Exhibit
10.4


 


Executed
04/14/2008


 


CONFIDENTIAL
TREATMENT REQUESTED BY PROSPER MARKETPLACE, INC.


 


WEBBANK


 


and


 


PROSPER MARKETPLACE, INC.


 


LOAN SALE AGREEMENT


 


Dated as of April 14,
2008


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  PURCHASE OF LOAN ACCOUNTS; PAYMENT TO BANK; REPORTING TO
  BANK

  	
  1

  
	
   

  	
   

  	
   

  
	
  3.

  	
  OWNERSHIP OF LOAN ACCOUNTS

  	
  2

  
	
   

  	
   

  	
   

  
	
  4.

  	
  GENERAL REPRESENTATIONS AND WARRANTIES OF BANK

  	
  2

  
	
   

  	
   

  	
   

  
	
  5.

  	
  ADDITIONAL REPRESENTATIONS AND WARRANTIES OF BANK

  	
  3

  
	
   

  	
   

  	
   

  
	
  6.

  	
  REPRESENTATIONS AND WARRANTIES OF COMPANY

  	
  4

  
	
   

  	
   

  	
   

  
	
  7.

  	
  CONDITIONS PRECEDENT TO THE OBLIGATIONS OF COMPANY

  	
  5

  
	
   

  	
   

  	
   

  
	
  8.

  	
  CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BANK

  	
  5

  
	
   

  	
   

  	
   

  
	
  9.

  	
  TERM AND TERMINATION

  	
  6

  
	
   

  	
   

  	
   

  
	
  10.

  	
  CONFIDENTIALITY

  	
  7

  
	
   

  	
   

  	
   

  
	
  11.

  	
  INDEMNIFICATION

  	
  8

  
	
   

  	
   

  	
   

  
	
  12.

  	
  ASSIGNMENT

  	
  10

  
	
   

  	
   

  	
   

  
	
  13.

  	
  THIRD PARTY BENEFICIARIES

  	
  10

  
	
   

  	
   

  	
   

  
	
  14.

  	
  PROPRIETARY MATERIALS

  	
  10

  
	
   

  	
   

  	
   

  
	
  15.

  	
  NOTICES

  	
  11

  
	
   

  	
   

  	
   

  
	
  16.

  	
  RELATIONSHIP OF PARTIES

  	
  11

  
	
   

  	
   

  	
   

  
	
  17.

  	
  RETENTION OF RECORDS

  	
  11

  
	
   

  	
   

  	
   

  
	
  18.

  	
  AGREEMENT SUBJECT TO APPLICABLE LAWS

  	
  11

  
	
   

  	
   

  	
   

  
	
  19.

  	
  EXPENSES

  	
  12

  
	
   

  	
   

  	
   

  
	
  20.

  	
  EXAMINATION

  	
  12

  
	
   

  	
   

  	
   

  
	
  21.

  	
  INSPECTION; REPORTS

  	
  12

  
	
   

  	
   

  	
   

  
	
  22.

  	
  GOVERNING LAW; WAIVER OF JURY TRIAL

  	
  12

  
	
   

  	
   

  	
   

  
	
  23.

  	
  MANNER OF PAYMENTS

  	
  12

  
	
   

  	
   

  	
   

  
	
  24.

  	
  BROKERS

  	
  13

  
	
   

  	
   

  	
   

  
	
  25.

  	
  ENTIRE AGREEMENT

  	
  13

  
	
   

  	
   

  	
   

  
	
  26.

  	
  AMENDMENT AND WAIVER

  	
  13

  



 


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  27.

  	
  SEVERABILITY

  	
  13

  
	
   

  	
   

  	
   

  
	
  28.

  	
  INTERPRETATION

  	
  13

  
	
   

  	
   

  	
   

  
	
  29.

  	
  JURISDICTION; VENUE

  	
  13

  
	
   

  	
   

  	
   

  
	
  30.

  	
  HEADINGS

  	
  13

  
	
   

  	
   

  	
   

  
	
  31.

  	
  COUNTERPARTS

  	
  13

  
	
   

  	
   

  	
   

  
	
  32.

  	
  NO SOLICITATION

  	
  13

  
	
   

  	
   

  	
   

  
	
  33.

  	
  COLLATERAL ACCOUNT

  	
  14

  



 


ii

















 


THIS LOAN SALE AGREEMENT (this “Agreement”),
dated as of April 14, 2008 (“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”).


