Confidential Materials omitted and
filed separately with the
Securities and Exchange Commission. Asterisks denote
omissions.
Dated as of December 10,
2007
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Page
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1
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2. Purchase of Loan Accounts; Payment to Bank:
Reporting to Bank
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1
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3. Ownership of Loan Accounts
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2
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4. General Representations and Warranties of
Bank
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2
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5. Additional Representations and Warranties of
Bank
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3
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6. Representations and Warranties of
Company
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4
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7. Conditions Precedent to the Obligations of
Company
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5
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8. Conditions Precedent to the Obligations of
Bank
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5
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6
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7
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9
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11
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13. Third Party Beneficiaries
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11
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11
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11
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16. Relationship of Parties
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12
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12
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18. Agreement Subject to Applicable
Laws
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12
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13
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13
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13
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22. Governing Law; Waiver of Jury
Trial
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13
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13
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Page
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13
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14
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14
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14
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14
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14
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14
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14
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14
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ii
THIS LOAN SALE AGREEMENT (this
“Agreement”), dated as of December 10, 2007
(“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 Sunnyvale, California (“Company”).
WHEREAS, Bank and Company have entered into a
Loan Account Program Agreement pursuant to which Bank provides
installment loans to consumers; and
WHEREAS, Bank desires to sell to Company, and
Company desires to purchase from Bank, the Loan Accounts
established by Bank pursuant to the Loan Account Program
Agreement.
NOW, THEREFORE, in consideration of the
foregoing and the terms, conditions and mutual covenants and
agreements herein contained, and for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Bank and Company agree as follows:
1.
Definitions . The terms used in this Agreement shall be
defined as set forth in Schedule 1 . Terms not
defined herein shall have the meanings ascribed to them in the Loan
Account Program Agreement.
2.
Purchase of Loan Accounts; Payment to Bank: Reporting to
Bank .
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(a)
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Bank hereby agrees to sell,
transfer, assign, set-over, and otherwise convey to Company,
without recourse, on each Closing Date, the Loan Accounts
established by Bank on such day. All of the foregoing shall be in
accordance with the procedures set forth in this Section 2. In
consideration for Bank’s agreement to sell, transfer, assign,
set-over and convey to Company such Loan Accounts, Company agrees
to purchase such Loan Accounts from Bank, and Company shall pay to
Bank the Purchase Price on each Closing Date in accordance with
subsection 2(b) below.
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(b)
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On
each Closing Date, Company shall purchase the Loan Accounts
established by Bank that day and identified on the Funding
Statement for that day. Company shall effectuate its purchase of
the Loan Accounts by depositing the Funding Amount (which shall
equal the aggregate Purchase Price for such Loan Accounts) into the
Funding Account in accordance with Section 6(b) of the Loan Account
Program Agreement. Prior to the first Funding Date, Bank shall
provide to Company the account number and routing number for the
Funding Account.
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(c)
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To
the extent that such materials are in Bank’s possession, upon
Company’s request, Bank agrees to cause to be delivered to
Company, at Company’s cost, loan files on all Loan Accounts
purchased by Company pursuant to this Agreement through the
preceding Business Day. Such loan files will include the
application for the Loan Account, the Loan Account Agreement,
confirmation of delivery of the Loan Account Agreement to the
Borrower, and such other materials as Company may reasonably
require (all of which may be in electronic form); provided that
Bank may retain copies of such information as necessary to comply
with Applicable Law.
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1
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(d)
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Within five (5) days after the
end of each calendar month, Company shall pay Bank a monthly
service fee equal to the greater of (i) the product of
[ *
] and [*], or (ii) $[*]
in months [*]; $[*] in months [*]; $[*] in months [*]; and $[*] in
months [*].
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(e)
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With each such monthly payment,
Company shall deliver to Bank a report setting forth the
calculation of the payment Company is obligated to make to Bank
pursuant to this Section 2.
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3.
Ownership of Loan Accounts .
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(a)
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On
and after each Closing Date, subject to Company’s payment of
the Purchase Price on each such date, Company shall be the sole
owner for all purposes (e.g., tax, accounting and legal) of the
Loan Accounts purchased from Bank on such date. Bank agrees to make
entries on its books and records to clearly indicate the sate of
the Loan Accounts to Company as of each Closing Date. Company
agrees to make entries on its books and records to clearly indicate
the purchase of the Loan Accounts as of each Closing Date. Bank
does not assume and shall not have any liability to Company for the
repayment of any Loan Proceeds or the servicing of the Loan
Accounts.
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4.
General Representations and Warranties of Bank . Bank hereby
represents and warrants as of the Effective Date of this Agreement
that:
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(a)
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Bank is an FDIC-insured
Utah-chartered industrial bank, duly organized, validly existing
under the laws of the State of Utah and has full corporate power
and authority to execute, deliver, and perform its obligations
under this Agreement; the execution, delivery and performance of
this Agreement and the transfer of the Loan Accounts have been and
will continue to be duly authorized and are not and will not be 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;
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(b)
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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 (other
than those required to be made to or obtained from
Borrowers);
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2
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(c)
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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 or 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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(d)
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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 by Bank of any
of the transactions contemplated by 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;
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(e)
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Bank is not Insolvent;
and
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(f)
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The
execution, delivery and performance of this Agreement by Bank
comply with all Applicable Laws; provided that the Bank makes no
representation or warranty regarding compliance with Applicable
Laws relating to consumer protection, consumer lending, usury, loan
collection, anti-money laundering or privacy.
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The representations and warranties set forth in
this Section 4 shall survive the sale, transfer and assignment
of the Loan Accounts to Company pursuant to this Agreement and,
with the exception of those representations and warranties
contained in subsection 4(d), shall be made continuously throughout
the term of this Agreement. In the event that any investigation or
proceeding of the nature described in subsection 4(d) is instituted
or threatened against Bank, Bank shall promptly notify Company of
such pending or threatened investigation or proceeding.
