Exhibit 10.12





Exhibit 10.12




Confidential Materials omitted and filed separately with the

Securities and Exchange Commission. Asterisks denote omissions.




WEBBANK




and




LENDINGCLUB CORPORATION




LOAN SALE AGREEMENT




Dated as of December 10, 2007





 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	1. Definitions
	 	 	1	 
	 
	 	 	 	 
	2. Purchase of Loan Accounts; Payment to Bank: Reporting to Bank
	 	 	1	 
	 
	 	 	 	 
	3. Ownership of Loan Accounts
	 	 	2	 
	 
	 	 	 	 
	4. General Representations and Warranties of Bank
	 	 	2	 
	 
	 	 	 	 
	5. Additional Representations and Warranties of Bank
	 	 	3	 
	 
	 	 	 	 
	6. Representations and Warranties of Company
	 	 	4	 
	 
	 	 	 	 
	7. Conditions Precedent to the Obligations of Company
	 	 	5	 
	 
	 	 	 	 
	8. Conditions Precedent to the Obligations of Bank
	 	 	5	 
	 
	 	 	 	 
	9. Term and Termination
	 	 	6	 
	 
	 	 	 	 
	10. Confidentiality
	 	 	7	 
	 
	 	 	 	 
	11. Indemnification
	 	 	9	 
	 
	 	 	 	 
	12. Assignment
	 	 	11	 
	 
	 	 	 	 
	13. Third Party Beneficiaries
	 	 	11	 
	 
	 	 	 	 
	14. Proprietary Material
	 	 	11	 
	 
	 	 	 	 
	15. Notices
	 	 	11	 
	 
	 	 	 	 
	16. Relationship of Parties
	 	 	12	 
	 
	 	 	 	 
	17. Retention of Records
	 	 	12	 
	 
	 	 	 	 
	18. Agreement Subject to Applicable Laws
	 	 	12	 
	 
	 	 	 	 
	19. Expenses
	 	 	13	 
	 
	 	 	 	 
	20. Examination
	 	 	13	 
	 
	 	 	 	 
	21. Inspection: Reports
	 	 	13	 
	 
	 	 	 	 
	22. Governing Law; Waiver of Jury Trial
	 	 	13	 
	 
	 	 	 	 
	23. Manner of Payments
	 	 	13	 
	 
	 	 	 	 






 


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	 	 	Page	 
	 
	 	 	 	 
	24. Brokers
	 	 	13	 
	 
	 	 	 	 
	25. Entire Agreement
	 	 	14	 
	 
	 	 	 	 
	26. Amendment and Waiver
	 	 	14	 
	 
	 	 	 	 
	27. Severability
	 	 	14	 
	 
	 	 	 	 
	28. Interpretation
	 	 	14	 
	 
	 	 	 	 
	29. Jurisdiction: Venue
	 	 	14	 
	 
	 	 	 	 
	30. Headings
	 	 	14	 
	 
	 	 	 	 
	31. Counterparts
	 	 	14	 
	 
	 	 	 	 
	32. Collateral Account.
	 	 	14	 
	 
	 	 	 	 





 


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THIS LOAN SALE AGREEMENT (this “Agreement”), dated as of December 10, 2007 (“Effective Date”),
is made by and between WEBBANK, a Utah-chartered industrial bank having its principal location in
Salt Lake City, Utah (“Bank”), and LENDINGCLUB CORPORATION, a Delaware corporation, having its
principal location in Sunnyvale, California (“Company”).



WHEREAS, Bank and Company have entered into a Loan Account Program Agreement pursuant to which
Bank provides installment loans to consumers; and



WHEREAS, Bank desires to sell to Company, and Company desires to purchase from Bank, the Loan
Accounts established by Bank pursuant to the Loan Account Program Agreement.



NOW, THEREFORE, in consideration of the foregoing and the terms, conditions and mutual
covenants and agreements herein contained, and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Bank and Company agree as follows:



1. Definitions. The terms used in this Agreement shall be defined as set forth in
Schedule 1. Terms not defined herein shall have the meanings ascribed to them in the Loan
Account Program Agreement.



2. Purchase of Loan Accounts; Payment to Bank: Reporting to Bank.




	 	(a)	 	Bank hereby agrees to sell, transfer, assign, set-over, and otherwise convey to
Company, without recourse, on each Closing Date, the Loan Accounts established by Bank
on such day. All of the foregoing shall be in accordance with the procedures set forth
in this Section 2. In consideration for Bank’s agreement to sell, transfer, assign,
set-over and convey to Company such Loan Accounts, Company agrees to purchase such Loan
Accounts from Bank, and Company shall pay to Bank the Purchase Price on each Closing
Date in accordance with subsection 2(b) below.






	 	(b)	 	On each Closing Date, Company shall purchase the Loan Accounts established by
Bank that day and identified on the Funding Statement for that day. Company shall
effectuate its purchase of the Loan Accounts by depositing the Funding Amount (which
shall equal the aggregate Purchase Price for such Loan Accounts) into the Funding
Account in accordance with Section 6(b) of the Loan Account Program Agreement. Prior
to the first Funding Date, Bank shall provide to Company the account number and routing
number for the Funding Account.






	 	(c)	 	To the extent that such materials are in Bank’s possession, upon Company’s
request, Bank agrees to cause to be delivered to Company, at Company’s cost, loan files
on all Loan Accounts purchased by Company pursuant to this Agreement through the
preceding Business Day. Such loan files will include the application for the Loan
Account, the Loan Account Agreement, confirmation of delivery of the Loan Account
Agreement to the Borrower, and such other materials as Company may reasonably require
(all of which may be in electronic form); provided that Bank may retain copies of such information as necessary to
comply with Applicable Law.




