EX-10.12





Exhibit 10.12




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 ACCOUNT PROGRAM AGREEMENT




Dated as of November 9, 2010



 


 









 





SCHEDULES AND EXHIBITS




	 	 	 
	SCHEDULE 1

	 	Definitions
	 
	 	 
	EXHIBIT A

	 	The Program
	 
	 	 
	EXHIBIT B

	 	Credit Policy
	 
	 	 
	EXHIBIT C

	 	Form of Application
	 
	 	 
	EXHIBIT D

	 	Loan Account Documentation
	 
	 	 
	EXHIBIT E

	 	Bank Secrecy Act Policy
	 
	 	 
	EXHIBIT F

	 	Sample Funding Statement
	 
	 	 
	EXHIBIT G

	 	Third-Party Service Contractors
	 
	 	 
	EXHIBIT H

	 	Insurance Requirements
	 
	 	 
	EXHIBIT I

	 	Program Compliance Manual





 


 









 





This AMENDED AND RESTATED LOAN ACCOUNT PROGRAM 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, Company is in the business of providing certain services necessary for the
origination of consumer installment loans;



WHEREAS, Bank is in the business of originating various types of consumer loans, including
installment loans;



WHEREAS, the Parties have developed a program pursuant to which Company markets and Bank has
originated installment loans for qualifying consumers identified by Company, pursuant a Loan
Account Program Agreement dated as of December 10, 2007 (the “Existing Program Agreement”); and



WHEREAS, effective as of the Effective Date, the Parties desire to amend and restate the terms
of their Existing Program 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 mutually 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.






	 	(b)	 	This Agreement shall be effective as of the Effective Date and, as of the
Effective Date, shall supersede and replace the Existing Program Agreement. 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 Program Agreement.






	 	(c)	 	All Loan Accounts originated by Bank prior to the Effective Date shall be
governed by the terms of the Existing Program 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 Program Agreement.






	2.	 	Marketing of the Program and Loan Accounts. At its own cost, Company shall promote
and otherwise market the Program and the Loan Accounts. In performing such promotion and
other marketing services, Company may use any form of media, provided that Company shall
discontinue the use of any specific form of media or media channel if directed to do so by
Bank. Bank agrees that Company may refer to Bank and the Program in promotional and marketing
materials, including marketing scripts, upon the condition that any references to Bank and/or
the Program in any such materials (and any changes in such materials) must receive the prior
written approval of Bank. Bank may require a change in such materials upon written notice
provided to Company to the extent that such change is required by Applicable Laws, or to the
extent that Bank determines such change is necessitated by




 


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safety and soundness concerns based upon
standards established by a Regulatory Authority. Company shall ensure that all promotional
and marketing materials shall be accurate and not misleading in all material respects.
Company shall ensure that all promotional and marketing materials and strategies comply with
Applicable Laws. The Parties will prepare a style guide to set forth rules regarding the
usage of Bank’s name and the Program description and other matters that, when used by
Company, shall be deemed to be approved by Bank; such style guide may be changed from time
to time by Bank upon written notice to Company. The Parties also shall cooperate to develop
and document a mutually agreed upon process for review of promotional and marketing
materials, provided, however, that the failure of Bank to adhere to such process shall not
be considered a breach of this Agreement.




	3.	 	Extension of Credit. Company acknowledges that approval of an Application creates a
creditor-borrower relationship between Bank and Borrower which involves, among other things,
the disbursement of Loan Proceeds. Nothing in this Agreement shall obligate Bank to extend
credit to an Applicant or disburse Loan Proceeds if Bank determines that doing so would be an
unsafe or unsound banking practice. Bank shall use reasonable commercial efforts to provide
Company prior notice of a decision not to extend credit to an Applicant or disburse Loan
Proceeds in reliance on the preceding sentence and, in all instances where Bank does not
provide such prior notice, Bank shall provide Company prompt notice after making a decision
not to extend credit to an Applicant or disburse Loan Proceeds in reliance on the preceding
sentence.






	4.	 	Consumer Documents and Credit Policy. The following documents, terms and procedures
(“Consumer Finance Materials”) that have been approved by Bank and that will be used by Bank
initially with respect to the Loan Accounts are attached to this Agreement: (i) the Program
description as Exhibit A; (ii) Credit Policy as Exhibit B; (iii) form of
Application, including disclosures required by Applicable Laws, as Exhibit C; and (iv)
form of Loan Account Agreement, privacy policy and privacy notices, and all other Applicant
and Borrower communications as Exhibit D. The Consumer Finance Materials shall not be
changed without the prior written consent of both Parties, which consent shall not be
unreasonably withheld or delayed; provided, however, that Bank may change the Consumer Finance
Materials upon written notice provided to Company but without Company’s prior written consent,
to the extent that such change is required by Applicable Laws or necessitated by safety and
soundness concerns. The Parties acknowledge that each Loan Account Agreement and all other
documents referring to the creditor for the Program shall identify Bank as the creditor for
the Loan Accounts. Company shall ensure that the Consumer Finance Materials comply with
Applicable Laws.






