Sale and Servicing Agreement
This Sale and Servicing Agreement ("Agreement") is entered into as of this day between you ("Purchaser") and LendingClub Corporation ("LendingClub").
Please read this Agreement carefully and print and retain a copy of this information for your records.
LendingClub is in the business of making loans ("Loans") and coordinating and matching the interests of prospective lenders and borrowers under terms and conditions as set forth under LendingClub's website ("Website").
LendingClub intends to sell, and Purchaser intends to buy the Loans under the terms and conditions set forth in this Agreement and the Website.
LendingClub agrees to service the Loans under the terms and conditions of this Agreement and the Website.
In consideration of the mutual 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:
Sale and Servicing of Loans
LendingClub agrees to sell and Purchaser agrees to purchase, from time to time, without recourse to LendingClub, all Loans made and funded resulting from the matching of Purchasers with listings on the Website in accordance with the terms therein. LendingClub agrees that promptly upon funding such Loans, LendingClub will sell, transfer, convey, assign and deliver to Purchaser free and clear of all liens, claims and encumbrances of any kind, and Purchaser will purchase, the Loans; it being agreed and understood however, that LendingClub will retain the Servicing Rights (as hereinafter described) with respect to the Loans. Notwithstanding LendingClub's Servicing Rights to all Loans, Purchaser will hold title to, and ownership of, the Loans until the Loans are paid in full or otherwise sold.
The Servicing Rights retained by LendingClub include: (a) any and all rights to service or otherwise administer the Loans; (b) any payments to or monies received by LendingClub for servicing the Loans; (c) any returned check fees, fees incurred as a result of failed automated Loan payments due to insufficient funds or uncollected funds in Purchaser's account or for other reasons, penalties or similar servicing costs and expenses incurred with respect to the Loans; (d) all agreements or documents creating, defining or evidencing any such servicing rights and all rights of LendingClub under those agreements or documents; (e) all accounts and other rights to payment related to the Loans; and (f) any and all documents, files, records, servicing files, servicing documents, servicing records, data tapes, computer records, or other information pertaining to the Loans or pertaining to the past, present or prospective servicing of the Loans (collectively, "Servicing Rights"). LendingClub acknowledges that Purchaser is relying upon LendingClub's servicing facilities, personnel, records, processes, procedures and infrastructure to administer the sale and servicing of the Loans, and consequently LendingClub shall not assign the servicing rights to any third party nor resign from the obligations and duties hereby imposed on it except upon the merger, conversion, consolidation, or sale or other disposition of all or substantially all of LendingClub's business or assets. LendingClub may, however, utilize subcontractors or other third parties to perform some or all of the servicing duties and functions, provided that servicing is performed in accordance with the servicing standard set forth in the following paragraph. If for any reason LendingClub is unable to service Purchaser's Loans, LendingClub will assign and transfer the Servicing Rights to an unaffiliated third party loan servicer.
LendingClub, as independent contractor servicer, shall service and administer the Loans in accordance with the terms and provisions of the Loans, applicable law and the terms and provisions of this Agreement. In servicing the Loans, LendingClub shall use the same care, skill, prudence and diligence with which prudent lending institutions service similar assets, and LendingClub shall seek to maximize the timely recovery of principal and interest on the Loans. LendingClub shall have full power and authority to do or cause to be done any and all things that it may reasonably deem necessary or desirable in connection with such servicing and administration of the Loans on Purchaser's behalf, and Purchaser agrees to cooperate with LendingClub in the performance of its servicing and other obligations under this Agreement. However, LendingClub shall not permit any modification with respect to any Loan that would change the interest rate, defer or forgive the payment of principal or interest, reduce or increase the outstanding principal balance, or change the final maturity date on the Loan without Purchaser's prior written consent.
