Exhibit 10.1
Execution
Version
CONFIDENTIAL
TREATMENT
[***]
indicates that text has been omitted which is the subject of a confidential treatment request.
This
text has been separately filed with the SEC.
WEBBANK
and
PROSPER
FUNDING LLC
ASSET
SALE AGREEMENT
Dated
as of July 1, 2016
This
ASSET SALE AGREEMENT (this “Agreement”), dated as of July 1, 2016, is made by and between WEBBANK, a Utah-chartered
industrial bank having its principal location in Salt Lake City, Utah (“Bank”), and PROSPER FUNDING LLC, a Delaware
limited liability company having its principal location in San Francisco, California (“PFL”).
WHEREAS,
Bank and Prosper Marketplace, Inc. (“PMI”) are parties to a Marketing Agreement, dated as of the date hereof (the
“Marketing Agreement”);
WHEREAS,
Bank may desire to sell to PFL certain Loans, and Participations related to certain Loans, established by Bank pursuant to the
Marketing Agreement, and PFL desires to purchase from Bank the Assets that are offered;
WHEREAS,
Bank, PMI and PFL previously entered into a Second Amended and Restated Loan Sale Agreement dated as of January 25, 2013 (as amended
from time to time, the “Existing Sale Agreement”), pursuant to which PMI and PFL agreed to purchase certain loan accounts
originated by Bank; and
WHEREAS,
the Parties therefore desire to amend and restate the Existing Sale 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, the Parties agree as follows:
| 1. | Definitions;
Effectiveness. |
| (a) | The
terms used in this Agreement shall be defined as set forth in Schedule 1 to the Marketing
Agreement. The rules of construction set forth in Schedule 1 to the Marketing Agreement
shall apply to this Agreement. |
| (b) | This
Agreement shall be effective as of August 1, 2016 (the “Effective Date”)
and, as of the Effective Date, shall supersede and replace the Existing Sale Agreement
(except that, as provided in section 1(c), the Existing Sale Agreement will govern the
purchase of Loans originated prior to the Effective Date). This Agreement shall apply
to all Loans 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
Sale Agreement. |
| (c) | All
Loans originated by Bank prior to the Effective Date shall be governed by the terms of
the Existing Sale Agreement as in effect at the time that such Loans were originated,
and shall not be subject to the terms of this Agreement. As to such Loans, the terms
of the Existing Program Agreement, including indemnification, shall continue to apply
on the terms set forth therein. |
| (d) | This
Agreement shall not operate so as to render invalid or improper any action heretofore
taken under the Existing Sale Agreement. |
| 2. | Purchase
of Assets. The terms of Schedule 2 shall apply
as if fully set forth in this Agreement. |
| (a) | Bank
shall retain ownership of the Loans after each Funding Date, unless and until sold to
PFL as provided in this Agreement. PFL agrees to make entries on its books and records
to clearly indicate Bank’s ownership of the Loans as of each Funding Date. |
| (b) | On
and after each Closing Date, subject to PFL’s payment of the Purchase Price on
each such date, PFL shall be the sole owner for all purposes (e.g., tax, accounting and
legal) of the Assets purchased from Bank on such date. Bank agrees to make entries on
its books and records to clearly indicate the sale of the Assets to PFL as of each Closing
Date. PFL agrees to make entries on its books and records to clearly indicate the purchase
of the Assets as of each Closing Date. |
| (c) | Bank
does not assume and shall not have any liability to PFL for the repayment of any Loan
Proceeds or the servicing of the Assets after the related Closing Date. |
| (d) | PFL
or any subsequent owner of the Assets may (i) securitize the Assets, or any amounts owing
thereunder, or (ii) issue an “asset-backed security” (as defined under 17
C.F.R. § 229.1101(c) or Section 3(a)(77) of the Securities Exchange Act of 1934)
backed by the Assets or any amounts owing thereunder, in each case, without the prior
written consent of Bank; provided that all of the following conditions are met: |
| (1) | Bank
is not required to maintain any ongoing ownership interest in the Assets after the sale
thereof to PFL, Bank is not required to make or provide any informational reports, certificates,
data or filings with respect to the securitization or other financing transaction and
Bank is not required to incur any costs or expenses in connection with such securitization
or other financing transaction unless PFL (or some other creditworthy entity reasonably
acceptable to Bank) has agreed in writing to promptly and fully reimburse Bank for such
out-of-pocket costs and expenses. |
| (2) | Bank
is not deemed to be the “securitizer,” “sponsor” or “depositor”
under any rule, regulation or order of the Securities and Exchange Commission with respect
to such transaction. |
| (3) | Bank
is not required to waive or agree to impair any of its rights or remedies under the Program
Documents. |
| (4) | Company
agrees (i) that it shall, and that it shall require each Direct Transferee or Affiliate
of such Person to, obtain Bank’s written approval of any identification of Bank
by name in any documents related to a securitization or other financing transaction,
and any description of the Program in such documents, and (ii) that it shall use commercially
reasonable efforts to require any subsequent transferee not covered by (i) above to obtain
Bank’s written approval of any identification of Bank by name in any documents
related to a securitization or other financing transaction, and any description of the
Program in such documents. As to any Direct Transferee (or Affiliate thereof) or any
subsequent transferee, Bank will not unreasonably withhold, delay or condition its approval. |
PFL
shall include a provision in any agreement by which PFL sells or transfers Assets requiring such Direct Transferee to comply with
the terms of this Section 3(d) to the same extent as PFL, and requiring such transferee to include such a provision in subsequent
transfers of the Assets. PFL agrees that it shall, and that it shall require each Direct Transferee or Affiliate of such Person
to, promptly provide to Bank copies of all offering documents and investor presentations in connection with any such transaction;
PFL shall include a provision in any agreement by which PFL sells or transfers Assets requiring such Direct Transferee to include
a provision in subsequent transfers of the Assets that requires the subsequent transferee to promptly provide to Bank copies of
all offering documents and investor presentations in connection with any such transaction.
