BORROWER REGISTRATION AGREEMENT
Exhibit 10.1
This
Borrower Registration Agreement is made and entered into between you and Prosper
Marketplace, Inc. (“Prosper”).
The
Prosper marketplace is a person-to-person online credit auction platform (the
“platform”) operated by Prosper for the registration of borrowers, lenders and
group leaders, the receipt, display and matching of listings and bids for loans
and the origination, sale, servicing and collection of principal of and interest
and other charges payable on loans. All loans obtained by Prosper
borrowers through the platform are made by WebBank, a Utah-chartered industrial
bank (“WebBank”). Prosper provides services to WebBank in connection
with the origination of such loans and Prosper services all loans made to
Prosper borrowers through the platform. The following Agreement
describes the services and your rights and obligations should you elect to
register as a borrower on the platform. Prosper and WebBank are
collectively referred to in this Agreement as “we” or “us.”
1. Registration as a
Prosper Borrower. You are registering as a borrower in the
Prosper marketplace, so that you may be eligible to post loan requests or
“listings” for display on the platform to people who may be interested in
bidding against one another in a competitive auction format to facilitate the
funding of a loan to you by WebBank. We refer to the people who bid
on listings as “lenders” even though all loans to Prosper borrowers obtained
through the platform are made by WebBank. You agree to comply with
the terms and provisions of this Agreement, the Terms of Use of the Prosper
website, and the Prosper Policies, as those guidelines may be amended from time
to time by Prosper in its sole discretion (collectively, the “Prosper Terms and
Conditions”).
We
reserve the right to restrict access to the platform to individuals who meet
minimum credit guidelines and other criteria, as determined by us in our sole
discretion.
2. Authorization to Obtain
Credit Report. You authorize us to obtain a credit report from
one or more consumer credit reporting agencies. We may use the credit
report for any lawful purpose, including but not limited to (i) for
authentication purposes, to make sure you are who you say you are, (ii) to
determine how much debt you currently have, in order to determine your
debt-to-income ratio, (iii) to obtain your credit score and assign you a
Prosper Rating based in part on that score, (iv) to obtain and display
certain information and characteristics from your credit report from one or more
consumer credit reporting agencies, including but not limited to the number,
age, type and status of the credit lines currently being reported, public
records (such as bankruptcies and judgments) and mortgage loans appearing on
your credit report, and the number of your recent requests for credit, and
(v) to obtain and display on the Folio Investing Note Trader platform
certain information and characteristics from your credit report from one or more
consumer credit reporting agencies at any time or times that a Borrower Payment
Dependent Note corresponding to your loan is offered for sale by lenders holding
such Notes. Information from your credit report will be displayed on
the Prosper website with your listings. You authorize us to verify
information in your credit report, and you agree that Prosper may contact third
parties to verify any such information. We will obtain your credit
report each time you post a listing, except that we may not obtain a new credit
report when you post listings within thirty (30) days following the posting of
an earlier listing.
3. Listings. You
may request a loan from WebBank by posting a listing on the
platform. The minimum and maximum loan amounts you may request are
posted on the Prosper website and are subject to change by us at any time
without notice. To post a listing, you must provide the amount of the
loan you are requesting and the maximum interest rate you are willing to pay,
subject to a minimum interest rate based on the Prosper Rating assigned to your
listing. At the time you post a listing you must also provide your
annual income, occupation and employment status. You authorize and
agree that we may display in your listing, and in listings displayed on the
Folio Investing Note Trader platform describing Borrower Payment Dependent Notes
corresponding to a loan you obtain through the Prosper platform that is offered
for sale by lenders holding such Notes, any information from your credit file
with the consumer credit reporting agency, including but not limited to the
following information:
(i)
|
Your
Prosper Rating;
|
(ii)
|
Your
debt-to-income ratio, expressed as a percentage, reflecting the ratio
between the amount of your monthly non-mortgage debt, as compared to the
amount of monthly income that you indicated when completing your
listing;
|
(iii)
|
Whether
you own a home;
|
(iv)
|
The
number of accounts on which you are currently late on a
payment;
|
(v)
|
The
total past-due amount you owe on all delinquent and charged-off
accounts;
|
(vi)
|
The
number of 90+ days past due delinquencies on your credit report in the
last 7 years;
|
(vii)
|
The
number of negative public records (e.g., bankruptcies, liens, and
judgments) on your credit report over the last 12 months, and over the
last 10 years;
|
(viii)
|
The
month and year your first recorded credit line (e.g., revolving,
installment, or mortgage credit) was opened;
|
(ix)
|
The
total number of credit lines appearing on your credit report, along with
the number that are open and current;
|
(x)
|
The
total balance on all of your open revolving credit
lines;
|
(xi)
|
Your
bankcard utilization ratio, expressed as a percentage, reflecting the
ratio of the total balance used, to the aggregate credit limit on, all of
your open bankcards; and
|
(xii)
|
The
number of inquiries made by creditors to your credit report in the last
six months.
|
Listings
may also display your self-reported occupation, employment status and range of
income. If you are a member of a Prosper group when you post a
listing, the listing will also identify your group; however, you do not have to
be a member of a group to post a listing. You may also create a
network of Prosper friends, and if one or more of your Prosper friends or your
fellow group members bid on your listing, your listing will reflect that the bid
was made by a fellow group member or a Prosper friend. Your Prosper
friends who bid on your listing may also write a recommendation that will be
displayed in your listing. Prosper friends do not guarantee payments
on your loan, and bids and recommendations of your listing from your Prosper
friends do not obligate the individual making the bid or recommendation to
guarantee or make any payments on your loan.