As compensation for servicing the Loans, LendingClub shall be entitled to retain a servicing fee (the "Servicing Fee") from each of the monthly payments made by the borrower to LendingClub on your behalf. The current Servicing Fee amounts are posted in the Fees section of the LendingClub Website, and are subject to change by LendingClub at any time without notice to Purchaser. The Servicing Fee on each of the Purchaser's Loans will be the amount of the Servicing Fee in effect at the time of the funding of the respective Loan, and will remain unchanged for the term of the Loans. With respect to each Loan Purchaser purchases from LendingClub, the Servicing Fee is payable only upon LendingClub's receipt of the full monthly payment from the borrower on such Loan no later than thirty (30) days after the due date of the payment. LendingClub shall retain as additional servicing compensation returned check fees, fees incurred as a result of failed automated Loan payments due to insufficient or uncollected funds in Purchaser's borrower's account or for other reasons, and similar fees, except for late charges, which will be paid to Purchaser.
Borrowers' Loan payments will be made by automated withdrawals directly from the borrower's designated account, or by bank drafts drawn on the account, into a collection account maintained by LendingClub for Purchaser's benefit (the "Servicing Account"). No interest will accrue on funds in the Servicing Account. Purchaser agrees to provide LendingClub with account information and authorization to enable LendingClub to make automated transfers of funds directly from the Servicing Account into Purchaser's designated account. All immediately available collections of principal, interest and late fees, less fees incurred as a result of failed automated Loan payments and our Servicing Fee deducted from each Loan payment, will be delivered via automated transfer from the Servicing Account into Purchaser's designated account at the end of each business day. LendingClub will maintain electronic records of Loan disbursements and borrowers' payments.
LendingClub will administer Purchaser's account and make available to the Purchaser monthly statements in electronic format on the LendingClub's web site reflecting payments received on Purchaser's Loans. LendingClub will report Loan payments and delinquencies to the credit reporting agencies with LendingClub listed as the servicer, and without displaying Purchaser's identity as the owner of the Loan. LendingClub will report any borrower Loan delinquencies immediately to Purchaser.
LendingClub will indemnify and hold Purchaser harmless from any claims, losses, damages or penalties that Purchaser may sustain in any way related to LendingClub's failure to perform its duties and service the Loans in compliance with the terms of this Agreement and applicable law. Notwithstanding the foregoing, neither LendingClub nor any of LendingClub's officers, employees, agents or attorneys shall be liable to Purchaser for any reasonable action taken or for refraining from the taking of any reasonable action in good faith pursuant to this Agreement, or for reasonable errors in judgment made in good faith. LendingClub will promptly notify Purchaser if a claim is made by a third party with respect to LendingClub's servicing obligations under this Agreement, and will assume the defense of any such claim and pay all expenses in connection with any such claim.
Representations and Warranties as to Loans Sold
a. LendingClub represents and warrants to Purchaser that it has complied in all material respects with applicable federal, state and local laws, including usury, truth-in-lending, equal credit opportunity, fair credit reporting, licensing or other similar laws, in originating the Loan.
b. The proceeds of the Loan sold have been fully disbursed to the borrower or the borrower's designated payee by LendingClub from its own funds prior to Purchaser's purchase of the Loan.
c. LendingClub has made commercially reasonable efforts to authenticate the identity of the borrower and verify information provided by the borrower in connection with the Loan. Based on such authentication and verification, to the best of LendingClub's knowledge: (i) the borrower had full legal capacity to execute and deliver the Promissory Note, and (ii) each Promissory Note sold to Purchaser by LendingClub is the legal, valid and binding obligation of the borrower, and is enforceable in accordance with its terms.
LENDINGCLUB DOES NOT WARRANT OR GUARANTEE IN ANY MANNER THAT PURCHASER WILL RECEIVE ALL OR ANY PORTION OF PRINCIPAL OR INTEREST ON ANY LOAN OR REALIZE ANY PARTICULAR OR EXPECTED RATE OF RETURN FROM THE FUNDS LENT. THE AMOUNT PURCHASER RECEIVES ON PURCHASER'S LOANS IS SPECIFICALLY RESTRICTED TO THE BORROWER'S PERFORMANCE UNDER THE PROMISSORY NOTES EVIDENCING THE LOANS. LENDINGCLUB DOES NOT GUARANTEE ANY LOANS OBTAINED THROUGH THE LENDINGCLUB WEBSITE, MAKE ANY REPRESENTATIONS AS TO A BORROWER'S ABILITY TO PAY AND DOES NOT ACT AS A GUARANTOR OF ANY LOAN PAYMENT OR PAYMENTS BY ANY LENDINGCLUB BORROWER.