 


WHEREAS, Bank and Company have entered into a
Loan Account Program Agreement pursuant to which Bank provides installment
loans to consumers; and


 


WHEREAS, Bank desires to sell to Company, and
Company desires to purchase from Bank, the Loan Accounts established by Bank
pursuant to the Loan Account Program Agreement.


 


NOW, THEREFORE, in consideration of the
foregoing and the terms, conditions and mutual covenants and agreements herein
contained, and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Bank and Company agree as follows:


 


1.                                     Definitions.  The terms used in this
Agreement shall be defined as set forth in Schedule 1.  Terms not defined herein shall have the
meanings ascribed to them in the Loan Account Program Agreement.


 


2.                                     Purchase of Loan Accounts; Payment to Bank;
Reporting to Bank.


 


(a)                                Bank hereby agrees to sell, transfer, assign,
set-over, and otherwise convey to Company, without recourse and with servicing released,
on each Closing Date, the Loan Accounts established by Bank on the Business Day
immediately preceding the related Closing Date. 
All of the foregoing shall be in accordance with the procedures set
forth in this Section 2.  In
consideration for Bank’s agreement to sell, transfer, assign, set-over and
convey to Company such Loan Accounts, Company agrees to purchase such Loan
Accounts from Bank, and Company shall pay to Bank the Purchase Price on each
Closing Date in accordance with subsection 2(b) below.


 


(b)                               On each Closing Date, Company shall purchase
the Loan Accounts established by Bank that are identified on the Funding
Statement received by Bank two (2) Business Days prior to the Closing
Date.  Company shall effectuate its
purchase of the Loan Accounts by depositing a sum equal to the Funding Amount
for the Funding Statement from the immediately preceding Business Day (which
shall equal the aggregate Purchase Price for such Loan Accounts) into the
Funding Account by noon Mountain Time on the Closing Date.  Prior to the first Funding Date, Bank shall
provide to Company the account number and routing number for the Funding
Account.


 


(c)                                To the extent that such materials are in Bank’s
possession, upon Company’s request, Bank agrees to cause to be delivered to
Company, at Company’s cost, loan files on all Loan Accounts purchased by
Company pursuant to this Agreement within one (1) Business Day of the
related Closing Date.  Such loan files
shall include the application for the Loan Account, the Loan Account Agreement,
confirmation of delivery of the Loan Account Agreement to the Borrower, and
such other materials as Company may reasonably require (all of which may be in
electronic form); provided that Bank may retain copies of such information as
necessary to comply with Applicable Laws.


 


(d)                               Within five (5) Business Days after the
end of each calendar month, Company shall pay Bank a monthly fee equal to the
greater of [**]


 






** Confidential Treatment Requested


 

















 


(e)                                With each such monthly payment, Company shall
deliver to Bank a report setting forth the calculation of the payment Company
is obligated to make to Bank pursuant to this Section 2.


 


3.                                     Ownership of Loan Accounts.


 


(a)                                On and after each Closing Date, subject to
Company’s payment of the Purchase Price on each such date, Company shall be the
sole owner for all purposes (e.g., tax,
accounting and legal) of the Loan Accounts purchased from Bank on such
date.  Bank agrees to make entries on its
books and records to clearly indicate the sale of the Loan Accounts to Company
as of each Closing Date.  Company agrees
to make entries on its books and records to clearly indicate the purchase of
the Loan Accounts as of each Closing Date. 
Bank does not assume and shall not have any liability to Company for the
repayment of any Loan Proceeds or the servicing of the Loan Accounts after the
related Closing Date.


 


4.                                     General Representations and Warranties of
Bank.


 


(a)                                Bank hereby represents and warrants to
Company as of 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 Loan Accounts 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


 


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equity);


 


(4)                                There are no proceedings or investigations
pending or, to the best knowledge of Bank, threatened against Bank (i) asserting
the invalidity of this Agreement, (ii) seeking to prevent the consummation
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; and


 


(6)                                The execution, delivery and performance of
this Agreement by Bank comply with all Applicable Laws; provided that Bank
makes no representation or warranty regarding compliance with Applicable 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.


 


(b)                               The representations and warranties set forth
in this Section 4 shall survive the sale, transfer and assignment of the
Loan Accounts to Company pursuant to this Agreement and, with the exception of
those representations and warranties contained in subsection 4(a)(4), shall be
made continuously throughout the term of this Agreement.  In the event that any investigation or
proceeding of the nature described in subsection 4(a)(4) is instituted or
threatened against Bank, Bank shall promptly notify Company of such pending or
threatened investigation or proceeding.


