EX-10.11






Exhibit 10.11




Execution Version




Confidential Treatment Requested




Confidential Materials omitted and filed separately with the

Securities and Exchange Commission.




Asterisks denote omissions.




WEBBANK




and




LENDINGCLUB CORPORATION




AMENDED AND RESTATED

LOAN SALE AGREEMENT




Dated as of November 9, 2010



 


 









 





This AMENDED AND RESTATED LOAN SALE AGREEMENT (this “Agreement”), dated as of November 9, 2010
(“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 Redwood City, California (“Company”).



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;



WHEREAS, Bank and Company previously entered into a Loan Sale Agreement dated as of December 10,
2007 (the “Existing Sale Agreement”), pursuant to which Company agreed to purchase certain loan
accounts originated by Bank; and



WHEREAS, Bank and Company desire to amend and restate the Existing Sale Agreement on the terms and
conditions set forth herein.



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; Effectiveness.




	 	(a)	 	The terms used in this Agreement shall be defined as set forth in Schedule 1,
and the rules of construction set forth in Schedule 1 shall apply to this Agreement.
Terms not defined herein shall have the meanings ascribed to them in the Loan Account
Program Agreement.






	 	(b)	 	This Agreement shall be effective as of the Effective Date and, as of the
Effective Date, shall supersede and replace the Existing Sale Agreement (except that,
as provided in section 1(c), the Existing Sale Agreement will govern the purchase of
Loan Accounts originated prior to the Effective Date). This Agreement shall apply to
all Loan Accounts originated by Bank during the term of this Agreement, beginning on
the Effective Date. Loans originated on or after the Effective Date shall not be
subject to the Existing Sale Agreement.






	 	(c)	 	All Loan Accounts originated by Bank prior to the Effective Date shall be
governed by the terms of the Existing Sale Agreement as in effect at the time that such
Loan Accounts were originated, and shall not be subject to the terms of this Agreement.






	 	(d)	 	This Agreement shall not operate so as to render invalid or improper any action
heretofore taken under the Existing Sale Agreement.





2. Purchase of Loan Accounts; Payment to Bank; Reporting to Bank. The terms of Schedule 2
shall apply as if fully set forth in this Agreement.



 


 









 










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 sale 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.






	 	(b)	 	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 after the related
Closing Date.






	 	(c)	 	Company may not securitize the Loan Accounts, or any amounts owing thereunder,
without the prior written consent of Bank, which consent may be withheld or conditioned
in Bank’s sole discretion. Notwithstanding the foregoing, Bank acknowledges that the
Company program as conducted as of the Effective Date does not breach this Section 3(c)
or require any further consent form Bank.





4. Representations and Warranties of Bank.




	 	(a)	 	Bank hereby represents and warrants to Company as of the Effective Date of this
Agreement and as of each Closing Date that:






	 	(1)	 	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 duly authorized and are not 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;






	 	(2)	 	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;






	 	(3)	 	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
of 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);






	 	(4)	 	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 of any of the
transactions contemplated by Bank pursuant to 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;




 


 









 











(5) Bank is not Insolvent;




	 	(6)	 	The execution, delivery and performance of this Agreement by
Bank comply
with Utah and federal banking laws specifically applicable to Bank’s
operations; provided that, except as expressly set forth herein, Bank makes
no representation or warranty regarding compliance with Utah or federal
banking laws relating to consumer protection, consumer lending, usury, loan
collection, anti-money laundering, data security or privacy;






	 	(7)	 	To the extent that Bank receives non-public personally
identifiable information from the Company or the Borrower, Bank will comply
with all Applicable Laws related to the protection and retention of such
information; and






	 	(8)	 	With respect to each Loan Account sold on any Closing Date by
Bank to Company, (i) Bank has not taken any action (directly or indirectly,
voluntarily or involuntarily): (x) to alter the terms or conditions of such
Loan Account or (y) that could be reasonably expected to impair the
enforceability of such Loan Accounts (except that such representation does not
extend to any action by Company or its agents); or (ii) upon Bank’s receipt of
the related Purchase Price, Bank shall have conveyed to Company all of Bank’s
right, title and interest in such Loan Accounts subject to no prior security
interest in favor of any other creditor of Bank.






	 	(b)	 	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(a)(4), 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(a)(4) is instituted or threatened against Bank, Bank shall promptly notify Company of
such pending or threatened investigation or proceeding (unless prohibited from doing so
by Applicable Laws or the direction of a Regulatory Authority).