	5.	 	Loan Account Processing and Origination.







	 	(a)	 	Company shall solicit Applications from Applicants and shall process such
Applications on behalf of Bank (including retrieving credit reports) to determine
whether the Applicant meets the eligibility criteria set forth in the Credit Policy and
Bank’s “Know Your Customer” and anti-money laundering criteria (collectively, the “Bank
Secrecy Act Policy”), which is attached hereto as Exhibit E, and which may be
updated by Bank from time to time and such updates shall be effective upon notice to
Company as set forth herein. Company shall respond to all inquiries from Applicants
regarding the application process.






	 	(b)	 	Company shall forward to Bank mutually agreed information including name,
address, social security number and date of birth, regarding Applicants who meet the
eligibility criteria set forth in the Credit Policy. Company shall have no discretion
to override the Credit Policy with respect to any Applications.




 


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	 	(c)	 	Subject to the terms of this Agreement, Bank shall establish Loan Accounts with
respect to Applicants who meet the eligibility criteria set forth in the Credit Policy.






	 	(d)	 	Pursuant to procedures mutually agreed to by the Parties, Company shall deliver
adverse action notices to Applicants who do not meet Credit Policy criteria or are
otherwise denied by Bank.






	 	(e)	 	Company shall deliver Program privacy notices and Loan Account Agreements to
Borrowers.






	 	(f)	 	Company shall hold and maintain, as custodian for Bank, all documents of Bank
pertaining to Loan Accounts. Company shall periodically provide to Bank copies of
records required to be maintained under the Bank Secrecy Act Policy and such other
documents regarding Loan Accounts as requested by Bank, at intervals mutually agreed to
by the Parties, but no less frequently than monthly.






	 	(g)	 	Company shall perform the obligations described in this Section 5 and deliver
any customer communications to Applicants and Borrowers as necessary to carry on the
Program, all at Company’s own cost and in accordance with Applicable Laws.






	 	(h)	 	Pursuant to Section 17, as Bank reasonably requires and upon reasonable advance
written notice to Company, Bank will periodically audit Company for compliance with the
terms of this Section 5 and the Agreement as a whole, including compliance with the
standards set forth herein for Loan Account origination.






	6.	 	Funding Account.








	 	(a)	 	On each Funding Date, by 1:00 p.m. Mountain Time, Company shall ensure that the
balance of the Funding Account is greater than or equal to the Funding Amount on such
Funding Date. If the balance of the Funding Account is not equal to or greater than
the Funding Amount by 1:00 p.m. Mountain Time, Bank may, but shall have no obligation
to, deduct the amount of the deficiency from the Collateral Account and deposit such
amount into the Funding Account.






	 	(b)	 	On any Funding Date, if the balance of the Funding Account exceeds the Funding
Amount for such Funding Date, at the request of Company, such excess shall be
transferred by Bank into a deposit account established by Company at Bank.






	 	(c)	 	Bank shall release any funds remaining in the Funding Account four (4) Business
Days after the latter of termination of this Agreement or, if the Agreement terminates
pursuant to Section 11(d), the end of the period described in Section 11(e).






	7.	 	Funding Loans.








	 	(a)	 	Company will provide a Funding Statement to Bank by e-mail or as otherwise
mutually agreed by the Parties by 1:00 p.m. Mountain Time on each Funding Date. Each
Funding Statement shall identify those Applicants whose Applications satisfy the
requirements of the Credit Policy and with respect to whom Company requests that Bank
establish Loan Accounts, and provide the amount of Loan Proceeds and instructions for
disbursement of all Loan Proceeds to be disbursed by Bank on such Funding Date. The
Funding Statement shall also set forth the amount of Consumer Origination Fees due to
Company
on such Funding Date. The Funding Statement shall be in the form of Exhibit
F.






	 	(b)	 	By 3:00 p.m. Mountain Time on each Funding Date, Bank shall disburse Loan
Proceeds to Borrowers from the Funding Account in accordance with the Funding
Statement.





 


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	 	(c)	 	The obligation of Bank to disburse Loan Proceeds, as provided in Section 7(b),
is subject to the satisfaction of the following conditions precedent immediately prior
to each disbursement of Loan Proceeds by Bank:






	 	(1)	 	the balance of the Funding Account shall be equal to or greater
than the Funding Amount for such Funding Date;






	 	(2)	 	the representations and warranties of Company set forth in the
Program Documents shall be true and correct in all material respects at the
time of or prior to each disbursement of Loan Proceeds by Bank as though made
as of the time Bank disburses such Loan Proceeds; and






	 	(3)	 	the obligations of Company set forth in the Program Documents
to be performed prior to each disbursement of Loan Proceeds by Bank shall have
been performed prior to each such disbursement.