You may
not include any personally identifying information, including, without
limitation, your name, address, phone number, email address, Social Security
number or driver’s license number, or your bank account or credit card numbers
in your listing or on your Prosper member web page, or elsewhere on the Prosper
Website. Listings that include this information are subject to
cancellation by Prosper, or deletion or redaction by Prosper of the personally
identifying information, although Prosper is under no obligation to take such
actions and you include such information solely at your own risk.
Prosper
lenders may ask you questions about your loan listing and you may, but are not
required to, respond to such questions. If you do elect to respond to
a lender’s question you may respond privately, or you may elect to have the
question and answer posted publicly in the listing. Lenders’
questions are not posted in the listing or displayed elsewhere on our website
unless you elect to answer the question and elect to make the question and
answer publicly available, in which case the question and answer appears in the
listing.
Borrower
listings are displayed on the platform. This means that people who
visit the Prosper website will be able to view your listing, and see your
Prosper Rating, your debt-to income ratio and other information, provided,
however, that certain information concerning your credit history will only be
viewable by registered Prosper lenders. Upon your submission of a
listing, you authorize Prosper to display the listing on the platform for
purposes of obtaining a loan and for enabling Prosper lenders who own Borrower
Payment Dependent Notes (described in Section 5 below) corresponding to
your loan to offer such Notes for sale to other lenders at any time while your
loan is outstanding. You authorize and agree that Prosper may obtain
and display updated information from your credit file with one or more consumer
credit reporting agencies, as well as information about the payment history and
status of your loan, on the Folio Investing Note Trader platform at any time or
times that a Borrower Payment Dependent Note corresponding to your loan is
offered for sale by lenders holding such Notes. To facilitate bids
for your listing or for listings posted by lenders offering to sell a Borrower
Payment Dependent Note corresponding to your loan. To facilitate bids
for your listing, Prosper may forward the listing by email to third parties,
including but not limited to registered Prosper lenders, and may display the
listing in promotional, advertising and marketing materials, and you authorize
Prosper to do so.
1
You
authorize Prosper to verify your residence, income, occupation and any other
information you provide in connection with a listing or your registration as a
borrower, and you agree that Prosper may contact third parties to verify
information you provide. If such information changes after you post a
listing but before the listing expires, you must either (i) promptly notify
Prosper of the change, or (ii) withdraw your listing. For
example, if, while your listing is displayed on the platform, your state of
residence changes or the annual income amount you provided to Prosper when you
submitted your listing decreases materially, you must either notify Prosper of
the change, or withdraw the listing. If you elect to withdraw your
listing as a result of a change, you may (but are not required to) post a new
listing containing the updated information. You cannot edit or amend
your listing once it is posted on the platform; however, you have the right to
withdraw your listing at any time prior to expiration of the listing, and you
may post another listing if you desire. Prosper reserves the right,
in its sole discretion, to limit the number of listings you post or attempt to
post on the platform.
Your
listing is a request for a loan from WebBank in the amount specified in the
listing, at an interest rate equal to the maximum interest rate set forth in
your listing. If your listing is matched with lender bids totaling
the amount of your requested loan, the interest rate on your loan may be lower
than the maximum rate you specified, but it will never be higher. You
will not receive a loan in an amount less than the amount specified in your
listing, even if one or more bids match a portion of your requested loan
amount. In order to post a listing on the platform you must have a
good faith intent to obtain and repay your loan and your listing must be
consistent with that intent.
You have
the right to withdraw your listing at any time prior to expiration of the
listing. If your listing receives a lender bid in, or lender bids
totaling, the amount of your requested loan, you may receive a loan from WebBank
in the amount you requested, subject to our right to verify information you
provided in connection with your listing and your registration as a Prosper user
and our other rights as described in Section 4 below. If a loan is made to
you, you do not have any right to rescind the loan.
Number of
Listings. Prosper reserves the right, in its sole discretion,
to limit the number of listings you post or attempt to post on the
platform. You may have only one listing outstanding at a
time.
