thereto (the Lenders), and [***]*, as Administrative Agent (in such capacity, the Administrative Agent). Unless otherwise defined herein or as the context otherwise requires, terms used herein have the meaning assigned thereto under the Credit Agreement. |
1. Purchase and Sale of Interest. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, an undivided percentage interest (equal to the Percentage) in and to all of the Assignors rights and obligations under the Credit Agreement as of the Assignment Effective Date (the Transferred Interest), including, without limitation, the Percentage of the following: the Assignors [Commitment], the Assignors Loan Amount, and all interest, fees, and other Obligations owing to the Assignor that are accrued but unpaid as of the Assignment Effective Date. After giving effect to such sale and assignment, the Assignee will be a [Committed Lender] [Conduit Lender] in the Related Group shown above. |
2. Purchase Price. As consideration for the sale and assignment of the Transferred Interest contemplated in Section 1 above, the Assignee shall pay to the Assignor on the Assignment Effective Date in immediately available funds an amount equal to $[__________], representing the purchase price payable by the Assignee for the Transferred Interest sold and assigned to the Assignee under this Assignment and Assumption Agreement. |
(b) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement, any other Transaction Document, or any other instrument or document furnished pursuant thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of any of the foregoing; and |
(a) confirms that it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to the Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption Agreement; |
(d) agrees that, on and after the Assignment Effective Date, it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement and this Assignment and Assumption Agreement are required to be performed by it as a [Committed Lender] [Conduit Lender] and to be bound to the terms of the Credit Agreement as a Lender thereunder as fully and completely as if it were an original signatory thereto; |
5. Effectiveness of Assignment. This Assignment and Assumption Agreement shall become effective on the first date on or after the Assignment Effective Date on which it has been executed by the parties hereto but, unless the parties otherwise mutually agree, the assignment shall be deemed to take effect (and all economic calculations shall be made) giving effect to the Assignment Effective Date as the effective date of such assignment.. |
6. Rights of the Assignee. Upon such acceptance and recording by the Paying Agent, as of the Assignment Effective Date, (i) the Assignee shall (if not already a party) be and become a party to the Credit Agreement and, to the extent provided in this Assignment and Assumption Agreement with respect to the Transferred Interest acquired hereunder, have the rights and obligations of a [Committed Lender] [Conduit Lender] thereunder and hereunder, and (ii) the Assignor shall, to the extent provided in this Assignment and Assumption Agreement with respect to the Transferred Interest transferred hereby, relinquish its rights and be released from its obligations under the Credit Agreement. |
7. Payments. Upon such acceptance of this Assignment and Assumption Agreement and recordation hereof in the Register, all payments under the Credit Agreement in respect of the Transferred Interest (including accrued interest and fees) shall be made to the Assignee in accordance with the Credit Agreement. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement for periods prior to the Assignment Effective Date directly between themselves. |
Reference is made to the Warehouse Credit Agreement, dated as of October 10, 2017 (as amended, supplemented, restated or otherwise modified, the Credit Agreement), among LendingClub Warehouse I LLC (the Borrower), Wilmington Trust, National Association, as Paying Agent and Collateral Trustee, the Lenders from time to time party thereto (the Lenders), and [***]*, as Administrative Agent (in such capacity, the Administrative Agent). Unless otherwise defined herein or as the context otherwise requires, terms used herein have the meaning assigned thereto under the Credit Agreement |
As used in this Certificate, Applicable Pro Forma Date means (a) if this Certificate is being delivered in connection with an Advance Notice, the related Advance Date; (b) if this Certificate is being delivered in connection with a Prepayment/Release Notice that provides for a Release, the related Prepayment/Release Date; and (c) if this Certificate is being delivered in connection with a Servicers Monthly Settlement Certificate, the related Settlement Date. |
(b) the terms of Section 4.1(g) of the Servicing Agreement apply to the Borrowing Base calculation and each of the components thereof, the Data File, the Advance Rate Model, and any other attachments hereto and the information set forth herein and therein, as if such Section 4.1(g) were fully set forth herein; |
(d) all representations and warranties of Seller, Servicer and Borrower set forth in each of the Transaction Documents are true and correct in all material respects on the date hereof and, if applicable, on the Applicable Pro Forma Date (after giving effect to any sale or acquisition of Receivables by the Borrower, Release of Purchased Receivables, and any prepayments or distributions to be made on such date) (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date); and |
(e) on the date hereof and, if applicable, on the Applicable Pro Forma Date (after giving effect to any sale or acquisition of Receivables by the Borrower, Release of Purchased Receivables, and any prepayments or distributions to be made on such date), no Default, Event of Default or Amortization Event shall have occurred or be continuing, or will arise as a result of any sale or acquisition of Receivables by the Borrower, Release of Purchased Receivables, and any prepayments or distributions to be made on such Applicable Pro Forma Date. |
(f) DUTY TO UPDATE: If this Certificate is being delivered in connection with any Applicable Pro Forma Date, the undersigned hereby undertakes the obligation to update the information, representations, warranties, and certifications provided herein and in each Annex attached hereto if any such information, representations, warranties, or certifications are no longer true, complete and correct in all material respects on and as of such Applicable Pro Forma Date (after giving effect to all activity to take place on such date) except to the extent such information, representations, warranties, and certifications expressly relate to any earlier date, as of such earlier date. |
