Note Purchase Agreement
Exhibit 4.3
The following terms constitute a binding agreement (“Agreement”) between you and LendingClub
Corporation, a Delaware corporation (“LendingClub”, “we”, or “us”). This Agreement will govern all
purchases of Member Payment Dependent Notes (“Notes”) that you may, from time to time, make from
LendingClub. Please read this Agreement, the terms of use (“Terms of Use”) on LendingClub’s web
site at xxx.Xxxxxxxxxxx.xxx and any subdomain thereof (the “Site”) and the Prospectus carefully and
print and retain a copy of these documents for your records. By signing electronically below, you
agree to the following terms together with the Terms of Use, consent to our privacy policy, agree
to transact business with us and receive communications relating to the Notes electronically, and
agree to have any dispute with us resolved by binding arbitration.
LendingClub has filed with the U.S. Securities and Exchange Commission a registration statement on
Form S-1 (No. 333-151827) (as amended from time to time, the “Registration Statement”) to register
the continuous offering and sale of Notes issued by LendingClub. The Registration Statement
includes a prospectus related to the offering of the Notes by LendingClub dated
[ ], 2008
(as supplemented from time to time, the “Prospectus”). The Registration Statement became
effective on [ , 2008] pursuant to the rules and regulations of the U.S. Securities and
Exchange Commission under the Securities Act of 1933, as amended. You acknowledge that the
Registration Statement has been delivered to you.
In consideration of the covenants, agreements, representations and warranties hereinafter set
forth, and for other good and valuable consideration, receipt of which is hereby acknowledged, it
is agreed as follows:
1. Purchase of Notes. Subject to the terms and conditions of this Agreement, we will provide you
the opportunity through the Site:
| • | To review requests for consumer loans (“Member Loans”) that LendingClub has received from its borrower members (“Borrower Members”); |
| • | To purchase Notes with minimum denominations of $25 through the Site, each such Note associated with, and dependent on, a specific Member Loan; and |
| • | To instruct LendingClub to apply the proceeds from the sale of each Note you purchase to the funding of a specific Member Loan you have designated on the Site. |
The purchase price for any Notes you purchase through the Site will equal 100% of the principal
amount of the Notes that you decide to purchase. The Notes shall be issued pursuant to an
indenture (the “Indenture”) between LendingClub and a trustee.
You must commit to purchase a Note through the Site to fund a Member Loan prior to the origination
of that Member Loan. At the time you commit to purchase a Note you must have sufficient funds in
your account with LendingClub to complete the purchase, and you will not have access to those funds
after you make a purchase commitment unless and until LendingClub has notified you that the Member
Loan will not be funded. Once you make a funding commitment, it is irrevocable regardless of
whether the full amount of the Borrower Member’s loan request is funded. If the Member Loan does
not close, then Lending Club will inform you and release you from your purchase commitment.
2. Issuance. Each time you purchase a Note, it will be issued immediately following the closing of
the Member Loan that you have designated LendingClub to fund with the proceeds of your Note.
Member Loans generally close at the end of their 14-day posting period unless (1) the Borrower
Member declines the Member Loan prior to closing, in which case LendingClub will release you from
your purchase commitment; (2) lender commitments for the entire amount of the Borrower Member’s
loan request have been received earlier, in which case the Member Loan will close earlier; or (3)
the loan request is canceled by LendingClub for reasons relating to the operation and integrity of
the Site, for example if there is attempted fraud or the Borrower Member fails to verify
information upon request by LendingClub.
3. Terms of the Notes. The Notes shall have the terms and conditions described in the Prospectus,
the Indenture and the Note, which are exhibits to the Registration Statement of which the
Prospectus forms a part and which are available for you to review on the Site. The interest rate,
maturity and other terms of the corresponding Member Loans will be described in the Borrower
Members’ loan requests on the Site, Borrower Agreements, Loan Agreements, and the corresponding
Non-negotiable Promissory Notes. You understand and acknowledge that we may in our sole discretion,
at any time and from time to time, amend or waive any term of a Member Loan, and we may in our sole
discretion cancel any Member Loan that is more than 120 days delinquent.