Duration of
Listings. When you post a listing, your listing will be
displayed on the platform for fourteen (14) days or for such other time
period that we may in our sole discretion establish and amend from time to
time. However, if your listing receives a lender bid in, or lender
bids totaling, the full amount of your requested loan prior to expiration of
your listing, you may elect to end your listing early – you need not wait until
your listing expires. You may also designate your listing for
“automatic funding,” in which case your listing will end and no further bids on
your listing will be accepted toward your listing as soon as your listing
receives a bid or bids totaling the full amount of your requested
loan. We reserve the right to make the automatic funding feature
available only to borrowers with certain Prosper Ratings or other credit
characteristics. The bidding period for your listing will also end
automatically if you receive bids totaling your requested loan amount and the
interest rate is bid down to the minimum interest rate assigned to your
listing. When you post a listing, it will be displayed on the
platform along with all other listings until the listing ends or expires, or
until the listing is withdrawn by you or by us as provided in Section 4
below.
Additional
Loans. Subject to eligibility requirements that we may in our
sole discretion establish and amend from time to time, you may have up to two
loans outstanding at any one time, provided that the aggregate outstanding
principal balance of your loans does not exceed the maximum loan amount for your
state of residence. To be eligible to post a listing for a second
loan, you must be current on your existing loan, and you must have a record of
on-time monthly loan payment performance, within such guidelines as may be
established and amended from time to time by us in our sole
discretion. You may not post a listing for a second loan until a
specified number of months has elapsed since the date you obtained your existing
loan. The guidelines and eligibility requirements for second loans
are posted on the Prosper website and are subject to change by us in our sole
discretion at any time without notice.
Prohibited
Activities. You agree that you will not, in connection with
any listings, bids, loans or other transactions involving or potentially
involving Prosper or WebBank, (i) make any false, misleading
or
2
deceptive
statements or omissions of material fact in your listing; (ii) misrepresent
your identity, or describe, present or portray yourself as a person other than
yourself, whether in a narrative description or a photo in your listing;
(iii) give to or receive from, or offer or agree to give to or receive from
any Prosper lender or other person any fee, bonus, additional interest, kickback
or thing of value of any kind in connection with a requested or existing loan or
in exchange for such person’s bid, recommendation, or offer or agreement to bid
on or recommend your listing; or (iv) represent yourself to any person, as
a director, officer or employee, of Prosper or WebBank, unless you are such
director, officer or employee.
4. Right
to Verify Information and Cancel Funding.
a. We
reserve the right to verify the accuracy of all information provided by
borrowers, lenders and group leaders in connection with listings, bids and
loans. We also reserve the right to determine in our sole discretion
whether a registered user is using, or has used, the Prosper website illegally
or in violation of any order, writ, injunction or decree of any court or
governmental instrumentality, for purposes of fraud or deception, or otherwise
in a manner inconsistent with the Prosper Terms and Conditions or any agreement
between Prosper or WebBank and such user. We may conduct our review
at any time — before, during or after the posting of a listing, or before or
after the funding of a loan. You agree to respond promptly to our
requests for information in connection with your listing, accounts, or your
registration with Prosper.
b. In
the event we determine, prior to funding a loan, that a listing, or a bid for
the listing, contains materially inaccurate information (including but not
limited to unintended inaccuracies, inaccuracies resulting from errors by
Prosper, or inaccuracies resulting from changes in the borrower’s income,
residence or credit profile between the date a listing is posted and the date
the listing is to be funded) or was posted illegally or in violation of any
order, writ, injunction or decree of any court or governmental instrumentality,
for purposes of fraud or deception, or otherwise in a manner inconsistent with
the Prosper Terms and Conditions or any registration agreement, we may refuse to
post the listing or, if the listing has already been posted, remove the listing
from the platform and cancel all bids against the listing.
c. When
a listing ends or expires with a bid or bids totaling the amount of a borrower’s
requested loan, we may conduct a “pre-funding” review prior to funding the
loan. Loan funding occurs when loan proceeds are disbursed into the
borrower’s designated deposit account. We may, at any time and in our
sole discretion, delay funding of a loan in order to enable us to verify the
accuracy of information provided by borrowers, lenders and group leaders in
connection with the listing or bids against the listing, and to determine
whether there are any irregularities with respect to the listing or the bids
against the listing. We may cancel or proceed with funding the loan,
depending on the results of our pre-funding review. If funding is
cancelled, the listing will be removed from the platform and all bids against
the listing will be cancelled, and each bidder’s funds will be returned to the
Prosper funding account, available for further bidding. In the event
we cancel funding of a loan, Prosper will notify the borrower, group leader (if
any), and all bidders for the listing of our determination to cancel funding of
the loan.