 


5.                                     Additional Representations and Warranties of
Bank.


 


(a)                                Bank hereby represents and warrants to
Company that, as of the Effective Date and each Closing Date, and covenants to
Company in subsection 5(a) that:


 


(1)                                Each Loan Account transferred to Company on
such date was originated by Bank and constitutes a valid sale, transfer,
assignment, set-over and conveyance to Company of all of Bank’s right, title,
and interest in and to such Loan Account;


 


(2)                                Bank was the legal and beneficial owner of
all right, title and interest in and to each Loan Account, and no Loan Account
was subject to an encumbrance, immediately prior to the transfer of the Loan
Account to Company pursuant hereto;


 


(3)                                Bank shall maintain its records in a manner
to clearly and unambiguously reflect the ownership of Company in each of the
Loan Accounts transferred hereunder; and


 


(4)                                With respect to each Loan Account:  (i) Bank has done nothing that would
alter the terms and conditions or the balance of the Loan Account or impair the
Loan Account’s enforceability; and (ii) there is no limit on Bank’s
authority to assign


 


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the
Loan Account.  For the avoidance of
doubt, the representation made in subsection 5(a)(4)(i) shall not
encompass actions that are taken by Company on behalf of Bank.


 


(b)                               To Bank’s knowledge as derived from periodic
on-site reviews of Company conducted by Bank as contemplated by Section 16
of the Loan Account Program Agreement and in accordance with Bank’s standards
for such reviews, no borrower fraud was committed in connection with the
origination of the Loan Accounts sold hereunder.


 


(c)                                The representations and warranties set forth
in this Section 5 shall survive the sale, transfer and assignment of the
Loan Accounts to Company pursuant to this Agreement.


 


6.                                     Representations and Warranties of Company.


 


(a)                                Company hereby represents and warrants to
Bank, as of the Effective Date and each Closing Date that:


 


(1)                                Company is a corporation, duly organized and
validly existing in good standing under the laws of the State of Delaware, and
has full power and authority to execute, deliver, and perform its obligations
under this Agreement; the execution, delivery, and performance of this
Agreement have been duly authorized, and are not in conflict with and do not
violate the terms of the articles or bylaws of Company and will not result in a
material breach of or constitute a default under or require any consent under
any indenture, loan, or agreement to which Company is a party;


 


(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
Company, have been obtained;


 


(3)                                This Agreement constitutes a legal, valid,
and binding obligation of Company, enforceable against Company in accordance
with its terms, except (i) as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or other similar
laws now or hereafter in effect, which may affect the enforcement of creditors’
rights in general, and (ii) as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in
equity);


 


(4)                                There are no proceedings or investigations
pending or, to the best knowledge of Company, threatened against Company (i) asserting
the invalidity of this Agreement, (ii) seeking to prevent the consummation
of any of the transactions contemplated by Company pursuant to this Agreement, (iii) seeking
any determination or ruling that, in the reasonable judgment of Company, would
materially and adversely affect the performance by Company of its obligations
under this Agreement, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement or (v) would have a materially adverse financial effect on
Company or its operations if resolved adversely to it;


 


(5)                                Company is not Insolvent; and


 


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(6)                                The execution, delivery and performance of
this Agreement by Company comply with Applicable Laws.


 


(b)                               The representations and warranties set forth
in this Section 6 shall survive the sale, transfer and assignment of the
Loan Accounts to Company pursuant to this Agreement and, with the exception of
those representations and warranties contained in subsection 6(a)(4), shall be
made continuously throughout the term of this Agreement.  In the event that any investigation or
proceeding of the nature described in subsection 6(a)(4) is instituted or
threatened against Company, Company shall promptly notify Bank of such pending
or threatened investigation or proceeding.


 


7.                                     Conditions Precedent to the Obligations of
Company.


 


(a)                                The obligations of Company 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 threatened against Company or Bank to
prevent or restrain the consummation of the transactions contemplated hereby,
and, on each Closing Date, there shall be no injunction, decree, or similar
restraint preventing or restraining such consummation;


 


(2)                                The representations and warranties of Bank
set forth in Sections 4 and 5 shall be true and correct in all material
respects on each Closing Date as though made on and as of such date; and


 


(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.


 


8.                                     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 threatened against Company or Bank to
prevent or restrain the consummation of the purchase or other transactions
contemplated hereby, and, on each Closing Date, there shall be no injunction,
decree, or similar restraint preventing or restraining such consummation;


 


(2)                                The representations and warranties of Company
set forth in the Program Documents shall be true and correct in all material
respects on each Closing Date as though made on and as of such date; and


 


(3)                                The obligations of Company set forth in the
Program Documents to be performed on or before each Closing Date shall have
been performed in all material respects as of such date by Company.