| (e) | Upon
request by PFL, the Bank shall provide an acknowledgement in a form mutually agreed by
the Parties regarding the satisfaction, to Bank’s knowledge, of the conditions
set forth in Section 3(d)(1)-(4). |
| (f) | PFL
shall maintain the Control Account Agreement in effect on the Control Account at all
times. |
| 4. | Representations
and Warranties of Bank. |
| (a) | Bank
hereby represents and warrants to PFL as of the date hereof, the Effective Date of this
Agreement and as of each Closing Date 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 and the transfer of the Assets 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 (other than those
required to be made to or obtained from Borrowers); |
| (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); |
| (4) | There
are no proceedings or investigations (other than those previously disclosed to PFL by
Bank) 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; |
| (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 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 as they apply to the operation of the Program; |
| (7) | To
the extent that Bank receives non-public personally identifiable information from the
PFL or the Borrower, Bank will comply with all Applicable Laws related to the protection
and retention of such information; and |
| (8) | With
respect to each Asset sold on any Closing Date by Bank to PFL, (i) Bank has not taken
any action (directly or indirectly, voluntarily or involuntarily): (x) to alter the terms
or conditions of such Asset or (y) that could be reasonably expected to impair the enforceability
of such Assets (except that such representation does not extend to any action by the
Prosper Entities or their respective agents); or (ii) upon Bank’s receipt of the
related Purchase Price (inclusive of the agreement to pay the Loan Trailing Fee), Bank
shall have conveyed to PFL all of Bank’s right, title and interest in such Assets
subject to no prior security interest in favor of any other creditor of Bank. |
| (b) | Bank
hereby represents and warrants to PFL as of each Closing Date that with respect to each
Asset, Bank has disbursed the Loan Proceeds relating to the Loans on the Funding Statement
received by Bank three (3) Business Days Bank prior to such Closing Date in accordance
with the Marketing Agreement, except to the extent that such disbursement is not completed
or is reversed due to matters beyond Bank’s control, or if Company has not complied
with its obligations (including the obligation to deliver the Funding Statement), or
if there are errors in the Funding Statement. |
| (c) | With
respect to each Participation sold on any Closing Date by Bank to PFL, Bank covenants
not to take any action (directly or indirectly, voluntarily or involuntarily), unless
required by Applicable Law or safety and soundness concerns: (x) to alter the terms or
conditions of the Loan related to such Participation or (y) that could be reasonably
expected to impair the enforceability of the Loan related to such Participation (except
that such covenant does not extend to any action by the Prosper Entities or their respective
agents). |
| (d) | The
representations, warranties and covenants set forth in this Section 4 shall survive the
sale, transfer and assignment of the Assets to PFL pursuant to this Agreement. In the
event that any investigation or proceeding of the nature described in subsection 4(a)(4)
is instituted or threatened against Bank, Bank shall not be in breach of its representation
provided that Bank promptly notifies PFL of such pending or threatened investigation
or proceeding (unless prohibited from doing so by Applicable Laws or the direction of
a Regulatory Authority). |
| 5. | Representations
and Warranties of PFL. |
| (a) | Except
as set forth on a Schedule of Exceptions to this Agreement, PFL hereby represents and
warrants to Bank, as of the date hereof, the Effective Date and each Closing Date that: |
| (1) | PFL
is a limited liability company, 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 its limited liability company agreement 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 PFL 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 PFL, have been obtained; |
| (3) | This
Agreement constitutes a legal, valid, and binding obligation of PFL, enforceable against
PFL 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 PFL, threatened
against PFL (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by PFL pursuant to this Agreement,
(iii) seeking any determination or ruling that, in the reasonable judgment of PFL, would
materially and adversely affect the performance by PFL 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 PFL or its operations if resolved adversely to it; |
| (5) | PFL
is not Insolvent; and |
| (6) | The
execution, delivery and performance of this Agreement by PFL comply with Applicable Laws. |
| (b) | The
representations and warranties set forth in this Section 5 shall survive the sale, transfer
and assignment of the Assets to PFL pursuant to this Agreement. In the event that any
investigation or proceeding of the nature described in subsection 5(a)(4) is instituted
or threatened against PFL, PFL shall not be in breach of its representation provided
that PFL promptly notifies Bank of such pending or threatened investigation or proceeding
(unless prohibited from doing so by Applicable Laws or the direction of a Regulatory
Authority). |
| 6. | Conditions
Precedent to the Obligations of PFL. |
| (a) | The
obligations of PFL under this Agreement are subject to the satisfaction of the following
conditions precedent on or prior to each Closing Date: |
| (1) | As
of each Closing Date, no action or proceeding shall have been instituted or, to PFL’s
knowledge, threatened against PFL 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; |
| (2) | The
representations and warranties of Bank set forth in Section 4 shall be true and correct
in all material respects on each Closing Date as though made on and as of such date;
and |
| (3) | 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. |
| 7. | Conditions
Precedent to the Obligations of Bank. |
| (a) | The
obligations of Bank in this Agreement are subject to the satisfaction of the following
conditions precedent on or prior to each Closing Date: |
| (1) | As
of each Closing Date, no action or proceeding shall have been instituted or, to Bank’s
knowledge, threatened against PFL 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; |
| (2) | The
representations and warranties of the Prosper Entities 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 |
| (3) | The
obligations of the Prosper Entities 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 the Prosper Entities. |
| (a) | This
Agreement shall have an initial term beginning on the Effective Date and ending three
(3) years thereafter (the “Initial Term”) and shall renew automatically for
one (1) successive term of one (1) year (the “Renewal Term,” collectively,
the Initial Term and Renewal Term shall be referred to as the “Term”), unless
either Party provides notice of non-renewal to the other Party at least ninety (90) days
prior to the end of the Initial Term or this Agreement is earlier terminated in accordance
with the provisions hereof. |
| (b) | In
the event that PMI terminates the Marketing Agreement pursuant to Section 10(d) thereof,
this Agreement shall automatically terminate on the effective date of termination of
the Marketing Agreement. |
| (c) | Bank
shall have the right to terminate this Agreement immediately upon written notice to the
PFL in any of the following circumstances: |
| (1) | any
representation or warranty made by PFL 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 PFL; |
| (2) | PFL
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 PFL; |
| (3) | PFL
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 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 PFL 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 PFL
under the federal bankruptcy laws as now or hereafter in effect; |
| (5) | there
is a materially adverse change in the financial condition of PFL; |
| (6) | Bank
or PMI has terminated the Marketing Agreement and any applicable notice period provided
in the Marketing Agreement has expired; |
| (7) | Bank
is deemed to be a “sponsor,” “depositor” or “securitizer”
under any rule, regulation or order the Securities and Exchange Commission with respect
to any security issued by a Prosper Entity; or |
| (8) | A
Prosper Entity is no longer the servicer of all Assets that have been sold by Bank to
PFL under this Agreement (other than charged-off loans that have been sold to debt buyers). |
| (d) | PFL
shall have the right to terminate this Agreement immediately upon written notice to Bank
in any of the following circumstances: |
| (1) | any
representation or warranty made by Bank 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 Bank; |
| (2) | Bank
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 Bank; |
| (3) | Bank
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 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 Bank 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 Bank
under the federal bankruptcy laws as now or hereafter in effect; |
| (5) | there
is a materially adverse change in the financial condition of Bank; |
| (6) | Bank
offers to sell to PFL under this Agreement the Assets related to less than [***] of the Loans originated by Bank pursuant to
the Marketing Agreement during the preceding ten (10) days; or |
| (7) | any
Party has terminated the Marketing Agreement and any applicable notice period provided
in the Marketing Agreement has expired. |
| (e) | Bank
may terminate this Agreement immediately upon written notice to PFL if PFL defaults on
its obligation to make a payment to Bank as provided in Section 2 of this Agreement or
its obligation to maintain the Control Account Agreement as provided in Section 3(d)
of this Agreement. |
| (f) | 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 Assets sold prior to such termination. |
| (g) | Upon
termination of this Agreement, PFL shall purchase any Assets related to Loans established
by Bank under the Marketing Agreement prior to and on the date of termination of the
Marketing Agreement that have not already been purchased by PFL and any Assets related
to Loans originated by Bank after termination of this Agreement, if such Loans are originated
in accordance with Section 10(e) of the Marketing Agreement, and to the extent such Assets
are offered for sale by Bank in accordance with Schedule 2. |
| (h) | Immediately
following the termination or expiration of this Agreement and the Marketing Agreement,
Bank shall transfer to PFL and PFL shall accept the transfer of all of the Loans with
respect to which the Assets had previously been sold to PFL. |
| (i) | Bank
may terminate this Agreement immediately upon written notice to PFL 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. |
| (j) | The
terms of this Section 8 shall survive the expiration or earlier termination of this Agreement. |
| (a) | Each
Party agrees that Confidential Information of each 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, no
Party (the “Restricted Party”) shall disclose Confidential Information of
any 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 (other than a Prosper Entity as agent for Bank), representatives or subcontractors,
(ii) to the Restricted Party’s auditors, accountants and other professional advisors
(provided such receiving party is subject to confidentiality obligations at least as
stringent as those set forth herein and the Restricted Party shall be responsible for
any breach of confidentiality obligations by such receiving party), 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 each 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 each Party may maintain in its
possession all such Confidential Information of each other Party required to be maintained
under Applicable Laws relating to the retention of records for the period of time required
thereunder or stored on such Party’s network as part of standard back-up procedures
(provided that such information shall remain subject to the confidentiality provisions
of this Section 9). |
| (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 any other Party, the Restricted
Party shall provide such 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 shall exercise such efforts to obtain reasonable assurance
that confidential treatment shall 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 9, and similar provisions in the other Program Documents, shall
not be deemed to restrict the sharing of Confidential Information between the Prosper
Entities. |
| (f) | The
terms of this Section 9 shall survive the expiration or earlier termination of this Agreement. |
| (a) | PFL
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 PFL or its agents or representatives of any
of PFL’s representations, warranties, obligations or undertakings under the Program
Documents, and including Securitization Losses), unless such Loss results from (i) the
gross negligence or willful misconduct of Bank, or (ii) Bank’s failure to timely
transfer the Funding Amount to the extent required under Section 6(b) of the Marketing
Agreement, provided that PMI or PFL, as applicable is not in breach of any of its obligations
under the Program Documents, including, but not limited to, PMI’s or PFL’s
obligations with respect to the purchase of Assets under this Agreement or the Stand
By Asset Purchase Agreement, or (iii) Excluded Servicing Losses. |
| (b) | To
the extent permitted by Applicable Laws, any Indemnified Party seeking indemnification
hereunder shall promptly notify PFL, 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 PFL is or may be obligated to provide indemnification
(an “Indemnifiable Claim”), specifying in reasonable detail the nature of
the Loss 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 PFL to the
extent of the actual prejudice, if any, suffered by PFL as a result of such failure.