5. Matching
of Bids and Listings; Loan Funding.
a. Registered
Prosper lenders will be able to review your listing and may commit funds to
purchase, in various amounts, Borrower Payment Dependent Notes (“Notes”) that
Prosper may issue to lenders who, as winning bidders for your listing, commit
funds to facilitate the funding of your loan. The Notes Prosper
issues to these lenders will be dependent for payment on payments we receive
from you on your loan. This means that the Prosper lenders who
facilitated the funding of your loan will receive payments on their Notes only
to the extent you make payments on your loan. You acknowledge and
agree that a lender’s commitment to purchase a Note corresponding to all or a
portion of your loan from us does not confer any rights to you. You
also acknowledge and agree that Prosper lenders make their own decisions whether
to commit funds toward your loan.
b. Prosper’s
auction platform will automatically match your listing with any bids that
specify a minimum interest rate equal to or below the maximum interest rate you
would accept, subject to a
3
minimum
interest rate based on the Prosper Rating assigned to your
listing. Bids are first matched with borrower listings with the
highest offered interest rates above the bidder’s minimum interest rate, and
thereafter the bids are matched to borrower listings with incrementally lower
offered interest rates. Most listings are matched with multiple
lender bids.
c. A
match of your listing with one or more bids in the full amount of your requested
loan results in a loan from WebBank to you, subject to our right to verify
information as provided in this Agreement. The loan will be evidenced
by a Promissory Note in the form set forth on the attached
Exhibit A. Loan proceeds are disbursed into your designated
deposit account. After loan funding, the loan will be sold by WebBank
to Prosper, and Prosper will service the loan.
d. We
do not warrant or guaranty that your listing will be matched with any
bids. Your listing must receive a bid in, or bids totaling, the
entire amount of your requested loan in order for a loan to be
made. You will not receive a loan if only a portion (even a
substantial portion) of your requested loan amount is matched with a bid or
bids.
e. To
safeguard your privacy rights, on listings your name and address will be
shielded from the view of bidders and prospective bidders. Only your
Prosper screen name will appear on listings, and only the screen name of the
bidders will appear with bids.
6. Compensation. If
you receive a loan, you must pay WebBank an origination fee. The
current fee amounts are posted in the Fees and Charges section of
the Prosper website, and are subject to change by us at any time without
notice. The fee is paid by the borrower out of the loan proceeds at
the time a loan is funded, so that the net amount of loan proceeds you receive
will be less than the full amount of your loan.
7. Making Your Loan
Payments. At the time you register as a borrower, you must
provide your deposit account information to facilitate transfers of funds to and
from your deposit account. You agree to make your loan payments by
automated withdrawals from your designated account, or by the use of bank drafts
drawn on your designated account. At the time you create your
listing, you will be asked to choose the method of making your loan payments,
and your loan payments will be made by the payment method you
choose. Prosper will act as the servicer for all loans you obtain
from WebBank through the platform, and all communications regarding your loan
must be made to Prosper.
8. Group
Membership. Groups on Prosper may be rated
according to the collective payment performance of the group’s members, so if
you are a member of a group your failure to make loan
payments when due may have a negative effect on your group’s
rating.
9. Collection &
Reporting of Delinquent Loans. In the event you do not make
your loan payments on time, WebBank or any subsequent owner of the loan will
have all remedies authorized or permitted by the Promissory Note and applicable
law. In addition, when a monthly payment becomes thirty (30) days
past due, your loan may be referred to a collection agency for
collection. Prosper may report loan payment delinquencies in excess
of 30 days to one or more credit reporting agencies in accordance with
applicable law. Subject to limitations of applicable law, you
authorize and agree that Prosper or a collection agency may contact you at any
or all of the telephone numbers you provide to Prosper at or after registration
or any of your other telephone numbers.
10. No
Guarantee. NEITHER PROSPER NOR WEBBANK WARRANTS OR GUARANTEES
(1) THAT YOUR LISTING WILL BE MATCHED WITH ANY BIDS, (2) THAT YOU WILL
RECEIVE A LOAN AS A RESULT OF POSTING A LISTING, OR (3) THAT IF YOUR
LISTING IS MATCHED YOU WILL RECEIVE A LOAN WITH AN INTEREST RATE LESS THAN THE
MAXIMUM RATE SPECIFIED IN YOUR LISTING.
11. Restrictions on
Use. You are not authorized or permitted to use the Prosper
website to obtain, or attempt to obtain, a loan for someone other than
yourself. You must be an owner of the deposit account you designate
for electronic transfers of funds, with authority to direct that loan payments
be made
4
from the
account. Your designated account will be the account into which loan
proceeds will be deposited, and from which loan payments will be
made. Although you are registering as a borrower, you may also
register and participate on the platform as a lender or as a group
leader. If you participate on the platform as a lender any amounts in
your Prosper funding account are subject to set-off against any delinquent
amounts owing on any loan or loans you obtain as a Prosper borrower. You will
not receive further notice in advance of our exercise of our right to set-off
amounts in your Prosper funding account against any delinquent amounts owing on
any loan or loans you obtain. If you obtain a loan and fail to pay
your loan in full, whether due to default, bankruptcy or other reasons, you will
not be eligible to post any further listings or re-register with Prosper as a
borrower, lender or group leader. Prosper may in its sole discretion,
with or without cause and with or without notice, restrict your access to the
Prosper website or platform.
12. Authority. You
warrant and represent that you have the legal competence and capacity to execute
and perform this Agreement.