 


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9.                                     Term and Termination.


 


(a)                                This Agreement shall have an initial term
beginning on the Effective Date and ending twenty-four (24) months thereafter
(the “Initial Term”) and shall renew automatically for two (2) successive
terms of one (1) year each (each a “Renewal Term,” collectively, the
Initial Term and Renewal Term(s) 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 any Renewal Term or
this Agreement is earlier terminated in accordance with the provisions hereof.


 


(b)                               Either Party may terminate this Agreement
without cause upon ninety (90) days’ prior written notice to the other
party.  If Company terminates this
Agreement pursuant to this subsection 9(b) or subsection 9(c)(6) (based
on termination of the Loan Account Program Agreement without cause by Company)
within six (6) months after the Effective Date, it shall pay Bank a
termination fee equal to [**].  If
Company so terminates this Agreement more than six (6) months but less
than one (1) year after the Effective Date, Company shall pay Bank an
amount equal to [**] the average monthly fee for
the [**] immediately preceding the month in
which Company delivers notice of termination.


 


(c)                                A Party shall have the right to terminate
this Agreement immediately upon written notice to the other Party in any of the
following circumstances:


 


(1)                                any representation or warranty made by the
other Party in this Agreement shall be incorrect in any material respect and
shall not have been corrected within thirty (30) Business Days after written
notice thereof has been given to such other Party;


 


(2)                                the other Party 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 such other Party;


 


(3)                                the other Party shall commence a voluntary
case or other proceeding seeking liquidation, reorganization, or other relief
with respect to itself or its debts under any bankruptcy, insolvency,
receivership, conservatorship or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, conservator,
custodian, or other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the appointment of a
trustee, receiver, liquidator, conservator, custodian, or other similar official
or to any involuntary case or 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 the other Party seeking liquidation, reorganization, or other relief
with respect to it or its debts under any bankruptcy, insolvency, receivership,
conservatorship or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, conservator, custodian, or
other similar official of it or any substantial part of its


 






** Confidential Treatment Requested


 


6

















 


property or an order for relief shall be entered
against either Party under the federal bankruptcy laws as now or hereafter in
effect;


 


(5)                                there is a materially adverse change in the
financial condition of the other Party; or


 


(6)                                either Party has terminated the Loan Account
Program Agreement and any applicable notice period provided in the Loan Account
Program Agreement has expired.


 


(d)                               Bank may terminate this Agreement immediately
upon written notice to Company if Company defaults on its obligation to make a
payment to Bank as provided in Section 2 of this Agreement or if Company
fails to maintain the Required Balance in the Collateral Account as required by
Section 33 of this Agreement.


 


(e)                                The termination of this Agreement either in
part or in whole shall not discharge any Party from any obligation incurred
prior to such termination, including any obligation with respect to Loan
Accounts sold prior to such termination.


 


(f)                                  Upon termination of this Agreement, Company
shall purchase any Loan Accounts established by Bank under the Loan Account
Program Agreement prior to and on the date of termination of the Loan Account
Program Agreement that have not already been purchased by Company and any Loan
Accounts originated by Bank after termination of this Agreement, if such Loan
Accounts are originated in accordance with Section 10(e) of the Loan
Account Program Agreement.


 


(g)                               The terms of this Section 9 shall
survive the expiration or earlier termination of this Agreement.


 


10.                               Confidentiality.


 


(a)                                Each Party agrees that Confidential
Information of the other Party shall be used  by such Party
solely in the performance of its obligations and exercise of its rights
pursuant to the Program Documents. 
Except as required by Applicable Laws or legal process, neither Party
(the “Restricted Party”) shall disclose Confidential Information of the other
Party to third parties; provided, however, that the Restricted Party may
disclose Confidential Information of the other Party (i) to the Restricted
Party’s Affiliates, agents, representatives or subcontractors for the sole
purpose of fulfilling the Restricted Party’s obligations under this Agreement
(as long as the Restricted Party exercises reasonable efforts to prohibit any
further disclosure by its Affiliates, agents, representatives or
subcontractors), provided that in all events, the Restricted Party shall be
responsible for any breach of the confidentiality obligations hereunder by any
of its Affiliates, agents (other than Company as agent for Bank),
representatives or subcontractors, (ii) to the Restricted Party’s
auditors, accountants and other professional advisors, 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;


 


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(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 the
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 either Party may maintain
in its possession all such Confidential Information of the 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 10).