5. Representations and Warranties of Company.




	 	(a)	 	Company hereby represents and warrants to Bank, as of the Effective Date and
each Closing Date that:






	 	(1)	 	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;






	 	(2)	 	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;






 


 









 











	 	(3)	 	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);






	 	(4)	 	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) that would have a materially adverse financial effect on
Company or its operations if resolved adversely to it;
	 
	 	(5)	 	Company is not Insolvent; and






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






	 	(b)	 	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 and, with the exception of those representations and warranties contained in
subsection 5(a)(4), shall be made continuously throughout the term of this Agreement.
In the event that any investigation or proceeding of the nature described in subsection
5(a)(4) is instituted or threatened against Company, Company shall promptly notify Bank
of such pending or threatened investigation or proceeding (unless prohibited from doing
so by Applicable Laws or the direction of a Regulatory Authority).





6. 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,
to Company’s knowledge, 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 Section 4 shall be true
and correct in all material respects, unless waived by Company, 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, unless
waived by Company, as of such date by Bank.




 


 









 










7. 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,
to Bank’s knowledge, 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;






	 	(b)	 	The representations and warranties of Company set forth in the Program
Documents shall be true and correct in all material respects, unless waived by Bank, 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,
unless waived by Bank, as of such date by Company.





8. 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,”
collectively, the Initial Term and Renewal Term(s) shall be referred to as the “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
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 other similar 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;




 


 









 











	 	(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; 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 Schedule 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 Schedule 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 31 or Schedule 31 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 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 and any Loan Accounts originated by Bank after termination of
this Agreement, if such Loan Accounts are originated in accordance with Section 11(e)
of the Loan Account Program Agreement.






	 	(f)	 	Bank may terminate this Agreement immediately upon written notice to Company if
Bank incurs any Loss that would have been subject to indemnification under Section
10(a) but for the application of Applicable Laws that limit or restrict Bank’s ability
to seek such indemnification.






	 	(g)	 	The terms of this Section 8 shall survive the expiration or earlier termination
of this Agreement.




 


 









 










9. 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 any 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.






	 	(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, within thirty (30) days, 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 9 shall survive the expiration or earlier termination
of this Agreement.




 


 









 










10. Indemnification.




	 	(a)	 	Company agrees to defend, indemnify, and hold harmless Bank and its Affiliates,
and the officers, directors, employees, representatives, shareholders, agents and
attorneys of such entities (the “Indemnified Parties”) from and against any and all
claims, actions, liability, judgments, damages, costs and expenses, including
reasonable attorneys’ fees (“Losses”) to the extent arising from Bank’s participation
in the Program as contemplated by the Program Documents (including Losses arising from
a violation of Applicable Laws or a breach by Company or its agents or representatives
of any of Company’s representations, warranties, obligations or undertakings under the
Program Documents). Notwithstanding the foregoing, Company shall not be obligated to
indemnify any Indemnified Parties to the extent that the Losses arise from the gross
negligence or willful misconduct of Bank, or its officers, directors, employees or
agents (other than Company and its agents).






	 	(b)	 	To the extent permitted by Applicable Laws, any Indemnified Party seeking
indemnification hereunder shall promptly notify Company, 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 of 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 Company
is or may be obligated to provide indemnification (an “Indemnifiable Claim”),
specifying in reasonable detail the nature of the claim 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 Company to the extent of the actual prejudice, if
any, suffered by Company as a result of such failure. The Indemnified Party shall
provide to Company as promptly as practicable thereafter information and documentation
reasonably requested by Company to defend against the Indemnifiable Claim.






	 	(c)	 	Company shall have ten (10) days after receipt of any notification of an
Indemnifiable Claim (a “Claim Notice”) to notify the Indemnified Party in writing of
Company’s election to assume the defense of the Indemnifiable Claim and, through
counsel of the Company’s own choosing, and at its own expense, to commence the
settlement or defense thereof, and the Indemnified Party shall cooperate with Company
in connection therewith if such cooperation is so requested and the request is
reasonable; provided that Company 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; provided, further, that if the
Indemnifiable Claim relates to a matter before a Regulatory Authority, the Indemnified
Party may elect, upon written notice to Company (the “Assumption Notice”), to assume
the defense of the Indemnifialbe Claim at the cost of and with the cooperation of
Company. If the Company assumes responsibility for the settlement or defense of 




 


 









