Second Amendment to Stand By Purchase Agreement, dated November 9, 2020, between WebBank and Prosper Marketplace, Inc

EX-10.8 8 prosper10q093020ex108.htm EX-10.8 Document

Exhibit 10.8

Execution Version

SECOND AMENDMENT TO

STAND BY PURCHASE AGREEMENT

This SECOND AMENDMENT TO STAND BY PURCHASE AGREEMENT (this “Amendment”), dated as of November 9, 2020 (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 MARKETPLACE, INC., a Delaware corporation having its principal location in San Francisco, California (“Company”). Capitalized terms used and not otherwise defined herein shall have the respective meanings set forth in the Existing Stand By Purchase Agreement (as defined below).

RECITALS

WHEREAS, reference is made to that certain Stand By Purchase 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 Stand By Purchase Agreement”); and

WHEREAS, Bank is a party to an Assurance of Discontinuance dated as of August 7, 2020 among the Administrator of the Uniform Consumer Credit Code of Colorado, Bank, and the other parties thereto (the “Settlement Agreement”) which, among other things, creates a safe harbor for offering certain loans to Colorado borrowers; and

WHEREAS, the Parties desire to amend the Existing Stand By Purchase Agreement to provide for making Loans in the Program under the safe harbor created by the Settlement Agreement.

AGREEMENT

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 Company mutually agree as follows:

1. Purchase. Section 2 of the Existing Stand By Purchase Agreement is amended by inserting a new subsection (d) as follows: “(d) Notwithstanding anything herein to the contrary, PMI shall have no obligation to purchase Assets related to Covered Colorado Loans unless and until PFL shall deliver notice to Bank that such Assets are Elected Assets (except for the 25% Assets).”

2. Settlement Agreement. A new Section 32 is added to the Existing Stand By Purchase Agreement as follows:

“32. Colorado Settlement.

(a)The Parties intend to comply with the Colorado Settlement Agreement, and agree to take such further actions as are necessary and appropriate to ensure that the Program is offered in a manner that complies with the Settlement Agreement. This Agreement and

the other Program Documents shall be construed and interpreted in a manner to ensure compliance with the Colorado Settlement Agreement.

(b)With respect to any Losses relating to Covered Colorado Loans, the indemnification terms set forth in Section 10(a) of this Agreement shall not be applicable, and Bank expressly waives any right to seek indemnification for Losses relating to Covered Colorado Loans under such section. PMI agrees to defend, indemnify, and hold harmless Bank and its Affiliates, and the officers, directors, employees, representatives, shareholders, agents and attorneys of such entities from and against any and all Losses relating to Covered Colorado Loans to the extent arising from (i) PMI’s (or its Affiliates’, agents’ or representatives’) actions or failures to take action where there was a duty to act pursuant to the terms of the Program Documents, (ii) PMI’s (or its Affiliates’, agents’ or representatives’) breach of any obligation under the Program Documents, (iii) PMI’s (or its Affiliates’, agents’ or representatives’) violation of Applicable Laws, or (iv) PMI’s (or its Affiliates’, agents’ or representatives’) negligence or willful misconduct, except in each case to the extent of: (1) the gross negligence or willful misconduct of Bank, or (2) 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 the Asset Sale Agreement or this Agreement, or (3) Excluded Servicing Losses. Any claim for indemnification shall be governed by the terms of Sections 10(b) through 10(d) of this Agreement.”

3. Collateral. Section 31 of the Existing Stand By Purchase Agreement is amended by inserting a new subsection (g) as follows: “(g) Notwithstanding the foregoing, Bank agrees that the Collateral Account (i) does not secure the purchase by PMI of Assets relating to Covered Colorado Loans, other than 25% Assets and Elected Assets, and (ii) may not be accessed or drawn upon by Bank to cover Excluded Servicing Losses.”

4.Miscellaneous

i.Effect of Amendment. Except as expressly amended and/or superseded by this Amendment, the Existing Stand By Purchase Agreement shall remain in full force and effect. This Amendment shall not constitute an amendment or waiver of any provision of the Existing Stand By Purchase Agreement, except as expressly set forth herein. Upon the Amendment Effective Date, or as otherwise set forth herein, the Existing Stand By Purchase 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 Stand By Purchase Agreement; however, such amendments and supplements shall not operate so as to render invalid or improper any action heretofore taken under the Existing Stand By Purchase Agreement. In the event of any inconsistency between this Amendment and the Existing Stand By Purchase 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 Stand By Purchase Agreement shall be deemed to mean the Existing Stand By Purchase Agreement as applicable, as amended by this Amendment.

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ii.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.

iii.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]

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IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their duly authorized officers as of the date first written above.

WEBBANK

By: ______________________________

Name:

Title:

[Signature Page to Second Amendment to Stand By Purchase Agreement]

PROSPER MARKETPLACE, INC.

By: ______________________________

Name:

Title:

[Signature Page to Second Amendment to Stand By Purchase Agreement]