This Financials Compliance Certificate (this Certificate), for the fiscal [quarter][year] ending ____________, 20__ (the Relevant Period), is furnished pursuant to Section 6.01(l) of that certain Warehouse Credit Agreement, dated as of October 10, 2017 (as amended, supplemented, restated or otherwise modified, the Credit Agreement), among LendingClub Warehouse I LLC (the Borrower), Wilmington Trust, National Association, as Paying Agent (in such capacity, Paying Agent) and Collateral Trustee (in such capacity, Collateral Trustee), the Lenders from time to time party thereto (the Lenders), and [***]*, as Administrative Agent (in such capacity, the Administrative Agent). Unless otherwise defined herein or as the context otherwise requires, terms used herein have the respective meanings assigned thereto under the Credit Agreement. |
The undersigned, as an Authorized Officer of the Borrower and LendingClub, hereby certifies as of the date hereof that he/she is the __________ of the Borrower and the ________ of Lending Club and that, as such, he/she is authorized to execute and deliver this Certificate on behalf of the Borrower and LendingClub, and that: |
The Financial Statements of LendingClub or the Borrower, as applicable, present fairly in all material respects the financial condition and results of operations of such Person (and, in the case of LendingClub, its consolidated Subsidiaries on a consolidated basis) in accordance with GAAP consistently applied, subject, in the case of interim Financial Statements, to normal year- end audit adjustments and the absence of footnotes. ---|---|--- |
Such review has not disclosed the existence at any time on and as of the date hereof, and the undersigned does not have knowledge of the existence as of the date hereof, of any event or condition that constitutes a Default or Event of Default[, except for such conditions or events listed below, specifying the nature and period of existence thereof and what action the Borrower has taken, is taking or proposes to take with respect thereto]. ---|---|--- | 5. | |
None of the Originator, Seller or Borrower has changed its name, chief executive office, jurisdiction of organization, or form of organization in any manner without having given the Administrative Agent the prior notice (and, if applicable, received such consent) as required by Section 6.02(i) of the Credit Agreement. ---|---|--- Exhibit E-1 |
All representations and warranties set forth in Section 4.01 of the Credit Agreement are true and correct in all material respects on the date hereof (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date). ---|---|--- | 7. | |
This Prepayment/Release Notice is delivered to you pursuant to Section 2.04 of that certain Warehouse Credit Agreement, dated as of October 10, 2017 (as amended, supplemented, restated or otherwise modified, the Credit Agreement), among LendingClub Warehouse I LLC (the Borrower), Wilmington Trust, National Association, as Paying Agent and Collateral Trustee, the Lenders from time to time party thereto (the Lenders), and [***]*, as Administrative Agent (in such capacity, the Administrative Agent). Unless otherwise defined herein or as the context otherwise requires, terms used herein have the meaning assigned thereto under the Credit Agreement. |
b. [All representations and warranties set forth in Section 4.01 of the Credit Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) on the date hereof and will be true and correct on the Prepayment/Release Date, both before and after giving effect to the Release on such date, (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects)) as of such earlier date).] |
e. [Servicer did not use selection procedures intentionally designed to have an adverse effect on the Secured Parties when selecting Purchased Receivables within any particular Cohort to be subject to such Release relative to Purchased Receivables in the same Cohort not selected for such Release; provided, the foregoing does not apply to selections between or among different Cohorts.] |
Re: Warehouse Credit Agreement, dated as of October 10, 2017 (as amended, supplemented, restated or otherwise modified, the Credit Agreement), among LendingClub Warehouse I LLC (the Borrower), Wilmington Trust, National Association, as Paying Agent and Collateral Trustee, the Lenders from time to time party thereto, and [***]*, as Administrative Agent (in such capacity, the Administrative Agent). Unless otherwise defined herein or as the context otherwise requires, terms used herein have the meaning assigned thereto under the Credit Agreement. |
(a) As of the date hereof and as of the Settlement Date listed above (after giving effect to all distributions and transfers contemplated on such date), each of the Borrower, Seller and Servicer is and will be Solvent and no Amortization Event, Event of Default, Default, Seller Default, Servicer Default or event that, with the giving of notice or passage of time or both, would become a Seller Default or a Servicer Default, has occurred or will occur as of such Settlement Date (after giving effect to all distributions and transfers contemplated on such date) [except as described on attachment if applicable]. |
(i) Borrowing Base Certificate, dated and current as of the close of business on the date preceding the delivery date for this Servicers Monthly Settlement Certificate, showing as of such date and on a pro forma basis as of the Settlement Date (after giving effect to all distributions, transfers and other activity to occur on such Settlement Date), the calculation of the Eligible Pool Balance, Excess Concentration Amount, and Borrowing Base; |
(e) The Servicer hereby agrees to update the information and certifications provided herein and in the attachments hereto if any such information or certifications are no longer true, complete and correct in all material respects on and as of the Settlement Date (after giving effect to all distributions on such date) except to the extent such information or certificate expressly relates to any earlier date, as of such earlier date. |