 


(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 the other Party, the
Restricted Party shall provide the 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 10 shall
survive the expiration or earlier termination of this Agreement.


 


11.                               Indemnification.


 


(a)                                Bank agrees to defend, indemnify, and hold
harmless Company and its Affiliates, and the officers, directors, employees,
representatives, shareholders, agents and attorneys of such entities (the “Company
Indemnified Parties”) from and against any and all third party claims and
actions, and all liability, judgments, damages, costs and expenses, including
reasonable attorneys’ fees arising there from (together with third party claims
and actions, “Losses”) to the extent arising from its (i) gross
negligence, willful misconduct or breach of any of Bank’s representations,
warranties, obligations or undertakings under


 


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this
Agreement by Bank, or (ii) violation by Bank of any Utah or federal
banking law specifically applicable to Bank’s operations other than Applicable
Laws regarding consumer protection, consumer lending, usury, loan collection,
anti-money laundering, data protection or privacy as they apply to the
operation of the Program.


 


(b)                               Company 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 “Bank
Indemnified Parties”) from and against any and all Losses to the extent arising
from Company’s participation in the Program as contemplated by the Program
Documents (including Losses arising from a violation of Applicable Laws or a
breach by Company or its agents or representatives of any of Company’s
representations, warranties, obligations or undertakings under the Program
Documents), unless such Loss results from (i) the gross negligence or
willful misconduct of Bank or (ii) a breach by Bank of any of Bank’s
representations, warranties, obligations or undertakings under this Agreement.


 


(c)                                The Company Indemnified Parties and the Bank
Indemnified Parties are sometimes referred to herein as the “Indemnified
Parties,” and Company or Bank, as an indemnitor hereunder, is sometimes
referred to herein as the “Indemnifying Party.”


 


(d)                               Any Indemnified Party seeking indemnification
hereunder shall promptly notify the Indemnifying Party, 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 the Indemnifying Party
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 the Indemnifying
Party to the extent of the actual prejudice, if any, suffered by such
Indemnifying Party as a result of such failure. 
The Indemnified Party shall provide to the Indemnifying Party as
promptly as practicable thereafter information and documentation reasonably
requested by such Indemnifying Party to defend against the Indemnifiable Claim.


 


(e)                                The Indemnifying Party shall have ten (10) days
after receipt of any notification of an Indemnifiable Claim (a “Claim Notice”)
to notify the Indemnified Party of the Indemnifying Party’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 the Indemnifying Party
in connection therewith if such cooperation is so requested and the request is
reasonable; provided that the Indemnifying Party 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.  If the Indemnifying Party
assumes responsibility for the settlement or defense of any such claim, (i) the
Indemnifying Party shall permit the Indemnified Party to participate at its
expense in such settlement or defense through counsel chosen by the Indemnified
Party; provided that, in the event that both the Indemnifying Party and the
Indemnified Party are defendants in the proceeding and the Indemnified Party
shall have reasonably


 


9

















 


determined
and notified the Indemnifying Party that representation of both parties by the
same counsel would be inappropriate due to 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 the Indemnifying Party;
and (ii) the Indemnifying Party shall not settle any Indemnifiable Claim
without the Indemnified Party’s consent, which consent shall not be
unreasonably withheld or delayed for any reason if the settlement involves only
payment of money and releases the Indemnified Party from any and all liability
related to such claim, and which consent may be withheld for any reason if the
settlement involves more than the payment of money, including any admission by
the Indemnified Party.  So long as the
Indemnifying Party is reasonably contesting any such Indemnifiable Claim in
good faith, the Indemnified Party shall not pay or settle such claim without
the Indemnifying Party’s consent, which consent shall not be unreasonably
withheld or delayed.  The Indemnified
Party may pay or settle any such Indemnifiable Claim at any time if it waives
its right to indemnification hereunder.


 


(f)                                  If the Indemnifying Party 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 the Indemnifying Party fails to contest vigorously any such
Indemnifiable Claim, the Indemnified Party shall have the right, upon notice to
the Indemnifying Party, to contest, settle or compromise the Indemnifiable
Claim in the exercise of its reasonable discretion; provided that the
Indemnified Party shall notify the Indemnifying Party prior thereto of any compromise
or settlement of any such Indemnifiable Claim. 
No action taken by the Indemnified Party pursuant to this
paragraph (f) shall deprive the Indemnified Party of its rights to
indemnification pursuant to this Section 11.


 


(g)                               The terms of this Section 11 shall
survive the expiration or earlier termination of this Agreement.