 





	 		 	any
such claim, (i) Company shall permit the Indemnified Party to participate at the
Indemnified Party’s expense (for which no claim of Losses shall be made) in such
settlement or defense through counsel chosen by the Indemnified Party; provided that,
in the event that both Company and the Indemnified Party are defendants in the
proceeding and the Indemnified Party has reasonably determined and notified Company
that representation of both parties by the same counsel would be inappropriate due to
the actual or potential
differing interests between them, then the reasonable fees and expenses of one such
counsel for all Indemnified Parties in the aggregate shall be borne by Company; and
(ii) Company shall not settle any Indemnifiable Claim without the Indemnified
Party’s consent.






	 	(d)	 	If the Company does not notify the Indemnified Party in writing within ten (10)
days after receipt of the Claim Notice that it elects to undertake the defense of the
Indemnifiable Claim described therein, or if Company fails to contest vigorously any
such Indemnifiable Claim, or if the Indemnified Party elects to control the defense of
an Indemnifiable Claim before a Regulatory Authority as permitted by Section 10(c),
then, in each case, the Indemnified Party shall have the right, upon reasonable written
notice to the Company, to contest, settle or compromise the Indemnifiable Claim in the
exercise of its reasonable discretion; provided that the Indemnified Party shall notify
Company in writing prior thereto of any compromise or settlement of any such
Indemnifiable Claim. No action taken by the Indemnified Party pursuant to this
paragraph (d) shall deprive the Indemnified Party of its rights to indemnification
pursuant to this Section 10.






	 	(e)	 	All amounts due under this Section 10 shall be payable not later than ten (10)
days after receipt of the written demand therefor.






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





11. 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 be entitled to assign or transfer any interest 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.  



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



13. Proprietary Material. Bank hereby provides Company with a non-exclusive right and
non-assignable license to use and reproduce 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.


 


 









 





14. 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

Attn: Senior Vice President — Strategic Partners 

6440 S. Wasatch Blvd., Suite 300

Salt Lake City, UT 84121

Tel. 908-251-5798

Fax: 801-993-5015

Email: strategicpartnerships@webbank.com
	 
	 	With a copy to: 	 	WebBank

Attn: Compliance Officer

6440 S. Wasatch Blvd., Suite 300

Salt Lake City, UT 84121

Tel. 801-993-5008

Fax: 801-993-5015

Email: complainceofficer@webbank.com
	 
	 	To Company:	 	 LendingClub Corporation

370 Convention Way

Redwood City, CA 94063

Attn: Renaud Laplanche, Chief Executive Officer

E-mail Address: rlaplanche@lendingclub.com

Telephone: (650) 482-5231

Facsimile:   (650) 482-5206
	 
	 	With copies to:	 	 LendingClub Corporation

370 Convention Way

Redwood City, CA 94063

Attn: General Counsel and John Donovan

E-mail Address:
jaltieri@lendingclub.com

jdonovan@lendingclub.com

	 		 	Telephone: (650) 482-5232

Facsimile:   (650) 482-5206





15. 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.



16. 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.



17. 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
such 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 receives 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 8 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 may 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 17(a), (b) or (c) above occurs.



18. Expenses.




	 	(a)	 	Each Party shall bear the costs and expenses of performing its obligations
under this Agreement, unless expressly provided otherwise in the Program Documents.






	 	(b)	 	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.






	 	(c)	 	Company shall reimburse Bank for all reasonable third party fees incurred by
Bank in connection with the performance of this Agreement.






	 	(d)	 	Company shall pay for Bank’s reasonable legal and other professional fees and
expenses as provided in subsection 15(e) of the Loan Account Program Agreement.






	 	(e)	 	Within ten (10) days after receipt of an invoice from Bank, Company shall
reimburse Bank for the monthly costs associated with the transfer of funds from the
Collateral Account to Company.






	 	(f)	 	All fees payable pursuant to this Section 18 may be paid by wire, ACH, or
check, as determined by the Company, but shall be paid pursuant to the terms of the
Bank’s invoice. Bank may assess a service charge of 1.5% per month on any amounts due
under this Agreement that are thirty (30) days past due.





19. 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, and to otherwise provide reasonable cooperation to the other Party in
responding to such Regulatory Authority’s inquiries and requests related to the Program.



20. 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 periodic on site reviews of Company’s financial condition, operations and
internal controls.