13. Termination of
Registration. Prosper may in its sole discretion, with or
without cause, terminate this Agreement at any time by giving you notice as
provided below. In addition, upon Prosper’s determination that you
committed fraud or made a material misrepresentation in connection with a
listing, bid or loan, performed any prohibited activity, or otherwise failed to
abide by the terms of this Agreement or the Prosper Terms and Conditions,
Prosper may, in its sole discretion, immediately and without notice, take one or
more of the following actions: (i) terminate or suspend your right to post
listings or otherwise participate on the platform; (ii) terminate this
Agreement and your registration with Prosper. Upon termination of
this Agreement and your registration with Prosper, any listings you have posted
on the platform shall terminate, and will be removed from the platform
immediately. Any loans you obtain prior to the effective date of
termination resulting from listings you had placed on the platform shall remain
in full force and effect in accordance with their terms.
14. Prosper’s Right to
Modify Terms. Prosper has the right to change any term or
provision of this Agreement or the Prosper Terms and
Conditions. Prosper will give you notice of material changes to this
Agreement, or the Prosper Terms and Conditions, in the manner set forth in
Section 17. You authorize Prosper to correct obvious clerical
errors appearing in information you provide to Prosper, without notice to you,
although Prosper expressly undertakes no obligation to identify or correct such
errors. This Agreement, along with the Prosper Terms and Conditions,
represent the entire agreement between you and Prosper regarding your
participation as a borrower on the platform, and supersede all prior or
contemporaneous communications, promises and proposals, whether oral, written or
electronic, between you and Prosper with respect to your involvement as a
borrower on the platform.
15. Member Web
Page Display and Content. You may, but are not required
to, maintain a “Prosper member web page” on the Prosper website, where you can
post photos, content, logos or links to websites. If you elect to do
so, you authorize Prosper to display on the Prosper website all such material
you provide to Prosper. Any material you display on your member
page must conform to the Prosper Terms and Conditions, as amended from time
to time, and material you display or link to must not (i) infringe on
Prosper’s or any third party’s copyright, patent, trademark, trade secret or
other proprietary rights or right of publicity or privacy; (ii) violate any
applicable law, statute, ordinance or regulation; (iii) be defamatory or
libelous; (iv) be lewd, hateful, violent, pornographic or obscene;
(v) violate any laws regarding unfair competition, anti-discrimination or
false advertising; (vi) promote violence or contain hate speech; or
(vii) contain viruses, trojan horses, worms, time bombs, cancelbots or
other similar harmful or deleterious programming routines. You may
not include or display any personally identifying information, including,
without limitation, name, address, phone number, email address, Social Security
number or driver’s license number, or bank account or credit card numbers of any
Prosper member on your Prosper member web page, or elsewhere on the Prosper
website.
16. Notices. All
notices and other communications hereunder shall be given by email to your
registered email address or will be posted on the Prosper website, and shall be
deemed to have been duly given and effective upon transmission or
posting. You can contact us by sending an email to
xxxxxxx@xxxxxxx.xxx or calling us toll-free at (000) 000-0000. You
also agree to notify Prosper if your
5
registered
email address changes, and you agree to update your registered residence
address, mailing address and telephone number on the Prosper website if your
address or telephone number changes.
17. No
Warranties. EXCEPT FOR THE REPRESENTATIONS CONTAINED IN THIS
AGREEMENT, PROSPER DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES TO YOU OR ANY
OTHER PARTY WITH REGARD TO YOUR USE OF THE PROSPER WEBSITE AND THE PLATFORM,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
18. Limitation on
Liability. IN NO EVENT SHALL ANY PARTY TO THIS AGREEMENT BE
LIABLE TO ANY OTHER PARTY FOR ANY LOST PROFITS OR SPECIAL, EXEMPLARY,
CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES. FURTHERMORE, NEITHER PARTY MAKES ANY REPRESENTATION OR
WARRANTY TO ANY OTHER PARTY REGARDING THE EFFECT THAT THE AGREEMENT
MAY HAVE UPON THE FOREIGN, FEDERAL, STATE OR LOCAL TAX LIABILITY OF THE
OTHER.
19. Miscellaneous. You
may not assign, transfer, sublicense or otherwise delegate your rights under
this Agreement to another person without Prosper’s prior written
consent. Any such assignment, transfer, sublicense or delegation in
violation of this Section shall be null and void. This Agreement
shall be governed by federal law and, to the extent that state law applies, the
laws of the State of Utah. Any waiver of a breach of any provision of
this Agreement will not be a waiver of any other subsequent
breach. Failure or delay by either party to enforce any term or
condition of this Agreement will not constitute a waiver of such term or
condition. If any part of this Agreement is determined to be invalid
or unenforceable under applicable law, then the invalid or unenforceable
provision will be deemed superseded by a valid enforceable provision that most
closely matches the intent of the original provision, and the remainder of the
Agreement shall continue in effect. WebBank is not a party to this
Agreement, but you agree that WebBank is a third-party beneficiary and is
entitled to rely on your representations and authorizations, and other
provisions of this Agreement. There are no other third party
beneficiaries to this Agreement.
6
EXHIBIT
A
PROMISSORY
NOTE
Borrower
Address:
.
