[***] CERTAIN INFORMATION IN THIS DOCUMENT HAS BEEN EXCLUDED PURSUANT TO REGULATION S-K, ITEM 601(B)(10). SUCH EXCLUDED INFORMATION IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.

Exhibit 10.1

AMENDMENT NO. 6 TO REVOLVING CREDIT AGREEMENT

THIS AMENDMENT NO. 6 TO REVOLVING CREDIT AGREEMENT (this “Amendment”), dated as of September 30, 2021 (the “Sixth Amendment Effective Date”) is entered into among the Credit Parties, the Guarantors, the Agents and the Lenders (each as defined below) to amend that certain Revolving Credit Agreement, dated as of August 19, 2019 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement” and, as further amended by this Amendment, the “Amended Credit Agreement”), among Opportunity Funding SPE IV, LLC (“OF IV Borrower”) and SalaryTap Funding SPE, LLC (“STF Borrower”), as Borrowers, Opportunity Financial, LLC (the “Company”), as originator (in such capacity, the “Originator”), as servicer (in such capacity, the “Servicer”), as a Seller (in such capacity, a “Seller”) and as a guarantor (in such capacity, a “Guarantor”), OppWin, LLC (“OppWin”), as a Seller (in such capacity, a “Seller”) and as a guarantor (in such capacity, a “Guarantor”), OppWin SalaryTap, LLC (“OppWin ST”), as a Seller (in such capacity, a “Seller”) and as a guarantor (in such capacity, a “Guarantor”), SalaryTap, LLC (“SalaryTap”), as a Seller (in such capacity, a “Seller”; the Borrower, the Company, the Servicer, the Originator and each Seller, collectively, the “Credit Parties”), and as a guarantor (in such capacity, a “Guarantor”), OPPORTUNITY MANAGER, LLC, OPPORTUNITY FINANCIAL CARD COMPANY, LLC, OPPWIN CARD, LLC, and OppFi Management Holding, LLC, each as a guarantor (in such capacity, each a “Guarantor”), the other Guarantors from time to time party thereto, BMO Harris Bank N.A., as Administrative Agent (in such capacity, the “Administrative Agent”), and as Collateral Agent (in such capacity, the “Collateral Agent” and together with the Administrative Agent, the “Agents”) and the Lenders parties thereto from time to time (the “Lenders” and each, individually, a “Lender”).

PRELIMINARY STATEMENTS

WHEREAS, OF IV Borrower, the Servicer, the Originator, the Sellers (other than SalaryTap and OppWin ST), the Agents and the Lenders heretofore entered into the Existing Credit Agreement.

WHEREAS, the parties hereto desire to amend the Existing Credit Agreement, on the terms and conditions set forth herein, to among other things (a) increase the Revolving Commitments, (b) extend the Scheduled Termination Date, (c) added STF Borrower as a “Borrower” under the Credit Agreement and (d) add each of SalaryTap and OppWin ST as a “Guarantor” under the Credit Agreement.

NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the parties hereto hereby agree as follows:

AGREEMENT

1.    Definitions. Capitalized terms that are used in this Amendment (including the recitals hereto, which are herein incorporated) but are not defined herein shall have the meanings set forth in the Amended Credit Agreement, unless otherwise stated.

2.    Amendments to Credit Agreement. Effective as of the date of this Amendment and subject to satisfaction of the conditions precedent set forth in Section 5 below, the Existing Credit Agreement shall be and hereby is amended as set forth below:

The Existing Credit Agreement is, effective as of the date of this Amendment, hereby amended to delete the struck text (indicated textually in the same manner as the following example: struck text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Amended Credit Agreement attached as Annex I hereto, except that any Schedule or Exhibit to the Existing Credit Agreement not amended pursuant to the terms of this Amendment or otherwise included as part of said Annex I shall remain in effect without any amendment or other modification thereto.

3.    Limitation of Amendments.

(a)    The amendments set forth in Section 2, above, are effective for the purposes set forth herein and shall be limited precisely as written. This Amendment does not, and shall not be construed to, constitute a waiver of any past, present or future violation of the Credit Agreement, the other Credit Documents or any other related document, and shall not, directly or indirectly in any way whatsoever either: (i) impair, prejudice or otherwise adversely affect any Agent’s or any Lender’s right at any time to exercise any right, privilege or remedy in connection with the Credit Agreement, any other Credit Document or any other related document (all of which rights are hereby expressly reserved by the Agents and Lenders), (ii) except as specifically set forth herein, amend or alter any provision of the Credit Agreement, any other Credit Document or any other related document, (iii) constitute any course of dealing or other basis for altering any obligation of Borrower or any of its Affiliates or any right, privilege or remedy of any Agent or any Lender under the Credit Agreement, any other Credit Document or any other related document or (iv) constitute any consent (deemed or express) by any Agent or any Lender to any prior, existing or future violations of the Credit Agreement, any other Credit Document or any other related document. There are no oral agreements among the parties hereto, and no prior or future discussions or representations regarding the subject matter hereof shall constitute a waiver of any past, present or future violation of the Credit Agreement, any other Credit Document or any other related document.

(b)    This Amendment shall be construed in connection with and as part of the Credit Agreement and all terms, conditions, representations, warranties, covenants and agreements set forth in the Credit Agreement, as amended by this Amendment, and each other Credit Document are hereby ratified and confirmed and shall remain in full force and effect, except that on and after the date hereof all references in the other Credit Documents to the “Credit Agreement,” “thereto,” “thereof,” “thereunder” or words of like import referring to the Credit Agreement shall mean and refer to the Amended Credit Agreement.

 

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4.    Borrower Joinder; Representations and Warranties.

(a)    Effective as of the Sixth Amendment Effective Date, STF Borrower (i) elects to be a “Borrower” for all purposes of the Credit Agreement, (ii) confirms that the representations and warranties set forth in the Credit Agreement and the other Credit Documents made by a Borrower are true and correct as to STF Borrower as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such earlier date), (iii) confirms that it shall comply with each of the covenants set forth in the Credit Agreement and the other Credit Documents applicable to it and (iv) agrees to perform all the obligations of a Borrower under, and to be bound in all respects by the terms of, the Credit Agreement applicable to a Borrower. Without limiting the foregoing, the Borrowers agree that, as of the Sixth Amendment Effective Date, the provisions of Section 9.27 of the Credit Agreement apply to both OF IV Borrower and STF Borrower.

(b)    Each Credit Party and Guarantor affirms that the execution, delivery and performance of this Amendment and the performance by it of the Amended Credit Agreement have been duly authorized by all necessary action, and it has all requisite power and authority to execute, deliver and perform this Amendment and to perform the Amended Credit Agreement.

(c)    Each Credit Party and Guarantor represents and warrants that this Amendment and the Amended Credit Agreement constitute its legally valid and binding obligations, enforceable against it in accordance with the respective terms hereof and thereof, except as enforcement may be limited by equitable principles (regardless of whether enforcement is sought in equity or at law) or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally.

(d)    Each Credit Party (other than STF Borrower, SalaryTap and OppWin ST) and Guarantor (other than SalaryTap and OppWin ST) (each with respect to itself) represents and warrants that the representations and warranties contained in Section 4 of the Amended Credit Agreement are true and correct in all material respects as of the date hereof as though made on and as of the date hereof (except to the extent such representations and warranties expressly relate to an earlier date), and no Default or Event of Default exists (after giving effect to this Amendment) or would result from this Amendment becoming effective in accordance with its terms.

5A.    Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent, unless specifically waived in writing by the Administrative Agent:

(a)    The Administrative Agent shall have received this Amendment duly executed by the Credit Parties, the Guarantors, and the Lenders.

(b)    The Administrative Agent shall have received a duly executed replacement Note from the Borrowers in favor of the Lender dated as of the Sixth Amendment Effective Date and otherwise in compliance with the provisions of the Credit Agreement.

(c)    The Administrative Agent shall have received a duly executed Additional Guarantor Supplement from SalaryTap and OppWin ST.

 

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(d)    The Administrative Agent shall have received a joinder to the Guarantor Security Agreement, in form and substance acceptable to the Administrative Agent, duly executed by each of SalaryTap and OppWin ST, together with (i) an updated Perfection Certificate, duly completed and executed by the Guarantors, (ii) UCC financing statements to be filed against SalaryTap and OppWin ST, as debtors, in favor of the Administrative Agent, as secured party, (iii) such intellectual property collateral agreements relating to SalaryTap’s and OppWin ST’s registered intellectual property, each in form and substance acceptable to the Administrative Agent, and (iv) evidence of insurance required to be maintained by SalaryTap and OppWin ST under the Guarantor Security Agreement, together with certificates naming the Collateral Agent as lender’s loss payee and the Collateral Agent and the Administrative Agent as additional insureds, all in form and substance acceptable to the Administrative Agent.

(e)    The Administrative Agent shall have received the Security Agreement (STF Borrower) duly executed by STF Borrower, together with (i) a UCC financing statement to be filed against STF Borrower, as debtor, in favor of the Administrative Agent, as secured party, (ii) such intellectual property collateral agreements relating to STF Borrower’s registered intellectual property, each in form and substance acceptable to the Administrative Agent, and (iii) evidence of insurance required to be maintained by STF Borrower under the Credit Documents, together with certificates naming the Collateral Agent as lender’s loss payee and the Collateral Agent and the Administrative Agent as additional insureds, all in form and substance acceptable to the Administrative Agent.

(f)    The Administrative Agent shall have received copies of (i) each Organizational Document executed and delivered by STF Borrower, SalaryTap and OppWin ST, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, (ii) signature and incumbency certificates of the officers of each such Borrower and Guarantor, (iii) resolutions of the governing body of each such Borrower and Guarantor approving and authorizing the execution, delivery and performance of this Amendment and the other Credit Documents to which it is a party, as applicable, or by which it or its assets may be bound as of the date hereof, certified as of the date hereof by its secretary, an assistant secretary, its director of operations or similar officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate for such Borrower and Guarantor from the Delaware Secretary of State, each dated a recent date prior to the date hereof.

(g)    The Administrative Agent shall have received (i) a duly executed Sixth Amendment Closing Certificate, dated as of the Sixth Amendment Effective Date, and (ii) Solvency Certificates from each Credit Party dated as of the Sixth Amendment Effective Date and addressed to the Administrative Agent, attesting that before and after giving effect to the Sixth Amendment and the transactions contemplated thereby, such Credit Party is Solvent.

(h)    The Administrative Agent shall have received financing statement, tax, and judgment lien search results against STF Borrower, SalaryTap, OppWin ST, and their property, evidencing the absence of Liens thereon except as permitted by Section 6.2 of the Amended Credit Agreement.

(i)    The Administrative Agent shall have received the favorable written opinion of DLA Piper LLP (US), counsel for the Guarantors and the Borrowers, as to (i) corporate and

 

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enforceability matters, (ii) the creation and perfection of the security interests in favor of the Collateral Agent in the Collateral granted by the Guarantors under the Collateral Documents, and (iii) such other matters as the Administrative Agent may reasonably request, dated as of the date hereof and otherwise in form and substance reasonably satisfactory to the Administrative Agent and its counsel.

(j)    To the extent not heretofore delivered to the Lenders, each of the Lenders shall have received, sufficiently in advance of the date hereof, (i) all documentation and other information requested by any such Lender required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and the information described in Section 9.19 of the Amended Credit Agreement; (ii) a fully executed Internal Revenue Service Form W-9 (or its equivalent) for STF Borrower; and (iii) if STF Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, STF Borrower shall deliver a Beneficial Ownership Certification in relation to it.

(k)    The Borrower shall have paid to the Agents and the Lenders, as applicable, all outstanding Permitted Expenses.

(l)    The Administrative Agent shall have received one-year projected financial statements for the Guarantors and Credit Parties, all in form and substance reasonably acceptable to the Administrative Agent.

(m)    The Administrative Agent shall have received such other security agreements, deposit account control agreements, insurance certificates and endorsements, financing statements, opinions of counsel, documents and instruments as the Administrative Agent may reasonably request in respect of STF Borrower, SalaryTap and OppWin ST, each in form and substance reasonably satisfactory to the Administrative Agent.

(n)    Legal matters incident to the execution and delivery of this Amendment shall be satisfactory to the Administrative Agent and its counsel.

5B.    Post-Closing Obligations.

(i)    Promptly, but in any event no later than October 15, 2021 (or such later date as the Administrative Agent may agree to in its sole discretion), STF Borrower shall be qualified to do business in the State of Illinois and shall deliver or cause to be delivered to the Administrative a recent good standing certificate (or the equivalent thereof) for such Borrower from the Illinois Secretary of State. Failure to satisfy any of the foregoing requirements as aforesaid shall constitute an automatic Event of Default under the Credit Agreement.

(ii)    STF Borrower shall promptly (x) instruct Wells Fargo Bank, National Association, as Collection Account Bank in respect of STF Borrower, to remit all available funds on deposit in the applicable Collection Account to the Disbursement Account in respect of STF Borrower on each Business Day and (y) in connection therewith, deliver a blocked account control agreement in form and substance acceptable to the Administrative Agent. Until such time as the foregoing requirements are satisfied in a manner reasonably acceptable to the Administrative Agent, no Loans shall be requested by STF Borrower and the Commitment Availability (STF Borrower) shall be deemed to be $0.

 

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6.    Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the Credit Agreement and the Credit Documents and, except as expressly modified and superseded by this Amendment, the terms and provisions of the Credit Agreement and the other Credit Documents are ratified and confirmed as of the Effective Date and shall continue in full force and effect. The Borrower hereby agrees that all Liens and security interests securing payment of the Obligations under the Credit Documents are hereby collectively renewed, ratified and brought forward as security for the payment and performance of the Obligations. The Credit Parties, the Guarantors, the Agents and the Lenders agree that the Credit Agreement and the other Credit Documents, as amended hereby, shall continue to be legal, valid, binding and enforceable in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law).

7.    Reaffirmation. Each Guarantor hereby represents and warrants that its Guaranty and each other Credit Document to which such Guarantor is a party is the legal, valid and binding obligation of such Guarantor, enforceable against such Guarantor in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability. Each Guarantor confirms that the representations and warranties set forth in the Credit Agreement and the other Credit Documents made by such Guarantor are true and correct as to such Guarantor in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct in all material respects as of such earlier date) and each Guarantor shall comply with each of the covenants set forth in the Credit Agreement and the other Credit Documents applicable to it. Without limiting the generality of the foregoing, each Guarantor hereby agrees to perform all the obligations of a Guarantor under, and to be bound in all respects by the terms of, the Credit Agreement, including without limitation Section 10 thereof, to the same extent and with the same force and effect as if such Person was an original signatory party thereto.

8.    Reference to Credit Agreement; Amendment as a Credit Document. Each of the Credit Agreement and the other Credit Documents, and any and all other agreements, documents or instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Credit Agreement, as amended hereby, are hereby amended so that any reference in the Credit Agreement and such other Credit Documents to the Credit Agreement shall mean a reference to the Credit Agreement as amended hereby. Each Credit Party and Guarantor acknowledges and agrees that this Amendment constitutes a “Credit Document.”

9.    Expenses of Agents and Lenders. Each Credit Party agrees to pay, jointly and severally, promptly after demand, all reasonable and documented out-of-pocket costs and expenses of the Agents and the Lenders in connection with the negotiation, preparation, execution and delivery of this Amendment in accordance with Section 9.2 of the Amended Credit Agreement.

 

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10.    Severability. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

11.    Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of the Agents, the Lenders, the Credit Parties, the Guarantors, and their respective successors and permitted assigns, except that the Credit Parties and the Guarantors may not assign or transfer any of its respective rights or obligations hereunder without the prior written consent of the Administrative Agent.

12.    Counterparts. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Amendment by telecopy or other electronic means shall be effective as delivery of a manually executed counterpart of this Amendment. This Amendment may be in the form of an Electronic Record and may be executed using Electronic Signatures (including, without limitation, facsimile and .pdf) and shall be considered an original, and shall have the same legal effect, validity and enforceability as a paper record. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Agents of a manually signed paper Amendment which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Amendment converted into another format, for transmission, delivery and/or retention. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.

13.    No Waiver. Other than as specifically set forth in Section 2, nothing contained in this Amendment shall be construed as an amendment or waiver by the Agents or the Lenders of any covenant or provision of the Credit Agreement, the other Credit Documents, this Amendment, or of any other contract or instrument among the Credit Parties, the Guarantors, the Lenders and the Agents, and the failure of the Lenders and the Agents at any time or times hereafter to require strict performance by the Credit Parties and the Guarantors of any provision thereof shall not waive, affect or diminish any right of the Agents to thereafter demand strict compliance therewith. The Agents and Lenders hereby reserve all rights granted to each of them under the Credit Agreement, the other Credit Documents, this Amendment and any other contract or instrument among the Credit Parties and the Guarantors and any one or more of the Agents and the Lenders.

14.    Release. To the extent permitted by applicable law, no Credit Party and no Guarantor shall assert, and each Credit Party and each Guarantor hereby waives, any claim against the Lenders, the Agents and their respective Affiliates, directors, employees, attorneys or agents, on any theory of liability, arising out of, in connection with, as a result of, or in any way related to this Amendment and each Credit Document on or before the date of this Amendment and each of Credit Party and Guarantors hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

 

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15.    Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.