 


 









 





21. Governing Law; Waiver of Jury Trial. 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. The terms of this Section 21 shall survive the expiration or earlier termination of
this Agreement.



22. 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.



23. 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.



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



25. Amendment and Waiver. This Agreement may not be amended orally, but only by a written
instrument signed by all Parties. The failure of a Party to require the performance of any term of
this Agreement or the waiver by a 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.



26. 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.



27. 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.



28. 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 28 shall survive the expiration or earlier termination of this Agreement.


 


 









 





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



30. 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.



31. Collateral Account. The terms of Schedule 31 shall apply as if fully set forth in this
Agreement.



[Signature Page Follows]



 


 









 





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/ Kelly Barnett
 

Name:
 

	 	 
	 

	 	Title:   Acting President	 	 
	 
	 	 	 	 
	LENDINGCLUB CORPORATION	 	 
	 
	 	 	 	 
	By:

	 	/s/ Renaud Laplanche
 

Name:
 

	 	 
	 

	 	Title:   CEO	 	 





 


 









 





Schedule 1




Definitions





	 	(a)	 	“ACH” means the 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 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)	 	“Assumption Notice” shall have the meaning set forth in Section 10(c).






	 	(f)	 	“Borrower” means an Applicant or other 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 Section 10(c).






	 	(i)	 	“Closing Date” means each date on which Company pays Bank the Purchase
Price for a Loan Account and, pursuant to Schedule 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 Schedule 31.






	 	(k)	 	“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.
	 
	 	(l)	 	“Disclosing Party” shall have the meaning set forth in Section 9(b)(2).






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




 


 









 











	 	(n)	 	“Existing Program Agreement” means the Loan Account Program Agreement
dated as of December 10, 2007 between Bank and Company.






	 	(o)	 	“Existing Sale Agreement” shall have the meaning set forth in the
recitals.






	 	(p)	 	“Indemnifiable Claim” shall have the meaning set forth in Section
10(b).






	 	(q)	 	“Indemnified Parties” shall have the meaning set forth in Section
10(a).






	 	(r)	 	“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.






	 	(s)	 	“Loan Account” means a consumer installment loan account established by
Bank pursuant to the Loan Account Program Agreement. For purposes of this Agreement,
each Loan Account includes all rights of Bank to payment under the applicable Loan
Account Agreement with such Borrower.






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






	 	(u)	 	“Loan Account Program Agreement” means that Amended and Restated Loan
Account Program Agreement, dated as of even date herewith, between Company and Bank,
pursuant to which the Parties agreed to promote and operate an installment loan
program.
	 
	 	(v)	 	“Losses” shall have the meaning set forth in Section 10(a).






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






	 	(x)	 	“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.






	 	(y)	 	“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.






	 	(z)	 	“Program Documents” means the Loan Account Program Agreement and this
Agreement.
	 
	 	(aa)	 	“Proprietary Material” shall have the meaning set forth in Section 13.






	 	(bb)	 	“Purchase Price” means the principal amount of the Loan Proceeds
disbursed and the amount of Consumer Origination Fees paid to Company for each Loan
Account.






	 	(cc)	 	“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).






	 	(dd)	 	“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.





	 	(ee)	 	“Required Balance” shall have the meaning set forth in Schedule 31.
	 
	 	(ff)	 	“Restricted Party” shall have the meaning set forth in Section 9(a).






 


2









 





II. Construction




As used in this Agreement:




	 	(a)	 	All references to the masculine gender shall include the feminine gender (and
vice versa);






	 	(b)	 	All references to “include,” “includes,” or “including” shall be deemed to be
followed by the words “without limitation”;






	 	(c)	 	References to any law or regulation refer to that law or regulation as amended
from time to time and include any successor law or regulation;






	 	(d)	 	References to “dollars” or “$” shall be to United States dollars unless
otherwise specified herein;






	 	(e)	 	Unless otherwise specified, all references to days, months or years shall be
deemed to be preceded by the word “calendar”;






	 	(f)	 	All references to “quarter” shall be deemed to mean calendar quarter; and







	 	(g)	 	The fact that Bank or Company has provided approval or consent shall not mean
or otherwise be construed to mean that: (i) either Party has performed any due
diligence with respect to the requested or required approval or consent, as applicable;
(ii) either Party agrees that the item or information for which the other Party seeks
approval or consent complies with any Applicable Laws; (iii) either Party has assumed
the other Party’s obligations to comply with all Applicable Laws arising from or
related to any requested or required approval or consent; or (iv) except as otherwise
expressly set forth in such approval or consent, either Party’s approval or consent
impairs in any way the other Party’s rights or remedies under the Agreement, including
indemnification rights for Company’s failure to comply with all Applicable Laws.