 


12.                                 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 Party shall be entitled
to assign or transfer any rights or obligations under this Agreement
(including, without limitation, 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 12 shall relieve a Party of its obligations
under this Agreement.


 


13.                                 Third Party Beneficiaries. 
Nothing contained herein shall be construed as creating a third-party beneficiary
relationship between either Party and any other Person.


 


14.                                 Proprietary Materials.  Bank
hereby provides Company 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 each Party’s obligations under
this Agreement; provided, however, that (a) Company 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) Company acknowledges that, except as specifically
provided in this Agreement, it shall acquire no interest in Bank’s Marks.  Upon termination of this Agreement, Company
shall cease using Bank’s Marks.  Neither
Party may use the other Party’s Marks in any press release without the prior
written consent of the other Party.


 


10
















 


15.                               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 facsimile or e-mail with receipt confirmed; or (c) three (3) Business
Days after the date of mailing to the other party, if mailed first-class mail
postage prepaid, at the following address, or such other address as either
party shall specify in a notice to the other:


 


	
  To
  Bank:

  	
  WebBank

  
	
   

  	
  6440
  S. Wasatch Blvd.

  
	
   

  	
  Suite 300

  
	
   

  	
  Salt
  Lake City, UT 84121

  
	
   

  	
  Attn:
  Gerry Smith

  
	
   

  	
  E-mail
  Address: gerry@webbank.com

  
	
   

  	
  Telephone:
  (801) 993-5001

  
	
   

  	
  Facsimile:
  (801) 993-5015

  
	
   

  	
   

  
	
  To
  Company:

  	
  Prosper
  Marketplace, Inc.

  
	
   

  	
  111
  Sutter Street, 22nd Floor

  
	
   

  	
  San
  Francisco, CA 94104

  
	
   

  	
  Attn:
  Kirk T. Inglis

  
	
   

  	
  E-mail
  Address: kirk@prosper.com

  
	
   

  	
  Telephone:
  (415) 593-5432

  
	
   

  	
  Facsimile:
  (415) 362-7233

  



 


16.                               Relationship of Parties.  The
Parties agree that in performing their 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 and among Bank and
Company.


 


17.                               Retention of Records.  Any
Records with respect to Loan Accounts purchased by Company pursuant hereto
retained by Bank shall be held as custodian for the account of Bank and Company
as owners thereof.  Bank shall provide
copies of Records to Company upon reasonable request of Company.


 


18.                               Agreement Subject to Applicable Laws.  If (a) either
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) either
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) either 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 9 hereof, if the Parties are unable
to reach agreement regarding such modifications, changes or additions to the
Program or the Program Documents within ten (10) Business Days after the
Parties initially meet, either Party may terminate this Agreement


 


11

















 


upon
five (5) days’ 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 18(a), (b) or
(c) above occurs.


 


19.                               Expenses.


 


(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.


 


(c)                                Company shall reimburse Bank for all third
party fees incurred by Bank in connection with the performance of this
Agreement.


 


(d)                               Company shall pay for Bank’s legal fees and
expenses as provided in subsection 15(f) of the Loan Account Program
Agreement.


 


(e)                                Within ten (10) days after receipt of an
invoice from Bank, Company shall reimburse Bank for the monthly costs
associated with the transfer of funds from the Collateral Account to Company.


 


20.                               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 the
other Party in responding to such Regulatory Authority’s inquiries and requests
related to the Program.


 


21.                               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 each Party owes to its customers and banking secrecy and
confidentiality requirements otherwise applicable to each 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, Company shall reimburse Bank for reasonable
out of pocket expenses incurred by Bank in the performance of quarterly, on
site reviews of Company’s financial condition, operations and internal
controls, not to exceed the maximum amount per visit of [**].


 


22.                               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.


 


23.                               Manner of Payments. 
Unless the manner of payment is expressly provided herein, all payments
under this Agreement shall be made by ACH transfer to the bank accounts designated
by the respective Parties. 
Notwithstanding anything to the contrary contained herein, neither 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,


 






** Confidential Treatment Requested


 


12

















 


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.


 


24.                               Brokers.  Neither Party 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.


 


25.                               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.


 


26.                               Amendment and Waiver.  This
Agreement may be amended only by a written instrument signed by each 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.


 


27.                               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.


 


28.                               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 either Party, but shall be given a
reasonable interpretation in accordance with the plain meaning of its terms and
the intent of the Parties.


 


29.                               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 29 shall
survive the expiration or earlier termination of this Agreement.