The Indemnified Party shall provide to PFL as promptly as practicable thereafter information
and documentation reasonably requested by PFL to defend against the Indemnifiable Claim. |
| (c) | PFL
shall have ten (10) days after receipt of any notification of an Indemnifiable Claim
(a “Claim Notice”) to notify the Indemnified Party of PFL’s election
to assume the defense of the Indemnifiable Claim and, through counsel of its own choosing,
and at its own expense, to commence the settlement or defense thereof, and the Indemnified
Party shall cooperate with PFL in connection therewith if such cooperation is so requested
and the request is reasonable; provided that PFL 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 notice to PFL, to assume the defense of the Indemnifiable
Claim at the cost of and with the cooperation of PFL. If PFL assumes responsibility for
the settlement or defense of any such claim, (i) PFL shall permit the Indemnified Party
to participate at the Indemnified Party’s expense in such settlement or defense
through counsel chosen by the Indemnified Party; provided that, in the event that both
PFL and the Indemnified Party are defendants in the proceeding and the Indemnified Party
shall have reasonably determined and notified PFL that representation of both parties
by the same counsel would be inappropriate due to the actual or potential differing interests
between them, then the fees and expenses of one such counsel for all Indemnified Parties
in the aggregate shall be borne by PFL; and (ii) PFL shall not settle any Indemnifiable
Claim without the Indemnified Party’s consent. |
| (d) | If
PFL does not notify the Indemnified Party 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 PFL fails to contest vigorously any such Indemnifiable Claim, or if the Indemnified
Party elects to control the defense of an Indemnifiable Claim as permitted by Section
10(c), then, in each case, the Indemnified Party shall have the right, upon notice to
PFL, to contest, settle or compromise the Indemnifiable Claim in the exercise of its
reasonable discretion; provided that the Indemnified Party shall notify PFL 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. |
| (e) | All
amounts due under this Section 10 shall be payable not later than ten (10) days after
written demand therefor. |
| (f) | The
terms of this Section 10 shall survive the expiration or earlier termination of this
Agreement. |
11. 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 of the Parties shall
be entitled to assign or transfer any rights or obligations under this Agreement (including by operation of law) without the prior
written consent of the other Party, which shall not be unreasonably withheld or delayed. No assignment made in conformity with
this Section 11 shall relieve a Party of its obligations under this Agreement.
| 12. | Third
Party Beneficiaries. |
| (a) | Excepted
as expressly provided in this Section 12, nothing contained herein shall be construed
as creating a third-party beneficiary relationship between any Party and any other Person. |
| (b) | Subject
to subsections (c) and (d) below, any subsequent transferee of an Asset shall be a third-party
beneficiary of Bank’s covenants in Sections 4(c) and 8(h) of this Agreement and
Section (h) of Schedule 2 to this Agreement with respect to the Asset held by such transferee
(the “Transferred Obligations”). |
| (c) | A
subsequent transferee shall only be permitted to enforce the Transferred Obligations
against Bank with respect to an Asset if (i) PFL is insolvent or the subject of bankruptcy
or insovlency proceedings, and (ii) such transferee has agreed to comply with Company’s
obligations under Sections 4(c) and 8(h) of this Agreement and Section (h) of Schedule
2 to this Agreement and such transferee is not in beach thereof. |
| (d) | Company
or its designee shall maintain a book-entry system for recording the beneficial owners
of interests in the Assets, and shall make such records available to Bank. A subsequent
transferee of an Asset shall only be permitted to enforce the Transferred Obligations
against Bank if such transferee is identified as the holder of the Asset in the book-entry
system maintained by Company or its designee, and Bank shall be permitted to exclusively
rely on such records. For the avoidance of doubt, Bank shall have no obligation to conduct
any investigation to determine the holder of an Asset other than through such records,
and shall have no liability to any purported owner of an Asset that is not reflected
as the owner in such records. |
13. Proprietary
Materials. Bank hereby provides PFL with a non-exclusive right and non-assignable license
to use and reproduce Bank’s name, logo, registered trademarks and service marks (collectively “Marks”) as necessary
to fulfill the Party’s obligations under this Agreement; provided, however, that (a) PFL shall obtain Bank’s prior
written approval for the use of Bank’s Marks and such use shall at all times comply with written instructions provided by
Bank regarding the use of its Marks; and (b) PFL acknowledges that, except as specifically provided in this Agreement, PFL shall
acquire no interest in Bank’s Marks. Upon termination of this Agreement, PFL shall cease using Bank’s Marks. No Party
may use another Party’s Marks in any press release without the prior written consent of the other Parties.
14. 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) or the day
transmitted, if transmitted by e-mail during business hours; or (c) one (1) Business Days after the date of deposit with a nationally
recognized overnight courier, for delivery 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 |
| |
|
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇ |
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇ |
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Tel. (▇▇▇) ▇▇▇-▇▇▇▇ |
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|
Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ |
| |
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With a copy to: |
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WebBank |
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|
Attn: Chief Compliance
Officer |
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|
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇ |
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇ |
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|
Tel. (▇▇▇) ▇▇▇-▇▇▇▇ |
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Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ |
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| To
PFL: |
|
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
Inc. |
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|
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ |
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▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ |
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Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
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E-mail Address:
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ |
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|
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
|
15. Relationship
of Parties. The Parties agree that in performing their respective 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 PFL.
16. Retention
of Records. Any Records with respect to Assets purchased by PFL pursuant hereto retained
by Bank shall be held for itself and as custodian for the account of Bank and PFL as owners thereof. Bank shall provide copies
of Records to PFL upon reasonable request of PFL.
17. Agreement
Subject to Applicable Laws. If (a) any 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) any 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)
any 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 affected Party shall provide written
notice to the other Party of such advisement or request and 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 8 hereof, if the Parties are unable to reach
agreement regarding such modifications, changes or additions to the Program or the Program Documents within [***] after the
Parties initially meet, any Party may terminate this Agreement upon [***] 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 with advance written notice, if any event described in
subsection 17(a), (b) or (c) above occurs.
| (a) | Each
Party shall bear the costs and expenses of performing its obligations under this Agreement,
unless expressly provided otherwise in the Program Documents. |
| (b) | 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. |
19. 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 such other Party in responding to such Regulatory Authority’s inquiries and requests related to
the Program.
20. 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 to the duty of confidentiality such Party owes to its customers and banking secrecy and confidentiality requirements
otherwise applicable to such Party 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, PFL shall reimburse Bank for
reasonable out of pocket expenses incurred by Bank in the performance of periodic on site reviews of PFL’s financial condition,
operations and internal controls.
21. 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 21 shall survive the expiration or earlier termination of this Agreement.
22. 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, no 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.