 


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	 	(d)	 	Within five (5) days after the end of each calendar month, Company shall pay
Bank a monthly service fee equal to the greater of (i) the product of
[*] and [*], or (ii) $[*] in months [*]; $[*] in months [*]; $[*] in
months [*]; and $[*] in months [*].






[*]




	 	(e)	 	With each such monthly payment, Company shall deliver to Bank a report setting
forth the calculation of the payment Company is obligated to make to Bank pursuant to
this Section 2.





3. Ownership of Loan Accounts.




	 	(a)	 	On and after each Closing Date, subject to Company’s payment of the Purchase
Price on each such date, Company shall be the sole owner for all purposes (e.g., tax,
accounting and legal) of the Loan Accounts purchased from Bank on such date. Bank
agrees to make entries on its books and records to clearly indicate the sate of the
Loan Accounts to Company as of each Closing Date. Company agrees to make entries on
its books and records to clearly indicate the purchase of the Loan Accounts as of each
Closing Date. Bank does not assume and shall not have any liability to Company for the
repayment of any Loan Proceeds or the servicing of the Loan Accounts.





4. General Representations and Warranties of Bank. Bank hereby represents and warrants as
of the Effective Date of this Agreement that:




	 	(a)	 	Bank is an FDIC-insured Utah-chartered industrial bank, duly organized, validly
existing under the laws of the State of Utah and has full corporate power and authority
to execute, deliver, and perform its obligations under this Agreement; the execution,
delivery and performance of this Agreement and the transfer of the Loan Accounts have
been and will continue to be duly authorized and are not and will not be in conflict
with and do not violate the terms of the charter or bylaws of Bank and will not result
in a material breach of or constitute a default under, or require any consent under,
any indenture, loan or agreement to which Bank is a party;






	 	(b)	 	All approvals, authorizations, licenses, registrations, consents, and other
actions by, notices to, and filings with, any Person that may be required in connection
with the execution, delivery, and performance of this Agreement by Bank, have been
obtained (other than those required to be made to or obtained from Borrowers);






 


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	 	(c)	 	This Agreement constitutes a legal, valid, and binding obligation of Bank,
enforceable against Bank in accordance with its terms, except (i) as such
enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, receivership, conservatorship or other similar laws now or hereafter in
effect (including the rights and obligations or receivers and conservators under 12
U.S.C. §§ 1821(d) and (e)), which may affect the enforcement of creditors’ rights in
general, and (ii) as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);






	 	(d)	 	There are no proceedings or investigations pending or, to the best knowledge of
Bank, threatened against Bank (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation by Bank of any of the transactions contemplated by
this Agreement, (iii) seeking any determination or ruling that, in the reasonable
judgment of Bank, would materially and adversely affect the performance by Bank of its
obligations under this Agreement, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this Agreement or (v)
would have a materially adverse financial effect on Bank or its operations if resolved
adversely to it; provided, however, that Bank makes no representation or warranty
regarding the examination of Bank by the FDIC or the Utah Department of Financial
Institutions, or any actions resulting from such examination;






	 	(e)	 	Bank is not Insolvent; and






	 	(f)	 	The execution, delivery and performance of this Agreement by Bank comply with
all Applicable Laws; provided that the Bank makes no representation or warranty
regarding compliance with Applicable Laws relating to consumer protection, consumer
lending, usury, loan collection, anti-money laundering or privacy.





The representations and warranties set forth in this Section 4 shall survive the sale,
transfer and assignment of the Loan Accounts to Company pursuant to this Agreement and, with the
exception of those representations and warranties contained in subsection 4(d), shall be made
continuously throughout the term of this Agreement. In the event that any investigation or
proceeding of the nature described in subsection 4(d) is instituted or threatened against Bank,
Bank shall promptly notify Company of such pending or threatened investigation or proceeding.



5. Additional Representations and Warranties of Bank. Bank hereby represents and warrants
that, as of the Effective Date or such other date as specified below in a specific representation:




	 	(a)	 	As of each Closing Date, each Loan Account transferred to Company on such date
was originated by Bank and constitutes a valid sale, transfer, assignment, set-over and
conveyance to Company of all of Bank’s right, title, and interest in and to such Loan
Account;




 


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	 	(b)	 	As of each Closing Date, Bank was the legal and beneficial owner of all right,
title and interest in and to each Loan Account, and no Loan Account was subject to an
encumbrance, immediately prior to the transfer of the Loan Account to Company pursuant
hereto;






	 	(c)	 	Bank shall maintain its records in a manner to clearly and unambiguously
reflect the ownership of Company in each of the Loan Accounts transferred hereunder;
and






	 	(d)	 	As of the Closing Date, with respect to each Loan Account: (i) Bank has done
nothing that would alter the terms and conditions or the balance of the Loan Account or
impair the Loan Account’s enforceability; and (ii) there is no limit on Bank’s
authority to assign the Loan Account. For the avoidance of doubt, the representation
made in Section 5(d)(i) shall not encompass actions that are taken by Company on behalf
of Bank.





The representations and warranties set forth in this Section 5 shall survive the sale,
transfer and assignment of the Loan Accounts to Company pursuant to this Agreement.