1. Promise to
Pay. In return for a loan I have received, I promise to pay
WebBank, a Utah-chartered Industrial Bank (“you”) the principal sum
of
Dollars
($ ),
together with interest thereon commencing on the date of funding at the rate of
percent
( %) per annum simple
interest. I understand that references in this Note to you shall also
include any person to whom you transfer this Note.
2. Payments. This
Note is payable in monthly installments of
$
each, consisting of principal and interest, commencing on the
day of
,
and continuing until the final payment date of
,
which is the maturity date of this Note. The final payment shall
consist of the then remaining principal, unpaid accrued interest and other
charges due under this Note. All payments will be applied first to
any unpaid fees incurred as a result of failed automated payments or returned
checks or bank drafts as provided in Paragraph 11, then to any late charges then
due, then to interest then due and then to principal. No unpaid
interest or charges will be added to principal.
3. Interest. Interest
will be charged on unpaid principal until the full amount of principal has been
paid. Interest under this Note will accrue daily, on the basis of a
365-day year. If payments are made on time, my final payment will be
in the amount of a regular monthly payment. If payments are paid
late, a greater portion of the payment will be applied to accrued interest, a
lesser portion (if any) will be applied to principal reduction, and the loan
will not amortize as originally scheduled, resulting in a higher final payment
amount. The interest rate I will pay will be the rate I will pay both
before and after any default.
4. Late
Charge. If the full amount of any monthly payment is not made
by the end of fifteen (15) calendar days after its due date, I will pay you a
late charge
of . I
will pay this late charge promptly but only once on each late
payment.
5. Waiver of
Defenses. Except as otherwise provided in this Note, you are
not responsible or liable to me for the quality, safety, legality, or any other
aspect of any property or services purchased with the proceeds of the
loan. If I have a dispute with any person from whom I have purchased
such property or services, I agree to settle the dispute directly with that
person.
6. Certification;
Exception to Waiver. I certify that, to my knowledge, the
proceeds of this loan will not be applied in whole or part to purchase property
or services from any person to whom any interest this loan may be
assigned. If, notwithstanding the preceding sentence, any person from
whom I have purchased such property acquires any interest in this loan, then
Paragraph 5 will not apply to the extent of that person’s interest, even if that
person later assigns that person’s interest to another person.
7. Method of
Payment. I will pay the principal, interest, and any late
charges or other fees on this loan when due. Those amounts are called
“payments” in this Note. To ensure that my payments are processed in
a timely and efficient manner, you have given me the choice of making my monthly
payments (i) by automated withdrawal from an account that I designate using
an automated clearinghouse (ACH) or other electronic fund transfer, or
(ii) by bank drafts drawn by you on my behalf on my account each month; and
I have chosen one of these methods.
If I
close my account or if my account changes or is otherwise inaccessible such that
you are unable to withdraw my payments from that account or draw bank drafts on
the account, I will notify you at least three (3) days prior to any such
closure, change or inaccessibility of my account, and authorize you to withdraw
my payments from, or draw bank drafts on, another account that I
designate.
With
regard to payments made by automatic withdrawals from my account, I have the
right to (i) stop payment of a preauthorized automatic withdrawal, or
(ii) revoke my prior authorization for automatic withdrawals with regard to
all further loan payments, by notifying the financial institution where my
account is held, orally or in writing at least three (3) business days
before the scheduled date of the transfer.
7
I agree
to notify you orally or in writing, at least three (3) business days before
the scheduled date of the transfer, of the exercise of my right to stop a
payment or to revoke my prior authorization for further automatic
withdrawals.
8. Default and
Remedies. If I fail to make any payment when due in the manner
required by Paragraph 7, I will be in default and you may at your option
accelerate the maturity of this Note and declare all principal, interest and
other charges due under this Note immediately due and payable. If you
exercise the remedy of acceleration you will give me at least 30 days prior
notice of acceleration.
9. Prepayments. I
may prepay this loan in full or in part at any time without
penalty.
10. Waivers. You
may accept late payments or partial payments, even though marked “paid in full,”
without losing any rights under this Note, and you may delay enforcing any of
your rights under this Note without losing them. You do not have to
(a) demand payment of amounts due (known as “presentment”), (b) give
notice that amounts due have not been paid (known as “notice of dishonor”), or
(c) obtain an official certification of nonpayment (known as
“protest”). I hereby waive presentment, notice of dishonor and
protest. Even if, at a time when I am in default, you do not require
me to pay immediately in full as described above, you will still have the right
to do so if I am in default at a later time. Neither your failure to
exercise any of your rights, nor your delay in enforcing or exercising any of
your rights, will waive those rights. Furthermore, if you waive any
right under this Note on one occasion, that waiver will not operate as a waiver
as to any other occasion.
11. Insufficient Funds
Charge. If I attempt to make a monthly payment, whether by
check or bank draft or by automated withdrawal from my designated account, and
the payment is unable to be made due to (i) insufficient funds in my
account, (ii) the closure, change or inaccessibility of my account without
my having notified you as provided in Paragraph 7, or (iii) for any other
reason (other than an error by you), I will pay you an additional fee of
$ for
each check or bank draft returned or failed automated withdrawal, unless
prohibited by applicable law.