16.    Applicable Law. THIS AMENDMENT, AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

17.    Final Agreement. THE CREDIT AGREEMENT, AS AMENDED HEREBY, CONSTITUTES THE ENTIRE CONTRACT BETWEEN AND AMONG THE PARTIES RELATING TO THE SUBJECT MATTER THEREOF AND SUPERSEDES ANY AND ALL PREVIOUS AGREEMENTS AND UNDERSTANDINGS, ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER THEREOF.

18.    Time. Time is of the essence of this Amendment.

[Page intentionally left blank; signature pages follow]

 

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IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment as of the date first above-written.

 

 

Signature Page to Amendment No. 6 to Revolving Credit Agreement

 

Signature Page to Amendment No. 6 to Revolving Credit Agreement

ANNEX I TO AMENDMENT NO. 6 TO REVOLVING CREDIT AGREEMENT

[Attached.]

*Conformed throughANNEX I TO		AMENDMENT No.56

 

 

 

REVOLVING CREDIT AGREEMENT

dated as of August 19, 2019,

among

 

OPPORTUNITY FUNDINGOPPORTUNITY FUNDING		SPE IV, LLC and

SALARYTAP FUNDING SPE, LLC,

as BorrowerBorrowers

OPPORTUNITY FINANCIAL, LLC,

as the Originator, the Servicer and a Seller and as a Guarantor,

OPPWIN, LLC,

SALARYTAP, LLC, and

OPPWIN SALARYTAP, LLC,

each as a Guarantor and a Seller,

the other Credit Parties and Guarantors from time to time party hereto,

BMO HARRIS BANK N.A.,

as Administrative Agent and Collateral Agent

and

the Lenders party hereto

 

 

Senior Secured Revolving Credit Facility

 

 

 

 

 

 

TABLE OF CONTENTS

 

SECTION		HEADING		PAGE
SECTION 1.		DEFINITIONS AND INTERPRETATION			1
Section 1.1.		Definitions			1
Section 1.2.		Accounting Terms			4145
Section 1.3.		Interpretation, etc.			4145
SECTION 2.		LOANS			4246
Section 2.1.		Loans			4246
Section 2.2.		Use of Proceeds			4346
Section 2.3.		Evidence of Indebtedness			4347
Section 2.4.		Interest on Loans			4347
Section 2.5.		Default Interest			4448
Section 2.6.		Commitment Terminations			4448
Section 2.7.		Voluntary Prepayments			4448
Section 2.8.		Receivable Repurchase Events			4448
Section 2.9.		Controlled Accounts			4549
Section 2.10.		Application of Collections			4650
Section 2.11.		General Provisions Regarding Payments			4852
Section 2.12.		Effect of Benchmark Transition Event			4953
Section 2.13.		Increased Costs; Capital Adequacy			5660
Section 2.14.		Taxes; Withholding; Payments Free of Taxes			5862
Section 2.15.		Obligation to Mitigate			6165
Section 2.16.		Determination of Borrowing Base			6266
Section 2.17.		Cure of Borrowing Base Deficiency			6266
Section 2.18.		Increases			6266
Section 2.19.		Defaulting Lenders			6367
SECTION 3.		CONDITIONS PRECEDENT			6468
Section 3.1.		Closing Date			6468
Section 3.2.		Conditions to Each Credit Extension			6973
Section 3.3.		Conditions to Each Release of Funds			7175
SECTION 4.		REPRESENTATIONS AND WARRANTIES			7377
Section 4.1.		Organization; Requisite Power and Authority; Qualification; Other Names			7377
Section 4.2.		Due Authorization			7377
Section 4.3.		No Conflict			7377
Section 4.4.		Governmental Consents			7478
Section 4.5.		Binding Obligation			7478
Section 4.6.		Receivables			7478
Section 4.7.		No Adverse Selection			7478

Section 4.8.		No Material Adverse Effect; No Tier 2 Collateral Performance Trigger			7579
Section 4.9.		No Change of Control			7579
Section 4.10.		Adverse Proceedings, etc.			7579
Section 4.11.		Payment of Taxes			7579
Section 4.12.		Title to Assets			7579
Section 4.13.		No Indebtedness			7579
Section 4.14.		No Defaults			7580
Section 4.15.		Governmental Regulation			7680
Section 4.16.		Margin Stock			7680
Section 4.17.		Certain Fees			7680
Section 4.18.		Solvency and Fraudulent Conveyance			7680
Section 4.19.		Compliance with Statutes, etc.			7680
Section 4.20.		Disclosure			7681
Section 4.21.		Sanctions; Anti-Money Laundering Laws and Anti-Corruption Laws			7781
Section 4.22.		Security Interest			7781
Section 4.23.		Payment Instructions; etc.			7882
Section 4.24.		FinWise Contracts			7882
Section 4.25.		ERISA			7882
Section 4.26.		Capital Structure			7983
SECTION 5.		AFFIRMATIVE COVENANTS			7983
Section 5.1.		Reports			7983
Section 5.2.		Existence			8286
Section 5.3.		Payment of Taxes and Claims			8286
Section 5.4.		Compliance with Laws			8286
Section 5.5.		Guaranties; Collateral, and Further Assurances			8387
Section 5.6.		Separateness			8387
Section 5.7.		Cash Management Systems			8791
Section 5.8.		Insurance			8892
Section 5.9.		Financial Statements and Other Information			8993
Section 5.10.		Due Diligence; Access to Certain Documentation			9094
Section 5.11.		Financial Covenants			9196
Section 5.12.		Most Favored Lender Status			9398
Section 5.13.		Purchase of Additional Receivables			9398
Section 5.14.		Negative Pledge			9498
Section 5.15.		Account Notices			9499
Section 5.16.		Business Activities			9499
Section 5.17.		Bank Partner Originated Receivables; Transfer of Title			9499
Section 5.18.		ERISA			9599
SECTION 6.		NEGATIVE COVENANTS			95100
Section 6.1.		Indebtedness			95100
Section 6.2.		Liens			97102
Section 6.3.		Investments; Subsidiaries			97102
Section 6.4.		Fundamental Changes; Disposition of Assets; Acquisitions			97102

 

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Section 6.5.		Material Contracts and Organizational Documents			98103
Section 6.6.		Sales and Lease-Backs			98103
Section 6.7.		Transactions with Shareholders and Affiliates			98103
Section 6.8.		Conduct of Business			99104
Section 6.9.		Fiscal Year			99104
Section 6.10.		Accounts			99104
Section 6.11.		Prepayments of Certain Indebtedness			99104
Section 6.12.		Servicing Agreement and Backup Servicing Agreement			100104
Section 6.13.		Independent Director			100105
Section 6.14.		Sales of Receivables			100105
Section 6.15.		Changes to the Credit Policies or the Servicing Policy			101106
Section 6.16.		Changes to Bank Partner Program Agreements			101106
Section 6.17.		Subordinated Debt			101106
Section 6.18.		Additional COVID-19 Related Covenants			101
SECTION 7.		EVENTS OF DEFAULT			102107
Section 7.1.		Events of Default			102107
SECTION 8.		AGENTS			107112
Section 8.1.		Appointment of Agents			107112
Section 8.2.		Agents Entitled to Act as Lender			108112
Section 8.3.		Powers and Duties			108113
Section 8.4.		No Responsibility for Certain Matters			108113
Section 8.5.		Exculpatory Provisions			109113
Section 8.6.		Collateral Documents and Intercreditor Agreements			109114
Section 8.7.		Lenders’ Representations, Warranties and Acknowledgments			110115
Section 8.8.		Authorization to Release, Limit or Subordinate Liens or to Release Guaranties			111115
Section 8.9.		Right to Indemnity			111116
Section 8.10.		Resignation of Administrative Agent and Collateral Agent			112116
Section 8.11.		Bank Product Obligations			112117
Section 8.12.		Designation of Additional Agents			113117
Section 8.13.		Authorization of Administrative Agent to File Proofs of Claim			113118
Section 8.14.		Recovery of Erroneous Payments			118
SECTION 9.		MISCELLANEOUS			114119
Section 9.1.		Notices			114119
Section 9.2.		Expenses			114119
Section 9.3.		Indemnity			115120
Section 9.4.		Set-Off			118123
Section 9.5.		Amendments and Waivers			119125
Section 9.6.		Successors and Assigns			121126
Section 9.7.		Independence of Covenants			125130
Section 9.8.		Survival of Representations, Warranties and Agreements			125130
Section 9.9.		No Waiver; Remedies Cumulative			125131

 

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Section 9.10.		Marshalling; Payments Set Aside			126131
Section 9.11.		Severability			126131
Section 9.12.		Headings			126131
Section 9.13.		No Advisory or Fiduciary Responsibility			126131
Section 9.14.		Governing Law; Jurisdiction; Consent to Service of Process			127132
Section 9.15.		Waiver of Jury Trial			128133
Section 9.16.		Usury Savings Clause			128133
Section 9.17.		Counterparts			128134
Section 9.18.		Effectiveness			129134
Section 9.19.		Patriot Act			129134
Section 9.20.		Prior Agreements			129134
Section 9.21.		Third Party Beneficiaries			129134
Section 9.22.		Confidentiality			129134
Section 9.23.		No Consolidation			131136
Section 9.24.		Certain ERISA Matters			131136
Section 9.25.		Acknowledgement and Consent to Bail-In of EEA Financial Institutions			132137
Section 9.26.		Time is of the Essence			133138
Section 9.27.		Joint and Several			138
SECTION 10.		THE GUARANTEE			133139
Section 10.1.		The Guarantee			133139
Section 10.2.		Guarantee Unconditional			133140
Section 10.3.		Discharge Only upon Payment in Full; Reinstatement in Certain Circumstances			134140
Section 10.4.		Subrogation			135141
Section 10.5.		Subordination			135141
Section 10.6.		Waivers			135141
Section 10.7.		Limit on Recovery			135141
Section 10.8.		Stay of Acceleration			135141
Section 10.9.		Benefit to Guarantors			136142
SECTION 11.		SBA PPP LOAN PROVISIONS			136142
Section 11.1.		Defined Terms			136142
Section 11.2.		SBA PPP Loan			136142
Section 11.3.		Affirmative Covenants			136143

 

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APPENDICES:
APPENDIX A		—		Commitments
APPENDIX B		—		Notice Addresses
APPENDIX C-1		—		Eligibility Criteria (OF IV Borrower)
APPENDIX C-2		—		Eligibility Criteria (STF Borrower)
APPENDIX D-1		—		Excess Concentration Amounts (OF IV Borrower)
APPENDIX D-2		—		Excess Concentration Amounts (STF Borrower)
APPENDIX E -I		—		Credit Policies (Company Originations)
APPENDIX E-II		—		Credit Policies (FinWise Originations)
APPENDIX F		—		Form of FinWise Contract and Promissory Note
EXHIBITS:
EXHIBIT A		—		Form of Funding Notice
EXHIBIT B		—		Form of Revolving Loan Note
EXHIBIT C-1(a)		—		Form of Borrowing Base Certificate (OF IV Borrower)
EXHIBIT C-1(b)		—		Form of Borrowing Base Certificate (STF Borrower)
EXHIBIT C-2		—		Form of Compliance Certificate
EXHIBIT D		—		Form of Assignment and Assumption Agreement
EXHIBIT E		—		Form of Closing Date Certificate
EXHIBIT F		—		Form of Solvency Certificate
EXHIBIT G		—		Form of Funds Release Request
EXHIBIT H		—		Form of Increase Request
EXHIBIT I		—		Form of Additional Guarantor Supplement
EXHIBIT J		—		Form of Sixth Amendment Closing Certificate
SCHEDULES:
SCHEDULE 4.1		—		Subsidiaries
SCHEDULE 4.12		—		Existing Liens

 

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REVOLVING CREDIT AGREEMENT

This REVOLVING CREDIT AGREEMENT, dated as of August 19, 2019 (as it may be amended, restated, supplemented or otherwise modified in accordance with the terms hereof, this “Agreement”), is entered into among OPPORTUNITY FUNDINGOPPORTUNITY FUNDING SPE IV, LLC, a Delaware limited liability company, as (“OF IV Borrower (”), and SALARYTAP FUNDING SPE, LLC, a Delaware limited liability company (“STF Borrower”), as Borrowers (together, the “Borrowers” and each, a “Borrower”), OPPORTUNITY FINANCIAL, LLC, a Delaware limited liability company (the “Company”), as a Guarantor, the Originator, the Servicer and as a Seller (in each case, as defined herein), OPPWIN, LLC, as a Guarantor and a Seller, SALARYTAP, LLC, as a Guarantor and a Seller, OPPWIN SALARYTAP, LLC, as a Guarantor and a Seller, the other Credit Parties and Guarantors from time to time party hereto, BMO HARRIS BANK N.A. (“BMO Harris”), as Administrative Agent (in such capacity, the “Administrative Agent”) and Collateral Agent (in such capacity, the “Collateral Agent”), and the Lenders (as defined herein) party hereto.

WITNESSETH:

WHEREAS, the Lenders have agreed to extend a senior secured credit facility (the “Facility”) to the BorrowerBorrowers , the proceeds of which will be used by the BorrowerBorrowers to acquire Receivables from the Sellers and to pay fees and expenses related to the foregoing; and

WHEREAS, the BorrowerBorrowers and the Guarantors have agreed to secure all of the Secured Obligations by granting to the Collateral Agent, for the benefit of the Secured Parties, a first priority Lien on all of their assets.

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION 1.     DEFINITIONS AND INTERPRETATION.

Section 1.1. Definitions. The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:

“Additional Bank Partner Originator” means First Electronic Bank, Capital Community Bank, and any additional bank partner selected by the Company and approved by the Administrative Agent in its sole discretion.

“Additional Bank Partner Originator Loan Program Agreement” means an agreement, approved by the Administrative Agent, entered into after the Closing Date by the Company and/or one or more of its Affiliates and an Additional Bank Partner Originator in connection with its approval of such Additional Bank Partner Originator, and pursuant to which the Company and/or one or more of its Affiliates party thereto agrees to provide certain marketing, administration and/or loan servicing or subservicing services in connection with the Contracts originated by such Additional Bank Partner Originator, as such agreement may be amended, restated, supplemented and/or otherwise modified from time to time in accordance with the terms thereof.

“Additional Bank Partner Originator Program Agreements” means each Additional Bank Partner Originator Loan Program Agreement and each other servicing agreement, purchase agreement or other agreement entered into by the Company or its Affiliates with such Additional Bank Partner Originator in connection with the loan program contemplated by such Additional Bank Partner Originator Loan Program Agreement.

“Adjusted EBIT (Company)”means, with reference to any period, Net Income of the Company for such period determined on a consolidated basis in accordance with GAAP, plus, without duplication, all amounts deducted in arriving at such Net Income amount in respect of (a) Interest Expense for such period, (b) federal, state and local income taxes for such period, (c) one-time expenses incurred during such period (and prior to the Fifth Amendment Effective Date) in respect of the SPAC Transaction in an aggregate amount not to exceed $[***], and (d) ongoing charges and expenses incurred during such period in respect of SPAC Warrant Liabilities in an aggregate amount not to exceed $[***] in any period of twelve consecutive months; provided that, solely for purposes of calculating Adjusted EBIT (Company) for any measurement period ending on or prior to December 31, 2021, the addback set forth in this clause (d) shall not be subject to any cap.

“Adjusted EBITDA (Company)”means, with reference to any period, Net Income of the Company for such period determined on a consolidated basis in accordance with GAAP, plus, without duplication, all amounts deducted in arriving at such Net Income amount in respect of (a) Interest Expense for such period, (b) federal, state and local income taxes for such period, (c) depreciation of fixed assets and amortization of intangible assets for such period, (d) one-time expenses incurred during such period (and prior to the Fifth Amendment Effective Date) in respect of the SPAC Transaction in an aggregate amount not to exceed $[***], and  (e) ongoing charges and expenses incurred during such period in respect of SPAC Warrant Liabilities in an aggregate amount not to exceed $[***] in any period of twelve consecutive months; provided that, solely for purposes of calculating Adjusted EBITDA (Company) for any measurement period ending on or prior to December 31, 2021, the addback set forth in this clause (e) shall not be subject to any cap, plus (f) equity compensation paid in Capital Stock of OppFi Inc. during such period which is a non-cash expense.

“Adjusted Tangible Net Worth (Borrower)”means, with respect to any Borrower, at any time the same is to be determined, an amount equal to the difference between (a) total assets of thesuch Borrower, plus any reduction in total assets of thesuch Borrower for any allowance for loan losses, less the sum (without duplication) of (i) intangible assets, (ii) receivables (whether an account receivable, loan receivable, note receivable or otherwise) from shareholders, members, officers and Affiliates, and (iii) receivables that are 91 or more days past due and not charged off, in each case for thesuch Borrower minus (b) total liabilities of thesuch Borrower, exclusive of liabilities of thesuch Borrower owing to the Company, in each case determined in accordance with GAAP.

 

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“Adjusted Tangible Net Worth (Company)”means, at any time the same is to be determined, an amount equal to the sum of: (a) total members equity of the Company less the sum (without duplication) of (i) capitalized transaction expenses, (ii) prepaid expenses and prepaid cloud server based expenses included as part of other current assets, (iii) receivables (whether an account receivable, loan receivable, note receivable or otherwise) from shareholders, members, officers and Affiliates, and (iv) any goodwill and other intangible assets not included in (a)(i), (a)(ii), and (a)(iii) above, plus (b) the principal amount of, and any accrued noncurrent pay interest on, Qualifying Subordinated Debt, in each case, determined on a consolidated basis in accordance with GAAP.