6. Representations and Warranties of Company. Company hereby represents and warrants to
Bank, as of the Effective Date that:




	 	(a)	 	Company is a corporation, duly organized and validly existing in good standing
under the laws of the State of Delaware, and has full power and authority to execute,
deliver, and perform its obligations under this Agreement; the execution, delivery, and
performance of this Agreement have been duly authorized, and are not in conflict with
and do not violate the terms of the articles or bylaws of Company and will not result
in a material breach of or constitute a default under or require any consent under any
indenture, loan, or agreement to which Company is a party;






	 	(b)	 	All approvals, authorizations, consents, and other actions by, notices to, and
filings with any Person required to be obtained for the execution, delivery, and
performance of this Agreement by Company, have been obtained;






	 	(c)	 	This Agreement constitutes a legal, valid, and binding obligation of Company,
enforceable against Company in accordance with its terms, except (i) as such
enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect, which may affect the
enforcement of creditors’ rights in general, and (ii) as such enforceability may be
limited by general principles of equity (whether considered in a suit at law or in
equity);






	 	(d)	 	There are no proceedings or investigations pending or, to the best knowledge of
Company, threatened against Company (i) asserting the invalidity of this Agreement,
(ii) seeking to prevent the consummation of any of the transactions contemplated by
Company pursuant to this Agreement, (iii) seeking any determination or ruling that, in
the reasonable judgment of Company, would materially and adversely affect the performance by Company of its obligations under
this Agreement, (iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement or (v) would have
a materially adverse financial effect on Company or its operations if resolved
adversely to it;




 


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	 	(e)	 	Company is not Insolvent; and






	 	(f)	 	The execution, delivery and performance of this Agreement by Company comply
with Applicable Laws.





The representations and warranties set forth in this Section 6 shall survive the sale,
transfer and assignment of the Loan Accounts to Company pursuant to this Agreement and, with the
exception of those representations and warranties contained in subsection 6(d), shall be made
continuously throughout the term of this Agreement. In the event that any investigation or
proceeding of the nature described in subsection 6(d) is instituted or threatened against Company,
Company shall promptly notify Bank of such pending or threatened investigation or proceeding.



7. Conditions Precedent to the Obligations of Company. The obligations of Company under
this Agreement are subject to the satisfaction of the following conditions precedent on or prior to
each Closing Date:




	 	(a)	 	As of each Closing Date, no action or proceeding shall have been instituted or
threatened against Company or Bank to prevent or restrain the consummation of the
transactions contemplated hereby, and, on each Closing Date, there shall be no
injunction, decree, or similar restraint preventing or restraining such consummation;






	 	(b)	 	The representations and warranties of Bank set forth in Sections 4 and 5 shall
be true and correct in all material respects on each Closing Date as though made on and
as of such date; and






	 	(c)	 	The obligations of Bank set forth in this Agreement to be performed on or
before each Closing Date shall have been performed in all material respects as of such
date by Bank.





8. Conditions Precedent to the Obligations of Bank. The obligations of Bank in this
Agreement are subject to the satisfaction of the following conditions precedent on or prior to each
Closing Date:




	 	(a)	 	As of each Closing Date, no action or proceeding shall have been instituted or
threatened against Company or Bank to prevent or restrain the consummation of the
purchase or other transactions contemplated hereby, and, on each Closing Date, there
shall be no injunction, decree, or similar restraint preventing or restraining such
consummation;




 


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	 	(b)	 	The representations and warranties of Company set forth in the Program
Documents shall be true and correct in all material respects on each Closing Date as
though made on and as of such date; and






	 	(c)	 	The obligations of Company set forth in the Program Documents to be performed
on or before each Closing Date shall have been performed in all material respects as of
such date by Company.





9. Term and Termination.




	 	(a)	 	This Agreement shall have an initial term beginning on the Effective Date and
ending thirty-six (36) months thereafter (the “Initial Term”) and shall renew
automatically for two (2) successive terms of one (1) year each (each a “Renewal Term”)
unless either Party provides notice of non-renewal to the other Party at least one
hundred eighty (180) days prior to the end of the Initial Term or any Renewal Term or
this Agreement is earlier terminated in accordance with the provisions hereof.






	 	(b)	 	A Party shall have the right to terminate this Agreement immediately upon
written notice to the other Party in any of the following circumstances:






	 	(1)	 	any representation or warranty made by the other Party in this
Agreement shall be incorrect in any material respect and shall not have been
corrected within thirty (30) Business Days after written notice thereof has
been given to such other Party;






	 	(2)	 	the other Party shall default in the performance of any
material obligation or undertaking under this Agreement and such default shall
continue for thirty (30) Business Days after written notice thereof has been
given to such other Party;






	 	(3)	 	the other Party shall commence a voluntary case or other
proceeding seeking liquidation, reorganization, or other relief with respect to
itself or its debts under any bankruptcy, insolvency, receivership,
conservatorship or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, conservator, custodian, or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of a trustee, receiver,
liquidator, conservator, custodian, or other similar official or to any
involuntary case or such proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to authorize
any of the foregoing;




 


6









 











	 	(4)	 	an involuntary case or other proceeding, whether pursuant to
banking regulations or otherwise, shall be commenced against the other Party
seeking liquidation, reorganization, or other relief with respect to it or its
debts under any bankruptcy, insolvency, receivership, conservatorship or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, conservator, custodian, or other similar
official of it or any substantial part of its property or an order for
relief shall be entered against either Party under the federal bankruptcy
laws as now or hereafter in effect;






	 	(5)	 	there is a materially adverse change in the financial condition
of the other Party, as determined by the terminating party in good faith and in
its commercially reasonable judgment; or






	 	(6)	 	either Party has terminated the Loan Account Program Agreement
and any applicable notice period provided in the Loan Account Program Agreement
has expired.






