此修訂和重訂貸款和應收款銷售協議(本“協議”),於2024年9月26日簽署(“生效日期。”),由WEB銀行(一家總部位於猶他州鹽湖城的聯邦存款保險公司,猶他州特許的工業銀行銀行”), and SEZZLE INC., a Delaware corporation, having its principal location in Minneapolis, Minnesota (“公司”).
WHEREAS, Bank and Company are parties to the Amended and Restated Marketing and Servicing Agreement dated as of the Effective Date (as amended, modified or supplemented from time to time, the “Program Agreement”), pursuant to which Bank originates Loans, including Single Disbursement Loans and Multiple Disbursement Loans;
WHEREAS, Bank is and will be the owner of Loans pursuant to the Program Agreement;
WHEREAS, Company will service the Loans on behalf of Bank pursuant to the Program Agreement; and
WHEREAS, Bank may desire to sell to Company certain Single Disbursement Loans originated by Bank pursuant to the Program Agreement, and Company desires to purchase from Bank the Single Disbursement Loans that are offered;
WHEREAS, Bank may desire to sell to Company certain Loan Accounts and/or the Receivables arising from Loan Disbursements made on certain Multiple Disbursement Loans originated by Bank pursuant to the Program Agreement, and Company desires to purchase from Bank the Loan Accounts and/or the Receivables that are offered with respect to such Multiple Disbursement Loans;
WHEREAS, the Parties have entered into that certain Loan and Receivables Sale Agreement, dated as of August 26, 2024, setting forth each Party’s rights and obligations related to the offering of a loan program (the “Existing Sale Agreement”);並
WHEREAS, the Parties now wish to amend and restate the Existing Sale Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the terms, conditions and mutual covenants and agreements herein contained, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Bank and Company agree as follows:
(g)If a Transferable Loan related to a Loan (or any portion thereof) is cancelled (whether by chargeback, return, refund or otherwise) after the sale of the Transferable Loan from Bank to Company, on the next available sale statement delivered by Bank, Bank shall refund the principal amount of such Transferable Loan or portion thereof following settlement of such chargeback, return, refund or other cancellation.
(h)If either Party transfers any amounts to the other Party in error (including if the Purchase Price for one or more Transferrable Loan and/or Multiple Disbursement Transferable Receivable is miscalculated), the Party benefitting from such error will pay to the other Party the amount in error within three (3) Business Days after receiving notice of an error from the other Party; provided, however, that any erroneous amounts paid by Company to Bank shall be subject to Bank’s rights in Section 13(g).
3.Ownership of Loans, Transferable Loans and Receivables.
(a)Bank shall not retain any ownership of the Loans after each Purchase Date. Each Party agrees to make entries on its books and records to clearly indicate Company’s ownership of the Loans as of each Purchase Date.
(b)On and after each Purchase Date and each Loan Account Purchase Date, as applicable, automatically upon Company’s payment of the Purchase Price on each such date, Company shall be the sole owner for all purposes (例如, tax, accounting, and legal) of the Single Disbursement Transferable Loans, Multiple Disbursement Transferable Loan Receivables, and Loan Accounts purchased from Bank on such date and Company shall be entitled to all of the rights, privileges, and remedies applicable to said ownership interest, including the right to pledge, transfer, sell, assign, or exchange the Transferable Loans, Receivables, and Loan Accounts (including the right to receive any refund or the proceeds of a return or reversal). For all Single Disbursement Transferable Loans, Multiple Disbursement Transferable Loan Receivables, and Loan Accounts sold hereunder, Bank shall not retain any ownership interest in such underlying Loan, Receivable and/or Loan Account and Company shall become the sole owner of any such underlying Loan, Receivable and/or Loan Account sold or transferred in accordance with the terms of this Agreement. Bank agrees to make entries on its books and records to clearly indicate the sale of applicable Transferable Loans and/or Receivables to Company as of each Purchase Date. Company agrees to make entries on its books and records to clearly indicate the purchase of applicable Transferable Loans, Receivables, and/or Loan Accounts as of each Purchase Date and that ownership of the Transferable Loan, Receivable and/or Loan Account is not retained by Bank. Bank and Company each
(7)With respect to each Transferable Loan and/or Receivables sold on any Purchase Date by Bank to Company, (i) Bank has not taken any action (directly or indirectly, voluntarily or involuntarily): (a) to alter the terms or conditions of such Transferable Loan and/or Receivable or (b) that could be reasonably expected to impair the enforceability of such Transferable Loans and/or Receivables (except that such representation does not extend to any action by Company or its agents); (ii) upon Bank’s receipt of the related Purchase Price, Bank shall have conveyed to Company all of Bank’s right, title and interest in each Transferable Loan and/or Receivable sold hereunder subject to no prior security interest in favor of any other creditor of Bank; and (iii) Bank has not pledged, assigned, sold, granted a security interest in or otherwise conveyed such Transferable Loan and/or Receivable nor authorized the filing of, and is not
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aware of, any financing statements against Bank that include a description of collateral that includes such Transferable Loan and/or Receivable.
(b)Company hereby represents and warrants to Bank, as of the Effective Date, each Purchase Date, and each Loan Account Purchase Date that:
(1)Company is a corporation, duly organized and validly existing in good standing under the laws of its formation, 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);