4. Limited Repurchase Obligation for Identity Fraud. If the Member Loan you have designated for
the proceeds of your purchase of a Note was obtained as a result of identity theft or fraud on the
part of the purported Borrower Member, we will (a) notify you as soon as reasonably practicable
upon our becoming aware of such a situation; and (b) repurchase your Note by crediting your account
on LendingClub for the full principal amount of your Note. We may, in our reasonable discretion,
require
proof of the identity theft, such as a copy of the police report filed by the person whose identity
was wrongfully used to obtain the fraudulently-induced Member Loan, before we credit your account
and repurchase your Note. You agree that you will have no rights with respect to any such Notes
except the crediting of the purchase price to your LendingClub account.
5. Your Covenants and Acknowledgements. You agree that you have no right to, and shall not, make
any attempt, directly or through any third party, to collect from the Borrower Members on your
Notes or the corresponding Member Loans. YOU UNDERSTAND AND ACKNOWLEDGE THAT BORROWER MEMBERS MAY
DEFAULT ON THEIR PAYMENT OBLIGATIONS UNDER THE MEMBER LOANS AND THAT SUCH DEFAULTS WILL REDUCE THE
AMOUNTS, IF ANY, YOU MAY RECEIVE UNDER THE TERMS OF ANY NOTES YOU HOLD ASSOCIATED WITH SUCH MEMBER
LOANS. You and LendingClub agree that the Notes are intended to be indebtedness of LendingClub for
U.S. federal income tax purposes. You agree that you will not take any position inconsistent with
such treatment of the Notes for tax, accounting, or other purposes, unless required by law. You
further acknowledge that the Notes will be subject to the original issue discount rules of the
Internal Revenue Code of 1986, as amended, as described in the Prospectus. You acknowledge that you
are prepared to bear the risk of loss of your entire purchase price for any Notes you purchase.
6. Your Financial Suitability Acknowledgments, Representations and Warranties. You represent and
warrant that you satisfy the applicable minimum financial suitability standards and maximum
investment limits, as set forth in the following sentence (or as set forth in a supplement to the
Prospectus for residents of the state in which you reside), and you agree to provide any additional
documentation reasonably requested by us, as may be required by the securities administrators of
certain states, to confirm that you meet such minimum financial suitability standards and maximum
investment limits. You understand and confirm that you (a) have an annual gross income of at least
$70,000 and a net worth (exclusive of home, home furnishings and automobile) of at least $70,000;
or (b) have a net worth (determined with the same exclusions) of at least $250,000. In addition,
you agree that you will not purchase Notes in an amount in excess of 10% of your net worth,
determined exclusive of your home, home furnishings and automobile. You understand that the Notes
will not be listed on any securities exchange, that there may be no, or only a limited, trading
platform for the Notes, that any trading of Notes must be conducted in accordance with federal and
applicable state securities laws and that Note purchasers should be prepared to hold the Notes they
purchase until the Notes mature.
7. LendingClub’s Representations and Warranties. LendingClub represents and warrants to you, as
of the date of this Agreement and as of any date that you commit to purchase Notes, that: (a) it is
duly organized and is validly existing as a corporation in good standing under the laws of Delaware
and has corporate power to enter into and perform its obligations under this Agreement; (b) this
Agreement has been duly authorized, executed and delivered by LendingClub; (c) the Indenture has
been duly authorized by LendingClub and qualified under the Trust Indenture Act of 1939 and
constitutes a valid and binding agreement of LendingClub, enforceable against LendingClub in
accordance with its terms, except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency or similar laws; (d) the Notes have been duly authorized and, following
payment of the purchase price by you and electronic execution, authentication and delivery to you,
will constitute valid and binding obligations of LendingClub enforceable against LendingClub in
accordance with their terms, except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency or similar laws; (e) it has complied in all material respects with
applicable federal, state and local laws in connection with the offer and sale of the Notes; and
(f) LendingClub has made commercially reasonable efforts to verify the identity of the Borrower
Members obligated on the Member Loans that correspond to the Notes.