	 	(c)	 	In addition to the foregoing termination rights, Bank may terminate this
Agreement immediately upon written notice to Company (i) if Company defaults on its
obligation to make a payment to Bank as provided in Section 2 of this Agreement and
fails to cure such default within one (1) Business Day of receiving notice of such
default from Bank; (ii) if Company defaults on its obligation to make a payment to Bank
as provided in Section 2 of this Agreement more than once in any three (3) month
period; or (iii) if Company fails to maintain the Required Balance in the Collateral
Account as required by Section 32 of this Agreement.






	 	(d)	 	The termination of this Agreement either in part or in whole shall not
discharge any Party from any obligation incurred prior to such termination, including
any obligation with respect to Loan Accounts sold prior to such termination.






	 	(e)	 	Following the termination of this Agreement, Company shall purchase any Loan
Accounts established by Bank under the Loan Account Program Agreement prior to and on
the date of termination of the Loan Account Program Agreement that have not already
been purchased by Company.






	 	(f)	 	The terms of this Section 9 shall survive the expiration or earlier termination
of this Agreement.





10. Confidentiality.




	 	(a)	 	Each Party agrees that Confidential Information of the other Party shall be
used by such Party solely in the performance of its obligations and exercise of its
rights pursuant to the Program Documents. Except as required by Applicable Laws or
legal process, neither Party (the “Restricted Party”) shall disclose Confidential
Information of the other Party to third parties; provided, however, that the Restricted
Party may disclose Confidential Information of the other Party (i) to the Restricted
Party’s Affiliates, agents, representatives or subcontractors for the sole purpose of
fulfilling the Restricted Party’s obligations under this Agreement (as long as the
Restricted Party exercises reasonable efforts to prohibit any further disclosure by its
Affiliates, agents, representatives or subcontractors), provided
that in all events, the Restricted Party shall be responsible for any breach of the
confidentiality obligations hereunder by and of its Affiliates, agents (other than
Company as agent for Bank), representatives or subcontractors, (ii) to the
Restricted Party’s auditors, accountants and other professional advisors, or to a
Regulatory Authority, or (iii) to any other third party as mutually agreed by the
Parties.




 


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	 	(b)	 	A Party’s Confidential Information shall not include information that:






	 	(1)	 	is generally available to the public;






	 	(2)	 	has become publicly known, without fault on the part of the
Party who now seeks to disclose such information (the “Disclosing Party”),
subsequent to the Disclosing Party acquiring the information;






	 	(3)	 	was otherwise known by, or available to, the Disclosing Party
prior to entering into this Agreement; or






	 	(4)	 	becomes available to the Disclosing Party on a non-confidential
basis from a Person, other than a Party to this Agreement, who is not known by
the Disclosing Party after reasonable inquiry to be bound by a confidentiality
agreement with the non-Disclosing Party or otherwise prohibited from
transmitting the information to the Disclosing Party.






	 	(c)	 	Upon written request or upon the termination of this Agreement, each Party
shall return to the other Party all Confidential Information of the other Party in its
possession that is in written form, including by way of example, but not limited to,
reports, plans, and manuals; provided, however, that either Party may maintain in its
possession all such Confidential Information of the other Party required to be
maintained under Applicable Laws relating to the retention of records for the period of
time required thereunder.






	 	(d)	 	In the event that a Restricted Party is requested or required (by oral
questions, interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process) to disclose any Confidential Information of
the other Party, the Restricted Party will provide the other Party with prompt notice
of such request(s) so that the other Party may seek an appropriate protective order or
other appropriate remedy and/or waive the Restricted Party’s compliance with the
provisions of this Agreement. In the event that the other Party does not seek such a
protective order or other remedy, or such protective order or other remedy is not
obtained, or the other Party grants a waiver hereunder, the Restricted Party may
furnish that portion (and only that portion) of the Confidential Information of the
other Party which the Restricted Party is legally compelled to disclose and will
exercise such efforts to obtain reasonable assurance that confidential treatment will
be accorded any Confidential Information of the other Party so furnished as the
Restricted Party would exercise in assuring the confidentiality of any of its own
confidential information.






	 	(e)	 	The terms of this Section 10 shall survive the expiration or earlier
termination of this Agreement.




 


8









 










11. Indemnification.




	 	(a)	 	Bank agrees to indemnify and hold harmless Company and its Affiliates, and the
officers, directors, members, employees, representatives, shareholders, agents and
attorneys of such entities (the “Company Indemnified Parties”) from and against any and
all claims, actions, liability, judgments, damages, costs and expenses, including
reasonable attorneys’ fees (“Losses”), that may arise from (i) the gross negligence,
willful misconduct or breach of any of Bank’s obligations or undertakings under this
Agreement by Bank, or (ii) violation by Bank of any Utah or federal banking law
specifically applicable to Bank’s operations that do not relate to Applicable Laws
regarding consumer protection, consumer lending, usury, loan collection, anti-money
laundering or privacy.