23. Brokers.
Neither of the Parties has agreed to pay any fee or commission to any agent, broker, finder,
or other person for or on account of services rendered as a broker or finder in connection with this Agreement or the transactions
contemplated hereby that would give rise to any valid claim against the other Party for any brokerage commission or finder’s
fee or like payment.
24. Entire
Agreement. The Program Documents, including this Agreement and its schedules and exhibits
(all of which schedules and exhibits are hereby incorporated into this Agreement), 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.
25. Amendment
and Waiver. Except as set forth in Section 32 hereof, this Agreement may be amended only
by a written instrument signed by both 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.
26. 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.
27. 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 any Party, but shall be given a reasonable interpretation in accordance with the plain meaning of its terms and the
intent of the Parties.
28. 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 28 shall survive the expiration or
earlier termination of this Agreement.
29. Headings.
Captions and headings in this Agreement are for convenience only and are not
to be deemed part of this Agreement.
30. 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.
31. Financial
Statements. (a) Within ninety (90) days following the end of PFL’s fiscal year, PFL
shall deliver to Bank a copy of PFL’s audited financial statements prepared by an independent certified public accountant,
and (b) within forty-five (45) days following the end of each of PFL’s fiscal quarters (other than year-end), PFL shall
deliver to Bank a copy of PFL’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 PFL 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. PFL 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.
32. Performance
by Servicer. Bank acknowledges and agrees that PMI may perform, on behalf of PFL,
any obligations of PFL to Bank under this Agreement (other than payment obligations), but solely in its various capacities as
corporate administrator, loan servicer, platform administrator or similar capacity under any administration, corporate administration,
loan servicing, platform administration or similar agreement entered into between PMI and PFL pursuant to which PFL appoints PMI
as corporate administrator, loan servicer, platform administrator or in a similar capacity to provide corporate administration,
loan servicing, platform administration or similar services to PFL in relation to the offering of securities by PFL. The
Prosper Entities may not amend the Administration Agreement or transfer the corporate administration, loan servicing, platform
administration or similar services to any party other than PMI or PFL without the written consent of Bank.
33. Limited
Recourse. The obligations of PFL under this Agreement are solely the obligations of
PFL. No recourse shall be had for the payment of any amount owing by PFL under this Agreement, or any other obligation of
or claim against PFL arising out of or based upon this Agreement, against any organizer, member, director, officer, manager or
employee of PFL or any of its Affiliates; provided, however, that the foregoing shall not relieve any such person of any liability
it might otherwise have as a result of fraudulent actions or omissions taken by it. Bank agrees that PFL shall be liable
for any claims against PFL only to the extent that PFL has funds available to pay such claims at any time. PFL agrees that Bank
shall have recourse to the Control Account and the LTF Collateral Account (as defined in Schedule 2) as permitted under the Control
Account Agreement and this Agreement. The terms of this Section 33 shall survive any termination of this Agreement.
34. No
Petition. Bank hereby covenants and agrees that it will not institute against, or
join or assist any other Person in instituting against, PFL any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other similar proceeding under the laws of any jurisdiction for one year and a day after all of the borrower payment
dependent notes of PFL have been paid in full. The terms of this Section 34 shall survive any termination of this Agreement.
[Signature
Page Follows]
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: |
|
| |
▇▇▇▇▇ ▇▇▇▇▇▇▇ |
| |
President |
| |
|
| PROSPER
FUNDING LLC |
| |
| By: |
|
| |
▇▇▇▇▇ ▇▇▇▇▇▇ |
| |
Chief Executive
Officer |
Schedule
2
The
following terms shall apply as if fully set forth in the Agreement:
| (a) | Bank
may sell, transfer, assign, set-over, and otherwise convey to PFL, without recourse,
on each Closing Date, the Assets relating to the Loans on the Funding Statement received
by Bank [***]. All of the foregoing shall be in accordance with the procedures set forth
in this Schedule 2. In consideration for Bank’s offer to sell, transfer, assign,
set-over and convey to PFL such Assets, PFL agrees to purchase such Assets from Bank,
and PFL shall pay to Bank the Purchase Price in accordance with this Schedule 2. |
| (b) | The
Funding Statement shall indicate which Assets are Loans and which Assets are Participations.
All Participations shall have a participation percentage of [***] until otherwise mutually
agreed upon by Company and Bank pursuant to paragraph (h) of Schedule 2 of the Asset
Sale Agreement. At the Closing Date, the servicing shall be released with respect to
Assets that are Loans and that are Participations with a Participation Percentage of
[***], and PFL shall require that PFL or PMI be the servicer on all Assets. |
| (c) | On
each Closing Date, PFL shall purchase the Assets on the Funding Statement received by
Bank [***]. By no later than [***], PFL shall deposit or cause to be deposited a sum
equal to the Funding Amount for that Funding Statement by wire transfer into the Control
Account. [***], in consideration of PFL’s purchase of the Assets [***], Bank may
authorize the disbursement of such Funding Amount from the Control Account to Bank per
the terms of the Control Account Agreement. Notwithstanding any provision of the Control
Account Agreement to the contrary, under no circumstances shall Bank direct or otherwise
authorize the disbursement or other disposition of any funds from the Control Account
to Bank or any other person or entity other than in accordance with the previous sentence. |
| (d) | To
the extent that such materials are in Bank’s possession, upon PFL’s request,
Bank agrees to cause to be delivered to PFL, at PFL’s cost, loan files on all Loans
purchased by PFL pursuant to this Agreement within [***] of the related Closing Date.
Such loan files shall include the application for the Loan, the Loan Agreement, confirmation
of delivery of the Loan Agreement to the Borrower, and such other materials as PFL 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 Laws. Bank, as owner
of the Loan, may retain copies of any of the foregoing, or may request copies from PFL
from time to time, which PFL agrees to provide promptly. |
| (e) | To
secure all PFL’s obligations under this Agreement, PFL hereby grants Bank a security
interest in all of PFL’s right, title and interest in and to the Control Account
and all sums now or hereafter on deposit in or payable or withdrawable from the Control
Account and the proceeds of any of the foregoing (collectively, the “Control Account
Collateral”), and agrees to take such steps as Bank may reasonably require to perfect
or protect such first priority security interest. PFL represents that, as of the date
of this Agreement, the Control Account Collateral is not subject to any claim, lien,
security interest or encumbrance (other than the interest of Bank). PFL shall not allow
any other Person to have any claim, lien, security interest, or encumbrance on the Control
Account Collateral. Bank shall have all of the rights and remedies of a secured party
under Applicable Laws with respect to the Collateral and the funds therein or proceeds
thereof, and shall be entitled to exercise those rights and remedies in its discretion. |
| (f) | PFL
agrees to pay all of the Bank Fees (as defined in the Control Account Agreement), and
shall ensure that adequate funds are deposited into the Control Account to satisfy such
Bank Fees. PFL shall provide to Bank copies of the Account Documentation (as defined
in the Control Account Agreement), including any amendments thereto, promptly upon receipt
from the Control Institution. |
| (g) | Within
five (5) Business Days after the end of each calendar month, PFL shall pay Bank the Holding
Period Interest Charge for all Loans with respect to which the Asset was purchased by
PFL during the immediately preceding month. |
| (h) | When
a Loan has been charged off, Bank may offer to sell such Loan to PFL for no additional
consideration, and PFL shall purchase such Loan from Bank. |
| (i) | With
respect to each Asset sold by Bank hereunder, PFL shall pay to Bank on a monthly basis
the “Loan Trailing Fee.” The Loan Trailing Fee for an Asset is equal to the
product of: (1) the Loan Trailing Factor, multiplied by (2) the outstanding principal
amount or the Outstanding Participation Amount, as applicable to such Asset, multiplied
by (3) a fraction, the numerator of which is the number of calendar days in the month
to which such payment relates and the denominator of which is the number of calendar
days in the year that includes such month. The Loan Trailing Fee for a month shall be
paid by PFL within five (5) Business Days following the applicable month. |
| (j) | PFL
shall provide Bank with cash collateral to secure all PFL’s obligations under this
Agreement, which Bank shall deposit in a deposit account (“LTF Collateral Account”)
at Bank. The LTF Collateral Account shall be a deposit account at Bank, segregated from
any other deposit account of PFL, PMI or Bank, that shall hold only the funds provided
by PFL to Bank as collateral. At all times, PFL shall maintain funds in the LTF Collateral
Account equal to the LTF Required Balance. The LTF Required Balance shall be calculated
monthly as of the first day of each calendar month during the Term. In the event the
actual balance in the LTF Collateral Account is less than the LTF Required Balance, PFL
shall, within [***] following notice of such deficiency, make a payment into the LTF
Collateral Account in an amount equal to the difference between the LTF Required Balance
and the actual balance in such account. |
| (k) | To
secure all PFL’s obligations under this Agreement, PFL hereby grants Bank a security
interest in all of PFL’s right, title and interest in and to the LTF Collateral
Account and all sums now or hereafter on deposit in or payable or withdrawable from the
LTF Collateral Account and the proceeds of any of the foregoing (collectively, the “LTF
Collateral”), and agrees to take such steps as Bank may reasonably require to perfect
or protect such first priority security interest. PFL represents that, as of the date
of this Agreement, the LTF Collateral is not subject to any claim, lien, security interest
or encumbrance (other than the interest of Bank). PFL shall not allow any other Person
to have any claim, lien, security interest, or encumbrance on the LTF Collateral. Bank
shall have all of the rights and remedies of a secured party under Applicable Laws with
respect to the LTF Collateral, and shall be entitled to exercise those rights and remedies
in its discretion. |
| (l) | The
LTF Collateral Account shall be a money market deposit account and shall bear interest.