	 	(d)	 	Simultaneously with the disbursement of the associated Loan Proceeds, Bank
shall remit to Company the Consumer Origination Fees in accordance with the
instructions set forth on each Funding Statement. Bank’s obligation to remit Consumer
Origination Fees to Company is subject to the satisfaction of the conditions precedent
set forth in Section 7(c) above immediately prior to each remittance of Consumer
Origination Fees.







	8.	 	Representations and Warranties.







	 	(a)	 	Bank hereby represents and warrants, as of the Effective Date, or covenants, as
applicable, to Company 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
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);




 


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	 	(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)	 	The Proprietary Materials Bank licenses to Company pursuant to
Section 13, and their use as contemplated by this Agreement, do not violate or
infringe upon, or constitute an infringement or misappropriation of, any U.S.
patent, copyright or U.S. trademark, service mark, trade name or trade secret
of any person or entity and Bank has the right to grant the licenses set forth
in Section 13 below.






	 	(b)	 	Company hereby represents and warrants, as of the Effective Date, or covenants,
as applicable, to Bank 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;




 


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	 	(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;







	 	(6)	 	The execution, delivery and performance of this Agreement by
Company, the Consumer Finance Materials and the promotional and marketing
materials and strategies shall all comply with Applicable Laws;






	 	(7)	 	The Proprietary Materials Company licenses to Bank pursuant to
Section 13, and their use as contemplated by this Agreement, do not violate or
infringe upon, or constitute an infringement or misappropriation of, any U.S.
patent, copyright or U.S. trademark, service mark, trade name or trade secret
of any person or entity and Company has the right to grant the license set
forth in Section 13 below; and






	 	(8)	 	Company shall comply with Title V of the Gramm-Leach-Bliley Act
and the implementing regulations of the FDIC, including but not limited to
applicable limits on the use, disclosure, storage, safeguarding and destruction
of Applicant information, and shall maintain data security and disaster
recovery protections that at the least are consistent with industry standards
for the consumer lending industry.





 


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	 	(c)	 	Company hereby represents and warrants to Bank as of each Funding Date that:






	 	(1)	 	For each Loan Account and each disbursement of Loan Proceeds:
(i) to the best of Company’s knowledge, all information in the related
Application is true and correct; (ii) the Loan Account is fully enforceable and
all required disclosures to Borrowers have been delivered in compliance with
Applicable Laws; (iii) the Loan Account Agreement and all other Loan Account
documents are genuine and legally binding and enforceable, conform to the
requirements of the Program and were prepared in conformity with the Program
Compliance Manual; (iv) all necessary approvals required to be obtained by
Company have been obtained; and (v) nothing exists as to the Company or its
business that would prohibit the
purchase of the Loan Accounts by Company from Bank;






	 	(2)	 	Each Borrower listed on a Funding Statement is eligible for a
Loan Account under the Credit Policy, as in effect from time to time; and each
Borrower has submitted an electronically executed Application; and






	 	(3)	 	The information on each Funding Statement is true and correct
in all respects.






	 	(d)	 	The representations and warranties of Bank and Company contained in this
Section 8, except those representations and warranties contained in subsections 8(a)(4)
and 8(b)(4), are made continuously throughout the term of this Agreement. In the event
that any investigation or proceeding of the nature described in subsections 8(a)(4) and
8(b)(4) is instituted or threatened against either Party, such Party shall promptly
notify the other Party of the pending or threatened investigation or proceeding (unless
prohibited from doing so by Applicable Laws or the direction of a Regulatory
Authority).






	9.	 	Other Relationships with Borrowers.






	 	(a)	 	Separate from the obligation to market Loan Accounts offered by Bank, and
subject to the Program privacy policy and Applicable Laws, Company shall have the
right, at its own expense, to solicit Applicants and/or Borrowers with offerings of any
goods and services from Company and parties other than Bank, provided, however, that in
the event that Company uses Bank’s name and/or Proprietary Materials in connection with
such offerings, Company shall obtain Bank’s prior approval for such use.






	 	(b)	 	Except as necessary to carry out its rights and responsibilities under this
Agreement and the Loan Sale Agreement, Bank shall not use Applicant and/or Borrower
information and shall not provide or disclose any Applicant and/or Borrower information
to any Person, except to the extent required to do so under Applicable Laws or legal
process.






	 	(c)	 	Notwithstanding subsection 9(b), (i) Bank may make solicitations for goods and
services to the public, which may include one or more Applicants or Borrowers; provided
that Bank does not (A) target such solicitations to specific Applicants and/or
Borrowers, (B) use or permit a third party to use any list of Applicants and/or
Borrowers in connection with such solicitations or (C) refer to or otherwise use the
name of Company; and (ii) Bank shall not be obligated to redact the names of Applicants
and/or Borrowers from marketing lists acquired from third parties (e.g., subscription
lists) that Bank uses for solicitations.






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





 


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	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 Indemnifiable 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.




 


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	 	(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.	 	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)	 	This Agreement shall terminate immediately upon the expiration or earlier
termination of the Loan Sale Agreement.