The Borrowers have entered into that certain Credit Agreement dated as of May 12, 2016 with the lenders party thereto (the Existing Lenders), Bank of America, N.A., in its capacity as administrative agent, swing line lender and an L/C issuer, and the other agents party thereto (as amended prior to the date hereof, the Existing Credit Agreement, and all indebtedness arising pursuant to the Existing Credit Agreement, the Existing Indebtedness). |
The Borrowers, the Administrative Agent and the Existing Lenders desire to amend and restate in its entirety the Existing Credit Agreement on the terms and conditions set forth herein, including to increase the aggregate commitments under the Existing Credit Agreement from the initial amount of $90,000,000 to $150,000,000, to add certain new Lenders as parties hereto, to extend and continue the Existing Indebtedness as Loans hereunder and obtain additional Loans and Letters of Credit for the purposes permitted herein. |
2021 Convertible Notes Documents means (a) the Indenture for the 2021 Convertible Notes dated as of December 5, 2016, between Newpark and Wells Fargo Bank, National Association, a national banking association, as trustee, (b) the 2021 Convertible Notes and (c) all other agreements, instruments and other documents, if any, pursuant to which the 2021 Convertible Notes have been issued or otherwise setting forth the terms of the 2021 Convertible Notes. |
2021 Convertible Notes Temporary Reserve means a reserve in an amount requested by Newpark to be imposed in respect of its future repayment of the 2021 Convertible Notes which, if requested, will be imposed by the Administrative Agent in the requested amount and will be released upon the earlier of (i) the 2021 Convertible Notes Repayment Date and (ii) Borrowers deposit of cash and Cash Equivalents (including the proceeds of a Borrowing) in an escrow account with the Administrative Agent in amount sufficient to satisfy the 2021 Convertible Notes in full at their maturity, it being understood that such reserve will be released as and to the extent necessary for the Borrowers to obtain a Borrowing to fund such escrow account as provided above. |
Acquisition means the acquisition, directly or indirectly, by any Person of (a) at least a majority of the Equity Interests of another Person, (b) all or substantially all of the assets of another Person or (c) all or substantially all of a line of business or division of another Person, in each case (i) whether or not involving a merger or a consolidation with such other Person and (ii) whether in one transaction or a series of related transactions. |
Applicable Percentage means, with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lenders Commitment at such time, subject to adjustment as provided in Section 2.16. If the commitment of each Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Commitments have expired, then the Applicable Percentage of each Lender in respect of the Aggregate Commitments shall be determined based on the Applicable Percentage of such Lender in respect of the Aggregate Commitments most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 1.01(a) or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. |
Applicable Rate means (i) from the Closing Date to the date on which the Administrative Agent receives a Compliance Certificate pursuant to Section 6.02(b) for the fiscal quarter ending September 30, 2017, 1.50% per annum for Base Rate Loans and 2.50% per annum for Eurodollar Rate Loans and Letter of Credit Fees and (ii) thereafter, the applicable percentage per annum set forth below determined by reference to the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by Administrative Agent pursuant to Section 6.02(b) and corresponding to the grid provided below: |
1.75% Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 5 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the date on which such Compliance Certificate is delivered. |
Availability Period means the period from and including the Closing Date to the earliest of (i) the Maturity Date, (ii) the date of termination of the Commitments pursuant to Section 2.06, and (iii) the date of termination of the commitment of each Lender to make Revolving Credit Loans and of the obligation of each L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02. |
Availability Reserve means the sum (without duplication) of (a) the Rent and Charges Reserve; (b) the Bank Product Reserve; (c) the Dilution Reserve; (d) the Inventory Reserve; (e) the aggregate amount of liabilities secured by Liens upon Collateral that are senior to Administrative Agents Liens (but imposition of any such reserve shall not waive an Event of Default arising therefrom); (f) the 2021 Convertible Notes Temporary Reserve if then in effect; and (g) such additional reserves, in such amounts and with respect to such matters, as Administrative Agent in its Permitted Discretion may elect to impose from time to time. |
Bank Product means any of the following products, services or facilities extended to a Borrower or a Subsidiary by a Lender or any of its Affiliates: (a) services under Cash Management Agreements; (b) products under Swap Contracts; and (c) leases and other banking products or services, other than Letters of Credit. |
Base Rate means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its prime rate, and (c) the Eurodollar Rate plus 1.00%. The prime rate is a rate set by Bank of America based upon various factors including Bank of Americas costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced |
(iv) so long as the Consolidated Fixed Charge Coverage Ratio is greater than 1.50 to 1.00 and the Mats Operating Income is greater than $1,000,000, the lesser of (A) 70% of the NOLV Percentage of the Eligible Mats Rental Inventory and (B) 20% of the Borrowing Base then in effect (before giving effect to the Availability Reserve), plus |
Business Day means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agents Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day that is also a London Banking Day. |
Capital Expenditures means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition or improvement of any fixed or capital asset (excluding normal replacements and maintenance which are properly charged to current operations); provided that Capital Expenditures shall not include (a) expenditures for Capitalized Leases, purchase money |
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