PAYMENT ON THE NOTES, IF ANY, DEPENDS ENTIRELY ON THE RECEIPT OF PAYMENTS BY LENDINGCLUB IN RESPECT
OF THE CORRESPONDING MEMBER LOAN. LENDINGCLUB DOES NOT WARRANT OR GUARANTEE IN ANY MANNER THAT YOU
WILL RECEIVE ALL OR ANY PORTION OF THE PRINCIPAL OR INTEREST YOU EXPECT TO RECEIVE ON ANY NOTE OR
REALIZE ANY PARTICULAR OR EXPECTED RATE OF RETURN. THE AMOUNT YOU RECEIVE ON YOUR NOTE, IF ANY, IS
SPECIFICALLY RESTRICTED TO PAYMENTS MADE BY US EQUAL TO THE PAYMENTS MADE BY THE BORROWER MEMBER
UNDER A MEMBER LOAN TO WHICH YOU COMMITTED NET OF OUR ONE (1) PERCENT SERVICE CHARGE ON ALL
BORROWER PAYMENTS. LENDINGCLUB DOES NOT MAKE ANY REPRESENTATIONS AS TO A BORROWER MEMBER’S ABILITY
TO PAY AND DOES NOT ACT AS A GUARANTOR OF ANY CORRESPONDING MEMBER LOAN PAYMENT OR PAYMENTS BY ANY
BORROWER MEMBER.
8. Your Representations and Warranties. You represent and warrant to LendingClub, as of the date
of this Agreement and as of any date that you commit to purchase Notes, that: (a) you have the
power to enter into and perform your obligations under this Agreement; (b) this Agreement has been
duly authorized, executed and delivered by you; (c) you have received the Prospectus, the
Indenture, and the form of the Note; (d) in connection with this Agreement, you have complied in
all material respects with applicable federal, state and local laws; and (e) you have made your
decisions in connection with your consideration of any loan requests on the Site in compliance with
the Equal Credit Xxxxxxxxxxx Xxx, 00 X.X.X. 0000 et seq., and its implementing Regulation B, 12
C.F.R. § 202 et
seq., as such may be amended from time to time, and any applicable state or local laws,
regulations, rules or ordinances concerning credit discrimination.
9. No Advisory Relationship. You acknowledge and agree that the purchase and sale of the Notes
pursuant to this Agreement is an arm’s-length transaction between you and LendingClub. In
connection with the purchase and sale of the Notes, LendingClub is not acting as your agent or
fiduciary. LendingClub assumes no advisory or fiduciary responsibility in your favor in connection
with the purchase and sale of the Notes. LendingClub has not provided you with any legal,
accounting, regulatory or tax advice with respect to the Notes. You have consulted your own legal,
accounting, regulatory and tax advisors to the extent you have deemed appropriate.
10. Limitations on Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
LOST PROFITS OR SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE
POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY TO THE
OTHER REGARDING THE EFFECT THAT THIS AGREEMENT MAY HAVE UPON THE FOREIGN, FEDERAL, STATE OR LOCAL
TAX LIABILITY OF THE OTHER.
11. Further Assurances. The parties agree to execute and deliver such further documents and
information as may be reasonably required in order to effectuate the purposes of this Agreement.
12. Entire Agreement. Except as otherwise expressly provided herein, this Agreement represents the
entire agreement between you and LendingClub regarding the subject matter hereof and supersedes all
prior or contemporaneous communications, promises and proposals, whether oral, written or
electronic, between us.
13. Consent to Electronic Transactions and Disclosures. Because LendingClub operates only on the
Internet, it is necessary for you to consent to transact business with us online and
electronically. As part of doing business with us, therefore, we also need you to consent to our
giving you certain disclosures electronically, either via the Site or to the email address you
provide to us. By entering into this Agreement, you consent to receive electronically all
documents, communications, notices, contracts, and agreements arising from or relating in any way
to your or our rights, obligations or services under this Agreement (each, a “Disclosure”). The
decision to do business with us electronically is yours. This document informs you of your rights
concerning Disclosures.
Electronic Communications. Any Disclosures will be provided to you electronically through
xxxxxxxxxxx.xxx either on our web site or via electronic mail to the verified email address you
provided. If you require paper copies of such Disclosures, you may write to us at the mailing
address provided below and a paper copy will be sent to you at a cost of up to $5.00.
Scope of Consent. Your consent to receive Disclosures and transact business electronically, and our
agreement to do so, applies to any transactions to which such Disclosures relate.
Consenting to Do Business Electronically. Before you decide to do business electronically with us,
you should consider whether you have the required hardware and software capabilities described
below.