	 	(b)	 	Company agrees to indemnify and hold harmless Bank and its Affiliates, and the
officers, directors, employees, representatives, shareholders, agents and attorneys of
such entities (the “Bank Indemnified Parties”) from and against any and all Losses that
may arise from Company’s participation in the Program as contemplated by the Program
Documents (including Losses arising from a violation of Applicable Law or a breach by
Company or its agents or representatives of any of Company’s obligations or
undertakings under the Program Documents), unless such Loss results from (i) the gross
negligence or willful misconduct of Bank, (ii) a breach by Bank of any of Bank’s
representations, obligations or undertakings under the Program Documents, or (iii) a
violation by Bank of any Utah or federal banking law specifically applicable to Bank’s
operations that do not relate to Applicable Laws regarding consumer protection,
consumer lending, usury, loan collection, anti-money laundering or privacy.






	 	(c)	 	The Company Indemnified Parties and the Bank Indemnified Parties are sometimes
referred to herein as the “Indemnified Parties,” and Company or Bank, as indemnitor
hereunder, is sometimes referred to herein as the “Indemnifying Party.”






	 	(d)	 	Any Indemnified Party seeking indemnification hereunder shall promptly notify
the Indemnifying Party, in writing, of any notice of the assertion by any third party
of any claim or of the commencement by any third party of any legal or regulatory
proceeding, arbitration or action, or if the Indemnified Party determines the existence
any such claim or the commencement by any third party of any such legal or regulatory
proceeding, arbitration or action, whether or not the same shall have been asserted or
initiated, in any case with respect to which the Indemnifying Party is or may be
obligated to provide indemnification (an “Indemnifiable Claim”), specifying in
reasonable detail the nature of the Loss, and, if known, the amount, or an estimate of
the amount, of the Loss, provided that failure to promptly give such notice shall only
limit the liability of the
Indemnifying Party to the extent of the actual prejudice, if any, suffered by such
Indemnifying Party as a result of such failure. The Indemnified Party shall provide
to the Indemnifying Party as promptly as practicable thereafter information and
documentation reasonably requested by such Indemnifying Party to defend against the
claim asserted.




 


9









 











	 	(e)	 	The Indemnifying Party shall have thirty (30) days after receipt of any
notification of an Indemnifiable Claim (a “Claim Notice”) to notify the Indemnified
Party of the Indemnifying Party’s election to assume the defense of the Indemnifiable
Claim and, through counsel of its own choosing, and at its own expense, to commence the
settlement or defense thereof and the Indemnified Party shall cooperate with the
Indemnifying Party in connection therewith if such cooperation is so requested and the
request is reasonable; provided that the Indemnifying Party shall hold the Indemnified
Party harmless from all its reasonable out-of-pocket expenses, including reasonable
attorneys’ fees incurred in connection with the Indemnified Party’s cooperation. If
the Indemnifying Party assumes responsibility for the settlement or defense of any such
claim, (i) the Indemnifying Party shall permit the Indemnified Party to participate at
its expense in such settlement or defense through counsel chosen by the Indemnified
Party (subject to the consent of the Indemnifying Party, which consent shall not be
unreasonably withheld or delayed); provided that, in the event that both the
Indemnifying Party and the Indemnified Party are defendants in the proceeding and the
Indemnified Party shall have reasonably determined and notified the Indemnifying Party
that representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them, then the fees and expenses of one
such counsel for all Indemnified Parties in the aggregate shall be borne by the
Indemnifying Party; and (ii) the Indemnifying Party shall not settle any Indemnifiable
Claim without the Indemnified Party’s consent, which consent shall not be unreasonably
withheld or delayed for any reason if the settlement involves only the payment of
money, and which consent may be withheld for any reason if the settlement involves more
than the payment of money, including any admission by the Indemnified Party. So long
as the Indemnifying Party is reasonably contesting any such Indemnifiable Claim in good
faith, the Indemnified Party shall not pay or settle such claim without the
Indemnifying Party’s consent, which consent shall not be unreasonably withheld or
delayed.






	 	(f)	 	If the Indemnifying Party does not notify the Indemnified Party within thirty
(30) days after receipt of the Claim Notice that it elects to undertake the defense of
the Indemnifiable Claim described therein, or if the Indemnifying Party fails to
contest vigorously any such Indemnifiable Claim, the Indemnified Party shall have the
right, upon notice to the Indemnifying Party, to contest, settle or compromise the
Indemnifiable Claim in the exercise of its reasonable discretion; provided that the
Indemnified Party shall notify the Indemnifying Party prior thereto of any compromise
or settlement of any such Indemnifiable Claim. No action taken by the Indemnified
Party pursuant to this subsection 1 l(f) shall
deprive the Indemnified Party of its rights to indemnification pursuant to this
Section II.






	 	(g)	 	The terms of this Section 11 shall survive the expiration or earlier
termination of this Agreement.




 


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12. Assignment. This Agreement and the rights and obligations created under it shall be
binding upon and inure solely to the benefit of the Parties and their respective successors, and
permitted assigns. Neither Party shall not be entitled to assign or transfer any rights or
obligations under this Agreement without the prior written consent of the other Party. No
assignment under this section shall relieve a Party of its obligations under this Agreement.



13. Third Party Beneficiaries. Nothing contained herein shall be construed as creating a
third-party beneficiary relationship between either Party and any other Person.



14. Proprietary Material. The Bank hereby provides Company with a non-exclusive right and
non assignable license to use and reproduce the Bank’s name, logo, registered trademarks and
service marks (collectively “Proprietary Material”) as necessary to fulfill each Party’s
obligations under this Agreement; provided, however, that (a) Company shall obtain Bank’s prior
written approval for the use of Proprietary Material and such use shall at all times comply with
written instructions provided by Bank regarding the use of its Proprietary Material; and (b)
Company acknowledges that, except as specifically provided in this Agreement, it will acquire no
interest in Bank’s Proprietary Material. Upon termination of this Agreement, Company will cease
using Bank’s Proprietary Material.