	 	(c)	 	Bank shall have the right to terminate this Agreement immediately upon written
notice to Company if:






	 	(1)	 	based upon the opinion of counsel, Bank’s continued
participation in the Program would be in violation of Applicable Law or has
been prohibited pursuant to an order or other action, including any letter or
directive of any kind, by a Regulatory Authority;






	 	(2)	 	a Regulatory Authority with jurisdiction over Bank has
provided, formally or informally, concerns about the Program and Bank
determines, in its sole discretion, and based upon the opinion of counsel, that
its rights and remedies under this Agreement are not sufficient to protect Bank
fully against the potential consequences of such concerns;






	 	(3)	 	a fine or penalty has been assessed against Bank by a
Regulatory Authority in connection with the Program, including as a result of a
consent order or stipulated judgment; or






	 	(4)	 	Company defaults on its obligation to make a payment to Bank as
provided in Section 2 of the Loan Sale 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 the Loan Sale 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 Schedule 31 of the Loan Sale Agreement.




 


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	 	(d)	 	A Party shall have a 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; or






	 	(5)	 	there is a materially adverse change in the financial condition
of the other Party.






	 	(e)	 	Upon termination of the Agreement by Company pursuant to Section 11(d), at the
written request of Company, Bank shall continue to operate the Program for up to one
hundred and eighty (180) days following receipt of Company’s written notice of
termination, so long as both Parties continue to perform their respective obligations
under the Program during the period contemplated in this Section 11(e). At the
conclusion of such period, Company shall purchase all Loan Accounts established by Bank
through such date that have not already been purchased by Company.






	 	(f)	 	Except as provided in Section 11(e), Bank shall not be obligated to approve
Applications or establish new Loan Accounts after termination of this Agreement.






	 	(g)	 	The termination of this Agreement either in part or in whole shall not
discharge any Party from any obligation incurred prior to such termination.




 


10









 











	 	(h)	 	Except as provided in Section 11(e), upon termination of this Agreement,
Company shall purchase all Loan Accounts established by Bank prior to and on the date
of termination that have not already been purchased by Company.






	 	(i)	 	Bank’s obligation to operate the Program and establish Loan Accounts subsequent
to a notice of termination or termination of this Agreement shall in all cases be
subject to Applicable Law and/or regulatory requirements.






	 	(j)	 	Company’s failure to obtain the approval of Bank as required by Sections 2, 4
or 31, and Company’s failure to provide any notice required by Section 33, shall each
constitute a material breach of this Agreement. In addition to any other remedies
permitted by Applicable Law or this Agreement and without limiting Bank’s rights under
Section 10, Bank may also invoice Company for, and Company agrees to pay, liquidated
damages in the amount of (i) [***] for the first such failure of Company to obtain
approval or provide notice, or (ii) [***] for each subsequent failure of Company to
obtain approval or provide notice. The Parties agree that it would be difficult to
determine the precise damages to Bank in the event of such a breach by Company, and the
Parties have therefore agreed on the foregoing liquidated damages as a reasonable
approximation of the damages to Bank in the event of such a breach.






	 	(k)	 	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.






	 	(l)	 	In addition to any other rights or remedies available to the Bank under this
Agreement or by law, Bank shall have the right to suspend performance of its
obligations under this Agreement, including, but not limited to, Bank’s payments of the
Funding Amounts due to Company (as required under Section 7 of this Agreement) during
the period commencing with the occurrence of any monetary default by Company, including
but not limited to the failure to purchase any Loan Accounts under the Loan Sale
Agreement, and ending when such condition has been cured. Notwithstanding such
suspension right, Bank may terminate this Agreement as provided in Section 11(c).






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




 


11









 










	12.	 	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, 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 12 shall survive the expiration or earlier
termination of this Agreement.






 


12









 










	13.	 	Proprietary Material. Each Party (“Licensing Party”) hereby provides the other Party
(“Licensee”) with a non-exclusive right and license to use and reproduce the Licensing Party’s
name, logo, registered trademarks and service marks (“Proprietary Material”) on the
Applications, Loan Account Agreements, marketing materials, and otherwise in connection with
the fulfillment of Licensee’s obligations under this Agreement; provided, however, that (i)
the Licensee shall at all times comply with written instructions provided by the Licensing Party
regarding the use of the Licensing Party’s Proprietary Material, and (ii) Licensee
acknowledges that, except as specifically provided in this Agreement, it will acquire no
interest in the Licensing Party’s Proprietary Material. Upon termination of this Agreement,
Licensee will cease using Licensing Party’s Proprietary Material.








	14.	 	Relationship of Parties. The Parties 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 Bank and
Company. 






	15.	 	Expenses.







	 	(a)	 	Except as set forth herein, each Party shall bear the costs and expenses of
performing its obligations under this Agreement.






	 	(b)	 	Company shall pay all wire transfer and ACH costs for transfers by Bank under
the Program. Company shall reimburse Bank for all reasonable third party fees incurred
by Bank in connection with the performance of this Agreement.