“Administrative Agent" as defined in the preamble hereto.

“Administrative Agent Fee” is defined in the Fee Letter.

“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

“Advance Rate” initially means [***]means the Advance Rate (OF IV Borrower) or the Advance Rate (STF Borrower), as the context may require.

“Advance Rate (OF IV Borrower)” means, commencing with the Sixth Amendment Effective Date, [***]% and thereafter the Advance Rate (OF IV Borrower) shall be adjusted based on the most recent Loan Receivable Quality Ratio (OF IV Borrower) in accordance with the following schedule: [***]

The Loan Receivable Quality Ratio (OF IV Borrower) shall be computed monthly by theOF IV Borrower (subject to the review and approval of the Administrative Agent) and be included in its Compliance Certificate delivered pursuant to Section 5.9(c) hereofthe Monthly Servicing Report, at which time any adjustment to the Advance Rate (OF IV Borrower) based on such computation shall become effective and thereafter remain in effect until delivery of athe next Monthly Servicing Report. If the Credit Parties fail to deliver the Compliance Certificate or provide the Loan Receivable Quality Ratio (OF IV Borrower) computation as so required, the Advance Rate (OF IV Borrower) shall be deemed to be equal to [***]% until such Monthly Servicing Report and Loan Receivable Quality Ratio (OF IV Borrower) computation are delivered.

 

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“Advance Rate (STF Borrower)” means, commencing with the Sixth Amendment Effective Date through and including the Advance Rate Adjustment Date (STF Borrower), [***]% and thereafter the Advance Rate (STF Borrower) shall be adjusted based on the most recent Loan Receivable Quality Ratio (STF Borrower) in accordance with the following the endschedule: [***]

The Loan Receivable Quality Ratio (STF Borrower) shall be computed monthly by STF Borrower (subject to the review and approval of the Administrative Agent) and be included in the Monthly Servicing Report, at which time any adjustment to the Advance Rate (STF Borrower) based on such computation shall become effective and thereafter remain in effect until delivery of the next calendar monthMonthly Servicing Report. If the Borrower failsCredit Parties fail to deliver itsthe Compliance Certificate or provide itsthe Loan Receivable Quality Ratio (STF Borrower) computation as so required, the Advance Rate (STF Borrower) shall be deemed to be equal to [***]% until such Compliance CertificateMonthly Servicing Report and Loan Receivable Quality Ratio (STF Borrower) computation are delivered.

“Advance Rate Adjustment Date (STF Borrower)” means the earliest to occur of (i) September 30, 2022, (ii) the date on which the Borrowing Base (STF Borrower) reaches and is sustained (as determined by the Administrative Agent in its sole discretion) at $[***] or higher, and (iii) the date on which the Administrative Agent determines in its sole discretion that the Eligible Receivables of STF Borrower are not satisfactorily performing.

“Adverse Proceeding” means, with respect to any Person, any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of such Person) at law or in equity, or before or by any Governmental Authority, domestic or foreign, whether pending or, to the knowledge of such Person, threatened (in writing) against or affecting such Person or its properties.

“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling (including any member of senior management of such Person), controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with

 

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correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (a) to vote 20% or more of the Securities having ordinary voting power for the election of directors of such Person or (b) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or other beneficial interests or by contract or otherwise.

“Age” means, for any Receivable, a fraction rounded down to the largest integer that does not exceed the fraction, (x) the numerator of which is the number of days elapsed from the Receivable’s Origination Date until the date of determination computed on the basis of a 360-day year; and (y) the denominator of which is 30.

“Agent” means each of the Administrative Agent and the Collateral Agent.

“Aggregate Borrowing Base” means, as of any date of determination, the sum of (i) the Borrowing Base (OF IV Borrower) then in effect and (ii) the Borrowing Base (STF Borrower) then in effect.

“Agreement” as defined in the preamble hereto.

“Amortization Period” means the period beginning on the Scheduled Termination Date and ending on the Final Maturity Date; provided that if on the Scheduled Termination Date the Tier 2 Collateral Performance Trigger has occurred and is continuing or any other Default or Event of Default has occurred and is continuing, there shall be no Amortization Period. In the event there is no Amortization Period, the Final Maturity Date shall automatically without further action or notice be the Scheduled Termination Date.

“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to theany Borrower, the Company or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.

“Applicable Margin” means 4.25, as of any date of determination, (a) to the extent Excess Availability as of the date of the most recently delivered Borrowing Base Certificates is less than or equal to 10% of the Revolving Commitments as then in effect, 3.85% and (b) to the extent Excess Availability as of the date of the most recently delivered Borrowing Base Certificates is greater to 10% of the Revolving Commitments as then in effect, 3.70%.

“Approved Bank Partner Originator State” means, (i)[***], and (ii) such other states that the Borrower requestsBorrowers request, in writing, to add and which are approved in writing by the Administrative Agent in its sole discretion; provided, however, that in no event will a state in which a Bank Partner Originator Regulatory Trigger Event or a Regulatory Trigger Event is continuing be an “Approved Bank Partner Originator State”.

 

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“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered, advised or managed by (a) any Lender, (b) an Affiliate of any Lender, or (c) an entity or Affiliate of an entity that administers, advises or manages a Lender.

“Approved State” means, initially, [***] and such other states that the Borrower requestsBorrowers request, in writing, to add and which are approved in writing by the Administrative Agent in its sole discretion; provided, however, that in no event will a state in which a Regulatory Trigger Event is continuing be an “Approved State”.

“APR” of a Receivable means the annualized rate of the monthly finance charges stated in the Contract (calculated in accordance with TILA and after giving effect to any Origination Fees).

“Assignment” as defined in the applicable Purchase Agreement or the applicable Bank Partner Sale Agreement, as applicable.

“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit D, with such amendments or modifications as may be approved by the Administrative Agent.

“Atalaya Subordinated Loan Agreement” means that certain Senior Secured Multi-Draw Term Loan Agreement dated as of November 9, 2018, as amended, modified, supplemented or restated from time to time on or prior to the Fourth Amendment Effective Date, including pursuant to that certain Omnibus Amendment to Loan Agreement and Other Basic Documents dated as of the Fourth Amendment Effective Date, among the Company, Midtown Madison Management LLC as administrative agent, and the lenders party thereto, as the same may be further amended, modified, supplemented or restated from time to time in accordance with the Atalaya Subordination and Intercreditor Agreement, or as the same may be refinanced or replaced pursuant to a Permitted Refinancing.

“Atalaya Subordination and Intercreditor Agreement” means that certain Subordination and Intercreditor Agreement dated on or about the Fourth Amendment Effective Date, among Midtown Madison Management LLC, as “Subordinated Creditor Representative” thereunder, BMO Harris, as “Senior Creditor Representative” thereunder, and the Company, as the same may be amended, modified, supplemented or restated from time to time in accordance with its terms, as the same may be amended or replaced in connection with a Permitted Refinancing of the Atalaya Subordinated Loan Agreement.

“Authorized Officer” means, as applied to any Person, any individual holding the position of chairman of the board (if an officer), chief executive officer, president or one of its vice presidents (or the equivalent thereof), and such Person’s chief financial officer or treasurer.

 

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“Backup Servicer” means Vervent, Inc. (f/k/a First Associates Loan Servicing, LLC), or any independent third party selected by the Company and approved by the Administrative Agent in its reasonable discretion, to perform monitoring functions with respect to the Receivables and to assume the role of successor Servicer upon removal or resignation of the Servicer, in each case, as set forth in the Backup Servicing Agreement.

“Backup Servicing Agreement” means that certain Backup Servicing Agreement, dated as of August 19, 2019, among the Backup Servicer, the Servicer, the Administrative Agent, the Collateral Agent, and theOF IV Borrower (which STF Borrower joinded pursuant to the Joinder to Backup Servicing Agreement dated as of the Sixth Amendment Effective Date), as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“Backup Servicing Fees” as defined in the Backup Servicing Agreement.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Bank Partner Originated Receivable” means each Receivable originated pursuant to the relevant Bank Partner Program Agreements (including, without limitation, each FinWise Receivable originated pursuant to the FinWise Program Agreements).

“Bank Partner Originator” means each of the FinWise Originator and any Additional Bank Partner Originator.

“Bank Partner Originator Regulatory Trigger Event” means, for any jurisdiction, the commencement by a Governmental Authority, against any financial institution (including any Bank Partner Originator), any Credit Party or any other company similar to a financial institution or the Originator, of a proceeding alleging in substance that the law of the borrower’s state governs applicable licensing requirements or interest rate limitations with respect to loans made by a federally insured financial institution to borrowers in such jurisdiction, which, in each case, the Administrative Agent determines, in its sole discretion, could reasonably be expected to have a material adverse effect on the Bank Partner Originated Receivables if determined adversely; provided, that, in each case, upon the favorable resolution of such proceeding (whether by judgment, withdrawal of such proceeding or settlement of such proceeding), as determined by the Administrative Agent in its sole discretion and confirmed by written notice from the Administrative Agent, such Bank Partner Originator Regulatory Trigger Event for such jurisdiction shall cease to exist immediately upon such determination by the Administrative Agent. It is understood and agreed that the jurisdiction of a Bank Partner Originator Regulatory Trigger Event is the entire United States if the applicable Governmental Authority is a federal authority.

“Bank Partner Program Agreements” means the FinWise Program Agreements and any Additional Bank Partner Originator Program Agreements, as amended from time to time in accordance with the terms thereof and hereof.

 

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“Bank Partner Retained Percentage” means, with respect to a consumer loan originated by a Bank Partner Originator, a portion of the economic interest in the obligations of the related Obligor to make payments thereunder that such Bank Partner Originator retains, if any, pursuant to the applicable Bank Partner Program Agreement, and which retained portion is stated as a percentage of the entire consumer loan and which shall not exceed [***]% without the approval of the Administrative Agent in its reasonable discretion.

“Bank Partner Sale Agreement” means, collectively, the OppWin Sale Agreement, the OppWin ST Sale Agreement and any similar agreement entered into by a Bank Partner Subsidiary, as seller, and thea Borrower, as purchaser, in connection with an Additional Bank Partner Originator Loan Program Agreement.

“Bank Partner Subsidiary” means OppWin, OppWin ST and any other Subsidiary of the Company that is party to a Bank Partner Sale Agreement.

“Bank Products” means (a) each and any of the following bank products and services provided to theany Borrower or any Guarantor or any of its Subsidiaries by any Lender or any of its Affiliates: depository, cash management, and treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services) and (b) any and all letters of credit issued by the Administrative Agent or any of its Affiliates in favor of theany Borrower or any Guarantor or any of its Subsidiaries.

“Bank Product Obligations” means any and all obligations of theany Borrower or any Guarantor or any of its Subsidiaries, whether now existing or hereafter arising, absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Bank Products.

“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.

“Base Rate” means, for any day, the rate per annum equal to the greatest of: (a) the rate of interest announced or otherwise established by the Administrative Agent from time to time as its prime commercial rate as in effect on such day, with any change in the Base Rate resulting from a change in said prime commercial rate to be effective as of the date of the relevant change in said prime commercial rate (it being acknowledged and agreed that such rate may not be the Administrative Agent’s best or lowest rate), (b) the sum of (i) the Federal Funds Effective Rate for such day, plus (ii) 1/2 of 1%, and (c) the LIBOR Quoted Rate for such day plus 1.00%. As used herein, the term “LIBOR Quoted Rate” means, for any day, the rate per annum equal to the quotient of (i) the rate per annum (rounded upwards, if necessary, to the next higher one hundred-thousandth of a percentage point) for deposits in U.S. Dollars for a one-month interest period as reported on the applicable Bloomberg screen page (or such other commercially available

 

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source providing such quotations as may be designated by the Administrative Agent from time to time) as of 11:00 a.m. (London, England time) on such day (or, if such day is not a Business Day, on the immediately preceding Business Day) divided by (ii) one (1) minus the Eurodollar Reserve Percentage,; provided that in no event shall the “LIBOR Quoted Rate” be less than 0.40%. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.3 hereof, then the Base Rate shall be the greater of clause (a) and (b) above and shall be determined without reference to clause (c) above.

“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“Borrower” asand “Borrowers” are defined in the preamble hereto.

“Borrowing Base” means the Borrowing Base (OF IV Borrower) or the Borrowing Base (STF Borrower), as the context may require.

“Borrowing Base (OF IV Borrower)” means, as of any date of determination, an amount equal to (a) the Advance Rate (OF IV Borrower) as then in effect multiplied by the Net Eligible Receivables Balance of the Eligible Receivables (OF IV Borrower), plus (b) all available funds then on deposit in theOF IV Borrower’s Collection Account and theDisbursement Account, so long as the Collateral Agent has a valid, perfected first priority Lien on each such account, minus (c) the sum of (i) the aggregate amount of Bank Partner Retained Percentages of Collections that have not be remitted to the Bank Partner Originators as of the date of determination and (ii) Reserves then in effect as of such date of determination.

“Borrowing Base (STF Borrower)” means, as of any date of determination, an amount equal to (a) the Advance Rate (STF Borrower) as then in effect multiplied by the Net Eligible Receivables Balance of the Eligible Receivables (STF Borrower), plus (b) all available funds then on deposit in STF Borrowers’ Collection Account and Disbursement Account, so long as the Collateral Agent has a valid, perfected first priority Lien on each such account, minus (c) the sum of (i) the aggregate amount of Bank Partner Retained Percentages of Collections that have not be remitted to the Bank Partner Originators as of the date of determination and (ii) Reserves then in effect as of such date of determination.

“Borrowing Base Action” means any of the following actions: (i) the borrowing of a Revolving Loan pursuant to Section 2.1(a)(i), and (ii) the application of funds in thea Disbursement Account toward the purchase of Eligible Receivables pursuant to Section 2.10(c).

“Borrowing Base Certificate” means a certificate, substantially in the form of Exhibit C-1-1 or C-2, as applicable, executed by an Authorized Officer of the applicable Borrower and delivered to the Administrative Agent, which sets forth the calculation of the appliable Borrowing Base, including a calculation of each component thereof.

 

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“Borrowing Base Deficiency” means, as of any date of determination, any of all of the following, as the context may require: (a) the amount by which the aggregate principal amount of all Loans outstanding exceeds the Aggregate Borrowing Base, (b) the amount by which the aggregate principal amount of all outstanding Loans issued in favor of OF IV Borrower exceeds the Borrowing Base (OF IV Borrower) and (c) the amount by which the aggregate principal amount of all outstanding Loans issued in favor of STF Borrower exceeds the Borrowing Base (STF Borrower).

“Business Combination Agreement” means that certain Business Combination Agreement, dated as of February 9, 2021, by and among FG New America Acquisition Corp., a Delaware corporation, the Company, OppFi Shares, LLC, a Delaware limited liability company and Todd Schwartz, as the Members’ Representative, as amended, restated, supplemented or otherwise modified from time to time so long as, without the prior written consent of the Administrative Agent, such amendment, restatement, supplement or modification is not materially adverse to the interests of the Administrative Agent and the Lenders or their interest in the Collateral.

“Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of Illinois or is a day on which banking institutions located in any such state are authorized or required by law or other governmental action to close.

“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person (a) as lessee that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person or (b) as lessee which is a transaction of a type commonly known as a “synthetic lease” (i.e., a transaction that is treated as an operating lease for accounting purposes but with respect to which payments of rent are intended to be treated as payments of principal and interest on a loan for U.S. federal income tax purposes).

“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including, without limitation, partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.

“Cash” means money, currency or a credit balance in any demand or deposit account.

“Cash Collections” means all cash collections received by the Company and its Subsidiaries from any Person in respect of any finance receivables, including all principal, interest, fees and cash payoffs payable to the Company and its Subsidiaries under or in connection with any finance receivables.

“Cash Equivalents” means, as at any date of determination, (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States of America, or (ii) issued by any agency of the United States of America the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one (1) year after such date, (b) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in

 

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each case maturing within one (1) year after such date and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s, (c) commercial paper maturing no more than one (1) year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s, (d) certificates of deposit or bankers’ acceptances maturing within one (1) year after such date and issued or accepted by a Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator), and (ii) has Tier 1 capital (as defined in such regulations) of not less than $100,000,000; and (e) shares of any money market mutual fund that (i) has substantially all of its assets invested continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than $500,000,000, and (iii) has the highest rating obtainable from either S&P or Moody’s.

“Cash Management System” as defined in Section 5.7(a)(iii).

“CFPB” means the Consumer Financial Protection Bureau, and its successors and assigns.

“Change of Control” means, at any time, any of the following: (a) with respect to theany Borrower, the Company and the other Guarantors, taken collectively, shall cease to beneficially own and control 100% on a fully diluted basis of the economic and voting interest in the Capital Stock of thesuch Borrower and (b) with respect to the Company, any person or group (within the meaning of the Securities and Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof) (in each case, other than any of the current members or any Affiliate thereof) acting in concert shall have acquired “beneficial ownership,” directly or indirectly, of, or shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation, will result in its or their acquisition of, or control over, the membership interests of the Company representing 50% or more of the combined voting power of all membership interests of the Company (and, provided the SPAC Transaction is consummated, such 50% or more threshold shall be computed after giving effect to the SPAC Transaction).