Hardware and Software Requirements. In order to access and retain Disclosures electronically, you
must satisfy the following computer hardware and software requirements: access to the Internet; an
email account and related software capable of receiving email through the Internet; a web browser
which is SSL-compliant and supports secure sessions, such as Internet Explorer 5.0 or above and
Netscape Navigator 6.0 or above, or the equivalent software; and hardware capable of running this
software.
Withdrawing Consent. You may withdraw your consent to receive Disclosures electronically by
contacting us at the address below. If you have already purchased one or more loans, all previously
agreed to terms and conditions will remain in effect, and we will send Disclosures to your verified
home address provided during registration.
How to Contact Us regarding Electronic Disclosures. You can contact us via email at
xxxxxxxxxx@xxxxxxxxxxx.xxx or by calling Member Support at 000-000-0000. You may also reach us in
writing to us at the following address: LendingClub Corporation, 000 Xxxxx Xxxxx Xxxx, Xxxxxxxxx,
XX 00000, Attention: Compliance.
You will keep us informed of any change in your email or home mailing address so that you can
continue to receive all Disclosures in a timely fashion. If your registered email address changes,
you must notify us of the change by sending an email to xxxxxxx@Xxxxxxxxxxx.xxx or calling
000-000-0000. You also agree to update your registered residence address and telephone number on
the web site if they change.
You will print a copy of this Agreement for your records and You agree and acknowledge that you can
access, receive and retain all Disclosures electronically sent via email or posted on the Site.
14. Notices. All notices, requests, demands, required disclosures and other communications from
Lending Club to you will be transmitted to you only by e-mail to the e-mail address you have
registered on the Site or will be posted on the Site, and shall be deemed to have been duly given
and effective upon transmission or posting. All notices, required disclosures and other
communications from Xxxxx Fargo Bank, National Association, the trustee under the Indenture for the
Notes (the “Trustee”) to you will be transmitted to you only by e-mail to the e-mail address you
have registered on the Site. If your registered e-mail address changes, you must notify
LendingClub promptly. You also agree to promptly update your registered residence/mailing address
on the Site if you change your residence. You shall send all notices or other communications
required to be given hereunder to LendingClub via email at xxxxxxxxxx@XxxxxxxXxxx.xxx or by writing
to: LendingClub Corporation, 000 Xxxxx Xxxxx Xxxx, Xxxxxxxxx, XX 00000, Attention: Compliance. You
may call LendingClub at 000-000-0000, but calling may not satisfy your obligation to provide notice
hereunder or otherwise preserve your rights.
15. Miscellaneous. The terms of this Agreement shall survive until the maturity of the Notes
purchased by you. The parties acknowledge that there are no third party beneficiaries to this
Agreement. You may not assign, transfer, sublicense or otherwise delegate your rights or
responsibilities under this Agreement to any person without LendingClub’s prior written consent.
Any such assignment, transfer, sublicense or delegation in violation of this section shall be null
and void. This Agreement shall be governed by the laws of the State of New York without regard to
any principle of conflict of laws that would require or permit the application of the laws of any
other jurisdiction. Any waiver of a breach of any provision of this Agreement will not be a waiver
of any subsequent breach. Failure or delay by either party to enforce any term or condition of this
Agreement will not constitute a waiver of such term or condition. If at any time subsequent to the
date hereof, any of the provisions of this Agreement shall be held by any court of competent
jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect,
but the illegality and unenforceability of such provision shall have no effect upon and shall not
impair the enforceability of any other provisions of this Agreement. The headings in this Agreement
are for reference purposes only and shall not affect the interpretation of this Agreement in any
way.
16. Arbitration.
a. Either party to this Agreement may, at its sole election, require that the sole and exclusive
forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this
section 16 (the “Arbitration Provision”), unless you opt out as provided in section 16(b) below.