	 	(c)	 	Company shall pay all costs of obtaining credit reports and delivering adverse
action notices.






	 	(d)	 	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 and for compliance with all filing, registration and other requirements with
regard thereto.






	 	(e)	 	Company shall be responsible for (i) all of Bank’s reasonable out-of-pocket
legal fees directly related to the Program, including Bank’s attorneys’ fees and
expenses in connection with the preparation, negotiation, execution, and delivery of
the Program Documents; any amendment, modification, administration, collection and
enforcement of the Program Documents; any modification of the Consumer Finance
Materials or other documents or disclosures related to the Program; or any dispute or
litigation arising out of or related to the Program; and (ii) all of Bank’s reasonable
out-of-pocket costs and expenses for any other third-party professional services
related to the Program, including the services of any third-party compliance
specialists in connection with Bank’s preparation of policies and procedures and Bank’s
review of the Program. To the extent that such fees are expected to exceed [***]
($***) in a calendar quarter, Bank will provide email notification to the extent
reasonably practicable. Company shall also pay for an annual compliance audit of the
Program, and such other audits as may be requested by Bank from time to time in its
reasonable discretion, in each case to be conducted by a third-party audit firm that is
selected by and reports to Bank. Bank shall invoice Company for such fees. Company
shall pay such invoice within thirty (30) days of receipt of such invoice.






	 	(f)	 	Company shall reimburse Bank for all reasonable costs associated with Bank’s
assignment to Company of Loan Accounts pursuant to Section 11.






	 	(g)	 	All fees payable pursuant to this Section 15 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.




 


13









 












	16.	 	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 relating to the
Program.






	17.	 	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. Company shall store all documentation
and electronic data related to its performance under this Agreement and shall make such
documentation and data available during any inspection by Bank or its designee. With such
frequency and in such manner as mutually agreed by the Parties, Company shall report to Bank
regarding the performance of its obligations.






	18.	 	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 18 shall survive the expiration or earlier
termination of this Agreement.






	19.	 	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.






	20.	 	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. Company may
use subcontractors in the performance of its obligations under this Agreement, subject to
Bank’s prior written approval of each such subcontractor. A list of approved subcontractors
is attached in the form of Exhibit G hereto. Company agrees to be fully responsible
for the acts and omissions of all subcontractors, including the subcontractors’ compliance
with the terms of this Agreement and all Applicable Laws. Upon request by Bank, Company shall
terminate or suspend a subcontractor.






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




 


14









 





	22.	 	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) on 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 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







	23.	 	Amendment and Waiver. This Agreement may be amended only by a written instrument
signed by each of the 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.






	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.




 


15









 











	25.	 	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.






	26.	 	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.






	27.	 	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 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 11 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) Business 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 advance written notice, if any event described
in subsections 27(a), (b) or (c) above occurs.






	28.	 	Force Majeure. If any Party is unable to carry out the whole or any part of its
obligations under this Agreement by reason of a Force Majeure Event, then the performance of
the obligations under this Agreement of such Party as they are affected by such cause shall be
excused during the continuance of the inability so caused, except that should such inability
not be remedied within thirty (30) days after the date of such cause, the Party not so
affected may at any time after the expiration of such thirty (30) day period, during the
continuance of such inability, terminate this Agreement on giving written notice to the other
Party and without payment of a termination fee or other penalty. To the extent that the Party
not affected by a Force Majeure Event is unable to carry out the whole or any part of its
obligations under this Agreement because a prerequisite obligation of the Party so affected
has not been performed, the Party not affected by a Force Majeure Event also is excused from
such performance during such period. A “Force Majeure Event” as used in this Agreement shall
mean an unanticipated event that is not reasonably within the control of the affected Party or
its subcontractors (including, but not limited to, acts of God, acts of governmental
authorities, strikes, war, riot and any other causes of such nature), and which by exercise of
reasonable due diligence, such affected Party or its subcontractors could not reasonably have
been expected to avoid, overcome or obtain, or cause to be obtained, a commercially reasonable
substitute therefore. No Party shall be relieved of its obligations hereunder if its failure
of performance is due to removable or remediable causes which such Party fails to remove or
remedy using commercially reasonable efforts within a reasonable time period.
Either Party rendered unable to fulfill any of its obligations under this Agreement by
reason of a Force Majeure Event shall give prompt notice of such fact to the other Party,
followed by written confirmation of notice, and shall exercise due diligence to remove such
inability with all reasonable dispatch.




 


16









 











	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.	 	Insurance. Company agrees to maintain insurance coverage on the terms and conditions
specified in Exhibit H at all times during the term of this Agreement and to notify
Bank promptly of any cancellation or lapse of any such insurance coverage.