The annual interest rate shall be adjusted monthly as of the first day of each month
during the Term, and shall be equal to the greater of (i) the [***] published in the
[***] of the [***] on such date, [***]; or (ii) [***]. The interest shall be paid monthly
and credited to the LTF Collateral Account no less frequently than quarterly, and shall
be computed based on the average daily balance of the LTF Collateral Account for the
prior month. |
| (m) | Without
limiting any other rights or remedies of Bank under this Agreement, Bank shall have the
right to withdraw amounts from the LTF Collateral Account to fulfill any obligations
of PFL under this Agreement on which PFL has defaulted, at any time. Bank may withdraw
amounts from the LTF Collateral Account if any obligations of PFL remain unpaid for [***]
after the due date for payment. To the extent that Bank has withdrawn amounts from the
LTF Collateral Account and such amounts are subsequently paid directly to Bank, Bank
shall restore such amounts to the LTF Collateral Account within [***] after receipt of
the amounts paid directly to Bank. PFL shall not have any right to withdraw amounts from
the LTF Collateral Account. In the event the actual balance in the LTF Collateral Account
is more than the LTF Required Balance calculated for a particular month, then, within
[***] after the Required Balance is calculated, at PFL’s option, PFL may provide
to Bank a report setting forth the calculation for the LTF Required Balance and the extent
to which the actual amount held in the LTF Collateral Account at such time exceeds the
LTF Required Balance. Within [***] after receipt of such a report from PFL, Bank shall
withdraw from the LTF Collateral Account any amount held therein that exceeds the LTF
Required Balance as of the date of such report and pay such amount to an account designated
by PFL. |
| (n) | Bank
shall release any funds remaining in the LTF Collateral Account on the latest to occur
of: [***]. |
| (o) | The
terms of Sections (j) through (o) of this Schedule 2 shall survive the expiration or
termination of this Agreement for as long as any Assets remain outstanding (including,
for the avoidance of doubt, if PFL is no longer the owner or servicer of such Assets). |
| (p) | The
following terms shall have the definitions provided below: |
| (1) | “Holding
Period Interest Charge” means, for each Asset purchased by PFL from Bank hereunder,
(i) interest paid by PFL to Bank on the outstanding principal amount or Outstanding Participation
Amount of that Asset, as applicable, for each calendar day beginning on the Funding Date
for that Loan and ending on the Closing Date on which the sale of that Asset occurred
at an annual interest rate equal to the applicable Risk Adjusted Margin, less (ii) the
Servicing Fee. For the avoidance of doubt, if the Funding Date of a Loan is a Friday
and the Closing Date is the next Tuesday, then the Holding Period Interest Charge shall
include interest for the four-calendar day period from that Friday to that Tuesday. The
Holding Period Interest Charge shall not be less than zero. |
| (2) | “Loan
Category” means each group of Loans of a common type (e.g., general consumer-purpose,
healthcare direct, etc.), and with a common credit grade and loan term (as set forth
in the Credit Policy). |
| (3) | “Loan
Trailing Fee” shall have the meaning set forth in Schedule 2, section (i). |
| (4) | “Loan
Trailing Factor” means [***]. |
| (5) | “LTF
Required Balance” means the projected amount [***] of all [***] Fees to be
paid to Bank by PFL or PMI (or their respective transferees) [***], as calculated in
accordance with the terms of Exhibit B. |
| (6) | “Net
Charge Off Loss Rate” means, with respect to a Loan Category, the quotient
of (a) the total dollar amount of principal of all Loans in such Loan Category charged
off during the prior [***] (net of recoveries), divided by (b) the weighted average principal
amount of all Loans within such Loan Category outstanding during the prior [***]. The
Net Charge Off Loss Rate for a Loan Category will be calculated each quarter, not more
than [***] following the end of such quarter, by reference to the [***] ending with the
quarter then ended, and the newly calculated Net Charge Off Loss Rate shall be effective
on the first Business Day after PFL calculates it and reports it to Bank. The figures
used to calculate the Net Charge Off Loss Rate shall include loans originated under the
Existing Program Agreement. |
| (7) | “Risk
Adjusted Margin” means, with respect to an Asset, (1) the stated simple interest
rate applicable to the Loan related to that Asset, less (2) the Net Charge Off Rate for
the Loan Category related to that Asset. |
| (8) | “Servicing
Fee” means, with respect to an Asset, [***] of the principal amount of the
Loan for that Asset multiplied by a fraction, the numerator of which is the number of
calendar days between the Funding Date and the Closing Date (including the Funding Date
but excluding the Closing Date) and the denominator of which is the number of calendar
days in the year in which the Loan was originated by Bank. |
Schedule
of Exceptions
Schedule
5(a)(4)
Litigation
On
April 21, 2009, PMI and the North American Securities Administrators Association (“NASAA”) reached agreement on the
terms of a model consent order between PMI and the states in which PMI, under its initial platform structure, offered promissory
notes for sale directly to investor members prior to November 2008. The consent order involves payment by PMI of up to an aggregate
of $1 million in penalties, which have been allocated among the states based on PMI’s promissory note sale transaction volume
in each state prior to November 2008. A state that enters into a consent order receives its portion of the $1 million in exchange
for its agreement to terminate, or refrain from initiating, any investigation of PMI’s promissory note sale activities prior
to November 2008. Penalties are paid promptly after a state enters into a consent order. NASAA has recommended that each state
enter into a consent order; however, no state is obliged to do so, and there is no deadline by which a state must make its decision.
PMI is not required to pay any portion of the penalty to those states that do not elect to enter into a consent order. If a state
does not enter into a consent order, it is free to pursue its own remedies against PMI, subject to any applicable statute of limitations.
As of December 31, 2015, PMI has entered into consent orders with 34 states and has paid an aggregate of $0.5 million in penalties
to those states.
On
November 26, 2008, plaintiffs filed a class action lawsuit against PMI and certain of its executive officers and directors in
the Superior Court of California, County of San Francisco, California (the “Superior Court”). The suit was brought
on behalf of all promissory note purchasers on the platform from January 1, 2006 through October 14, 2008. The lawsuit alleged
that PMI offered and sold unqualified and unregistered securities in violation of the California and federal securities laws.