“Charge-Off Date” means the date on which the Servicer determines that a Receivable is a Charged-Off Receivable.

“Charged-Off Receivable” means, with respect to any date of determination, a Receivable with respect to which the earlier of any of the following shall have occurred (without duplication): (a) a Scheduled Receivable Payment under such Receivable is ninety (90) or more Days Past Due, (b) the Servicer has otherwise determined, in accordance with the Servicing Policy, that the related Receivable is uncollectible or should be charged-off, (c) the related Obligor is deceased, (d) Net Liquidation Proceeds have been received that, in the Servicer’s good faith judgment, constitute the final amounts recoverable in respect of such Receivable, (e) the Servicer, the Originator or the applicable Bank Partner Subsidiary has determined that the Obligor has committed fraud in connection with the related Contract, or (f) the related Obligor is subject to a proceeding under the Bankruptcy Code or other applicable Debtor Relief Laws.

“Clarity Clear Bank Behavior Score” means the Bank Behavior™ score assigned to an Obligor by Clarity Services Inc.

 

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“Clarity Clear Credit Risk Score” means the Clear Credit Risk™ score assigned to an Obligor by Clarity Services Inc.

“Clarity Clear Fraud Score” means the Clear Fraud™ score assigned to an Obligor by Clarity Services Inc.

“Closing Date” means August 19, 2019.

“Closing Date Certificate” means a Closing Date Certificate of an Authorized Officer of each Credit Party substantially in the form of Exhibit E.

“Closing Date Material Adverse Change” means a material adverse change in (a) the business operations, assets, financial condition or liabilities of any Credit Party since December 31, 2018 (or, to the extent any Credit Party joined this Agreement after such date, the date of such Credit Party’s joinder to this Agreement), (b) the ability of any Credit Party to fully and timely perform its material obligations under any of the Credit Documents to which it is a party or of the applicable Bank Partner Originator or the Company to fully and timely perform its material obligations under the Bank Partner Program Agreements relating to Receivables owned by theany Borrower or any Company Receivables proposed to be sold to theany Borrower, or (c) the legality, validity, binding effect, or enforceability against any Credit Party of any of the Credit Documents to which it is a party or against the applicable Bank Partner Originator or the Company of the applicable Bank Partner Program Agreements, which material adverse change could reasonably be expected to adversely affect the Receivables owned by theany Borrower or any Company Receivables proposed to be sold to theany Borrower.

“Collateral” means, collectively, all of the personal property in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Secured Obligations; provided, however, that any Receivable of theany Borrower that is repurchased in accordance with and pursuant to the terms and conditions of Section 2.8 shall no longer constitute Collateral pledged by theany Borrower from and after the date of such repurchase; provided further that such Receivable shall, if repurchased by a Guarantor, constitute collateral pledged by such Guarantor under the relevant Guarantor Security Agreement.

“Collateral Agent” as defined in the preamble hereto.

“Collateral Documents” means the Security AgreementAgreements , the Guaranties, the Guarantor Security Agreements, the Collection Account Control Agreement(s), Disbursement Account Control Agreement(s) and all other instruments, documents and agreements delivered by any Credit Party pursuant to this Agreement or any of the other Credit Documents in order to grant to the Collateral Agent, for the benefit of the Secured Parties, a Lien on any personal property of such Credit Party as security for the Obligations.

“Collection Account” means (a) with respect to OF IV Borrower, “Collection Account” as defined in the Security Agreement (OF IV Borrower) and (b) with respect to STF Borrower, “Collection Account” as defined in the Security Agreement (STF Borrower).

 

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“Collection Account Bank” means (a) with respect to OF IV Borrower, “Collection Account Bank” as defined in the Security Agreement (OF IV Borrower) and (b) with respect to STF Borrower, “Collection Account Bank” as defined in the Security Agreement (STF Borrower).

“Collection Account Bank Fee” means, collectively, the fees due and owing to thea Collection Account Bank pursuant to the terms of the applicable Collection Account Control Agreement.

“Collection Account Control Agreement” means (a) with respect to OF IV Borrower, “Collection Account Control Agreement” as defined in the Security Agreement (OF IV Borrower) and (b) with respect to STF Borrower, “Collection Account Control Agreement” as defined in the Security Agreement (STF Borrower).

“Collection Period” means, (a) with respect to the initial Settlement Date, the period beginning on the Closing Date and ending on the last day of calendar month after the month in which the Closing Date occurs, and (b) with respect to any other Settlement Date, the immediately preceding calendar month.

“Collections” means all Cash collections on the Receivables, including, without limitation, all Scheduled Receivable Payments, all non-scheduled payments, all prepayments, all late fees, all NSF fees, all other fees, Net Insurance Proceeds, all Net Liquidation Proceeds, investment earnings, residual proceeds, payments received under any personal guaranty with respect to a Receivable, any amounts deposited by the Company into the Collection Account or the Disbursement Account in accordance with Section 2.17, and all other payments received with respect to the Receivables, but excluding (x) sales and property tax payments and (y) with respect to the Bank Partner Originated Receivables, all payments retained by, or received by theany Borrower and payable to, the Bank Partner Originators in respect of the Bank Partner Retained Percentages.

“Commitment Availability” means the Commitment Availability (OF IV Borrower) or the Commitment Availability (STF Borrower), as the context may require.

“Commitment Availability (OF IV Borrower)” means, commencing with the Sixth Amendment Effective Date and at all times thereafter, as of any date of determination during the Revolving Commitment Period, the least of (i) $[***], (ii) an amount equal to the Borrowing Base (OF IV Borrower) minus the aggregate principal balance of all Loans outstanding in favor of OF IF Borrower and (iii) the Undrawn Amount.

“Commitment Availability (STF Borrower)” means, as of any date of determination during the Revolving Commitment Period, the lesser of (i) an amount equal to the Borrowing Base (STF Borrower) minus the aggregate principal balance of all Loans outstanding in favor of STF Borrower and (ii) the Undrawn Amount.

“Company” as defined in the preamble hereto.

 

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“Company Receivables” means all unsecured consumer installment loan or line of credit receivables originated by the Originator or its Affiliates, or, with respect to a Bank Partner Originated Receivable, originated by the applicable Bank Partner Originator and sold by such Bank Partner Originator to the applicable Bank Partner Subsidiary, from time to time, including the Receivables.

“Compliance Certificate” means a certificate, substantially in the form of Exhibit C-2, executed by an Authorized Officer of theeach Borrower and the Company and delivered to the Administrative Agent, which sets forth, among other things, calculations of the financial performance covenants set forth in Section 5.11.

“Confidential Information” as defined in Section 9.22.

“Consolidated Net Income” means, for any period, an amount equal to (a) the net income (or loss) of the Company and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, minus (b) any net extraordinary, nonrecurring or unusual gains, and plus (c) any net extraordinary, nonrecurring or unusual losses.

“Contract” means the loan agreement (including any modifications thereto), the ACH agreement and credit agreement relating to an unsecured consumer installment loan or line of credit to an Obligor (whether constituting an instrument, payment intangible or otherwise), in each case, in a form approved by the Administrative Agent.

“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.

“Control” means, the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or other beneficial interests or by contract or otherwise.

“COVID-19 Modification” means a modification to a Receivable that (a) is granted by the Borrower or the Servicer to an Obligor whose health or employment was or is affected by the COVID-19 outbreak, (b) is granted during the period from and including April 1, 2020 through and including July 31, 2020, (c) relates to a Receivable that was an Eligible Receivable as of March 31, 2020, and (d) consists of (i) first, a reduction or deferral of payment for up to 30 days, so long as the unpaid balance is added at the end of the term under the contractual amortization of the Receivable and (ii) thereafter, if applicable, reduction of payments by up to 50% for up to 90 days, so long as the entirety of such reduced payment amount is applied in its entirety to pay down the principal balance of the Receivable.

“COVID-19 Restriction Period” means the period beginning on the Third Amendment Effective Date and ending on July 31, 2020.

“Credit Date” means the date of a Credit Extension, which shall be a Business Day.

 

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“Credit Document” means any of (a) this Agreement, the Notes, if any, the Collateral Documents, the GuarantyGuaranties , the Fee Letter, the Atalaya Subordination and Intercreditor Agreement and the Related Agreements and (b) all other documents, instruments or agreements executed and delivered by any Credit Party for the benefit of any Agent or any Lender in connection therewith.

“Credit Extension” means the making of a Loan.

“Credit Party” means, each of the BorrowerBorrowers , the Company, the Servicer, the Originator and each Seller.

“Credit Policies” means the credit policies and practices, credit models and underwriting guidelines (including, without limitation, the Originator’s methodology with respect to assigning Opportunity Financial Scores, maximum allowable payment-to-income ratios, minimum allowable Clarity Clear Fraud Scores or minimum allowable Clarity Clear Credit Score, minimum allowable Clarity Clear Bank Behavior Scores, minimum allowable Opportunity Financial Scores, renewal policies and procedures and exception policies) (i) of the Originator in effect as of the date hereof and attached hereto as Appendix E-I (with respect to Company Receivables originated by the Company or its Affiliates), (ii) in effect as of the date hereof and attached hereto as Appendix E-II (with respect to Company Receivables originated by the FinWise Originator) and (iii) as approved in writing by the Administrative Agent (with respect to Company Receivables originated by any Additional Bank Partner Originator), in each case, as such guidelines may be amended from time to time in accordance herewith.

“Days Past Due” means, as of any date of determination and with respect to any Receivable that is not marked as current in the Loan Database (provided, that at any time the Loan Database is not updated within one (1) Business Day, this definition of Days Past Due shall be with respect to any Receivable), the number of calendar days elapsed since the due date of the earliest Scheduled Receivables Payment that has not been received from the related Obligor.

“Debtor Relief Laws” means the Bankruptcy Code, and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, readjustment of debt, marshalling of assets, assignment for the benefit of creditors or similar debtor relief laws of the United States, any state or any foreign country from time to time in effect, affecting the rights of creditors generally or the rights of creditors of banks.

“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.

“Default Funding Rate” as defined in Section 2.5.

“Defaulting Lender” means, subject to Section 2.19(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the BorrowerBorrowers in writing that such failure is the result of such Lender’s determination that

 

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one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified the BorrowerBorrowers or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the BorrowerBorrowers , to confirm in writing to the Administrative Agent and the BorrowerBorrowers that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the BorrowerBorrowers ), or (d) has, or has a direct or indirect parent company that has, at any time after the Closing Date (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19(b)) upon delivery of written notice of such determination to the BorrowerBorrowers and each Lender.

“Delinquent Receivable” means, with respect to any date of determination, a Receivable with respect to which the related Obligor is more than [***] Days Past Due with respect to more than [***]% of a Scheduled Receivable Payment and which is not a Charged-Off Receivable.

“Depository Institution” means, collectively, any “depository institution” or any “subsidiary” of a depository institution, as such terms are defined in the Federal Deposit Insurance Act of 1950, as amended to the date hereof and from time to time hereafter, and any successor statute.

“Designated Disbursement Account” is defined in Section 2.1(b)(iii).

“Designated Jurisdiction” means, at any time, any country, region or territory which is itself the subject or target of any Sanctions.

 

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“Disbursement Account” means (a) with respect to OF IV Borrower, “Disbursement Account” as defined in the Security Agreement (OF IV Borrower) and (b) with respect to STF Borrower, “Disbursement Account” as defined in the Security Agreement (STF Borrower).

“Disbursement Account Bank” means (a) with respect to OF IV Borrower, “Disbursement Account Bank” as defined in the Security Agreement (OF IV Borrower) and (b) with respect to STF Borrower, “Disbursement Account Bank” as defined in the Security Agreement (STF Borrower).

“Disbursement Account Bank Fee” means, collectively, the fees due and owing to thea Disbursement Account Bank pursuant to the terms of the applicable Disbursement Account Control Agreement.

“Disbursement Account Control Agreement” means (a) with respect to OF IV Borrower, “Disbursement Account Control Agreement” as defined in the Security Agreement (OF IV Borrower) and (b) with respect to STF Borrower, “Disbursement Account Control Agreement” as defined in the Security Agreement (STF Borrower).

“Dollars” and the sign “$”mean the lawful money of the United States of America.

“Early Termination Fee” is defined in the Fee Letter.

“EBTOTE”means, with reference to any period, Consolidated Net Income for such period plus all amounts deducted in arriving at such Consolidated Net Income amount in respect of (a) federal, state, and local income taxes for such period and (b) one time recruitment fees, amortization of transaction costs, severance, and one time other expenses for such period.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eligibility Criteria” means the Eligibility Criteria (OF IV Borrower) or the Eligibility Criteria (STF Borrower), as the context may require.

“Eligibility Criteria (OF IV Borrower)” means the criteria set forth on Appendix C-1.

 

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“Eligibility Criteria (STF Borrower)” means the criteria set forth on Appendix C-2.

“Eligible Obligor” means, with respect to any Receivable, an Obligor that (a) is not subject to a proceeding under the Bankruptcy Code or other applicable Debtor Relief Laws, (b) has a valid social security number and holds a valid driver’s license or other acceptable form of identification issued by a state or federal government, (c) is not an employee, officer, director or holder of any Capital Stock in, or affiliated with any employee, officer, director or holder of any Capital Stock of, any Credit Party, any Seller, any Bank Partner Originator or any of their respective Affiliates, (d) is domiciled in the United States (as evidenced by proof of residency), (e) is a natural person, (f) is not deceased and (g) has not committed fraud in connection with any Contract.

“Eligible Receivable” means (a) with respect to OF IV Borrower, a Receivable with respect to which the Eligibility Criteria (OF IV Borrower) are satisfied as of the applicable date of determination, and (b) with respect to STF Borrower, a Receivable with respect to which the Eligibility Criteria (STF Borrower) are satisfied as of the applicable date of determination.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.

“ERISA Affiliate” shall mean, when used with respect to any Person, any trade or business, whether or not incorporated, that together with such Person, would be deemed to be a single employer within the meaning of Section 4001(b) of ERISA or Section 414(b), (c), (m) or (o) of the Code.

“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Plan (excluding those for which the provision of thirty (30) day notice to the PBGC has been waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Plan (whether or not waived in accordance with Section 412(c) of the code) or the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by any Credit Party or any of their respective ERISA Affiliates from any Plan with two or more contributing sponsors or the termination of any such Plan resulting in liability to any Credit Party or any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Plan or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (vi) the imposition of liability on any Credit Party or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of any Credit Party or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of 4203 or 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by any Credit Party or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in insolvency pursuant to Section 4241 or 4245 of ERISA, or that it

 

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intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the occurrence of an act or omission which could give rise to the imposition on any Credit Party or any of their respective ERISA Affiliates, with respect to any Plan, of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Section 409, 502(c), (i) or (i) or Section 4071 of ERISA in respect of any Plan; (ix) the assertion of a material claim (other than routine claims for benefits) against any Plan of any of any Credit Party or any of their respective ERISA Affiliates; (x) receipt form the Internal Revenue Service of notice of the failure of any Plan to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Plan to qualify for exemption from taxation under Section 501(a) of the Code; or (xi) the imposition of a Lien pursuant to Section 430(k) of the Code or pursuant to Section 303(k) of ERISA with respect to any Plan.

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

“Eurodollar Reserve Percentage” means the maximum reserve percentage, expressed as a decimal, at which reserves (including, without limitation, any emergency, marginal, special, and supplemental reserves) are imposed by the Board of Governors of the Federal Reserve System (or any successor) on “eurocurrency liabilities”, as defined in such Board’s Regulation D (or any successor thereto), subject to any amendments of such reserve requirement by such Board or its successor, taking into account any transitional adjustments thereto. For purposes of this definition, the relevant Loans shall be deemed to be “eurocurrency liabilities” as defined in Regulation D without benefit or credit for any prorations, exemptions or offsets under Regulation D. The Eurodollar Reserve Percentage shall be adjusted automatically on and as of the effective date of any change in any such reserve percentage.

“Event of Default” means any of the conditions or events set forth in Section 7.1.

“Excess Availability” means, as of any time the same is to be determined, the amount (if any) by which (a) the lesser of the Aggregate Borrowing Base as then determined and computed or the Revolving Commitments as then in effect exceeds (b) the aggregate principal amount of Loans then outstanding.

“Excess Concentration Amounts” means (a) with respect to OF IV Borrower, each of the amounts set forth on Appendix D-1; and (b) with respect to STF Borrower, each of the amounts set forth on Appendix D-2.

“Exchange Act” means the Securities Exchange Act of 1934, as amended to the date hereof and from time to time hereafter, and any successor statute.

“Excluded Subsidiary” means any Financing Subsidiary, other than the BorrowerBorrowers .

“Excluded Taxes” means, with respect to any payment made by or on account of any obligation of any Credit Party under any Credit Document, any of the following Taxes: (a) Taxes imposed on or measured by any Recipient’s net income (or franchise taxes imposed in lieu of net

 

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income taxes) or branch profit taxes, in each case, (A) by the jurisdiction under which such Recipient is organized or conducts business, or (B) that are Other Connection Taxes, (b) any withholding tax that is imposed on amounts payable to a Recipient at the time such Recipient becomes a party to this Agreement or designates a new lending office or branch without the written consent of the BorrowerBorrowers , (c) Taxes imposed on amounts payable under this Agreement that are attributable to a Recipient‘s failure to comply with Section 2.14(e), and (d) Taxes imposed pursuant to FATCA.