PURCHASER FURTHER UNDERSTANDS AND ACKNOWLEDGES THAT BORROWERS MAY DEFAULT ON THE LOANS PURCHASED, AND THAT SUCH DEFAULTS MAY NEGATIVELY AFFECT THE AMOUNT OF PRINCIPAL AND INTEREST PURCHASER RECEIVES ON SUCH LOANS.
EXCEPT FOR THE REPRESENTATIONS CONTAINED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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.
THE PARTIES HERETO WAIVE A TRIAL BY JURY IN ANY LITIGATION RELATING TO THIS AGREEMENT, THE LOAN OR ANY OTHER AGREEMENTS RELATED THERETO.
Purchaser may not assign, transfer, sublicense or otherwise delegate its 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 Delaware. Any waiver of a breach of any provision of this Agreement will not be a waiver of any other 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.
Consent for Electronic Disclosures
You are submitting a request to buy Loans ("Request") through Lending Club. Because Lending Club operates only on the Internet, it is necessary for you to consent to do business with us online. As part of doing business online, therefore, we also need you to consent to our giving you certain disclosures online, either via our web site or email. The decision to do business with us electronically is yours. This document informs you of your rights when receiving such Disclosures.
Electronic Communications. Any Disclosures related to your Request (or Loans) will be provided to you electronically through lendingclub.com 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.
Consenting to Do Business Electronically. Before you decide to do business electronically with Lending Club, you should consider whether you have the required hardware and software capabilities described below.
Scope of Consent. Your consent to receive Disclosures and do business electronically, and our agreement to do so, applies to this Request (and loan, if funded).
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 from Lending Club; 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 above address. However, by withdrawing your consent, you will not be able to post a Request on our web site. If you have a pending Request on our web site we will need to end it and remove it from our system. If you have already received a loan, all previously agreed to terms and conditions will remain in effect, and we will send Disclosures to your verified home address provided during registration. If you are a lender, you may continue to contribute funds to Requests on the site. 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. You can contact us via email at compliance@lendingclub.com or by calling Member Support at 866-754-4094. You may also reach us in writing to us at the following address: Lending Club Corporation, 440 North Wolfe Road, Sunnyvale, CA 94085, Attention: Compliance.
It is necessary for you to 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.
By completing and submitting your Request, you acknowledge that you can access the Disclosures in the specified electronic formats described above. By completing and submitting your Request, you consent to having all Disclosures provided or made available to you in electronic form and to doing business with Lending Club electronically.
By agreeing below, you acknowledge that you have read and accepted this Agreement and give your consent to receive electronic disclosures and have printed a copy of this Agreement for your records. Moreover, you agree to receive and acknowledge that you can access, receive and retain all Disclosures electronically sent via email or on this web site. You further acknowledge that by accessing this web site you satisfy the hardware and software requirements described in the Agreement.
All notices, requests, demands and other communications required or permitted to be given hereunder shall be given by email to Purchaser's registered email address, and shall be deemed to have been duly given and effective upon transmission. If Purchaser's registered email address changes, Purchaser must notify LendingClub by sending an email to compliance@lendingclub.com. or call Customer Service at 866-754-4094. Purchaser also agrees to update its registered residence address on the LendingClub Website if Purchaser changes its residence.
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.
Anything herein to the contrary notwithstanding, the parties hereto represent that they have the authority and power to enter into this Agreement and the same constitutes the valid and binding obligation of each party and is enforceable in accordance with its terms, except as limited by applicable insolvency laws at any time in effect.
The covenants, agreements, representations and warranties made hereunder shall survive the purchase of the Loans and shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, heirs and assigns.