The lawsuit sought rescission damages against PMI and the other named defendants, as well as treble damages against PMI and the
award of attorneys’ fees, experts’ fees and costs, and pre-judgment and post-judgment interest. On July 19, 2013,
solely to avoid the costs, risks and uncertainties inherent in litigation, and without admitting any liability or wrongdoing,
the parties to the class action litigation pending before the Superior Court, entered into a Stipulation and Agreement of Compromise,
Settlement, and Release (the “Settlement”) setting forth an agreement to settle all claims related thereto. In connection
with the Settlement, PMI agreed to pay the plaintiffs an aggregate amount of $10 million, payable in four lump sum payments of
$2 million in 2014, $2 million in 2015, $3 million in 2016 and $3 million in 2017. On April 16, 2014, the Superior Court granted
final approval of the Settlement. Subject to satisfaction of the conditions set forth in the Settlement, the defendants will be
released by the plaintiffs from all claims concerning or arising out of the offering of promissory notes on the platform from
January 1, 2006 through October 14, 2008. The reserve for the class action settlement liability is $5.9 million on PMI’s
consolidated balance sheet as of December 31, 2015.
Exhibit A
Control Account Agreement
| |
 |
|
AMENDED
AND RESTATED
DEPOSIT
ACCOUNT CONTROL AGREEMENT
(Access
Restricted Immediately) |
| |
This Amended
and Restated Deposit Account Control Agreement (the “Agreement”), dated as of the date specified on the
initial signature page of this Agreement, is entered into by and among Prosper Funding LLC, a Delaware limited liability
company (“Company”), WebBank, a Utah-chartered industrial bank (“Secured Party”)
and ▇▇▇▇▇ Fargo Bank, National Association (“Bank”), and sets forth the rights of Secured Party and
the obligations of Bank with respect to the deposit accounts of Company at Bank identified at the end of this Agreement as the
Collateral Accounts (each hereinafter referred to individually as a “Collateral Account” and collectively as
the “Collateral Accounts”). Each account designated as a Collateral Account includes, for purposes of this
Agreement, and without the necessity of separately listing subaccount numbers, all subaccounts presently existing or hereafter
established for deposit reporting purposes and integrated with the Collateral Account by an arrangement in which deposits made
through subaccounts are posted only to the Collateral Account. Each Collateral Account operated as a “Multi-Currency
Account” is a deposit account maintained with Bank’s Cayman Islands Branch, which may be denominated in foreign
currency.
| 1. | Secured
Party’s Interest in Collateral Accounts. Secured Party represents that it has
been granted a security interest in the Collateral Accounts. Company hereby confirms
the security interest granted by Company to Secured Party in all of Company’s right,
title and interest in and to the Collateral Accounts and all sums now or hereafter on
deposit in or payable or withdrawable from the Collateral Accounts (the “Collateral
Account Funds”). In furtherance of the intentions of the parties hereto, this
Agreement constitutes written notice by Secured Party to Bank and Bank’s Cayman
Islands Branch of Secured Party’s security interest in the Collateral Accounts. |
| 2. | Secured
Party Control. Bank, Secured Party and Company each agree that Bank will comply
with instructions given to Bank by Secured Party directing disposition of funds in the
Collateral Accounts (“Disposition Instructions”) without further consent
by Company. Except as otherwise required by law, Bank will not agree with any third party
to comply with instructions for disposition of funds in the Collateral Accounts originated
by such third party. |
| 3. | No
Company Access to Collateral Accounts. Unless separately agreed to in writing by
Secured Party, Company agrees that it will not be able to make debits or withdrawals
from or otherwise have access to the Collateral Accounts or any Collateral Account Funds,
and that Secured Party will have exclusive access to the Collateral Accounts and Collateral
Account Funds. |
| 4. | Transfers
in Response to Disposition Instructions. Notwithstanding the provisions of the “Secured
Party Control” section of this Agreement, unless Bank separately agrees in writing
to the contrary, Bank will have no obligation to disburse funds in response to Disposition
Instructions other than by the appropriate disbursement method expressly set forth in
this Section 4. So long as Secured Party and Bank maintain a currently effective agreement
under which Secured Party is entitled to use Bank’s Commercial Electronic Office®
or other online internet portal operated by Bank to transfer funds from accounts at Bank
to which Secured Party has access, Secured Party may from time to time make transfers
of collected and available funds from any Collateral Account to such destination account
as Secured Party may determine. Such transfers will be governed by Bank’s standard
Master Agreement for Treasury Management Services or other applicable treasury management
services agreement and any applicable service description(s). Further, any such transfer
will be deemed a receipt of funds or proceeds by Secured Party within the meaning of
the last sentence of Section 7 below, and will also be deemed an instruction or request
of Secured Party within the meaning of the last sentence of Section 14 below. Except
as otherwise expressly set forth in this Section 4, Bank will have no obligation to disburse
funds in response to Disposition Instructions other than by cashier’s check payable
to Secured Party. Any disposition of funds which Bank makes under this Section 4 or otherwise
in response to Disposition Instructions is subject to Bank’s standard policies,
procedures and documentation governing the type of disposition made; provided, however,
that in no circumstances will any such disposition require Company’s consent. To
the extent any Collateral Account is a certificate of deposit or time deposit, Bank will
be entitled to deduct any applicable early withdrawal penalty prior to disbursing funds
from such account in response to Disposition Instructions. To the extent Secured Party
requests that funds be transferred from any Collateral Account in a currency different
from the currency denomination of the Collateral Account, the funds transfer will be
made after currency conversion at Bank’s then current buying rate for exchange
applicable to the new currency. |
| 5. | Lockboxes.
To the extent items deposited to a Collateral Account have been received in one or
more post office lockboxes maintained for Company by Bank (each a “Lockbox”)
and processed by Bank for deposit, Company acknowledges that Company has granted Secured
Party a security interest in all such items (the “Remittances”). During
the term of this Agreement, Company will have no right or ability to instruct Bank regarding
the receipt, processing or deposit of Remittances, and Secured Party alone will have
the right and ability to so instruct Bank. Company and Secured Party acknowledge and
agree that Bank’s operation of each Lockbox, and the receipt, retrieval, processing
and deposit of Remittances, will at all times be governed by Bank’s Master Agreement
for Treasury Management Services or other applicable treasury management services agreement,
and by Bank’s applicable standard lockbox Service Description. |
| 6. | Balance
Reports and Bank Statements. Bank agrees, at the request of Secured Party on any
day on which Bank is open to conduct its regular banking business, other than a Saturday,
Sunday or public holiday (each a “Business Day”), to make available
to Secured Party a report (“Balance Report”) showing the opening available
balance in the Collateral Accounts as of the beginning of such Business Day, by a transmission
method determined by Bank, in Bank’s sole discretion. Company expressly consents
to this transmission of information. Bank will, on receiving a written request from Secured
Party, send to Secured Party by United States mail, at the address indicated for Secured
Party after its signature to this Agreement, duplicate copies of all periodic statements
on the Collateral Accounts which are subsequently sent to Company. |
| 7. | Returned
Items. Secured Party and Company understand and agree that the face amount (“Returned
Item Amount”) of each Returned Item will be paid by Bank debiting the Collateral
Account to which the Returned Item was originally credited, without prior notice to Secured
Party or Company. As used in this Agreement, the term “Returned Item”
means (i) any item deposited to a Collateral Account and returned unpaid, whether for
insufficient funds or for any other reason, and without regard to timeliness of the return
or the occurrence or timeliness of any drawee’s notice of non-payment; (ii) any
item subject to a claim against Bank of breach of transfer or presentment warranty under
the Uniform Commercial Code (as adopted in the applicable state) or Regulation CC (12
C.F.R. §229), as in effect from time to time; (iii) any automated clearing house
(“ACH”) entry credited to a Collateral Account and returned unpaid
or subject to an adjustment entry under applicable clearing house rules, whether for
insufficient funds or for any other reason, and without regard to timeliness of the return
or adjustment; (iv) any credit to a Collateral Account from a merchant card transaction,
against which a contractual demand for chargeback has been made; and (v) any credit to
a Collateral Account made in error. Company agrees to pay all Returned Item Amounts immediately
on demand, without setoff or counterclaim, to the extent there are not sufficient funds
in the applicable Collateral Account to cover the Returned Item Amounts on the day Bank
attempts to debit them from the Collateral Account. Secured Party agrees to pay all Returned
Item Amounts within fifteen (15) calendar days after demand, without setoff or counterclaim,
to the extent that (i) the Returned Item Amounts are not paid in full by Company within
five (5) calendar days after demand on Company by Bank, and (ii) Secured Party has received
proceeds from the corresponding Returned Items under this Agreement. |
| 9. | Bank
Fees. Company agrees to pay all Bank’s fees and charges for the maintenance
and administration of the Collateral Accounts and for the treasury management and other
account services provided with respect to the Collateral Accounts and any Lockboxes (collectively
“Bank Fees”), including, but not limited to, the fees for (a) Balance
Reports provided on the Collateral Accounts, (b) funds transfer services received with
respect to the Collateral Accounts, (c) lockbox processing services, (d) Returned Items,
(e) funds advanced to cover overdrafts in the Collateral Accounts (but without Bank being
in any way obligated to make any such advances), and (f) duplicate bank statements. The
Bank Fees will be paid by Bank debiting one or more of the Collateral Accounts on the
Business Day that the Bank Fees are due, without notice to Secured Party or Company.
