First Amendment to Asset Sale Agreement, dated October 7, 2016, between Prosper Funding LLC and WebBank
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FIRST AMENDMENT TO
ASSET SALE AGREEMENT
This FIRST AMENDMENT TO ASSET SALE AGREEMENT (this “Amendment”), dated as of October 7, 2016 (the “Amendment Effective Date”), 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”). Capitalized terms used and not otherwise defined herein shall have the respective meanings set forth in the Existing Asset Sale Agreement (as defined below).
WHEREAS, reference is made to that certain Asset Sale Agreement, dated as of July 1, 2016, by and between Bank and Company (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Asset Sale Agreement”); and
WHEREAS, the Parties desire to amend the Existing Asset Sale Agreement to provide for certain Loans to be held by Bank, and other matters.
NOW, THEREFORE, in consideration of the foregoing Recitals and the terms, conditions and mutual covenants and agreements herein contained, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Bank and PFL mutually agree as follows:
1. Section 4(b) of this Agreement is hereby by amended and restated in its entirety to read as follows:
“(b) Bank hereby represents and warrants to PFL as of each Closing Date that (i) with respect to each Asset (other than a Select Loan), Bank has disbursed the Loan Proceeds relating to the Loans on the Funding Statement received by Bank three (3) Business Days prior to such Closing Date and (ii) with respect to each Select Loan, Bank has disbursed the Loan Proceeds relating to the Select Loans, in each case, 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.”
2. Section 8(d)(6) of the Existing Asset Sale Agreement is hereby amended by adding the following proviso immediately before the semicolon at the end thereof: “; provided, however, that Select Loans shall be disregarded for purposes of this Section 8(d)(6).”
3. Section 8(e) of the Existing Asset Sale Agreement is hereby amended by replacing the phrase “Section 3(d) of this Agreement” with the phrase “Schedule 2 to this Agreement.”
4. Section 8(g) of the Existing Asset Sale Agreement is hereby amended by adding the following proviso at the end of Section 8(g): “; provided, however, that PFL shall not be obligated to purchase any Select Loans then held by Bank.”
5. The Existing Asset Sale Agreement is hereby amended by adding a new Section 35 of the Existing Asset Sale Agreement as follows:
|35.||Procedures for Select Loans. The terms of Schedule 35 shall apply as if fully set forth in this Agreement.|
6. Schedule 35 attached hereto is hereby added as Schedule 35 to the Existing Asset Sale Agreement.
|(a)||Effect of Amendment. Except as expressly amended and/or superseded by this Amendment, the Existing Asset Sale Agreement shall remain in full force and effect. This Amendment shall not constitute an amendment or waiver of any provision of the Existing Asset Sale Agreement, except as expressly set forth herein. Upon the Amendment Effective Date, or as otherwise set forth herein, the Existing Asset Sale Agreement shall thereupon be deemed to be amended and supplemented as hereinabove set forth, and this Amendment shall henceforth be read, taken and construed as an integral part of the Existing Asset Sale Agreement; however, such amendments and supplements shall not operate so as to render invalid or improper any action heretofore taken under the Existing Asset Sale Agreement. In the event of any inconsistency between this Amendment and the Existing Asset Sale Agreement with respect to the matters set forth herein, this Amendment shall take precedence. References in any of the Program Documents or amendments thereto to the Existing Asset Sale Agreement shall be deemed to mean the Existing Asset Sale Agreement, as applicable, as amended by this Amendment.|
|(b)||Counterparts. This Amendment 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 an original and all of which counterparts, taken together, shall constitute but one and the same instrument.|
|(c)||Governing Law. This Amendment 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.|
[Signature Pages to Follow]
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their duly authorized officers as of the date first written above.