	31.	 	Compliance with Applicable Laws; Program Compliance Manual. Company shall comply
with Applicable Laws, the Bank Secrecy Act Policy and the Program Compliance Manual in its
performance of this Agreement, including Loan Account solicitation, Application processing and
preparation of Loan Account Agreements and other Loan Account documents. The Program
Compliance Manual shall not be changed without the prior written consent of both Parties,
which consent shall not be unreasonably withheld or delayed; provided, however, that Bank may
change the Program Compliance Manual upon written notice provided to Company but without
Company’s prior written consent, to the extent that such change is required by Applicable
Laws, or to the extent that Bank determines such change is necessitated by safety and
soundness concerns. A copy of the Program Compliance Manual is attached hereto as Exhibit
I. Without limiting the foregoing, Company shall:






	 	(a)	 	apply to all Applicants customer identification procedures that
comply with Section 326 of the USA PATRIOT Act of 2001 (“Patriot Act”) and the
implementing regulations applicable to Bank (31 C.F.R. § 103.121);






	 	(b)	 	retain for five (5) years after a Loan Account is purchased
from Bank, and deliver to Bank upon request: (i) the Applicant’s name, address,
social security number, and date of birth obtained pursuant to such customer
identification procedures; (ii) a description of the methods and the results of
any measures undertaken to verify the identity of the Applicant; and (iii) a
description of the resolution of any substantive discrepancy discovered when
verifying the identifying information obtained;






	 	(c)	 	screen all Applicants against the Office of Foreign Assets
Control list of Specially Designated Nationals and Blocked Persons, and reject
any Applicant whose name and other identifiable data matches a name and such
other data on such list and notify Bank thereof;






	 	(d)	 	monitor, identify and report to Bank any suspicious activity
that meets the thresholds for submitting a Suspicious Activity Report under the
Bank Secrecy Act and the implementing regulations applicable to Bank (31 C.F.R.
§ 103.18);






	 	(e)	 	maintain an anti-money laundering program as to Borrowers to
assist Bank in its compliance with Section 352 of the Patriot Act and the
implementing regulations applicable to Bank (31 C.F.R. § 103.120);






	 	(f)	 	in addition to the information retained pursuant to subsection
(b) above, retain
the account number identifying a Borrower’s Loan Account for at least one
(1) year after purchasing the Borrower’s Loan Account from Bank;




 


17









 











	 	(g)	 	upon receipt of a government information request forwarded by
Bank to Company, (i) compare the names, addresses, and social security numbers
on such government list provided by Bank with the names, addresses, and social
security numbers of Borrowers for all Loan Accounts purchased from Bank within
the prior twelve (12) months, and (ii) within five (5) Business Days of receipt
of such an information request, deliver to Bank a certification of completion
of such a records search, which shall indicate whether Company located a name,
address, or social security number match and, if so, provide for any such
match: the name of the Borrower, the account number identifying the Borrower’s
Loan Account, and the Borrower’s social security number, date of birth,
address, or other similar identifying information provided by the Borrower, to
assist Bank in its compliance with Section 314(a) of the Patriot Act and the
implementing regulations applicable to Bank (31 C.F.R. § 103.100);






	 	(h)	 	provide to Bank electronic copies of the information retained
pursuant to subsections (b) and (g) above as mutually agreed to by the Parties,
no later than within five (5) days following receipt of the request, or within
a shorter period of time if required by a Regulatory Authority or Applicable
Law;






	 	(i)	 	(i) maintain policies and procedures (“Red Flags Policy”) to
(1) detect relevant red flags that may arise in the performance of Company’s
obligations, (2) take appropriate steps to address such red flags and to
prevent and mitigate the effect of identity theft, (3) report to Bank on such
policies and procedures on a regular basis, and (4) otherwise assist Bank in
complying with the provisions of § 605A of the Fair Credit Reporting Act, 15
U.S.C. § 1681c-1, and applicable implementing regulations; (ii) identify a
program administrator responsible for the Red Flags Policy; (iii) conduct
annual training regarding the Red Flags Policy; and (iv) provide a written
report regarding the Red Flags Policy no less frequently than annually, by the
date designated by the Bank, which report shall (1) address material matters
related to the program, (2) evaluate issues such as the effectiveness of the
Red Flags Policy in addressing the risk of identity theft in connection with
the opening of covered accounts and with respect to existing covered accounts,
(3) identify service provider arrangements, (4) identify significant incidents
involving identity theft and management’s response, and (5) provide
recommendations for material changes to the Red Flags Policy; and






Company will provide to Bank a certification letter, each quarter, that it is complying
with its obligations under this section. Bank will comply with any reporting requirements
of the Utah Department of Financial Institutions or the FDIC applicable to Bank’s
performance of this Agreement. The terms of subsections (b), (f) and (g) of this section 31
shall survive the expiration or earlier termination of this Agreement until termination by
their respective terms (if any).




	32.	 	Prohibition on Tie-In Fees. Company shall not directly or indirectly impose or
collect any fees, charges or remuneration relating to the processing or approval of an
Application, the establishment of a Loan Account, or the disbursement of Loan Proceeds, unless
such fee, charge or remuneration is set forth in the Consumer Finance Materials or approved by
Bank.