12. Attorneys’
Fees. To the extent permitted by law, I am liable to you for
your legal costs if you refer collection of your loan to a lawyer who is not
your salaried employee. These costs may include reasonable attorneys’
fees as well as costs and expenses of any legal action.
13. Loan
Charges. If a law, which applies to this loan and which sets
maximum loan charges, is finally interpreted so that the interest or other loan
charges collected or to be collected in connection with this loan exceed the
permitted limits, then: (a) any such loan charge shall be reduced by the
amount necessary to reduce the charge to the permitted limit; and (b) any
sums already collected from me which exceeded permitted limits will be refunded
to me. You may choose to make this refund by reducing the principal I
owe under this Note or by making a direct payment to me.
14. Assignment. I
may not assign any of my obligations under this Note without your written
permission. You do not have to give me your
permission. You may assign this Note at any time without my
permission. Unless prohibited by applicable law, you may do so
without telling me.
My
obligations under this Note apply to all of my heirs and permitted
assigns. Your rights under this Note apply to each of your successors
and assigns.
15. Notices. All
notices and other communications hereunder shall be given in writing and shall
be deemed to have been duly given and effective (i) upon receipt, if
delivered in person or by facsimile, email or other electronic transmission, or
(ii) one day after deposit prepaid for overnight delivery with a national
overnight express delivery service. Unless a different address is
provided for in a different Paragraph of this Note, notices to me must be
properly addressed to my registered email address or to my address set forth
above unless I provide you with a different address for notice by giving notice
pursuant to this Paragraph, and notices to you must be addressed to
xxxxxxx@xxxxxxx.xxx or to Prosper Marketplace, Inc., 000 Xxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, Attention: Customer
Service.
8
16. Governing
Law. This Note is governed by federal law and, to the extent
that state law applies, the laws of the State of Utah.
17. Miscellaneous. No
provision of this Note shall be modified or limited except by a written
agreement signed by both you and me. The unenforceability of any
provision of this Note shall not affect the enforceability or validity of any
other provision of this Note.
18. Arbitration. RESOLUTION
OF DISPUTES: I
HAVE READ THIS PROVISION CAREFULLY, AND UNDERSTAND THAT IT LIMITS MY RIGHTS IN
THE EVENT OF A DISPUTE BETWEEN YOU AND ME. I UNDERSTAND THAT I HAVE
THE RIGHT TO REJECT THIS PROVISION, AS PROVIDED IN PARAGRAPH
(i) BELOW.
(a) In
this Resolution of Disputes provision:
(i) “I,”
“me” and “my” mean the borrower under this Note, as well as any person claiming
through the borrower;
(ii) “You”
and “your” mean WebBank, any person servicing this Note for WebBank, and any
subsequent holders of this Note or any interest in this Note, and each of their
respective parents, subsidiaries, affiliates, predecessors, successors, and
assigns, as well as the officers, directors, and employees of each of them;
and
(iii) “Claim”
means any dispute, claim, or controversy (whether based on contract, tort,
intentional tort, constitution, statute, ordinance, common law, or equity,
whether pre-existing, present, or future, and whether seeking monetary,
injunctive, declaratory, or any other relief) arising from or relating to this
Note or the relationship between you and me (including claims arising prior to
or after the date of the Note), and includes claims that are brought as
counterclaims, cross claims, third party claims, or otherwise and disputes about
the validity or enforceability of this Agreement or the validity or
enforceability of this Resolution of Disputes provision.
(b) Any
Claim between you and me shall be resolved, upon the election of either you or
me, by binding arbitration administered by the National Arbitration Forum
(“NAF”), under its Code of Procedure (“Rules”). I can obtain the
Rules and other information about initiating arbitration by contacting the
NAF at X.X. Xxx 00000, Xxxxxxxxxxx, XX 00000, or at
xxx.xxxxxxxx.xxx. Your address for serving any arbitration demand or
claim is WebBank, x/x Xxxxxxx Xxxxxxxxxxx, Inc., 000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxxxxxxx, XX 00000, Attention: Legal Department.
(c) Claims
will be arbitrated by a single, neutral arbitrator, who shall be a retired judge
or a lawyer with at least ten years experience. You agree not to
invoke your right to elect arbitration of an individual Claim filed by me in a
small claims or similar court (if any), so long as the Claim is pending on an
individual basis only in such court.
(d) You
will pay all filing and administration fees charged by the NAF and arbitrator
fees up to $1,000, and you will consider my request to pay any additional
arbitration costs. If an arbitrator issues an award in your favor, I
will not be required to reimburse you for any fees you have previously paid to
the NAF or for which you are responsible. If I receive an award from
the arbitrator, you will reimburse me for the fees paid by me to the
NAF. Each party shall bear its own attorney’s, expert’s and witness
fees, which shall not be considered costs of arbitration; however, if a statute
gives me the right to recover these fees, or fees paid to the NAF, then these
statutory rights will apply in arbitration.
