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”). “You” as used in this
Agreement refers to you as a lender member. 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”) and the Prospectus as defined below,
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 on
LendingClub’s web site lending marketplace at xxx.Xxxxxxxxxxx.xxx and any subdomain thereof (the
“Site”), you consent to our privacy policy, agree to transact business with us 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-[ ]) (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 and that you have read the Registration
Statement.
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. |
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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
Member’s loan request on the Site.
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;
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
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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
the Notes are not transferable at this time and that you intend to hold the Notes until maturity
and have no intention to distribute the Notes.
6. 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
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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 THE BORROWER
MEMBER’S PAYMENTS UNDER THE MEMBER LOANS NET OF OUR ONE (1) PERCENT SERVICE CHARGE ON ALL SUCH
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.
7. 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 and the
Indenture and the form of the Note, and understand the lack of transferability of the Notes at this
time; (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.
8. 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.
9. 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.
10. 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.
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11. 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.
12. 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. 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.
13. Miscellaneous. The terms of this Agreement shall survive until the maturity of those Notes.
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.
14. Arbitration. THIS AGREEMENT IS SUBJECT IN ALL RESPECTS TO THE ARBITRATION AGREEMENT SET FORTH
IN THE TERMS OF USE.
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15. 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.
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