 


3









 










Schedule 2




The following terms shall apply as if fully set forth in the Agreement:




	 	(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 Business Day and on each prior non-Business Day following the last preceding
Business Day. All of the foregoing shall be in accordance with the procedures set
forth in this Schedule 2 of the Agreement. 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 (c) of this Schedule
2.






	 	(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.






	 	(c)	 	Company shall pay Bank a monthly fee equal to the greater of (i) the applicable
Monthly Minimum Amount (as defined below); or (ii) an amount determined by multiplying
the total Purchase Price amount of Loan Accounts purchased by Company in such month by
the applicable percentage(s) as provided in the chart below.





	 	 	 	 	 
	Total Purchase Price	 	Percentage	 
	First [***] million
	 	 	[***]	%
	Next [***] million
	 	 	[***]	%
	Next [***] million
	 	 	[***]	%
	Any greater amount
	 	 	[***]	%







For the avoidance of doubt, the foregoing calculation in clause (ii) is made on a
tiered, approach, with the first $[***] million in any month (regardless of the
total for such month) applied to the [***]% rate, the next [***] million in such
month applied to the [***]% rate, and so on.




Company shall deliver to Bank a report setting forth the calculation of the payment
Company is obligated to make to Bank pursuant to this Schedule 2 within five (5)
Business Days after the end of each month.




“Monthly Minimum Amount” means: (i) for each month that ends between the Effective
Date and the day prior to the first anniversary of the Effective Date, [***] dollars
($[***]); (ii) for each month ends between the first anniversary of the Effective
Date and the day prior to the second anniversary of the Effective Date, [***]
dollars ($[***]); and (iii) for each month that ends on or after the second
anniversary of the Effective Date, [***] dollars ($[***]).




	 	(d)	 	Payment of the fee set forth in subsection (c) of this Schedule 2 shall be made
by Bank’s initiation of an ACH debit transaction to an account designated in advance by
Company on or about the sixth (6th) Business Day after the end of each month.






	 	(e)	 	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 Laws.




 


4









 





Schedule 31




The following terms shall apply as if fully set forth in the Agreement:




	 	(a)	 	Establishment of Collateral Account. Company shall provide Bank with
cash collateral to secure Company’s obligations under the Program Documents, which Bank
shall deposit in a deposit account (“Collateral Account”) at Bank. The Collateral
Account shall be a deposit account at Bank, segregated from any other deposit account
of Company, 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
greatest of (i) $[***], or (ii) $[***], if the prior Monthly Loan Total has exceeded
$[***]during the Term (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. The “Monthly Loan Total” means, for a
month, the sum of the principal amounts of all Loan Accounts funded by Bank during such
month.






	 	(b)	 	Security Interest. To secure all Company’s obligations under the
Program Documents (including the payment by Company of any amounts due under the
Program Documents and the performance of any of Company’s obligations under the Program
Documents), the Existing Sale Agreement and the Existing Program 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. Company represents that, as
of the date of the Agreement, the Collateral Account is not subject to any claim, lien,
security interest or encumbrance (other than the interest of Bank). Company shall not
allow any other Person to have any claim, lien, security interest, or encumbrance on
the Collateral Account. 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) [***], less [***]; or (ii) [***]. 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 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. To the extent that Bank has withdrawn amounts from the Collateral
Account and such amounts are subsequently paid directly to Bank, Bank shall
restore such amounts to the
Collateral Account with in one (1) Business Day after receipt of the amounts
paid directly to Bank.






	 	(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.






	 	(e)	 	Termination of Collateral Account. Bank shall release any funds
remaining in the Collateral Account on latest to occur of: (i) sixty (60) days after
the latter of termination of this Agreement, (ii) the last date on which Company is
obligated to purchase Loan Accounts pursuant to subsection 11(h) of the Loan Account
Program Agreement, or (iii) the fulfillment by Company of all of its obligations to
Bank under the Program Documents, including its outstanding indemnification obligations
with respect to all Claim Notices provided to Company during the Term or within sixty
(60) days after the expiration or termination of this Agreement.






	 	(f)	 	Survival. This Schedule 31 shall survive the expiration or termination
of this Agreement.






 


2