[Signature Page to First Amendment to Asset Sale Agreement]
PROSPER FUNDING LLC
[Signature Page to First Amendment to Asset Sale Agreement]
|(a)||The process for identifying Select Loans shall be mutually agreed upon by the Parties, [***] (except as otherwise agreed upon by Bank and PFL). The aggregate outstanding principal amount of Loans designated as Select Loans pursuant to this section (a) shall not exceed the Select Loan Maximum, except with the written consent of Bank. “Select Loan Maximum” means (i) [***], or (ii) [***] or (iii) [***].|
|(b)||Notwithstanding anything to the contrary contained in the Program Documents, Assets related to Select Loans shall not be offered for sale by Bank and shall not be purchased by PFL pursuant to Section 2 of this Agreement; provided, however, that sections (d), (h), (i), (j), (k), (l), (m), (n), (o) and (p) of Schedule 2 to the Agreement shall apply to a Select Loan following the purchase of such Select Loan by PFL pursuant to this Schedule 35. For the avoidance of doubt, no Loan Trailing Fee shall be payable with respect to any Select Loan while such Select Loan is held by Bank.|
|(c)||From time to time, PFL may notify Bank that, on the next Business Day, PFL desires to purchase from Bank the Select Loans identified by PFL in its notice, and Bank may elect to sell to PFL some or all of such Select Loans identified by PFL (the “Select Loans Identified For Purchase”). Bank hereby agrees to sell, transfer, assign, set-over, and otherwise convey to PFL, without recourse and with servicing released, on each Business Day, any Select Loans Identified For Purchase identified by PFL in accordance with this section (c) that Bank has elected to sell. In consideration for Bank’s agreement to sell, transfer, assign, set-over and convey to PFL such Select Loans Identified For Purchase, PFL agrees to purchase such Loans from Bank, and PFL shall pay to Bank, by wire transfer of immediately available funds sent to an account designated by Bank by not later than 3:00 pm Mountain Time, the aggregate Funding Amount for such Select Loans Identified For Purchase.|
|(d)||The Purchase Price with respect to a Select Loan is equal to (i) the [***] of (A) [***], (B) [***] and (C) [***], together with (ii) the agreement under this Agreement to pay the Loan Trailing Fee.|
|(e)||Bank shall pay to PFL a “Select Loan Success Fee” with respect to Select Loans that are purchased by PFL within the Success Fee Period during any month (“Success Fee Loans”), calculated as follows:|
|(i)||the product of—|
(A) the [***] of (i) the [***] of, for all [***] the [***], [***] (ii) [***] multiplied by
(B) the [***]
|(ii)||the aggregate amount of [***] for all Success Fee Loans purchased by PFL during such month.|
For the avoidance of doubt, [***] and [***] is [***] with respect to any Select Loan that is not purchased by PFL within the Success Fee Period; provided, that to the extent Bank elects not to sell any Select Loan Identified for Purchase, such Loan shall no longer be a Select Loan and [***].
The terms used above are defined as follows:
· [***] means the [***].
· [***] means the [***].
· [***] means (i) [***], (ii) [***] or (iii) [***].
· [***] means the quotient of (i) the [***] of [***] held by Bank during a month, divided by (ii) the [***].
· “Select Loan Net Amount” means, for any Select Loan, the Select Loan Interest Amount for such Select Loan less the related Servicing Fee for such Select Loan.
|(f)||Within five (5) Business Days after the end of each calendar month,|
|(i)||Bank shall pay to PFL the Select Loan Success Fee with respect to all Select Loans sold by Bank to PFL during such calendar month; and|
|(ii)||PFL shall pay to Bank the Select Loan Net Amounts for all Select Loans sold by Bank to PFL during such calendar month.|
|(g)||A Select Loan shall not become subject to the Servicing Agreement unless such Select Loan has been [***] and Bank [***].|
|(h)||Bank may sell or transfer any Select Loan to any Person at any time, subject to the Servicing Agreement. If a Select Loan [***] then, notwithstanding anything to the contrary in the Servicing Agreement, Bank may [***]. The Parties will cooperate to cause such [***].|
|(i)||PFL shall provide ongoing monthly reporting to Bank, in a form reasonably requested by Bank, regarding the [***] and the [***] of Select Loans; provided, that to the extent of any [***] obligations that may apply to PFL, PFL may instead provide a reasonable description and attestation of the [***] rather than an [***].|
|(j)||Either Party may terminate the designation of additional Select Loans [***]; provided, that [***].|