15. Notices. All notices and other communications that are required or may be given in
connection with this Agreement shall be in writing and shall be deemed received (a) on the day
delivered, if delivered by hand; (b) or the day transmitted, if transmitted by facsimile or e-mail
with receipt confirmed; or (c) three (3) Business Days after the date of mailing to the other
party, if mailed first-class mail postage prepaid, at the following address, or such other address
as either party shall specify in a notice to the other:



	 	 	 	 	 	 	 
	 

	 	To Bank:
	 	 	 	WebBank

6440 S. Wasatch Blvd.

Suite 300

Salt Lake City, UT 84121

Attn: Gerry Smith

E-mail Address: gerry@webbank.com

Telephone: (801) 993-5001

Facsimile: (801) 993-5015
	 
	 	 	 	 	 	 
	 

	 	To Company:
	 	 	 	LendingClub Corporation

440 N. Wolfe Road

Sunnyvale, CA 94085

Attn: Renaud Laplanche, Chief Executive Officer

E-mail Address: rlaplanche@lendingclub.com

Telephone: (408) 524-3065

Facsimile: (408) 716-3092






 


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	 	With Copy To:
	 	 	 	LendingClub Corporation

440 N. Wolfe Road

Sunnyvale, CA 94085

Attn: John Donovan, Chief Operating Officer

E-mail Address: jdonovan@lendingclub.com

Telephone: (408) 524-3068

Facsimile: (408) 716-3092






16. Relationship of Parties. Bank and Company agree that in performing their
responsibilities pursuant to this Agreement, they are in the position of independent contractors.
This Agreement is not intended to create, nor does it create and shall not be construed to create,
a relationship of partner or joint venturer or any association for profit between and among Bank
and Company.



17. Retention of Records. Any Records with respect to Loan Accounts purchased by Company
pursuant hereto retained by Bank shall be held as custodian for the account of Bank and Company as
owners thereof. Bank shall provide copies of Records to Company upon reasonable request of Company.



18. Agreement Subject to Applicable Laws. If (a) either Party has been advised by legal
counsel of a change in Applicable Laws or any judicial decision of a court having jurisdiction over
a Party or any interpretation of a Regulatory Authority that, in the view of such legal counsel,
would have a materially adverse effect on the rights or obligations of such Party under this
Agreement or the financial condition of such Party, (b) either Party shall receive a request of any
Regulatory Authority having jurisdiction over such Party, including any letter or directive of any
kind from any such Regulatory Authority, that prohibits or restricts such Party from carrying out
its obligations under this Agreement, or (c) either Party has been advised by legal counsel that
there is a material risk that such Party’s or the other Party’s continued performance under this
Agreement would violate Applicable Laws, then the affected Party shall provide written notice to
the other Party of such advisement or request and the Parties shall meet and consider in good faith
any modifications, changes or additions to the Program or the Program Documents that may be
necessary to eliminate such result. Notwithstanding any other provision of the Program Documents,
including Section 9 hereof, if the Parties are unable to reach agreement regarding such
modifications, changes or additions to the Program or the Program Documents within ten (10)
Business Days after the Parties initially meet, either Party may terminate this Agreement upon five
(5) days’ prior written notice to the other Party. A Party shall be able to suspend performance of
its obligations under this Agreement, or require the other Party to suspend its performance of its
obligations under this Agreement, upon providing the other Party with advance written notice, if
any event described in subsection 18(a), (b) or (c) above occurs.


 


12









 





19. Expenses. Each Party shall bear the costs and expenses of performing its obligations
under this Agreement, unless expressly provided otherwise in the Program Documents. Each Party
shall be responsible for payment of any federal, state, or local taxes or assessments associated
with the performance of its obligations under this Agreement. Company shall reimburse Bank for all
third party bank fees incurred by Bank in connection with the
performance of this Agreement, Company shall pay for Bank’s legal fees and expenses incurred in the
due diligence, negotiation and drafting of the Program Documents. Bank acknowledges receipt of
[*] dollars ($[*]) as an advance toward such legal fees and expenses. Company
acknowledges that Bank will present to Company periodic invoices reflecting legal fees and expenses
actually incurred, and will deduct such amounts from the advance. Should the balance of the
advance fall below [*] dollars ($[*]), Company shall replenish the advance with an amount to be
determined by Bank. Within ten (10) days after receipt of an invoice from Bank, Company shall
reimburse Bank for the monthly costs associates with the transfer of funds from the Collateral
Account to Company.



20. Examination. Each Party agrees to submit to any examination that may be required by a
Regulatory Authority having jurisdiction over the other Party, during regular business hours and
upon reasonable prior notice.



21. Inspection; Reports. Each Party, upon reasonable prior notice from the other Party,
agrees to submit to an inspection of its books, records, accounts, and facilities relevant to the
Program, from time to time, during regular business hours subject, in the case of Bank, to the duty
of confidentiality it owes to its customers and banking secrecy and confidentiality requirements
otherwise applicable under Applicable Laws. All expenses of inspection shall be borne by the Party
conducting the inspection. Notwithstanding the obligation of each Party to bear its own expenses
of inspection, Company shall reimburse Bank for reasonable out of pocket expenses incurred by Bank
in the performance of quarterly, on site reviews of Company’s financial condition, operations and
internal controls, not to exceed the maximum amount per visit of [*] dollars ($[*]).