If there are not sufficient funds in the Collateral Accounts to cover fully the Bank
Fees on the Business Day Bank attempts to debit them from the Collateral Accounts, such
shortfall or the amount of such Bank Fees will be paid by Company to Bank, without setoff
or counterclaim, within five (5) calendar days after demand from Bank. Secured Party
agrees to pay any Bank Fees within fifteen (15) calendar days after demand, without setoff
or counterclaim, to the extent such Bank Fees are not paid in full by Company within
five (5) calendar days after demand on Company by Bank. |
| 10. | Account
Documentation. Except as specifically provided in this Agreement, Secured Party and
Company agree that the Collateral Accounts will be subject to, and Bank’s operation
of the Collateral Accounts will be in accordance with, the terms of Bank’s applicable
deposit account agreement governing the Collateral Accounts (“Account Agreement”).
In addition to the Account Agreement, each Collateral Account operated as a “Multi-Currency
Account” will be governed by Bank’s Master Agreement for Treasury Management
Services or other applicable treasury management services agreement, and by Bank’s
Multi-Currency Account Service Description in effect from time to time. All documentation
referenced in this Agreement as governing any Collateral Account or the processing of
any Remittances is hereinafter collectively referred to as the “Account Documentation”.
To the extent that any term or provision of the Account Documentation conflicts with
any term or provision of this Agreement, the terms and provisions of this Agreement shall
control. |
| 11. | Partial
Subordination of Bank’s Rights. Bank hereby subordinates to the security interest
of Secured Party in the Collateral Accounts (i) any security interest which Bank may
have or acquire in the Collateral Accounts, and (ii) any right which Bank may have or
acquire to set off or otherwise apply any Collateral Account Funds against the payment
of any indebtedness from time to time owing to Bank from Company, except for debits to
the Collateral Accounts permitted under this Agreement for the payment of Returned Item
Amounts or Bank Fees. |
| 12. | Bankruptcy
Notice; Effect of Filing. If Bank at any time receives notice of the commencement
of a bankruptcy case or other insolvency or liquidation proceeding by or against Company,
Bank will continue to comply with its obligations under this Agreement, except to the
extent that any action required of Bank under this Agreement is prohibited under applicable
bankruptcy laws or regulations or is stayed pursuant to the automatic stay imposed under
the United States Bankruptcy Code or by order of any court or agency. With respect to
any obligation of Secured Party hereunder which requires prior demand on Company, the
commencement of a bankruptcy case or other insolvency or liquidation proceeding by or
against Company will automatically eliminate the necessity of such demand on Company
by Bank, and will immediately entitle Bank to make demand on Secured Party with the same
effect as if demand had been made on Company and the time for Company’s performance
had expired. |
| 13. | Legal
Process, Legal Notices and Court Orders. Bank will comply with any legal process,
legal notice or court order it receives in relation to a Collateral Account if Bank determines
in its sole discretion that the legal process, legal notice or court order is legally
binding on it. |
| 14. | Indemnification.
Company will indemnify, defend and hold harmless Bank, its officers, directors, employees,
and agents (collectively, the “Indemnified Parties”) from and against
any and all claims, demands, losses, liabilities, damages, costs and expenses (including
reasonable attorneys’ fees) (collectively “Losses and Liabilities”)
Bank may suffer or incur as a result of or in connection with (a) Bank complying with
any binding legal process, legal notice or court order referred to in the immediately
preceding section of this Agreement, (b) Bank following any instruction or request of
Secured Party, including but not limited to any Disposition Instructions, or (c) Bank
complying with its obligations under this Agreement, except to the extent such Losses
and Liabilities are caused by Bank’s gross negligence or willful misconduct. To
the extent such obligations of indemnity are not satisfied by Company within five (5)
days after demand on Company by Bank, Secured Party will indemnify, defend and hold harmless
Bank and the other Indemnified Parties against any and all Losses and Liabilities Bank
may suffer or incur as a result of or in connection with Bank following any instruction
or request of Secured Party, except to the extent such Losses and Liabilities are caused
by Bank’s gross negligence or willful misconduct. |
| 15. | Bank’s
Responsibility. This Agreement does not create any obligations of Bank, and Bank
makes no express or implied representations or warranties with respect to its obligations
under this Agreement, except for those expressly set forth herein. In particular, Bank
need not investigate whether Secured Party is entitled under Secured Party’s agreements
with Company to give Disposition Instructions. Bank may rely on any and all notices and
communications it believes are given by the appropriate party. Bank will not be liable
to Company, Secured Party or any other party for any Losses and Liabilities caused by
(i) circumstances beyond Bank’s reasonable control (including, without limitation,
computer malfunctions, interruptions of communication facilities, labor difficulties,
acts of God, wars, or terrorist attacks) or (ii) any other circumstances, except to the
extent such Losses and Liabilities are directly caused by Bank’s gross negligence
or willful misconduct. In no event will Bank be liable for any indirect, special,
consequential or punitive damages, whether or not the likelihood of such damages was
known to Bank, and regardless of the form of the claim or action, or the legal theory
on which it is based. Any action against Bank by Company or Secured Party under or related
to this Agreement must be brought within twelve (12) months after the cause of action
accrues. |
| 16. | Termination.
This Agreement may be terminated by Secured Party or Bank at any time by either of
them giving thirty (30) calendar days prior written notice of such termination to the
other parties to this Agreement at their contact addresses specified after their signatures
to this Agreement; provided, however, that this Agreement may be terminated immediately
upon written notice (i) from Bank to Company and Secured Party should Company or Secured
Party fail to make any payment when due to Bank from Company or Secured Party under the
terms of this Agreement, or (ii) from Secured Party to Bank on termination or release
of Secured Party’s security interest in the Collateral Accounts; provided that
any notice from Secured Party under clause (ii) of this sentence must contain Secured
Party’s acknowledgement of the termination or release of its security interest
in the Collateral Accounts. Company’s and Secured Party’s respective obligations
to report errors in funds transfers and bank statements and to pay Returned Item Amounts
and Bank Fees, as well as the indemnifications made, and the limitations on the liability
of Bank accepted, by Company and Secured Party under this Agreement will continue after
the termination of this Agreement with respect to all the circumstances to which they
are applicable, existing or occurring before such termination, and any liability of any
party to this Agreement, as determined under the provisions of this Agreement, with respect
to acts or omissions of such party prior to such termination will also survive such termination.