As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim,
dispute, or controversy involving you (or persons claiming through or connected with you), on the
one hand, and LendingClub (or persons claiming through or connected with LendingClub), on the other
hand, relating to or arising
out of this Agreement, any Note, the Site, and/or the activities or relationships that involve,
lead to, or result from any of the foregoing, including (except to the extent provided otherwise in
the last sentence of section 16(f) below) the validity or enforceability of this Arbitration
Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless
of whether they arise from contract; tort (intentional or otherwise); a constitution, statute,
common law, or principles of equity; or otherwise. Claims include matters arising as initial
claims, counter-claims, cross-claims, third-party claims, or otherwise. The scope of this
Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
b. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt
out notice to LendingClub Corporation, 000 X Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Loan Processing Department, that is received at the specified address within 30 days of the date of
your electronic acceptance of the terms of this Agreement. The opt out notice must clearly state
that you are rejecting arbitration; identify the Agreement to which it applies by date; provide
your name, address, and social security number; and be signed by you. You may send the opt out
notice in any manner you see fit as long as it is received at the specified address within the
specified time. No other methods can be used to opt out of this Arbitration Provision. If the opt
out notice is sent on your behalf by a third party, such third party must include evidence of his
or her authority to submit the opt out notice on your behalf.
c. The party initiating arbitration shall do so with the American Arbitration Association (the
“AAA”) or JAMS. The arbitration shall be conducted according to, and the location of the
arbitration shall be determined in accordance with, the rules and policies of the administrator
selected, except to the extent the rules conflict with this Arbitration Provision or any
countervailing law. In the case of a conflict between the rules and policies of the administrator
and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing
law, unless all parties to the arbitration consent to have the rules and policies of the
administrator apply.
d. If we elect arbitration, we shall pay all the administrator’s filing costs and administrative
fees (other than hearing fees). lf you elect arbitration, filing costs and administrative fees
(other than hearing fees) shall be paid in accordance with the rules of the administrator selected,
or in accordance with countervailing law if contrary to the administrator’s rules. We shall pay
the administrator’s hearing fees for one full day of arbitration hearings. Fees for hearings that
exceed one day will be paid by the party requesting the hearing, unless the administrator’s rules
or applicable law require otherwise, or you request that we pay them and we agree to do so. Each
party shall bear the expense of its own attorneys’ fees, except as otherwise provided by law. If a
statute gives you the right to
recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding
anything to the contrary herein.
e. Within 30 days of a final award by the arbitrator, any party may appeal the award for
reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator
administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days
after notice of the appeal. The panel will reconsider de novo all aspects of the initial award
that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision
and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by
the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be
final and binding, except for any appeal right under the Federal Arbitration Act (“FAA”), and may
be entered as a judgment in any court of competent jurisdiction.
f. We agree not to invoke our right to arbitrate an individual Claim you may bring in Small Claims
Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO
ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE
ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE
ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS
REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to
the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for
or on behalf of two or more individuals or unrelated corporate entities in the same arbitration
unless those persons are parties to a single transaction. Unless consented to in writing by all
parties to the arbitration, an award in arbitration shall determine the rights and obligations of
the named parties only, and only with respect to the claims in arbitration, and shall not (a)
determine the rights, obligations, or interests of anyone other than a named party, or resolve any
Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against,
anyone other than a named party. No administrator or arbitrator shall have the power or authority
to waive, modify, or fail to enforce this section 16(f), and any attempt to do so, whether by rule,
policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to
the validity of this section 16(f) shall be determined exclusively by a court and not by the
administrator or any arbitrator.
g. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and
shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law
consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or
other types of relief permitted by applicable substantive law, subject to the limitations set forth
in this
Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence
that would apply in a court. The arbitrator shall take steps to reasonably protect confidential
information.
h. This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or
amendments to this Agreement and the relationship of the parties; (ii) the bankruptcy or insolvency
of any party or other person; and (iii) any transfer of any loan or Note or any other promissory
note(s) which you owe, or any amounts owed on such loans or notes, to any other person or entity.
If any portion of this Arbitration Provision other than section 16(f) is deemed invalid or
unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid
and in force. If an arbitration is brought on a class, representative, or collective basis, and
the limitations on such proceedings in section 16(f) are finally adjudicated pursuant to the last
sentence of section 16(f) to be unenforceable, then no arbitration shall be had. In no event shall
any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond
those authorized in this Arbitration Provision.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE,
BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION
PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS
IN A COURT UPON ELECTION OF ARBITRATION BY ANY PARTY.
16. Waiver of Jury Trial. THE PARTIES HERETO WAIVE A TRIAL BY JURY IN ANY LITIGATION RELATING TO
THIS AGREEMENT, THE CORRESPONDING MEMBER LOAN OR ANY OTHER AGREEMENTS RELATED THERETO.