22. Governing Law; Waiver of Jury Trial. Except as preempted or controlled by federal law,
this Agreement shall be interpreted and construed in accordance with the laws of the State of Utah,
without giving effect to the rules, policies, or principles thereof with respect to conflicts of
laws. THE PARTIES HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING HEREUNDER.



23. Manner of Payments. Unless the manner of payment is expressly provided herein, all
payments under this Agreement shall be made by ACH transfer to the bank accounts designated by the
respective Parties. Notwithstanding anything to the contrary contained herein, neither Party shall
be excused from making any payment required of it under this Agreement as a result of a breach or
alleged breach by the other Party of any of its obligations under this Agreement or any other
agreement, provided that the making of any payment hereunder shall not constitute a waiver by the
Party making the payment of any rights it may have under the Program Documents or by law.



24. Brokers. Neither Party has agreed to pay any fee or commission to any agent, broker,
finder, or other person for or on account of services rendered as a broker or finder in connection
with this Agreement or the transactions contemplated hereby that would give rise to any valid claim
against the other Party for any brokerage commission or finder’s fee or like payment.


 


13









 





25. Entire Agreement. The Program Documents, including exhibits, constitute the entire
agreement between the Parties with respect to the subject matter thereof, and supersede any prior
or contemporaneous negotiations or oral or written agreements with regard to the same subject
matter.



26. Amendment and Waiver. This Agreement may not be amended orally, but only by a written
instrument signed by all Parties. The failure of any Party to require the performance of any term
of this Agreement or the waiver by any Party of any default under this Agreement shall not prevent
a subsequent enforcement of such term and shall not be deemed a waiver of any subsequent breach.
All waivers must be in writing and signed by the Party against whom the waiver is to be enforced.



27. Severability. Any provision of this Agreement which is deemed invalid, illegal or
unenforceable in any jurisdiction, shall, as to that jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability, without affecting in any way the remaining
portions hereof in such jurisdiction or rendering such provision or any other provision of this
Agreement invalid, illegal, or unenforceable in any other jurisdiction.



28. Interpretation. The Parties acknowledge that each Party and its counsel have reviewed
and revised this Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments thereto, and the same shall be construed neither
for nor against either Party, but shall be given a reasonable interpretation in accordance with the
plain meaning of its terms and the intent of the Parties.



29. Jurisdiction; Venue. The Parties consent to the personal jurisdiction and venue of the
federal and state courts in Salt Lake City, Utah for any court action or proceeding. The terms of
this Section 29 shall survive the expiration or earlier termination of this Agreement.



30. Headings. Captions and headings in this Agreement are for convenience only and are not
to be deemed part of this Agreement.



31. Counterparts. This Agreement may be executed and delivered by the Parties in any
number of counterparts, and by different parties on separate counterparts, each of which
counterpart shall be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same instrument.



32. Collateral Account.




	 	(a)	 	Establishment of Collateral Account. On the Effective Date, Company
shall provide Bank with [*] dollars ($[*]) as cash collateral for Company’s obligations
under this Agreement. Bank shall deposit such amount in a deposit account (“Collateral
Account”) at Bank. The Collateral Account shall be a segregated deposit account that
shall hold only the funds provided by Company to Bank as collateral. At all times,
Company shall maintain funds in the Collateral Account equal to the product of (i) [*]
multiplied by (ii) [*], (the “Required Balance”). The Required Balance shall be
calculated monthly as of the first day of each month during the Term. In the event the
actual balance in the Collateral Account
is less than the Required Balance, Company shall, within one (1) Business Day
following notice of such deficiency, make a payment into the Collateral Account in
an amount equal to the difference between the Required Balance and the actual
balance in such account.




 


14









 











	 	(b)	 	Security Interest. To secure Company’s obligations under this
Agreement, Company hereby grants Bank a security interest in the Collateral Account and
the funds therein or proceeds thereof, and agrees to take such steps as Bank may
reasonably require to perfect or protect such first priority security interest. Bank
shall have all of the rights and remedies of a secured party under Applicable Laws with
respect to the Collateral Account and the funds therein or proceeds thereof, and shall
be entitled to exercise those rights and remedies in its discretion.






	 	(c)	 	Interest. The Collateral Account shall be a money market deposit
account and shall bear interest. The annual interest rate shall be adjusted monthly as
of the first day of each month during the Term, and shall be equal to the greater of
(i) [*] on such date, less [*]%); or (ii) [*] percent ([*]%). The
interest shall be paid monthly and shall be computed based on the average daily balance
of the Collateral Account for the prior month. Company shall be entitled to any
interest paid on the Collateral Account, and Bank shall forward to Company such
interest no less frequently than quarterly.






	 	(d)	 	Withdrawals.






	 	(1)	 	Without limiting any other rights or remedies of Bank under
this Agreement, Bank shall have the right to withdraw amounts from the
Collateral Account to fulfill any payment obligations of Company under this
Agreement or the Loan Account Program Agreement on which Company has defaulted,
either during the Term or following termination of either of the aforementioned
agreements.






	 	(2)	 	Company shall not have any right to withdraw amounts from the
Collateral Account. In the event the actual balance in the Collateral Account
is more than the Required Balance calculated for a particular month, then,
within one (1) Business Day after the Required Balance is calculated, at
Company’s option, Company may provide to Bank a report setting forth the
calculation for the Required Balance and the extent to which the actual amount
held in the Collateral Account at such time exceeds the Required Balance.
Within two (2) Business Days after receipt of such a report from Company, Bank
shall withdraw from the Collateral Account any amount held therein that exceeds
the Required Balance as of the date of such report and pay such amount to an
account designated by Company.