“Facility” as defined in the recitals hereto.

“Facility Availability” means, with respect to any date of determination during the Revolving Commitment Period, (i) all Collections representing available funds on deposit in the applicable Disbursement Account(s), minus (ii) the sum of (A) for any date of determination occurring on or after the first day of any calendar month and prior to the Settlement Date occurring in such calendar month, the total amount of funds to be distributed pursuant to Section 2.10(a)(i), (ii) and (iii) on the immediately succeeding Settlement Date and (B) for any date of determination, the product of (x) 1.05 and (y) the total amount of funds projected to be distributed pursuant to Section 2.10(a)(i), (ii) and (iii) on the Settlement Date occurring during the immediately succeeding calendar month, in each case as determined by the Administrative Agent in its sole discretion.

“Fair Valuation” means, in respect of any Person, the value of the consolidated assets of such Person on the basis of the amount which may be realized by a willing seller within a reasonable time through collection or sale of such assets at market value on a going concern basis to an interested buyer who is willing to purchase under ordinary selling conditions in an arm’s-length transaction.

“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended version that is substantively comparable and not materially more onerous to comply with), and any current or future regulations or official interpretations thereof, any applicable agreement entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, any applicable intergovernmental agreement with respect thereto and any law or regulation enacted or promulgated pursuant to such intergovernmental agreement.

“Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the next succeeding Business Day; provided, (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to BMO Harris on such day on such transactions similar in size and tenor of the Loans as determined by the Administrative Agent in its sole discretion.

 

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“Fee Letter” means the amended and restated letter agreement, dated as of August 19, 2019,Sixth Amendment Effective Date among the Administrative Agent, the BorrowerBorrowers and the Company, as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“Fifth Amendment” means that certain Amendment No. 5 to Revolving Credit Agreement dated as of August 6, 2021, by and among the Credit Parties, the Lenders party thereto and the Administrative Agent.

“Fifth Amendment Effective Date” has the meaning assigned thereto in the Fifth Amendment.

“Final Maturity Date”means the earlier to occur of (a) the date that is six (6) months after the Scheduled Termination Date and (b) the occurrence and continuance of an Event of Default and the declaration of all outstanding Obligations to be due and payable pursuant to Section 7.1; provided, however, that in the event there is no Amortization Period, the Final Maturity Date shall automatically without further action or notice be the Scheduled Termination Date.

“Financing Subsidiary”means any bankruptcy remote or other special purpose entity that is a direct or indirect wholly-owned Subsidiary of the Company formed for the purpose of, and engaging in no material business other than in connection with, the purchase and financing of Receivables. The parties hereto acknowledge that as of the FourthSixth Amendment Effective Date, the Company’s Financing Subsidiaries consist of: (i) Opportunity Funding SPE II, LLC, a Delaware limited liability company, (ii) Opportunity Funding SPE III, LLC, a Delaware limited liability company, (iii) the BorrowerBorrowers , (iv) Opportunity Funding SPE V, LLC, a Delaware limited liability company, (v) Opportunity Funding SPE VI, LLC, a Delaware limited liability company, and (vi) Opportunity Funding SPE VII, LLC, a Delaware limited liability company.

“FinWise Loan”means each “Loan” as defined in the FinWise Loan Program Agreement related to a Receivable, payable subject to a contract and promissory note substantially in the form of Appendix F, or in such other form approved by the Administrative Agent in its reasonable discretion.

“FinWise Loan Program Agreement”means the Loan Program Agreement, dated as of October 31, 2017, by and between the FinWise Originator and the Company, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement.

“FinWise Originator”means FinWise Bank, a Utah state-chartered bank, as seller under the FinWise Sale Agreement, its successors and, subject to the consent of the Administrative Agent, its assigns.

“FinWise Program Agreements”means each of the FinWise Loan Program Agreement, the FinWise Sale Agreement and the FinWise Servicing Agreement.

“FinWise Receivable”means a Receivable originated pursuant to the FinWise Program Agreements.

 

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“FinWise Sale Agreement” means the Loan Receivables Sale Agreement, dated as of October 31, 2017, by and between the FinWise Originator, as seller, the Company, as service agent, and OppWin, as purchaser, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement.

“FinWise Servicing Agreement” means the Loan Servicing Agreement, dated as of October 31, 2017, among the FinWise Originator, as owner and as servicer, the Company, as subservicer and OppWin, as receivables purchaser, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement.

“Fiscal Quarter” means, with respect to a particular Fiscal Year, each fiscal quarter corresponding to such Fiscal Year.

“Fiscal Year” means for any Credit Party, any consecutive twelve-month period commencing on the date following the last day of the previous fiscal year and ending on December 31.

“Foreign Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA that is (a) neither subject to ERISA nor a governmental plan within the meaning of Section 3(32) of ERISA and (b) mandated by a government other than the United States or a state within the United States or an instrumentality thereof.

“Fourth Amendment Effective Date” means March 23, 2021.

“Fourth Amendment Effective Date Refinancing” means the repayment of all of the Indebtedness owing to TCS Global Holdings LP, with the proceeds of the loan under the Atalaya Subordinated Loan Agreement on or about the date that is not more than fifteen (15) days following the Fourth Amendment Effective Date.

“Funding Notice” means a notice substantially in the form of Exhibit A.

“Funds Release Request” means a notice substantially in the form of Exhibit G.

“GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, United States generally accepted accounting principles in effect as of the date of determination thereof.

“Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government, and which has jurisdiction over the applicable Credit Party.

 

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“Guaranties” means (a) that certain guaranty provided for in Section 10 hereof, and (b) any other guaranty agreement executed and delivered in order to guarantee the Secured Obligations or any party thereof in form and substance acceptable to the Administrative Agent, in each case as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“Guarantors” means (a) the Company, SalaryTap, OppWin, OppWin ST, OPPORTUNITY MANAGER, LLC, OppFi Management Holdings, LLC, OPPORTUNITY FINANCIAL CARD COMPANY, LLC and OPPWIN CARD, LLC, each in its capacity as a guarantor under the Guaranty, and (b) each other Person that is joined as a Guarantor under a Guaranty from time to time.

“Guarantor Security Agreements” means (a) the Security Agreement, dated as of the Fourth Amendment Effective Date, among the Company, the other Guarantors party thereto and the Collateral Agent on behalf of the Secured Parties, and (b) each other Security Agreement entered into from time to time between a Guarantor and the Collateral Agent on behalf of the Secured Parties, in each case as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.

“Indebtedness” as applied to any Person, means, without duplication, (a) all indebtedness for borrowed money, (b) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP, (c) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money, (d) any obligation owed for all or any part of the deferred purchase price of property or services (excluding any such obligations incurred under ERISA), which purchase price is (i) due more than six (6) months from the date of incurrence of the obligation in respect thereof or (ii) evidenced by a note or similar written instrument, (e) all indebtedness secured by any Lien on any property or asset owned or held by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person, (f) the face amount of any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings, (g) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another, (h) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid or discharged, or any agreement relating thereto will be complied with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof, (i) any liability of such Person for an obligation of another through any agreement (contingent or otherwise) (A) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions

 

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or otherwise) or (B) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under subclauses (A) or (B) of this clause (i), the primary purpose or intent thereof is as described in clause (h) above, and (j) all obligations of such Person in respect of any exchange traded or over the counter derivative transaction, whether entered into for hedging or speculative purposes.

“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages, penalties, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the reasonable, documented, out-of-pocket fees and disbursements of counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding commenced by any Person, whether or not any such Indemnitee shall be designated as a party or potential party thereto, and any reasonable, documented, out-of-pocket fees or expenses incurred by Indemnitees in enforcing the indemnification provisions of Section 9.3), whether direct, indirect or consequential and whether based on any federal, state or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations, on common law or equitable cause or on contract or otherwise) incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby (including each Lender’s agreement to make Credit Extensions or the use or intended use of the proceeds thereof, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guarantyany Guaranties)). For the avoidance of doubt, Indemnified Liabilities shall not include Excluded Taxes.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Credit Document, and (b) to the extent not otherwise described in (a), Other Taxes.

“Indemnitee” as defined in Section 9.3(a).

“Indemnitee Agent Party” as defined in Section 8.9.

“Indemnitor” as defined in Section 9.3(c).

“Independent Accountants” means (a) RSM McGladrey, Inc. or (b) such other nationally recognized firm of independent certified public accountants acceptable to the Administrative Agent in its reasonable discretion.

“Independent Director” means an employee of Citadel SPV Services (USA) LLC, or another natural person meeting the qualifications set forth in Section 6.13 and otherwise acceptable to the Administrative Agent in its sole discretion.

“Interest Coverage Ratio” means, at any time the same is to be determined, the ratio of (a) Adjusted EBIT (Company) for the six month period then ended to (b) Interest Expense paid or required to be paid in cash for the same six month period (including interest due during such period that is deferred to a later date, but not including any payment-in-kind interest that is capitalized to principal during such period), in each case for the Company on a consolidated basis in accordance with GAAP.

 

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“Interest Expense” means, with reference to any period, the sum of all interest charges (including imputed interest charges with respect to Capitalized Lease Obligations and all amortization of debt discount and expense) of the Company and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.

“Interest Rate” means, with respect to any Loan, the LIBOR Rate as from time to time in effect plus the Applicable Margin, subject to Section 2.12.

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended, and any successor statute.

“Investment” as applied to any Person, means (a) any direct or indirect purchase or other acquisition by such Person of, or of a beneficial interest in, any of the Securities of any other Person, (b) any direct or indirect redemption, retirement, purchase or other acquisition for value, from any Person, of any Capital Stock of such Person, and (c) any direct or indirect loan, advance or capital contributions by such Person to any other Person, including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment.

“IRS” means the United States Internal Revenue Service, or any successor agency.

“Key Employee” means each of [***] such other Persons identified in any side letter entered into between the Administrative Agent and the Company, and any replacement(s) approved by the Administrative Agent acting in a commercially reasonable manner.

“Legal Requirement” means any treaty, convention, statute, law, common law, rule, regulation, ordinance, license, permit, governmental approval, injunction, judgment, order, consent decree or other requirement of any Governmental Authority, whether federal, state, or local.

“Lender” means each financial institution listed on the signature pages hereto as a Lender and any other Person that becomes a “Lender” party hereto pursuant to an Assignment Agreement.

“Lender Affiliate” means, as applied to any Lender or Agent, any Person directly or indirectly controlling (including any member of senior management of such Person), controlled by, or under common control with, such Lender or Agent. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power (a) to vote 20% or more of the Securities having ordinary voting power for the election of directors of such Person or (b) to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.

 

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“Lender Report” as defined in the Backup Servicing Agreement.

“LIBOR Rate” shall initially be equal to 2.168630% per annum, and thereafter the LIBOR Rate means the greater of (a) the quotient of 1-month London Interbank Offered Rate (LIBOR) as published or otherwise reported on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) on the relevant Change Date divided by one (1) minus the Eurodollar Reserve Percentage, unless such rate is no longer available or published, in which case such rate shall be at a comparable index rate selected by the Administrative Agent with notice to the BorrowerBorrowers , and (b) 0.40% per annum. The LIBOR Rate shall be reset on the first Business Day of every month occurring after the date hereof (herein, a “Change Date”) and remain in effect until the next Change Date. The determination of the LIBOR Rate shall be subject to Section 2.12.

“Lien” means (a) any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing, and (b) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities.

“Line of Credit Receivable” means each Receivable arising from a line of credit extended to an Obligor.

“Liquidity” means, at any time the same is to be determined, the sum of (a) unrestricted cash and cash equivalents of the Guarantors then on deposit in one or more deposit accounts which are subject to a “control agreement” in favor of the Collateral Agent plus (b) an amount equal to [***]% of the unencumbered receivables consisting of unsecured consumer installment loans and lines of credit owned by the Guarantors at such time (other than Liens in favor of the Collateral Agent and Midtown Madison Management LLC, as administrative agent for the holders of the Qualifying Subordinated Debt issued under the Atalaya Subordinated Loan Agreement).

“Loan” means each revolving loan made to thea Borrower pursuant to Section 2.1(a).

“Loan Database” means the databases, platforms and systems (including, without limitation, Infinity) maintained by the Servicer with respect to the Company Receivables, which provides, on a loan-by-loan basis, up-to-date information regarding all activities with respect to the Company Receivables, including but not limited to originations, payments, charge-offs and recoveries.

“Loan Receivable Quality Ratio (OF IV Borrower)” means, as of the end of each calendar month, the sum of the following (expressed as a percentage): (a) the average of (i) Receivables of OF IV Borrower more than thirty (30) Days Past Due as of the last day for each of the last three (3)

 

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calendar months (specifically excluding Charged-Off Receivables), divided by (ii) total Receivables of OF IV Borrower (specifically excluding Charged-Off Receivables) as of the last day for each of the last three (3) calendar months, rounded to the nearest 1/100th of a percent, plus (b) the average of (i) Receivables of OF IV Borrower for which there was a payment default during the first full calendar month since origination for each of the last three (3) calendar months, divided by (ii) total Receivables of OF IV Borrower (specifically excluding Charged-Off Receivables) as of the last day for each of the last three (3) calendar months, rounded to the nearest 1/100th of a percent.

“Loan Receivable Quality Ratio (STF Borrower)” means, as of the end of each calendar month, the sum of the following (expressed as a percentage): (a) the average of (i) Receivables of STF Borrower more than two (2) payments delinquent since the due date of the earliest Scheduled Receivables Payment that has not been received from the related Obligor, as of the last day for each of the last three (3) calendar months (specifically excluding Charged-Off Receivables), divided by (ii) total Receivables of STF Borrower (specifically excluding Charged-Off Receivables) as of the last day for each of the last three (3) calendar months, rounded to the nearest 1/100th of a percent, plus (b) the average of (i) Receivables of STF Borrower for which there was a payment default during the first full calendar month since origination for each of the last three (3) calendar months, divided by (ii) total Receivables of STF Borrower (specifically excluding Charged-Off Receivables) as of the last day for each of the last three (3) calendar months, rounded to the nearest 1/100th of a percent, plus (c) the average of (i) gross Charged-Off Receivables of STF Borrower as of the last day for each of the last last six (6) calendar months, divided by (ii) the Net Principal Loan Receivables Balance of STF Borrower as of the last day for each of the last last six (6) calendar months, rounded to the nearest 1/100th of a percent.

“Lockbox” means a segregated post office box in the name of thea Borrower maintained in accordance with the applicable Lockbox Agreement and established pursuant to Section 2.02(e) of the Servicing Agreement.

“Lockbox Agreement” means a lockbox agreement by and among the BorrowerBorrowers (or the Company as its Servicer) and the Lockbox Bank, and any related deposit account control agreement among such parties and the Collateral Agent, each of which shall be in form and substance acceptable to the Collateral Agent and entered into pursuant to Section 2.02(e) of the Servicing Agreement.

“Lockbox Bank” means BMO Harris Bank N.A.

“Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.

“Material Adverse Effect” means, a material adverse effect on (a) the business, operations, assets, financial condition or liabilities of a Credit Party, (b) the ability of a Credit Party to fully and timely perform its respective obligations under the Credit Documents or the Bank Partner Program Agreements to which it is a party (including, without limitation, the Obligations of the BorrowerBorrowers), (c) the ability of the applicable Bank Partner Originator to fully and timely perform its obligations under the applicable Bank Partner Program Agreements relating to

 

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Receivables owned by theany Borrower, (d) the legality, validity, binding effect, or enforceability against a Credit Party of any Credit Document or any Bank Partner Program Agreement to which it is a party or against a Bank Partner Originator of the applicable Bank Partner Program Agreements which has a material adverse effect on the Receivables, (e) the rights, remedies and benefits available to, or conferred upon, any Agent, any Lender or any Secured Party under any Credit Document or (f) the enforceability or collectability (other than with respect to the creditworthiness of the related Obligor) of the Receivables.

“Material Contract” means any contract or other arrangement to which a Credit Party is a party (other than the Credit Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.

“Material Modification” means any modification of a Contract that would (1) forgive any scheduled repayment or extend the term of the Contract, (2) reduce the APR or (3) reduce the UPB of the Receivable.

“Maximum Committed Amount” means, as of the ClosingSixth Amendment Effective Date, $25,000,00045,000,000; provided, that, the “Maximum Committed Amount” may be increased as set forth in Section 2.18.

“Monthly Servicing Report” means that Monthly Servicing Report in the form attached as Exhibit B to the Servicing Agreement or otherwise in a form acceptable to the Administrative Agent.

“Moody’s” means Moody’s Investor Services, Inc., and any successor thereto.

“Multiemployer Plan” means any Plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA.

“Net Eligible Receivables Balance” means, as of any date of determination an amount equal to (a) the aggregate Remaining Funded Amount of suchthe applicable Eligible Receivables, minus (b) any applicable Excess Concentration Amounts as of such date of determination.