Upon any termination of this Agreement, (i) Bank will transfer all collected and available
balances in the Collateral Accounts on the date of such termination in accordance with
Secured Party’s written instructions, and (ii) Bank will close any Lockbox and
forward any mail received at the Lockbox unopened to such address as is communicated
to Bank by Secured Party under the notice provisions of this Agreement for a period of
three (3) months after the effective termination date, unless otherwise arranged between
Secured Party and Bank, provided that Bank’s fees with respect to such disposition
must be prepaid directly to Bank at the time of termination by cashier’s check
payable to Bank or other payment method acceptable to Bank in its sole discretion. |
| 17. | Modifications,
Amendments, and Waivers. This Agreement may not be modified or amended, or any provision
thereof waived, except in a writing signed by all the parties to this Agreement. |
| 18. | Notices.
All notices from one party to another must be in writing, must be delivered to Company,
Secured Party and/or Bank at their contact addresses specified after their signatures
to this Agreement, or any other address of any party communicated to the other parties
in writing, and will be effective on receipt. Any notice sent by a party to this Agreement
to another party must also be sent to all other parties to this Agreement. Bank is authorized
by Company and Secured Party to act on any instructions or notices received by Bank if
(a) such instructions or notices purport to be made in the name of Secured Party, (b)
Bank reasonably believes that they are so made, and (c) they do not conflict with the
terms of this Agreement as such terms may be amended from time to time, unless such conflicting
instructions or notices are supported by a court order. |
| 19. | Successors
and Assigns. Neither Company nor Secured Party may assign or transfer its rights
or obligations under this Agreement to any person or entity without the prior written
consent of Bank, which consent will not be unreasonably withheld or delayed. Notwithstanding
the foregoing, Secured Party may transfer its rights and duties under this Agreement
to (i) a transferee to which, by contract or operation of law, Secured Party transfers
substantially all of its rights and duties under the financing or other arrangements
between Secured Party and Company, or (ii) if Secured Party is acting as a representative
in whose favor a security interest is created or provided for, a transferee that is a
successor representative; provided that as between Bank and Secured Party, Secured Party
will not be released from its obligations under this Agreement unless and until Bank
receives any such transferee’s binding written agreement to assume all of Secured
Party’s obligations hereunder. Bank may not assign or transfer its rights or obligations
under this Agreement to any person or entity without the prior written consent of Secured
Party, which consent will not be unreasonably withheld or delayed; provided, however,
that no such consent will be required if such assignment or transfer takes place as part
of a merger, acquisition or corporate reorganization affecting Bank. |
| 20. | Governing
Law. This Agreement will be governed by and be construed in accordance with the
laws of the state in which the office of Bank that maintains the Collateral Accounts
is located, without regard to conflict of laws principles. This state will also be deemed
to be Bank’s jurisdiction, for purposes of Article 9 of the Uniform Commercial
Code as it applies to this Agreement. |
| 21. | Severability.
To the extent that the terms of this Agreement are inconsistent with, or prohibited
or unenforceable under, any applicable law or regulation, they will be deemed ineffective
only to the extent of such prohibition or unenforceability, and will be deemed modified
and applied in a manner consistent with such law or regulation. Any provision of this
Agreement which is deemed unenforceable or invalid in any jurisdiction will not affect
the enforceability or validity of the remaining provisions of this Agreement or the same
provision in any other jurisdiction. |
| 22. | Counterparts.
This Agreement may be executed in any number of counterparts each of which will be
an original with the same effect as if the signatures were on the same instrument. Delivery
of an executed counterpart of a signature page of this Agreement by telecopier or electronic
image scan transmission (such as a “pdf” file) will be effective as delivery
of a manually executed counterpart of the Agreement. |
| 23. | Entire
Agreement. This Agreement, together with the Account Documentation, contains the
entire and only agreement among all the parties to this Agreement and between Bank and
Company, on the one hand, and Bank and Secured Party, on the other hand, with respect
to (a) the interest of Secured Party in the Collateral Accounts and Collateral Account
Funds, and (b) Bank’s obligations to Secured Party in connection with the Collateral
Accounts and Collateral Account Funds. |
| 24. | Effect
of Amendment and Restatement. This Agreement amends and restates in its entirety
that certain Deposit Account Control Agreement dated as of February 12, 2013 (“Original
Agreement”) by and among Company, Secured Party and Depository Bank. If there is
any conflict or discrepancy between the provisions of the Original Agreement and this
Agreement, the terms and provisions of this Agreement shall prevail. This Agreement shall
constitute an amendment, restatement and/or reaffirmation, but not an extinguishment
or termination of the liens and security interests arising under the Original Agreement,
and such liens and security interests shall continue in full force and effect but shall
now be governed by the terms of this Agreement. |
[SIGNATURE
PAGES FOLLOW]
This Agreement
has been signed by the duly authorized officers or representatives of Company, Secured Party and Bank on the date specified below.
| Date: February
___, 2013 |
| Collateral
Account Numbers: |
4000118158 |
| Destination
Account Number: |
CEO
Access |
Bank
of Destination Account:
Account
name:
Reference
Data:
Frequency
(Daily or Weekly):
Balance
(Intraday or Start of Day): |
|
| Address
for Notices: |
|
Address
for Notices: |
| Prosper
Funding LLC |
|
WebBank |
| ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ |
|
▇▇▇
▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ |
| ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ |
| Attn: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ |
|
Attn: Senior
Vice President – Strategic Prtnrs |
| Fax: ▇▇▇.▇▇▇.▇▇▇▇ |
|
Fax: ▇▇▇.▇▇▇.▇▇▇▇ |
[SIGNATURE
PAGES CONTINUE]
| ▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION |
|
|
| By: |
|
|
| Name: ▇▇▇▇▇
▇▇▇▇▇▇▇▇ |
|
|
| Title: Vice
President |
|
|
| Address
for Notices: |
|
|
| ▇▇▇▇▇
Fargo Bank, National Association |
|
|
| Mail
Address Code: D1129-072 |
|
|
| ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ |
|
|
| ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 28282-1915 |
|
|
| Attn: DACA
Team |
|
|
| Fax: ▇▇▇.▇▇▇.▇▇▇▇ |
|
|
| with
copy to: |
|
|
| ▇▇▇▇▇
Fargo Bank, National Association |
|
|
| Mail
Address Code: A0101-096 |
|
|
| ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ |
|
|
| ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ |
|
|
| Attn: ▇▇▇▇▇
▇▇▇▇▇▇▇▇ |
|
|
| Fax: ▇▇▇.▇▇▇.▇▇▇▇ |
|
|
Exhibit
B
Calculation
of LTF Required Balance
This
exhibit sets forth the method for calculating the LTF Required Balance.
| 1. | The
LTF Required Balance is equal to the sum of [***] for each monthly vintage of Loans,
beginning with the first month in which Assets are sold by Bank pursuant to this Agreement. |
| 2. | Each
[***] is equal to the difference, [***], between the [***] and the [***]. |
| a. | The
[***] for a [***] is equal to the product of (i) the [***], of (A) the [***] of each
such Loan multiplied by (B) the [***] (or, for any Loan without a [***],[***] multiplied
by (ii) the [***]. |
| b. | The
[***] shall initially be equal to [***]. On a [***], Bank and PFL shall review and update
the [***], based on [***]: (i) [***], (ii) [***], (iii) [***], and (iv) [***]. As of
any measurement period for the [***], the same [***] shall be used for all [***] vintages.
The [***] shall be calculated to a whole number of basis points. |
| c. | PFL
shall provide to Bank [***] in order to permit Bank to [***]. |
| 3. | The
LTF Required Balance shall be reset as of the first Business Day of each month. |