5.
Additional Representations and Warranties of Bank . Bank
hereby represents and warrants that, as of the Effective Date or
such other date as specified below in a specific
representation:
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(a)
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As
of each Closing Date, each Loan Account transferred to Company on
such date was originated by Bank and constitutes a valid sale,
transfer, assignment, set-over and conveyance to Company of all of
Bank’s right, title, and interest in and to such Loan
Account;
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3
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(b)
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As
of each Closing Date, Bank was the legal and beneficial owner of
all right, title and interest in and to each Loan Account, and no
Loan Account was subject to an encumbrance, immediately prior to
the transfer of the Loan Account to Company pursuant
hereto;
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(c)
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Bank shall maintain its records in a
manner to clearly and unambiguously reflect the ownership of
Company in each of the Loan Accounts transferred hereunder;
and
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(d)
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As
of the Closing Date, with respect to each Loan Account:
(i) Bank has done nothing that would alter the terms and
conditions or the balance of the Loan Account or impair the Loan
Account’s enforceability; and (ii) there is no limit on
Bank’s authority to assign the Loan Account. For the
avoidance of doubt, the representation made in Section 5(d)(i)
shall not encompass actions that are taken by Company on behalf of
Bank.
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The representations and warranties set forth in
this Section 5 shall survive the sale, transfer and assignment
of the Loan Accounts to Company pursuant to this
Agreement.
6.
Representations and Warranties of Company . Company hereby
represents and warrants to Bank, as of the Effective Date
that:
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(a)
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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;
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(b)
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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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(c)
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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);
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(d)
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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) would have a materially adverse
financial effect on Company or its operations if resolved adversely
to it;
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4
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(e)
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Company is not Insolvent;
and
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(f)
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The
execution, delivery and performance of this Agreement by Company
comply with Applicable Laws.
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The representations and warranties set forth in
this Section 6 shall survive the sale, transfer and assignment
of the Loan Accounts to Company pursuant to this Agreement and,
with the exception of those representations and warranties
contained in subsection 6(d), shall be made continuously throughout
the term of this Agreement. In the event that any investigation or
proceeding of the nature described in subsection 6(d) is instituted
or threatened against Company, Company shall promptly notify Bank
of such pending or threatened investigation or
proceeding.
7.
Conditions Precedent to the Obligations of Company . The
obligations of Company under this Agreement are subject to the
satisfaction of the following conditions precedent on or prior to
each Closing Date:
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(a)
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As
of each Closing Date, no action or proceeding shall have been
instituted or threatened against Company or Bank to prevent or
restrain the consummation of the transactions contemplated hereby,
and, on each Closing Date, there shall be no injunction, decree, or
similar restraint preventing or restraining such
consummation;
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(b)
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The
representations and warranties of Bank set forth in Sections 4
and 5 shall be true and correct in all material respects on each
Closing Date as though made on and as of such date; and
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(c)
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The
obligations of Bank set forth in this Agreement to be performed on
or before each Closing Date shall have been performed in all
material respects as of such date by Bank.
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8.
Conditions Precedent to the Obligations of Bank . The
obligations of Bank in this Agreement are subject to the
satisfaction of the following conditions precedent on or prior to
each Closing Date:
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(a)
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As
of each Closing Date, no action or proceeding shall have been
instituted or threatened against Company or Bank to prevent or
restrain the consummation of the purchase or other transactions
contemplated hereby, and, on each Closing Date, there shall be no
injunction, decree, or similar restraint preventing or restraining
such consummation;
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5
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(b)
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The
representations and warranties of Company set forth in the Program
Documents shall be true and correct in all material respects on
each Closing Date as though made on and as of such date;
and
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(c)
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The
obligations of Company set forth in the Program Documents to be
performed on or before each Closing Date shall have been performed
in all material respects as of such date by Company.
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9.
Term and Termination .
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(a)
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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”) 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.
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(b)
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A
Party shall have the right to terminate this Agreement immediately
upon written notice to the other Party in any of the following
circumstances:
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(1)
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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;
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(2)
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the
other Party shall default in the performance of any material
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;
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(3)
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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 such 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;
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6
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(4)
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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;
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(5)
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there is a materially adverse change
in the financial condition of the other Party, as determined by the
terminating party in good faith and in its commercially reasonable
judgment; or
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(6)
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either Party has terminated the Loan
Account Program Agreement and any applicable notice period provided
in the Loan Account Program Agreement has expired.
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(c)
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In
addition to the foregoing termination rights, Bank may terminate
this Agreement immediately upon written notice to Company
(i) if Company defaults on its obligation to make a payment to
Bank as provided in Section 2 of this Agreement and fails to
cure such default within one (1) Business Day of receiving
notice of such default from Bank; (ii) if Company defaults on
its obligation to make a payment to Bank as provided in
Section 2 of this Agreement more than once in any three
(3) month period; or (iii) if Company fails to maintain
the Required Balance in the Collateral Account as required by
Section 32 of this Agreement.
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(d)
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The
termination of this Agreement either in part or in whole shall not
discharge any Party from any obligation incurred prior to such
termination, including any obligation with respect to Loan Accounts
sold prior to such termination.
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(e)
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Following the termination of this
Agreement, Company shall purchase any Loan Accounts established by
Bank under the Loan Account Program Agreement prior to and on the
date of termination of the Loan Account Program Agreement that have
not already been purchased by Company.
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(f)
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The
terms of this Section 9 shall survive the expiration or
earlier termination of this Agreement.
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(a)
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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 respon
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