“Net Income” means, with reference to any period for any Person, the net income (or net loss) of such Person for such period computed on a consolidated basis in accordance with GAAP; provided that there shall be excluded from Net Income (a) the net income (or net loss) of any Person accrued prior to the date it becomes a Subsidiary of, or has merged into or consolidated with, such Person or another Subsidiary of such Person, (b) the net income (or net loss) of any Person (other than a Subsidiary) in which such Person or any of its Subsidiaries has an equity interest, except to the extent of the amount of dividends or other distributions actually paid to such Person or any of its Subsidiaries during such period, and (c) the undistributed earnings of any Subsidiary of such Person to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any contractual obligation (other than under any LoanCredit Document) or requirement of law applicable to such Subsidiary.

 

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“Net Insurance Proceeds” means an amount equal to: (a) any Cash payments or proceeds received by theany Borrower, the Company or the Servicer in respect of any covered loss under any policy of insurance specified in Section 5.8, minus (b) any actual and reasonable costs incurred or to be incurred by theany Borrower, the Company or the Servicer in connection with the adjustment or settlement of any claims of theany Borrower, the Company or the Servicer in respect thereof.

“Net Liquidation Proceeds” means, all amounts received in connection with a Receivable after such Receivable was first identified as a Charged-Off Receivable, minus the reasonable expenses incurred by the Servicer in connection with the collection of such Receivable, including reasonable collection agency fees and the reasonable cost of legal counsel in connection with the enforcement of such Receivable; provided, however, that the “Net Liquation Proceeds” with respect to any Receivable shall not be less than zero.

“Net Principal Loan Receivables Balance” means, in respect of any Borrower as of any date of determination, the aggregate principal balance of all Eligible Receivables of such Borrower as of such date net of any unearned interest, unearned fees, discounts, insurance commissions, upfront fees, fair market value premiums/writeup, and other similar adjustments.

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

“Non-U.S. Lender” means a Lender that is not a U.S. Person.

“Note” means a promissory note substantially in the form of Exhibit B attached hereto, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“Obligations” means all obligations of every nature of the BorrowerBorrowers and the Guarantors from time to time owed to the Agents (including former Agents) or the Lenders or any of them, under any Credit Document, whether for principal, interest (including interest, fees, costs, and charges which, but for the filing of a petition in bankruptcy with respect to theany Borrower or any Guarantor, would have accrued on any Obligation, whether or not a claim is allowed against theany Borrower or any Guarantor for such interest, fees, costs, or charges in the related bankruptcy proceeding), fees, expenses, indemnification or otherwise.

“Obligor” means, with respect to each Receivable, the borrower under the related unsecured consumer installment loan or any other Person who owes or may be liable for payments under such Receivable.

“OF IV Borrower” is defined in the preamble hereto.

“OFAC” means the United States Department of Treasury Office of Foreign Assets Control.

“OFAC SDN List” means the list of the Specially Designated Nationals and Blocked Persons maintained by OFAC.

 

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“Opportunity Financial Score” means the internal credit score assigned to an Obligor by the Originator in accordance with the Credit Policies.

“OppWin” means OppWin, LLC, a Delaware limited liability company.

“OppWin Sale Agreement” means the receivables purchase agreement, dated as of August 19, 2019, by and between OppWin, as seller, and theOF IV Borrower, as purchaser, as may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and with the prior written consent of the Administrative Agent.

“OppWin ST” means OppWin SalaryTap, LLC, a Delaware limited liability company.

“OppWin ST Sale Agreement” means the receivables purchase agreement, dated as of the Sixth Amendment Effective Date, by and between OppWin ST, as seller, and STF Borrower, as purchaser, as may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and with the prior written consent of the Administrative Agent.

“Organizational Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization, as amended, and its by-laws, as amended, (b) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (c) with respect to any general partnership, its partnership agreement, as amended, (d) with respect to any limited liability company, its certificate of formation, as amended, and its operating agreement, as amended, and (e) with respect to any statutory trust, its certificate of trust, as amended, and its trust agreement, as amended. In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.

“Origination Date” means for each Receivable, the date on which funds were disbursed by or on behalf of the applicable Bank Partner Originator or the Originator, as applicable, to an Obligor.

“Origination Fee” means a prepaid finance charge that is either paid by the Obligor at the time of origination, withheld from the proceeds included in the UPB of a Receivable or paid by the Obligor over the term of the Receivable in accordance with the Contract.

“Originator” means Opportunity Financial, LLC, a Delaware limited liability company, in its capacity as Originator hereunder.

“Originator Percentage” means, with respect to (a) any Bank Partner Originated Receivable, a percentage equal to one minus the Bank Partner Retained Percentage applicable to such Receivable on the date the portion of the economic interest in the obligations of the related Obligor to make payments thereunder was acquired by a Bank Partner Subsidiary pursuant to the applicable Bank Partner Program Agreements, and (b) with respect to any other Receivable, 100%.

 

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“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document).

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment requested by the BorrowerBorrowers in writing).

“Participant Register” as defined in Section 9.6(d).

“Patriot Act” means the USA Patriot Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)).

“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.

“Performance Guaranty” means that certain performance guaranty, dated as of August 19, 2019, by the Company in favor of the Administrative Agent for the benefit of the Secured Parties, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, pursuant to which the Company has agreed to guaranty certain obligations of OppWin under the OppWin Sale Agreement, OppWin ST under the OppWin ST Sale Agreement and any other Bank Partner Subsidiary under the applicable Bank Partner Sale Agreement.

“Permitted Expenses” means the reasonable and documented costs and expenses incurred by the Agents and the Lenders (and their respective agents or professional advisors) in connection with the preparation, administration, amendment and due diligence of this Agreement and the other Credit Documents and, which costs and expenses the BorrowerBorrowers shall reimburse to the Administrative Agent or shall pay or cause to be paid in accordance with the Credit Documents. “Permitted Expenses” shall include, without limitation, the expenses set forth in Sections 5.10 and 9.2 hereof.

“Permitted Full Recourse SPV Facility” means each financing facility of a Financing Subsidiary, that (a) has recourse to the Company, provided such recourse is not secured by a Lien on any assets of the Company or any other Guarantor, (b) which is provided by a bank or other financial institution, (c) at the time such financing facility for such Financing Subsidiary is established no Default or Event of Default exists or would arise after giving effect to the establishment of such facility, and (d) has an advance rate no greater than eighty-five percent

 

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(85%); provided, however, that any financing facility of a Financing Subsidiary that only has indemnity related recourse shall not qualify as a Permitted Full Recourse SPV Facility hereunder (regardless of whether such indemnity guaranty contains any full recourse triggers).

“Permitted Investments” means each of the following:

(a)     Cash or Investments that were Cash Equivalents at the time made;

(b)     (i) Investments in any Subsidiary that is a Guarantor and (ii) Investments in any Subsidiary that is a not a Guarantor so long as no Default or Event of Default exists at the time of such Investment or would arise after giving effect thereto;

(c)     Investments existing on the Fourth Amendment Effective Date;

(d)     Investments received in lieu of Cash in connection with any disposition permitted hereunder;

(e)     Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business;

(f)     Investments consisting of Indebtedness permitted under Section 6.1; Permitted Liens; mergers, consolidations, amalgamations, liquidations, windings up, dissolutions or dispositions permitted by Section 6.4; and Affiliate transactions permitted by Section 6.7;

(g)     Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers;

(h)     Investments (including debt obligations and Capital Stock) received (i) in connection with the bankruptcy or reorganization of any Person, (ii) in settlement of delinquent obligations of, or other disputes with, customers, suppliers and other account debtors arising in the ordinary course of business, (iii) upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (iv) as a result of the settlement, compromise, resolution of litigation, arbitration or other disputes;

(i)     (i) guarantees of leases (other than Capital Leases) or of other obligations not constituting Indebtedness and (ii) guarantees of the lease obligations of suppliers, customers, franchisees and licensees of the Company or any of its Subsidiaries, in each case, in the ordinary course of business;

(j)     Investments under any hedge agreement;

(k)     unfunded pension fund and other employee benefit plan obligations and liabilities to the extent that they are permitted to remain unfunded under applicable law; and

 

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(l)     Investments in connection with intercompany Cash management arrangements and related activities in the ordinary course of business.

“Permitted Liens” means:

(a)     Liens arising in favor of the Collateral Agent under the Collateral Documents;

(b)    Liens imposed by law for Taxes, fees, assessments or other governmental charges payable by theany Borrower, any Credit Party or any Guarantor that are not yet due or are being contested in compliance with Section 5.3;

(c)    Liens existing on the date hereof listed and identified on Schedule 4.12 attached hereto and made a part hereof;

(d)    Liens securing purchase money Indebtedness or Capital Lease obligations; provided, that: (i) the Indebtedness or other obligation secured by any such Lien is permitted under Section 6.1, and (ii) any such Lien encumbers only the asset so purchased or leased and the proceeds thereof;

(e)    Liens on the assets of any Credit Party or any Guarantor (other than equity interests in the BorrowerBorrowers and other Financing Subsidiaries) securing the Indebtedness under the Atalaya Subordinated Loan Agreement, provided such Liens are at all times subject to the Atalaya Subordination and Intercreditor Agreement;

(f)    Liens incurred in connection with the extension, renewal or refinancing of the indebtedness secured by Liens of the type described in clauses (b) through (e) above, provided, that any extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the Indebtedness being extended, renewed or refinanced does not increase and, in the event the existing Liens are subordinated to the Liens held by the Collateral Agent, the Liens permitted under this clause (f) are subordinated to the Liens held by the Collateral Agent on terms that are not more favorable to the Person(s) providing such extension, renewal or refinancing pursuant to a written intercreditor agreement acceptable to the Collateral Agent;

(g)    Any bankers’ Liens, rights of setoff and other similar Liens (including under Section 4-210 of the UCC) in one or more deposit accounts maintained by theany Borrower or any other Credit Party or any Guarantor, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements; provided that, unless such Liens are non-consensual and arise by operation of law, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;

 

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(h)    One or more judgment Liens imposed on the properties of any Credit Party (other than thea Borrower) or Guarantor securing judgments and other proceedings not constituting an Event of Default;

(i)    Liens on the assets acquired by a Financing Subsidiary in connection with a transaction permitted by Section 6.14(c), and any back-up security interest granted in such assets by any Credit Party or any Guarantor in connection with the sale, transfer or assignment thereof;

(j)    Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen, repairmen or other like Liens arising in the ordinary course of business and securing obligations that are not overdue more than sixty (60) days, or remain payable without penalty or that are being contested in good faith;

(k)    Liens incurred or deposits or pledges made in the ordinary course of business in connection with worker’s compensation, unemployment insurance and other types of social security, or to secure the performance of bids, leases, customs, tenders, statutory obligations, surety and appeal bonds, payment and performance bonds, return-of-money bonds and other similar obligations (not incurred in connection with the borrowing of money or the obtaining of advances or credits to finance the purchase price of property);

(l)    (i) easements, rights-of-way, restrictions, covenants, conditions and other liens incurred, licenses and sublicenses and other similar rights granted to others in the ordinary course of business and not, individually or in the aggregate, materially interfering with the ordinary conduct of the business of the applicable Person or (ii) title defects or irregularities with respect to real property which do not interfere with the ordinary conduct of business of any Credit Party or any Guarantor;

(m)    non-exclusive license of intellectual property granted to third parties in the ordinary course of business

(n)    Liens which are incidental to the conduct of the applicable Credit Party’s or Guarantor’s business or the ownership of its property and assets and which were not incurred in connection with the borrowing of money or the obtaining of advances or credit, and which do not in the aggregate materially impair the ordinary conduct of the business of such Credit Party or Guarantor;

(o)    Liens securing Indebtedness incurred to the extent used to finance insurance premiums to the extent permitted under Section 6.1;

(p)    Liens arising from UCC financing statement filings regarding operating leases and consignments;

(q)    any interest or title of a lessor, sublessor, licensor or sublicensor under any lease or license permitted by the Credit Documents;

 

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(r)    Liens (including the right of set-off, revocation, refund or chargeback) in favor of a bank or other depository institution arising as a matter of law encumbering deposits and solely relating to the maintenance of any applicable bank or deposit account;

(s)    Liens arising out of consignment, title retention, conditional sale or similar arrangements for the sale of goods entered into by any Credit Party or any Guarantor thereof in the ordinary course of business;

(t)    Liens consisting of security deposits in connection with leases, subleases, sublicenses, use and occupancy agreements, utility services and similar transactions entered into by any Credit Party or any Guarantor in the ordinary course of business and not required as a result of any breach of any agreement or default in payment of any obligation;

(u)    Liens on the assets acquired by a Financing Subsidiary in connection with a securitization securing Indebtedness of such Financing Subsidiary, and any back-up security interest granted in such assets by any Credit Party or any Guarantor in connection with the sale and securitization thereof; and

(v)     Other Liens consented to in writing by the Administrative Agent.

“Permitted Refinancing” means any modification, refinancing, refunding, renewal or extension of any Indebtedness; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to any interest capitalized in connection with, any premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension, (b) such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a weighted average life to maturity equal to or longer than the weighted average life to maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms that are not more favorable to the Persons providing such Indebtedness being modified, refinanced, refunded, renewed or extended pursuant to a written subordination agreement reasonably acceptable to the Administrative Agent, (d) at the time thereof, no Event of Default shall have occurred and be continuing and (e) such modification, refinancing, refunding, renewal or extension is incurred and guaranteed only by the Persons who are the obligors on the Indebtedness being modified, refinanced, refunded, renewed or extended

“Permitted Tax Distribution Amount” means, (A) as of any date of determination, distributions made by the Company to its equity holders in order to permit such equity holders to pay federal and, state and local income Taxes on the Company’s taxable income due and owing for any Fiscal Year beginning with the Fiscal Year ended December 31, 2019, in an amount not to exceed [***]% of the cumulative taxable income of the Company beginning with the Fiscal Year

 

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ended December 31, 2019 through such date of determination; provided, that the Company has provided the Administrative Agent with a detailed calculation of its taxable income together with supporting documentation reasonably satisfactory to the Administrative Agent, and (B) distributions to the Borrowers’ owner(s) to cover the U.S. federal, state and local Tax liabilities of such owner(s) for a taxable year attributable to the activities of the Borrowers and its Subsidiaries (if any).

“Permitted Third Party Sale” has the meaning set forth in the definition of Change of Control.

“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts, statutory trusts, series trusts, or other organizations, whether or not legal entities, and Governmental Authorities.

“Plan” shall mean an “employee benefit plan” as defined in Section 3(3) of ERISA that is covered by Title IV of ERISA.

“Principal Office” means, for the Administrative Agent, 115 South LaSalle Street, 18W, Chicago, Illinois 60603 (or such other location in the United States of America as the Administrative Agent may from time to time designate in writing to the Borrower and the Lenders).

“Purchase Agreement (OF IV Borrower)” means that certain receivables purchase agreement dated as of August 19, 2019, between the Company, as seller, and theOF IV Borrower, as purchaser, as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and with the prior written consent of the Administrative Agent.

“Purchase Agreement (STF Borrower)” means that certain receivables purchase agreement, dated as of the Sixth Amendment Effective Date, by and between SalaryTap, as seller, and STF Borrower, as purchaser, as may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and with the prior written consent of the Administrative Agent.

“Purchase Agreements” means, collectively, the Purchase Agreement (OF IV Borrower) and Purchase Agreement (STF Borrower).

“Qualifying Subordinated Debt” means (i) Subordinated Debt issued by the Company pursuant to the Atalaya Subordinated Loan Agreement that is at all times subject to the Atalaya Subordination and Intercreditor Agreement; and (ii) until the sooner of the Fourth Amendment Effective Date Refinancing and the date that is not more than fifteen (15) days following the Fourth Amendment Effective Date, unsecured Subordinated Debt (which shall include principal amount outstanding and any accrued noncurrent pay interest) of the Company and, in each case, has, as of any date the same is to be determined, a maturity date not less than six (6) months after, and no principal amortization occurring prior to, the Final Maturity Date.

 

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“Receivable” means (a) with respect to a Contract originated by the Originator and subsequently sold to thea Borrower pursuant to the terms of the applicable Purchase Agreement, 100% of the right to receive payments from the related Obligor under such Contract and title thereto, and (b) with respect to a Contract originated by a Bank Partner Originator, 100% of the right to receive the Originator Percentage of payments from the related Obligor under such Contract acquired by a Bank Partner Subsidiary pursuant to the applicable Bank Partner Program Agreements and, in turn, sold by such Bank Partner Subsidiary to thea Borrower pursuant to the terms of the applicable Bank Partner Sale Agreement and, following such time title to the related loan is transferred in accordance with Section 5.17, title thereto.

“Receivable File” as defined in the Servicing Agreement.

“Receivable Repurchase Event” means (a) with respect to any Receivable, the failure of such Receivable to satisfy the applicable Eligibility Criteria as of the Credit Date on which such Receivable was first reflected in a Borrowing Base Certificate, or (b) any required repurchase of a Receivable pursuant to Section 3.2 of the applicable Purchase Agreement or the relevant Bank Partner Sale Agreement, as applicable.

“Receivable Repurchase Price” means, with respect to any Receivable and any date of determination, the Remaining Funded Amount of such Receivable, plus all accrued and unpaid interest on the Remaining Funded Amount of such Receivable at the applicable APR through the date on which such Receivable is repurchased.

“Recipient” means any Agent or Lender, as applicable.

“Register” as defined in Section 9.6(c).