 


15









 











	 	(e)	 	Termination of Collateral Account. Bank shall release any funds
remaining in the Collateral Account forty-five (45) days after the latter of
termination of this Agreement or, if the Loan Account Program Agreement terminates
pursuant to Section 11 (e) thereof, the end of the period described in Section 1 l(f)
thereof.






	 	(f)	 	Survival. This Section 32 shall survive the expiration or termination
of this Agreement.





[Signature Page Follows]





 


16









 







IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly
authorized officers as of the date first written above.



WEBBANK




	 	 	 	 	 
	By:

	 	/s/ Gerry J. Smith
 

Name: Gerry J. Smith
	 	 
	 

	 	Title:   President / CEO	 	 
	 
	 	 	 	 
	LENDINGCLUB CORPORATION	 	 
	 
	 	 	 	 
	By:

	 	/s/ Renaud Laplanche
 

Name: Renaud Laplanche
	 	 
	 

	 	Title:   CEO	 	 







 


17









 







Schedule 1




Definitions





(a) “ACH” means Automated Clearinghouse.



(b) “Affiliate” means, with respect to a Party, a Person who directly or indirectly
controls, is controlled by or is under common control with the Party. For the purpose of this
definition, the term “control” (including with correlative meanings, the terms controlling,
controlled by and under common control with) means the power to direct the management or policies
of such Person, directly or indirectly, through the ownership of twenty-five percent (25%) or more
of a class of voting securities of such Person.




(c) “Agreement” means this Loan Sale Agreement.



(d) “Applicable Laws” means all federal, state and local laws, statutes, regulations
and orders applicable to a Party or relating to or affecting any aspect of the Program (including,
without limitation, the Loan Accounts), and all requirements of any Regulatory Authority having
jurisdiction over a Party, as any such laws, statutes, regulations, orders and requirements may be
amended and in effect from time to time during the term of this Agreement.




(e) “Bank Indemnified Parties” shall have the meaning set forth in subsection 11(b).



(f) “Borrower” means a Person for whom Bank has established a Loan Account and/or who
is liable, jointly or severally, for amounts owing with respect to a Loan Account.



(g) “Business Day” means any day, other than (i) a Saturday or Sunday, or (ii) a day
on which banking institutions in the State of Utah are authorized or obligated by law or executive
order to be closed.




(h) “Claim Notice” shall have the meaning set forth in subsection 1l(e).



(i) “Closing Date” means each date on which Company pays Bank the Purchase Price for a
Loan Account and, pursuant to Section 2 hereof, acquires such Loan Account from Bank. The Closing
Date for Loan Accounts listed on a Funding Statement shall be the Funding Date for such Funding
Statement.




(j) “Collateral Account” has the meaning set forth in subsection 32(a).



(k) “Company Indemnified Parties” shall have the meaning set forth in subsection
1l(a).



(1) “Confidential Information” means the terms and conditions of this Agreement, and
any proprietary information or non-public information of a Party, including a Party’s proprietary
marketing plans and objectives, that is furnished to the other Party in connection with this
Agreement.


 


 









 






(m) “Disclosing Party” shall have the meaning set forth in subsection 10(b)(2).



(n) “Effective Date” shall have the meaning set forth in the introductory paragraph of
this Agreement.




(o) “Indemnifiable Claim” shall have the meaning set forth in subsection 11(d).



(p) “Insolvent” means the failure to pay debts in the ordinary course of business, the
inability to pay its debts as they come due or the condition whereby the sum of an entity’s debts
is greater than the sum of its assets.



(q) “Loan Account” means an consumer installment loan account established by Bank
pursuant to the Loan Account Program Agreement. For purposes of this Agreement, each Loan Account
includes, without limitation, all rights of Bank to payment under the applicable Loan Account
Agreement with such Borrower.



(r) “Loan Account Agreement” means the document containing the terms and conditions of
a Loan Account including all disclosures required by Applicable Law.



(s) “Loan Account Program Agreement” means that Loan Account Program Agreement, dated
as of October 31, 2007, between Company and Bank, pursuant to which the Parties agreed to promote
and operate an installment loan program.




(t) “Losses” shall have the meaning set forth in subsection 11(a).




(u) “Party” means either Company or Bank and “Parties” means Company and Bank.



(v) “Person” means any legal person, including any individual, corporation, limited
liability company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, governmental entity, or other entity of similar nature.



(w) “Program” means the consumer installment loan program contemplated by the Program
Documents pursuant to which Bank will establish Loan Accounts and disburse Loan Proceeds to
Borrowers.




(x) “Program Documents” means the Loan Account Program Agreement and this Agreement.




(y) “Proprietary Material” shall have the meaning set forth in subsection 14.



(z) “Purchase Price” means the principal amount of the Loan Proceeds disbursed
pursuant to each Loan Account.


 


 









 





(aa) “Records” means any Loan Account Agreements, applications, change-of-terms
notices, credit files, credit bureau reports, transaction data, records, or other documentation
(including computer tapes, magnetic files, and information in any other format).



(bb) “Regulatory Authority” means any federal, state or local regulatory agency or
other governmental agency or authority having jurisdiction over a Party and, in the case of Bank,
shall include, but not be limited to, the Utah Department of Financial Institutions and the Federal
Deposit Insurance Corporation.




(cc) “Required Balance” shall have the meaning set forth in Section 32(a).




(dd) “Restricted Party” shall have the meaning set forth in subsection 10(a).