 


18









 











	33.	 	Notice of Consumer Complaints and Regulatory Inquiries. Company shall notify Bank if
it becomes aware of any investigations or proceedings by any state attorney general,
Regulatory Authority, or the Better Business Bureau or similar organization, or of any
customer complaint that is directed or referred to any state attorney general, Regulatory
Authority, or the Better Business Bureau or similar organization, relating to any aspect of
the Program within five (5) days of becoming aware of such investigation or proceeding or
complaint, and Company shall provide Bank with all documentation relating thereto, subject to
any legal prohibitions on disclosure of such investigation or proceeding. In addition, Company
shall provide Bank with periodic reporting, in a form and on a schedule mutually agreed upon
by the Parties, summarizing customer complaints received by Company and the resolution thereof
by Company. Company shall cooperate in good faith and provide such assistance, at Bank’s
request, to permit Bank to promptly resolve or address any investigation, proceeding, or
complaint.






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






	35.	 	Privacy Law Compliance. Subject to Applicable Laws, Bank and Company shall comply
with the privacy policy agreed upon by both Parties with respect to Applicants and Borrowers.






	36.	 	Manner of Payments. Unless the manner of payment is expressly provided herein, all
payments under this Agreement shall be made by wire transfer to the bank accounts designated
by the respective Parties. Notwithstanding anything to the contrary contained herein, neither
Party shall fail to make 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.






	37.	 	Referrals. Neither Party has agreed to pay any fee or commission to any agent,
broker, finder, or other person for or on account of such person’s services rendered in
connection with this Agreement that would give rise to any valid claim against the other Party
for any commission, finder’s fee or like payment.






	38.	 	Financial Statements. (a) Within ninety (90) days following the end of Company’s
fiscal year, Company shall deliver to Bank a copy of Company’s audited financial statements
prepared by an independent certified public accountant, and (b) within forty-five (45) days
following the end of each of Company’s fiscal quarters (other than year-end), Company shall
deliver to Bank a copy of Company’s unaudited financial statements, in each case as of the
year or quarter then ended and prepared in accordance with generally accepted accounting
principles; provided that, as long as Company is required to file periodic reports under the
Securities Exchange Act of 1934, such filings shall satisfy the financial statement delivery
requirements set forth above. Company shall also deliver such additional unaudited financial
statements and other information as Bank may request from time to time, within a reasonable
period of time following such request.




 


19









 










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 Laplanch
 

Name:
 

	 	 
	 

	 	Title:   CEO	 	 





 


20









 





Schedule 1




I. 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)	 	“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, the Program
promotional and marketing materials and the Consumer Finance Materials, 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.






	 	(d)	 	“Applicant” means an individual who is a consumer who requests a Loan
Account from Bank.






	 	(e)	 	“Application” means any request from an Applicant for a Loan Account in
the form required by Bank.
	 
	 	(f)	 	“Assumption Notice” shall have the meaning set forth in Section 10(c).






	 	(g)	 	“Bank” shall have the meaning set forth in the introductory paragraph
of this Agreement.






	 	(h)	 	“Bank Secrecy Act Policy” shall have the meaning set forth in Section
5(a).






	 	(i)	 	“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.






	 	(j)	 	“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.
	 
	 	(k)	 	“Claim Notice” shall have the meaning set forth in Section 10(c).






	 	(l)	 	“Collateral Account” shall have the meaning set forth in Section 32(a)
of the Loan Sale Agreement.






	 	(m)	 	“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.






	 	(n)	 	“Consumer Finance Materials” shall have the meaning set forth in
Section 4.




 


 









 











	 	(o)	 	“Consumer Origination Fee” means the fee charged by Company to
Borrowers and deducted from the Loan Proceeds disbursed by Bank to Borrowers, as
disclosed to Borrowers in the Consumer Finance Materials.






	 	(p)	 	“Credit Policy” means the minimum requirements of income, residency,
employment history, credit history, and/or other such considerations that Bank uses to
approve or deny an Application and to establish a Loan Account.






	 	(q)	 	“Disclosing Party” shall have the meaning set forth in Section
12(b)(2).






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






	 	(s)	 	“Existing Program Agreement” shall have the meaning set forth in the
recitals.
	 
	 	(t)	 	“Force Majeure Event” shall have the meaning set forth in Section 28.






	 	(u)	 	“Funding Account” means an account owned by Bank and held at the
Funding Institution against which wire transfers or ACH transfers are settled for the
payment of Loan Proceeds to Borrowers and Origination Fees to Company.






	 	(v)	 	“Funding Amount” means the aggregate amount of (i) all Loan Proceeds to
be disbursed by Bank to Borrowers on each Funding Date, and (ii) all Consumer
Origination Fees to be paid by Bank to Company on each Funding Date, as the same are
listed on a Funding Statement.






	 	(w)	 	“Funding Date” means the Business Day on which any pending Applications
are approved.






	 	(x)	 	“Funding Institution” means the depository institution at which the
Funding Account is established, which may be changed by Bank upon reasonable advance
notice to Company.