“Regulatory Trigger Event” means (a) the commencement by any Governmental Authority of any formal inquiry or investigation (which for the avoidance of doubt excludes any routine inquiry or investigation), legal action or proceeding, against any Credit Party, any third party then engaged by the Servicer as a sub-servicer, the applicable Bank Partner Originator or the Originator, challenging such Person’s authority to originate, hold, own, service, pledge or enforce any Receivable with respect to the residents of any jurisdiction, or otherwise alleging any noncompliance by any Credit Party, any third party then engaged by the Servicer as a sub-servicer, the applicable Bank Partner Originator or the Originator with such jurisdiction’s applicable laws related to originating, holding, pledging, servicing or enforcing such Receivable or otherwise related to such Receivable, which inquiry, investigation, legal action or proceeding (i) is not released or terminated in a manner acceptable to the Administrative Agent in its sole discretion within [***] calendar days of the earlier of any Credit Party’s knowledge or receipt of written notice thereof and (ii) could reasonably be expected to have a Material Adverse Effect, as determined by the Administrative Agent in its sole discretion, or (b) the issuance or entering of any stay, order, judgment, cease and desist order, injunction, temporary restraining order, or other judicial or non-judicial sanction, order or ruling against any Credit Party, any third party then engaged by the Servicer as a sub-servicer, the applicable Bank Partner Originator or the Originator related in any way to the originating, holding, pledging, servicing or enforcing of any Receivable or rendering thea Purchase Agreement or a Bank Partner Sale Agreement unenforceable in such

 

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jurisdiction, the effect of which could reasonably be expected to have a Material Adverse Effect, as determined by the Administrative Agent in its sole discretion; provided, that, in each case, upon the favorable resolution of such inquiry, investigation, action or proceeding (whether by judgment, withdrawal of such action or proceeding or settlement of such action or proceeding), as determined by the Administrative Agent in its sole discretion and confirmed by written notice from the Administrative Agent, such Regulatory Trigger Event for such jurisdiction shall cease to exist immediately upon such determination by the Administrative Agent. It is understood and agreed that the jurisdiction of a Regulatory Trigger Event is the entire United States if the applicable Governmental Authority is a federal authority.

“Related Agreements” means, collectively, the Purchase AgreementAgreements , the Bank Partner Sale Agreement(s), the Performance Guaranty, the Servicing Agreement and the Backup Servicing Agreement.

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

“Release Date” as defined in Section 3.3(a).

“Remaining Funded Amount” means, with respect to any Receivable and any date of determination, an amount equal to the product of (1) (a) the original UPB of such Receivable less all Origination Fees, closing fees, and any other amounts payable by the Obligor at origination minus (b) the product of (x) all principal payments made by the Obligor in respect of such Receivable as of such date of determination, and (y) (1) minus a fraction, the numerator of which is the aggregate amount of all Origination Fees, closing fees, and any other amounts payable by the Obligor at origination and the denominator of which is the original UPB of such Receivable at the time of origination and (2) the applicable Originator Percentage.

“Reporting Date” as defined inmeans the Servicing Agreement15th and last day of each calendar month.

“Required Lenders” means, as of the date of determination thereof, Lenders whose outstanding Loans and unused Revolving Commitments constitute more than 66-2/3% of the sum of the total outstanding Loans and unused Revolving Commitments of the Lenders; provided that at any time there are less than three (3) Lenders under this Agreement, “Required Lenders” means all Lenders. To the extent provided in the last paragraph of Section 9.5(a), the outstanding Loans and unused Revolving Commitments of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

“Rescindable Amount” means, with respect to any payment that Administrative Agent makes to any Lender or other Secured Party as to which Administrative Agent determines (in its sole and absolute discretion) that any of the following applies: (1) Borrowers have not in fact made the corresponding payment to Administrative Agent; (2) Administrative Agent has made a payment in excess of the amount(s) received by it from Borrowers either individually or in the aggregate (whether or not then owed); or (3) Administrative Agent has for any reason otherwise erroneously made such payment.

 

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“Reserves” means reserves against theany Borrowing Base, in such amounts and with respect to such matters that have had a material adverse effect on the business of thea Borrower, the Company or the Collateral, as the Administrative Agent, acting in a commercially reasonable manner, shall view as necessary or appropriate from time to time in order to protect the interests of the Secured Parties under the Credit Documents.

“Revolving Commitment” means the commitment of the Lenders to make or otherwise fund any Loan during the Revolving Commitment Period. The amount of each Lender’s Revolving Commitment as of the Sixth Amendment Effective Date is set forth on Appendix A or in the applicable Assignment Agreement, subject to any suspension, adjustment or reduction pursuant to the terms and conditions hereof.

“Revolving Commitment Period” means the period from the Closing Date to but excluding the Termination Date.

“S&P” means Standard & Poor’s Rating Services, Inc., a Standard & Poor’s Financial Services, LLC business, and any successor thereto.

“SalaryTap” means SalaryTap, LLC, a Delaware limited liability company.

“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC (including the OFAC SDN List), the United States Department of State, the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom, or any other relevant sanctions authority, (b) any Person located, organized or resident in a Designated Jurisdiction or (c) any Person owned or controlled by any such Person or Persons described in clauses (a) or (b) above.

“Sanctions” means all economic or financial sanctions, sectoral sanctions, secondary sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the United States government (including those administered by OFAC or the United States Department of State) or (b) the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom, or any other relevant sanctions authority with jurisdiction over theany Borrower or any Guarantor or any of its respective Subsidiaries or Affiliates.

“Scheduled Receivable Payment” means, for any Collection Period and for any Receivable, the amount indicated in the Contract relating to such Receivable as required to be paid by the Obligor in such Collection Period. If after the Closing Date, the Obligor’s obligation under such Receivable with respect to a Collection Period has been modified so as to differ from the amount specified in such Receivable as a result of (a) the order of a court in a proceeding relating to Debtor Relief Laws as to which the Obligor is a debtor, (b) the application of the Servicemembers Civil Relief Act, or (c) modifications or extensions of the Receivable permitted by the Credit Documents, the Scheduled Receivable Payment with respect to such Collection Period shall refer to the Obligor’s payment obligation with respect to such Collection Period as so modified and such modification shall be reflected in the Loan Database pursuant to the terms of the Servicing Agreement.

 

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“Scheduled Termination Date” means SeptemberAugust 3019 , 20212023 .

“Secured Obligations” means the Obligations and Bank Product Obligations, in each case whether now existing or hereafter arising, due or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or acquired (including interest, fees, costs, and charges which, but for the filing of a petition in bankruptcy with respect to theany Borrower or any Guarantor, would have accrued on any Obligation, whether or not a claim is allowed against theany Borrower or any Guarantor for such interest, fees, costs, or charges in the related bankruptcy proceeding).

“Secured Party” as definedand “Secured Parties” shall have the same meaning herein as assigned thereto in the Security AgreementAgreements .

“Securities” means any stock, shares, partnership interests, limited liability company interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

“Securities Act” means the Securities Act of 1933, as amended to the date hereof and from time to time hereafter, and any successor statute.

“Security Agreement” means the Security Agreement (OF IV Borrower) or the Security Agreement (STF Borrower), as the context may require; and “Security Agreements” means such agreements collectively.

“Security Agreement (OF IV Borrower)” means the Security Agreement, dated as of August 19, 2019, between theOF IV Borrower and the Collateral Agent on behalf of the Secured Parties, as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“Security Agreement (STF Borrower)” means the Security Agreement, dated as of the Sixth Amendment Effective Date, between STF Borrower and the Collateral Agent on behalf of the Secured Parties, as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“Seller” means each of (a) the Company, in its capacity as seller under the Purchase Agreement (OP IV Borrower), (b) SalaryTap, in its capacity as seller under the Purchase Agreement (STF Borrower) and (bc) each Bank Partner Subsidiary, in its capacity as seller under the applicable Bank Partner Sale Agreement, as applicable.

 

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“Senior Funded Debt” means, at any time the same is to be determined, Total Funded Debt at such time minus the principal amount of, and any accrued noncurrent pay interest on, Qualifying Subordinated Debt then outstanding.

“Senior Leverage Ratio” means, at any time the same is to be determined, the ratio of (a) Senior Funded Debt at such time, to (b) Adjusted Tangible Net Worth (Company) at such time.

“Servicer” means Opportunity Financial, LLC, a Delaware limited liability company, in its capacity as Servicer hereunder.

“Servicer Default” as defined in the Servicing Agreement.

“Servicing Agreement” means the Servicing Agreement, dated as of August 19, 2019, among the BorrowerBorrowers , the Servicer, the Administrative Agent and the Collateral Agent, as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“Servicing Fee” as defined in the Servicing Agreement.

“Servicing Policy” as defined in the Servicing Agreement.

“Settlement Date” means (a) the fifteenth (15th) calendar day following the end of each calendar month, or if such day is not a Business Day, the immediately following Business Day, beginning in the month of September, 2019, and (b) the Final Maturity Date.

“Similar Laws” as defined in Section 4.25.

“ Sixth Amendment” means that certain Amendment No. 6 to Revolving Credit Agreement dated as of Sixth Amendment Effective Date, by and among the Credit Parties, the Lenders party thereto and the Administrative Agent.

“Sixth Amendment Closing Certificate” means a Sixth Amendment Closing Certificate of an Authorized Officer of each Credit Party substantially in the form of Exhibit J.

“ Sixth Amendment Effective Date” has the meaning assigned thereto in the Sixth Amendment.

“Solvency Certificate” means a Solvency Certificate of an Authorized Officer of each Credit Party substantially in the form of Exhibit F.

“Solvent” means, with respect to any Person, that as of the date of determination, both (a)(i) the sum of such Person’s debt (including contingent liabilities) does not exceed the assets of such entity, at Fair Valuation, (ii) such Person’s capital is not unreasonably small in relation to its business, and (iii) such Person has not incurred and does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise), and (b) such Person is “solvent” within the meaning given

 

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that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).

“SPAC Transaction” means the acquisition of the Company by FG New America Acquisition Corp. as contemplated by and in connection with the Business Combination Agreement.

“SPAC Warrant Liabilities” means any and all liabilities in respect of warrants issued by FG New America Acquisition Corp. prior to the closing of the SPAC Transaction.

“Specified Legal/Regulatory Change” means a legal or regulatory change, the effect of which is to materially and adversely impair the ability of any Credit Party or any Bank Partner Originator to originate, own, hold, pledge, service, collect or enforce the Receivables or similar receivables.

“Standard Securitization Undertakings” means, collectively, (a) customary arms-length servicing obligations (together with any related performance guarantees), (b) obligations (together with any related performance guarantees) to refund the purchase price, repurchase receivables, or grant purchase price credits for the breach of representations or warranties (unrelated to the collectability of the assets sold or the creditworthiness of the associated account debtors), and (c) representations, warranties, covenants, pledges and indemnities (together with any related performance guarantees) of a type that are reasonably customary in a receivable securitization transaction or are consented to in writing by the Administrative Agent. For the avoidance of doubt, the granting and perfection of liens in any applicable servicing account and servicing agreement in connection with a financing facility of a Financing Subsidiary shall constitute a Standard Securitization Undertaking.

“STF Borrower” is defined in the preamble hereto.

“Subordinated Debt” means Indebtedness which is subordinated in right of payment to the prior payment of the Secured Obligations pursuant to subordination provisions approved in writing by the Administrative Agent and is otherwise pursuant to documentation that is, which is in an amount that is, and which contains interest rates, payment terms, maturities, amortization schedules, covenants, defaults, remedies and other material terms that are in form and substance, in each case satisfactory to the Administrative Agent.

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled,

 

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directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.

“Substitute Eligible Receivable” as defined in the applicable Purchase Agreement or the relevant Bank Partner Sale Agreement, as applicable.

“Successor Servicer” means the Backup Servicer or any other successor to the Servicer appointed pursuant to a Successor Servicing Agreement.

“Successor Servicing Agreement” means any successor servicing agreement entered into by the BorrowerBorrowers, the Administrative Agent, the Collateral Agent and the Successor Servicer named therein, in form and substance acceptable to the Administrative Agent.

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Termination Date” means the earlier to occur of (a) the Scheduled Termination Date, (b) the occurrence of a Tier 2 Collateral Performance Trigger, and (c) the occurrence and continuance of an Event of Default and the declaration of all outstanding Obligations to be due and payable pursuant to Section 7.1.

“Third Amendment” means that certain Amendment No. 3 to Revolving Credit Agreement dated as of May 5, 2020, by and among the Credit Parties, the Lenders party thereto and the Administrative Agent.

“Third Amendment Effective Date” means the date upon which the Third Amendment becomes effective pursuant to its terms.

“Third Party Sale” as defined in the definition of Change of Control.

“Tier 1 Collateral Performance Trigger” means:

(a)    with respect to OF IV Borrower, the Loan Receivable Quality Ratio (OF IV Borrower) is equal to or greater than 14.25% as of the last day of any calendar month, but the Tier 2 Collateral Performance Trigger has not occurred; and

(b)     with respect to STF Borrower, the Loan Receivable Quality Ratio (STF Borrower) is equal to or greater than 12.25% as of the last day of any calendar month, but the Tier 2 Collateral Performance Trigger has not occurred.

“Tier 2 Collateral Performance Trigger” means:

             (a)     with respect to OF IV Borrower, the Loan Receivable Quality Ratio (OF IV Borrower) is equal to or greater than 16.25% as of the last day of any calendar month; and

 

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             (b)    with respect to STF Borrower, the Loan Receivable Quality Ratio (STF Borrower) is equal to or greater than 14.25% as of the last day of any calendar month.

“TILA” means the federal Truth in Lending Act.

“Total Adjusted Debt (Company)” means, at any time the same is to be determined, (a) total liabilities of the Company, determined on a consolidated basis in accordance with GAAP, minus (b) the principal amount of, and any accrued noncurrent pay interest on, Qualifying Subordinated Debt, in each case, determined on a consolidated basis in accordance with GAAP, minus (c) the aggregate amount of the SBA PPP Loan then outstanding, minus (d) the aggregate amount of SPAC Warrant Liabilities then outstanding.

“Total Funded Debt” means, at any time the same is to be determined, the sum of the following total consolidated liabilities of the Company and its Subsidiaries (including Financing Subsidiaries) (but without duplication): (a) accrued interest expense on all Indebtedness owed by the Company and its Subsidiaries (including Financing Subsidiaries), (b) secured borrowing payable on all Indebtedness of the Company and its Subsidiaries (including Financing Subsidiaries) (provided, for the avoidance of doubt, that secured borrowing payable due to each of Atalaya Capital Management, Ares Agent Services, L.P. and BMO Harris (and their respective affiliates) as of the internal consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2020 shall be included), and (c) all Indebtedness of any Person which is directly or indirectly guaranteed by the Company or any of its Subsidiaries, or which the Company or any of its Subsidiaries has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which the Company or any of its Subsidiaries has otherwise assured a creditor against loss.

“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.

“Undrawn Amount” means, on any date of determination during the Revolving Commitment Period, the difference between the Maximum Committed Amount and the outstanding principal amount of the Loans as of such date of determination.

“Unused Line of Credit Fee” is defined in the Fee Letter.

“UPB” means, with respect to any Receivable, the unpaid principal balance of such Receivable owed by the related Obligor (inclusive of the Bank Partner Retained Percentage with respect to such Receivable).

“U.S. Person” means any Person that is a “United States Person” as defined in section 7701(a)(30) of the Internal Revenue Code.

“U.S. Tax Compliance Certificate” as defined in Section 2.14(e).

 

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“Verified Documents” as defined in the Backup Servicing Agreement.

“Verified Receivables Report” as defined in the Backup Servicing Agreement.

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

Section 1.2.     Accounting Terms. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Company’s audited financial statements, except as otherwise specifically prescribed herein. Notwithstanding anything to the contrary contained herein or in the definition of “Capital Leases,” in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the date hereof) that would constitute capital leases in conformity with GAAP on the date hereof shall be considered capital leases, and all calculations and deliverables under this Agreement or any other Credit Document shall be made or delivered, as applicable, in accordance therewith.

Section 1.3.     Interpretation, etc. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word “include” or “including,” when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The words “hereof,” “herein,” “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless the context requires otherwise or otherwise specified in any applicable Credit Document, (a) reference to any Person includes that Person’s successors and assignees, (b) any definition of or reference to any Credit Document, agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements, or modifications set forth herein or therein), and (c) any reference to any law or regulation herein shall refer to such law or regulation as amended, modified or supplemented from time to time. All references to time of day herein are references to Chicago, Illinois, time unless otherwise specifically provided.

 

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SECTION 2.    LOANS

Section 2.1.    Loans.

(a)    Revolving Loans. (i) During the Revolving Commitment Period, subject to the terms and conditions hereof, each Lender agrees from time to time to make loans to the BorrowerBorrowers (each a “Loan” and collectively, the “Loans”) in an aggregate amount up to but not exceeding its Revolving Commitment.

(ii)    During the Revolving Commitment Period, the remaining Revolving Commitment of the Lenders hereunder on any date shall be equal to (x) to the extent a Loan is requested by OF IV Borrower, the Commitment Availability (OF IV Borrower) and (y) to the extent a Loan is requested by STF Borrower, the Commitment Availability (STF Borrower).

(iii)    The Revolving Commitment shall expire on the Termination Date and no new Loans shall be funded after such date.

(iv)    Subject to Section 2.1(b) and satisfaction of the conditions set forth in Section 3.2, amounts borrowed pursuant to this Section 2.1(a) may be repaid and re-borrowed during the Revolving Commitment Period.