(e) Any
in-person arbitration hearing will be held in the city with the federal district
court closest to my residence, or in such other location as the parties may
mutually agree. The arbitrator shall apply applicable substantive law
consistent with the Federal Arbitration Act, 9 U.S.C. § 1-16,
and, if requested by either party, provide written reasoned findings of fact and
conclusions of law. The arbitrator shall have the power to award any
relief authorized under applicable law. Any appropriate court may
enter judgment upon the arbitrator’s award. The arbitrator’s decision
will be final and binding except that: (1) any party may exercise any
appeal right under the FAA; and (2) any party may appeal any award relating
to a claim for
9
more than
$100,000 to a three-arbitrator panel appointed by the NAF, which will reconsider
de novo any aspect of the appealed award. The panel’s decision will
be final and binding, except for any appeal right under the
FAA. Unless applicable law provides otherwise, the appealing party
will pay the appeal’s cost, regardless of its outcome. However, you
will consider any reasonable written request by me for you to bear the
cost.
(f) Neither
you nor I shall have the right to participate as a representative or member of
any class of claimants in arbitration, and you and I further agree that claims
of third parties shall not be joined in any arbitration between you and me,
without the express written consent of both you and me. Only the
claims of or against persons relating to a single Note or listing (such as
holders of Notes relating to a single listing) may be joined in a single
arbitration. The validity and effect of this paragraph (f) shall
be determined exclusively by a court, and not by the NAF or any
arbitrator. The arbitrator shall have no power to arbitrate any
Claims on a class action basis or Claims brought in a purported representative
capacity on behalf of the general public, other borrowers, or other persons
similarly situated.
(g) If
any portion of this Resolution of Disputes provision is deemed invalid or
unenforceable for any reason, it shall not invalidate the remaining portions of
this provision. However, if paragraph (f) of this Resolution of
Disputes provision is deemed invalid or unenforceable in whole or in part, then
this entire Resolution of Disputes provision shall be deemed invalid and
unenforceable. The terms of this Resolution of Disputes provision
will prevail if there is any conflict between the Rules and this
provision.
(h) THE PARTIES ACKNOWLEDGE AND AGREE
THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS RESOLUTION OF DISPUTES PROVISION,
THEY ARE WAIVING ALL RIGHTS TO A TRIAL BY COURT OR JURY AS A MEANS OF RESOLVING
ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT. THEY
ACKNOWLEDGE THAT ARBITRATION WILL LIMIT THEIR LEGAL RIGHTS, INCLUDING THE RIGHTS
TO PARTICIPATE IN A CLASS ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO
CONDUCT FULL DISCOVERY, AND THE RIGHT TO APPEAL (EXCEPT AS PERMITTED IN
PARAGRAPH (e) OR UNDER THE FEDERAL ARBITRATION ACT).
(i) I
understand that I may reject this Resolution of Disputes provision, in which
case neither you nor I will have the right to elect
arbitration. Rejection of this provision will not affect the
remaining parts of this Agreement. To reject this Resolution of
Disputes provision, I must send us written notice of my rejection within 30 days
after the date that this Note was made. I must include my name,
address, and account number. The notice of rejection must be mailed
to WebBank, x/x Xxxxxxx Xxxxxxxxxxx, Inc., 000 Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxxxxxxx, XX 00000, Attention: Legal Department. This is the
only way that I can reject this Resolution of Disputes provision.
(j) The
parties acknowledge and agree that this arbitration agreement is made pursuant
to a transaction involving interstate commerce and shall be governed by the
Federal Arbitration Act. This Resolution of Disputes provision shall
survive the termination of this Note and the repayment of any or all amounts
borrowed.
Arizona Residents: Notice: I
understand that I may request that the initial disclosures prescribed in the
Truth in Lending Act (15 United States Code sections 1601 through 1666j) be
provided in Spanish before signing any loan documents.
Aviso Para Prestatarios En
Arizona: Puedo solicitar que las divulgaciones iniciales prescritas en xx
Xxx Truth in Lending
Act (15 Xxxxxx xx xxx Xxxxxxx Xxxxxx xxxxxxxxx 0000 xxxxx 0000x) xxxx
proporcionadas en español antes de firmar cualesquiera documentos de
préstamos.
Missouri Residents: Oral
agreements or commitments to loan money, extend credit or to forbear from
enforcing repayment of a debt including promises to extend or renew such debt
are not enforceable. To protect me (borrower) and you (creditor) from
misunderstanding or disappointment, any agreements we reach covering such
matters are contained in this writing, which is the complete and exclusive
statement of the agreement between us, except as we may later agree in writing
to modify it.
10
By
signing this Note, I acknowledge that I (i) have read and understand
all terms and conditions of this Note, (ii) agree to the terms set forth
herein, and (iii) acknowledge receipt of a completely filled-in copy of
this Note.
Date:
|
||||
[Borrower]
|
||||
Last
Updated:
|
11