 


30.                               Headings.  Captions and headings in this
Agreement are for convenience only  and are not to be deemed part of
this Agreement.


 


31.                               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.


 


32.                               No Solicitation.  Neither Bank nor any Affiliate of Bank or
agent of Bank shall solicit in any manner any of the Borrowers for the sale of
any other products or services; provided that, the foregoing shall not preclude
Bank, any Affiliate of Bank or any agent of Bank from engaging in solicitations
to the general public by newspaper, radio, television, internet or other media
which


 


13

















 


are not specifically directed toward the Borrowers.  Bank shall not sell, rent or provide to any
Person a list of the Borrowers or assist any Person in soliciting any of the
Borrowers in any manner.


 


33.                               Collateral Account.


 


(a)                                Establishment of Collateral Account.  On
the Effective Date, Company shall provide
Bank with [**] as cash collateral for
Company’s obligations under this Agreement. 
Bank shall deposit such amount in a deposit account (“Collateral Account”)
at Bank.  The Collateral Account shall be
a segregated deposit account that shall hold only the funds provided by Company
to Bank as collateral.  At all times, Company shall maintain funds in
the Collateral Account equal to the product of (i) [**]multiplied
by (ii) the average daily Funding Amount for the prior month (the “Required
Balance”).  The Required Balance shall be
calculated monthly as of the first day of each month during the Term.  In the event the actual balance in the
Collateral Account is less than the Required Balance, Company shall, within one
(1) Business Day following notice of such deficiency, make a payment into
the Collateral Account in an amount equal to the difference between the
Required Balance and the actual balance in such account.


 


(b)                               Security Interest.  To
secure Company’s obligations under this Agreement, Company hereby grants Bank a first priority security
interest in the Collateral Account and the funds therein or proceeds thereof,
and agrees to take such steps as Bank may reasonably require to perfect or
protect such first priority security interest. 
Bank shall have all of the rights and remedies of a secured party under
Applicable Laws with respect to the Collateral Account and the funds therein or
proceeds thereof, and shall be entitled to exercise those rights and remedies
in its discretion.


 


(c)                                Interest.  The 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) [**]; or (ii) [**].  The interest
shall be paid monthly and shall be computed based on the average daily balance
of the Collateral Account for the prior month. 
Company shall be entitled to any
interest paid on the Collateral Account, and Bank shall forward to Company such
interest no less frequently than quarterly.


 


(d)                               Withdrawals.


 


(1)                                Without limiting any other rights or remedies
of Bank under this Agreement, Bank shall have the right to withdraw amounts
from the Collateral Account to fulfill any payment obligations of Company under
this Agreement or the Loan Account Program Agreement on which Company has
defaulted, either during the Term or following termination of either of the
aforementioned agreements.


 


(2)                                Company shall not have any right to withdraw
amounts from the Collateral Account.  In
the event the actual balance in the Collateral Account is more than the
Required Balance calculated for a particular month, then, within one (1) Business
Day after the Required Balance is calculated, at Company’s option,


 






** Confidential Treatment Requested


 


14

















 


Company may provide to Bank a report setting forth
the calculation for the Required Balance and the extent to which the actual
amount held in the Collateral Account at such time exceeds the Required
Balance.  Within two (2) Business
Days after receipt of such a report from Company, Bank shall withdraw from the
Collateral Account any amount held therein that exceeds the Required Balance as
of the date of such report and pay such amount to an account designated by
Company.


 


(e)                                Termination of
Collateral Account.  Bank shall release any funds
remaining in the Collateral Account sixty (60) days after the latter of
termination of this Agreement or
the last date on which Company is obligated to purchase Loan Accounts pursuant
to subsection 10(g) of the Loan Account Program Agreement.


 


(f)                                  Survival.  This Section 33 shall
survive the expiration or termination of this Agreement.


 


[Signature Page Follows]


 


15

















 


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:

  	
  /s/ Gerry J. Smith

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Gerry J. Smith

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  President and CEO

  	
   

  
	
   

  	
   

  
	
  PROSPER MARKETPLACE, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Kirk Inglis

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Kirk Inglis

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  Chief Financial Officer

  	
   

  
							



 


16

















 


Schedule 1


 


Definitions


 


(g)                               “ACH” means the Automated
Clearinghouse.


 


(h)                               “Affiliate” means, with respect to a
Party, a Person who directly or indirectly controls, is controlled by or is
under common control with the Party.  For
the purpose of this definition, the term “control” (including with correlative
meanings, the terms controlling, controlled by and under common control with)
means the power to direct the management or policies of such Person, directly
or indirectly, through the ownership of twenty-five percent (25%) or more of a
class of voting securities of such Person.