	 	(y)	 	“Funding Statement” means the statement prepared by Company in the form
of Exhibit E on a Business Day that contains (i) a list of all Applicants who meet the
eligibility criteria set forth in the Credit Policy, for whom Bank is requested to
establish Loan Accounts; and (ii) the computation of the Loan Proceeds and all
information necessary for the transfer of Loan Proceeds from the Funding Account to the
accounts designated by the corresponding Borrowers, including depository institution
names, routing numbers and account numbers; (iii) the computation of the Consumer
Origination Fees owed to Company; and (iv) such other information as shall be
reasonably requested by Bank and mutually agreed to by the Parties.






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






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






	 	(bb)	 	“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.




 


2









 











	 	(cc)	 	“Licensee” shall have the meaning set forth in Section 13.
	 
	 	(dd)	 	“Licensing Party” shall have the meaning set forth in Section 13.






	 	(ee)	 	“Loan Account” means a consumer installment loan account established by
Bank pursuant to the Program.






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






	 	(gg)	 	“Loan Sale Agreement” means that Amended and Restated Loan Sale
Agreement, dated as of even date herewith, between Bank and Company, pursuant to which
Bank agrees to sell to Company, and Company agrees to purchase from Bank, the Loan
Accounts.






	 	(hh)	 	“Loan Proceeds” means the funds disbursed to a Borrower by Bank
pursuant to a Loan Account established by Bank under the Program.






	 	(ii)	 	“Losses” shall have the meaning set forth in Section 10(a).
	 
	 	(jj)	 	“Party” means either Company or Bank and “Parties” means Company and Bank.






	 	(kk)	 	“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.






	 	(ll)	 	“Program” means the installment loan program pursuant to which Bank
will establish Loan Accounts and disburse Loan Proceeds to Borrowers pursuant to the
terms of this Agreement, initially as described in Exhibit A attached hereto.






	 	(mm)	 	“Program Compliance Manual” means the policies and procedures for the
implementation of the Program by Company, including the policies and procedures
regarding the (i) solicitation and receipt of Applications, (ii) underwriting of Loan
Accounts, (iii) processing of Applications, (iv) requirements of the USA PATRIOT Act
Customer Identification Program, and (iv) initial and periodic Office of Foreign Assets
Control screenings.






	 	(nn)	 	“Program Documents” means this Agreement and the Loan Sale Agreement.
	 
	 	(oo)	 	“Proprietary Material” shall have the meaning set forth in Section 13.






	 	(pp)	 	“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.
	 
	 	(qq)	 	“Restricted Party” shall have the meaning set forth in Section 12(a).




 


3









 










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.




 


4









 





Exhibit A




The Program



 


 









 





Exhibit B




Credit Policy



 


 









 





Exhibit C




Form of Application



 


 









 





Exhibit D




Loan Account Documentation



 


 









 





Exhibit E




Bank Secrecy Act Policy



 


 









 





Exhibit F




Sample Funding Statement





 


 









 







Exhibit G




Third-Party Service Contractors




	 	 	 
	Third-Party Service Contractor	 	Service Provided





 


 









 





Exhibit H




Insurance Requirements





(a) From the Effective Date and until termination of this Agreement, Company will maintain
insurance of the following kinds and amounts, or in amounts required by Applicable Laws,
whichever is greater.




(i) A blanket fidelity bond and an errors and omissions insurance policy, with broad
coverage on all officers and employees acting in any capacity with regard to
handling funds, money, or documents. The fidelity bond and errors and omissions
insurance shall be in a form reasonably acceptable to Bank and shall protect and
insure against losses, including forgery, theft, embezzlement, fraud, errors and
omissions and negligent acts of such persons. No provision of this paragraph
requiring the fidelity bond and errors and omissions insurance shall diminish or
relieve Company from its duties and obligations as set forth in this Agreement. The
minimum coverage under any such bond and insurance policy shall be at least
$1,000,000, with the exception of $500,000 minimum coverage for forgery.




(ii) Commercial general liability insurance written on an occurrence basis against
claims on account of bodily injury, death or property damage. Such insurance shall
have a combined single limit of not less than $1,000,000 per occurrence and
$1,000,000 annual aggregate for bodily injury, death and property damage.




(iii) Worker’s Compensation and employers’ liability insurance affording (A)
protection under the Worker’s Compensation Law containing an all states endorsement
and (B) Employers’ Liability Protection subject to a limit of not less than
$500,000.




(iv) Upon reasonable request by Bank, such other insurance as may be maintained by
Persons engaged in the same or similar business and similarly situated.






(b) Insurance policies required to be maintained hereunder shall be procured from insurance
companies reasonably acceptable to Bank. Liability insurance limits may be provided through
any combination of primary and/or excess insurance policies. If requested by Bank, Company
shall cause to be delivered to Bank annually a certified true copy of each fidelity bond and
insurance policy required under this Agreement.


 


 









 





Exhibit I




Program Compliance Manual