 


(i)                                   “Agreement” means this Loan Sale
Agreement.


 


(j)                                   “Applicable Laws” means all federal,
state and local laws, statutes,  regulations and orders applicable to
a Party or relating to or affecting any aspect of the Program (including,
without limitation, the Loan Accounts), and all requirements of any Regulatory
Authority having jurisdiction over a Party, as any such laws, statutes,
regulations, orders and requirements may be amended and in effect from time to
time during the term of this Agreement.


 


(k)                                “Bank Indemnified Parties” shall have
the meaning set forth in subsection 11(b).


 


(l)                                   “Borrower” means an Applicant or other
Person for whom Bank has established a Loan Account and/or who is liable,
jointly or severally, for amounts owing with respect to a Loan Account.


 


(m)                             “Business Day” means any day, other
than (i) a Saturday or Sunday, or (ii) a day on which banking
institutions in the State of Utah are authorized or obligated by law or
executive order to be closed.


 


(n)                               “Claim Notice” shall have the meaning
set forth in subsection 11(e).


 


(o)                               “Closing Date” means each date on
which Company pays Bank the Purchase Price for a Loan Account and, pursuant to Section 2
hereof, acquires such Loan Account from Bank. 
The Closing Date for Loan Accounts listed on a Funding Statement shall
be the Business Day after the Funding Date for such Funding Statement.


 


(p)                               “Collateral Account” has the meaning
set forth in subsection 33(a).


 


(q)                               “Company Indemnified Parties” shall
have the meaning set forth in subsection 11(a).


 


(r)                                  “Confidential Information” means the
terms and conditions of this Agreement, and any proprietary information or
non-public information of a Party, including a Party’s proprietary marketing
plans and objectives, that is furnished to the other Party in connection with
this Agreement.


 


(s)                                “Disclosing Party” shall have the
meaning set forth in subsection 10(b)(2).


 

















 


(t)            “Effective Date”
shall have the meaning set forth in the introductory paragraph of this
Agreement.


 


(u)          “Indemnifiable Claim” shall have the meaning set forth in
subsection 11(d).


 


(v)          “Insolvent” means
the failure to pay debts in the ordinary course of business, the inability to
pay its debts as they come due or the condition whereby the sum of an entity’s
debts is greater than the sum of its assets.


 


(w)          “Loan Account” means a consumer installment loan account
established by Bank pursuant to the Loan Account Program Agreement.  For purposes of this Agreement, each Loan
Account includes, without limitation, all rights of Bank to payment under the
applicable Loan Account Agreement with such Borrower.


 


(x)           “Loan Account Agreement” means the document containing the terms
and conditions of a Loan Account including all disclosures required by
Applicable Laws.


 


(y)          “Loan Account Program Agreement” means that Loan Account Program
Agreement, dated as of April 14, 2008, between Company and Bank, pursuant
to which the Parties agreed to promote and operate an installment loan program.


 


(z)           “Losses” shall have the meaning set forth in subsection 11(a).


 


(aa)         “Marks” shall have the meaning set forth in Section 14.


 


(bb)        “Party” means either Company or Bank and “Parties” means Company
and Bank.


 


(cc)         “Person” means any legal person, including any individual,
corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
governmental entity, or other entity of similar nature.


 


(dd)        “Program” means the consumer installment loan program
contemplated by the Program Documents pursuant to which Bank shall establish
Loan Accounts and disburse Loan Proceeds to Borrowers.


 


(ee)         “Program Documents” means the Loan Account Program Agreement and
this Agreement.


 


(ff)          “Purchase Price” means the principal amount of the Loan Proceeds
disbursed pursuant to each Loan Account plus the related Origination Fee.


 


(gg)        “Records” means any Loan Account Agreements, applications,
change-of-terms notices, credit files, credit bureau reports, transaction data,
records, or other documentation (including computer tapes, magnetic files, and
information in any other format).


 


(hh)        “Regulatory Authority” means any federal, state or local
regulatory agency or other governmental agency or authority having jurisdiction
over a Party and, in the case of Bank, shall include, but not be limited to,
the Utah Department of Financial Institutions and the Federal Deposit Insurance
Corporation.


 


2

















 


(ii)           “Required Balance” shall have the meaning set forth in
subsection 33(a).


 


(jj)           “Restricted
Party” shall have the meaning set forth in subsection 10(a).


 


3