(b)    Borrowing Mechanics for Loans. (i) Loans made on any Credit Date shall be in a minimum amount of $100,000.

(ii)    Whenever thea Borrower desires that the Lenders make Loans to such Borrower, thesuch Borrower shall deliver to the Administrative Agent a fully executed Funding Notice together with athe applicable Borrowing Base Certificate no later than 11:00 a.m. (Chicago, Illinois time) on the proposed Credit Date. Each such Funding Notice shall be delivered reflecting sufficient Commitment Availability for the requested Loans.

(iii)    The Lenders shall, upon satisfaction of the conditions precedent specified herein, make the amount of the Loans requested available to the applicable Borrower not later than 4:00 p.m. (Chicago, Illinois time) on the proposed Credit Date by wire transfer of same day funds in Dollars, to such account as may be designated in writing to the Administrative Agent by the applicable Borrower (herein, the “Designated Disbursement Account”).

(iv)    Unless otherwise permitted by the Administrative Agent in its sole and absolute discretion, (x) no more than three (3) Loans shall be made per calendar week and (y) in no event will the BorrowerBorrowers engage in Borrowing Base Actions on more than three (3) Business Days per calendar week.

Section 2.2.     Use of Proceeds. The proceeds of the Loans shall be applied by the applicable Borrower to finance the acquisition of Receivables from the applicable Seller pursuant to the applicable Purchase Agreement or the relevant Bank Partner Sale Agreement, as applicable, and to pay reasonable ongoing transaction expenses of thesuch Borrower, as approved by the Administrative Agent in its sole discretion. No portion of the proceeds of any Credit Extension

 

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shall be used in any manner that causes such Credit Extension or the application of such proceeds to violate Regulation T or Regulation U of the Board of Governors of the Federal Reserve System, Regulation B, Regulation X or Regulation Z of the Consumer Financial Protection Bureau or any other regulation thereof or to violate the Exchange Act. TheNo Borrower will not request any Loan, and theno Borrower shall not use, and shall ensure that its Affiliates, and its (or their) respective directors, officers, employees and agents shall not use, the proceeds of any Loan, directly or indirectly, (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) to fund, finance or facilitate any activities, business or transaction of or with any Sanctioned Person or in any Designated Jurisdiction, or (iii) in any other manner that would result in the violation of any Sanctions applicable to any party hereto.

Section 2.3.     Evidence of Indebtedness.(a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the BorrowerBorrowers to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(b)    The Administrative Agent shall also maintain accounts in which it will record (i) the amount of each Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from the BorrowerBorrowers to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder from the BorrowerBorrowers and each Lender’s share thereof.

(c)    The entries in the accounts maintained pursuant to subsections (a) and (b) above shall be prima facie evidence of the existence and amounts of the Obligations therein recorded; provided, however, that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the BorrowerBorrowers to repay the Obligations in accordance with their terms.

(d)    Any Lender may request that its Loans be evidenced by a Note. In such event, the BorrowerBorrowers shall prepare, execute and deliver to such Lender a Note payable to such Lender or its registered assigns in the amount of such Lender’s Revolving Commitment. Thereafter, the Loans evidenced by such Note or Notes and interest thereon shall at all times (including after any assignment pursuant to Section 9.6) be represented by one or more Notes payable to the order of the payee named therein or any assignee pursuant to Section 9.6, except to the extent that any such Lender or assignee subsequently returns any such Note for cancellation and requests that such Loans once again be evidenced as described in subsections (a) and (b) above.

Section 2.4.     Interest on Loans. (a) Except as otherwise set forth herein, each Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) at the LIBOR Rate plus the Applicable Margin.

(b)    Interest payable pursuant to Section 2.4(a) shall be computed on the basis of a 360-day year, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, the related Credit Date applicable to such Loan shall be included, and the date of payment of such Loan shall be excluded; provided, that if a Loan is repaid on the same day on which it is made, one (1) day’s interest shall be paid on that Loan.

 

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(c)    Except as otherwise set forth herein, interest on each Loan shall be payable in arrears on (i) each Settlement Date, (ii) with respect to any prepayment, in whole or in part, of such Loan, the date of such prepayment in an amount equal to the interest accrued and unpaid on the amount so prepaid to the date of prepayment, and (iii) at maturity.

Section 2.5.     Default Interest. Upon the occurrence and during the continuance of an Event of Default, the principal amount of all Loans outstanding and, to the extent permitted by applicable law, any interest payments on the Loans or any fees or other amounts owed hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable Debtor Relief Laws) payable in accordance with the provisions of Section 2.10 at a rate that is 2.0% per annum in excess of the Interest Rate (the “Default Funding Rate”) otherwise payable hereunder with respect to the Loans until no Event of Default is then continuing. Payment or acceptance of the increased rates of interest provided for in this Section 2.5 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative Agent or the Lenders.

Section 2.6.     Commitment Terminations. The BorrowerBorrowers shall have the right at any time and from time to time, upon five (5) Business Days’ prior written notice to the Administrative Agent (or such shorter period of time agreed to by the Administrative Agent), to terminate the Revolving Commitments without premium or penalty and in whole or in part, any partial termination to be (i) in an amount not less than $5,000,000, and (ii) allocated ratably among the Lenders in proportion to their respective pro rata shares of the Revolving Commitments, provided that (a) the Revolving Commitments may not be reduced below $12,500,000 unless terminated in whole and (b) the Revolving Commitments may not be reduced to an amount less than the sum of the aggregate principal amount of Loans then outstanding. Any termination of the Revolving Commitments in whole pursuant to this Section shall be accompanied by the Early Termination Fee (if any) then due. The Administrative Agent shall give prompt notice to each Lender of any such termination of the Revolving Commitments.

Section 2.7.     Voluntary Prepayments. The BorrowerBorrowers may prepay the Loans in whole or in part upon prior written notice delivered by the BorrowerBorrowers to the Administrative Agent no later than 2:00 p.m. (Chicago, Illinois time) on the date of prepayment (or, in any case, such shorter period of time then agreed to by the Administrative Agent), such prepayment to be made by the payment of the principal amount to be prepaid and, if required by the Administrative Agent, accrued interest thereon to the date fixed for prepayment.

Section 2.8.     Receivable Repurchase Events. (a) Upon the occurrence of a Receivable Repurchase Event following the Termination Date, with respect to any Receivable, the applicable Seller shall (x) repurchase each affected Receivable pursuant to the terms of the applicable Purchase Agreement or the relevant Bank Partner Sale Agreement, as applicable, at a price equal to the Receivable Repurchase Price and (y) deposit the Receivable Repurchase Price for each affected Receivable directly into the applicable Collection Account upon repurchase thereof. All amounts deposited into thea Collection Account pursuant to this Section 2.8(a) shall be applied as Collections on the related Settlement Date pursuant to Section 2.10.

 

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(b)    Upon the occurrence of a Receivable Repurchase Event during the Revolving Commitment Period, the applicable Seller shall substitute each affected Receivable with a Substitute Eligible Receivable pursuant to the terms of the applicable Purchase Agreement or the relevant Bank Partner Sale Agreement, as applicable. In the event the applicable Seller is unable to originate (or, in the case of a Bank Partner Subsidiary, acquire pursuant to the applicable Bank Partner Program Agreements) sufficient Receivables to effect such substitution of affected Receivables, such Seller may, with the prior written consent of the Administrative Agent (x) repurchase each affected Receivable pursuant to the terms of the applicable Purchase Agreement or the relevant Bank Partner Sale Agreement, as applicable, at a price equal to the Receivable Repurchase Price and (y) deposit the Receivable Repurchase Price for each affected Receivable directly into the applicable Collection Account to be applied as Collections on the related Settlement Date pursuant to Section 2.10 or released to the applicable Borrower pursuant to Section 5.13 in order to purchase Eligible Receivables at a later date.

(c)    In connection with a Receivables Repurchase Event arising under or in connection with a Bank Partner Sale Agreement, in the event that the applicable Bank Partner Subsidiary is unable, or otherwise fails, to repurchase or substitute a Substitute Eligible Receivable for an affected Receivable as required pursuant to clauses (a) or (b) above, the Company shall repurchase, or substitute a Substitute Eligible Receivable for, such affected Receivable in accordance with the terms of the Performance Guaranty.

Section 2.9.     Controlled Accounts. (a) On or prior to the date hereofSixth Amendment Effective Date, theeach Borrower shall cause to be established and maintained, a deposit account at the applicable Collection Account Bank, in the name of thesuch Borrower, designated as the Collection Account for such Borrower, as to which the Collateral Agent has control for the benefit of the Secured Parties within the meaning of Section 9-104(a)(2) of the UCC pursuant to the applicable Collection Account Control Agreement. TheEach Collection Account Control Agreement shall provide that all available funds on deposit in the applicable Collection Account will be remitted to the applicable Disbursement Account on each Business Day.

(b)    On or prior to the date hereofSixth Amendment Effective Date, theeach Borrower shall cause to be established and maintained, a deposit account at the applicable Disbursement Account Bank, in the name of thesuch Borrower, designated as the Disbursement Account for such Borrower, as to which the Collateral Agent has control for the benefit of the Secured Parties within the meaning of Section 9-104(a)(2) of the UCC pursuant to the applicable Disbursement Account Control Agreement.

(c)    All income from amounts on deposit in theeach Collection Account shall be retained in thesuch Collection Account, until the date on which the funds in thesuch Collection Account are swept to the applicable Disbursement Account in accordance with the applicable Collection Account Control Agreement. All income from amounts on deposit in theeach Disbursement Account shall be retained in thesuch Disbursement Account, until the next Settlement Date, at which time such income shall be applied, at the direction of the Collateral Agent in accordance with Section 2.10. TheEach Borrower shall treat all income from amounts on deposit in theits Disbursement Account as its income for federal, state and local income tax purposes.

 

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(d)     Notwithstanding anything to the foregoing, subject to the Facility Availability and to the conditions set forth in Section 2.10(c) and Section 3.3, theeach Borrower, in accordance with Section 5.13, may use amounts on deposit in thesuch Borrower’s Disbursement Account to purchase additional Receivables.

Section 2.10.     Application of Collections. (a) Prior to each Settlement Date, the Administrative Agent shall confirm the accuracy of the Monthly Servicing Report and, during the Revolving Commitment Period, so long as no Event of Default is continuing and no Tier 2 Collateral Performance Trigger has occurred, the Collateral Agent shall instruct the applicable Disbursement Account Bank, based on the Monthly Servicing Report as confirmed by the Administrative Agent, in writing, by 1:00 p.m. (Chicago, Illinois time) on each Settlement Date to apply all Collections in the applicable Disbursement Account with respect to the related Collection Period on each Settlement Date (after giving effect to any withdrawals in accordance with Section 2.10(c)) as follows:

(i)    First, to the Servicer, any accrued and unpaid Servicing Fees or reimbursable expenses due under the Servicing Agreement;

(ii)    Second, on a pari passu basis, (A) to the Collection Account Bank, the Collection Account Bank Fees, reimbursable expenses and indemnification amounts of the applicable Collection Account Bank accrued and unpaid as of the last day of the related Collection Period, (B) to the applicable Disbursement Account Bank, the Disbursement Account Bank Fees, reimbursable expenses and indemnification amounts of the applicable Disbursement Account Bank accrued and unpaid as of the last day of the related Collection Period, (C) to the Backup Servicer, the Backup Servicing Fees, reimbursable expenses (including, without limitation, any transition costs) and indemnification amounts of the Backup Servicer accrued and unpaid as of the last day of the related Collection Period and (D) to the Administrative Agent, to pay any other accrued but unpaid fees and expenses and indemnification amounts of the Administrative Agent and the Collateral Agent in connection with this Agreement and any other Credit Document (including without limitation any Administrative Agent Fees);

(iii)    Third, to each Lender, to pay any accrued but unpaid interest, fees and expenses of such Lender in connection with this Agreement and any other Credit Document (including without limitation any Unused Line of Credit Fees);

(iv)    Fourth, to the Lenders, pro rata, any amounts necessary to reduce the Borrowing Base Deficiency, if any, to zero; and

(v)     Fifth, to the applicable Borrower, for its own account, any remaining amount.

 

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(b)     Prior to each Settlement Date, the Administrative Agent shall confirm the accuracy of the Monthly Servicing Report and, on each Settlement Date during the Amortization Period or during the continuance of an Event of Default or after the occurrence of the Tier 2 Collateral Performance Trigger, the Collateral Agent shall instruct the applicable Disbursement Account Bank, based on the Monthly Servicing Report as confirmed by the Administrative Agent, in writing, by 1:00 p.m. (Chicago, Illinois time) on each Settlement Date to apply all Collections in the applicable Disbursement Account with respect to the related Collection Period on each Settlement Date as follows:

(i)    First, to the Servicer, any accrued and unpaid Servicing Fees or reimbursable expenses due under the Servicing Agreement;

(ii)    Second, on a pari passu basis, (A) to the applicable Collection Account Bank, the Collection Account Bank Fees, reimbursable expenses and indemnification amounts of the applicable Collection Account Bank accrued and unpaid as of the last day of the related Collection Period, (B) to the applicable Disbursement Account Bank, the Disbursement Account Bank Fees, reimbursable expenses and indemnification amounts of the applicable Disbursement Account Bank accrued and unpaid as of the last day of the related Collection Period, (C) to the Backup Servicer, the Backup Servicing Fees, reimbursable expenses (including, without limitation, any transition costs) and indemnification amounts of the Backup Servicer accrued and unpaid as of the last day of the related Collection Period and (D) to the Administrative Agent, to pay any other accrued but unpaid fees and expenses and indemnification amounts of the Administrative Agent and the Collateral Agent in connection with this Agreement and any other Credit Document (including without limitation any Administrative Agent Fees);

(iii)    Third, to each Lender, to pay any accrued but unpaid interest, fees and expenses of such Lender in connection with this Agreement and any other Credit Document (including without limitation any Unused Line of Credit Fees);

(iv)    Fourth, to the Lenders, pro rata, any amounts necessary to reduce the Borrowing Base Deficiency, if any, to zero;

(v)    Fifth, to the Lenders, pro rata, all remaining amounts until the outstanding principal amount of the Loans and Obligations has been reduced to zero; and

(vi)     Sixth, to the applicable Borrower, for its own account, any remaining amount.

(c)    In addition, during the Revolving Commitment Period, so long as (x) the Facility Availability is greater than zero and (y) no Default or Event of Default has occurred and is continuing and no Tier 2 Collateral Performance Trigger has occurred, the Collateral Agent may, at any time, instruct the applicable Disbursement Account Bank to release available funds to the applicable Borrower in an amount up to the Facility Availability to be used by such Borrower to purchase additional Eligible Receivables in accordance with Section 5.13 and subject to the conditions set forth in Section 3.3.

 

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(d)    Not more frequently than once per week, the Collateral Agent shall direct the applicable Disbursement Account Bank to release from the applicable Disbursement Account any amounts owed to a Bank Partner Originator in respect of any Bank Partner Retained Percentages, if the Servicer has delivered to the Collateral Agent a certificate setting forth the calculation of such amounts owed to such Bank Partner Originator in form and substance reasonably satisfactory to the Collateral Agent, which certificate shall include reasonable detail regarding the calculation of the amounts owed to the Bank Partner Originator, including the applicable Bank Partner Retained Percentage, and designate a date for the payment of such reimbursement, which date shall not be earlier than two (2) Business Days following delivery of such certificate. Each of the Administrative Agent, the Collateral Agent and the Lenders shall not enforce any security interest in or Lien on, and acknowledge the applicable Bank Partner Originator’s interest in, the portion of funds then on deposit in the applicable Disbursement Account or Collection Account that are identified as payments made with respect to Receivables originated by a Bank Partner Originator that are payable to such Bank Partner Originator in respect of its Bank Partner Retained Percentage thereof.

(e)    The Collateral Agent shall have no liability for any delay by theany Disbursement Account Bank in transferring funds as directed by the Collateral Agent in accordance with this Section 2.10.

Section 2.11.     General Provisions Regarding Payments. All payments by the BorrowerBorrowers of principal, interest, fees and other Obligations shall be made in Dollars in immediately available funds, without defense, recoupment, setoff or counterclaim, free of any restriction or condition, and delivered to the account of the Administrative Agent, the Collateral Agent or a Lender, as applicable, not later than 3:00 p.m. (Chicago, Illinois time) on the date due via wire transfer of immediately available funds to the account designated by each Agent or each Lender, as applicable, in writing to the applicable Disbursement Account Bank. Funds received by the Administrative Agent, the Collateral Agent or a Lender after that time on such due date shall be deemed to have been paid by the BorrowerBorrowers on the next Business Day (except to the extent such delay in payment results solely from the applicable Disbursement Account Bank’s failure to distribute funds on deposit in the applicable Disbursement Account and available for distribution as of 3:00 p.m. on such Business Day in accordance with Section 2.10).

(a)    All payments in respect of the principal amount of any Loan shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid.

(b)    All payments of principal shall be applied to the Loans pro rata in reduction of the outstanding principal amount thereof.

(c)    Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in the computation of the payment of interest hereunder.

 

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(d)     TheEach Borrower hereby authorizes the Administrative Agent to charge thesuch Borrower’s accounts with the Administrative Agent or any of the Administrative Agent’s Affiliates in order to cause timely payment to be made to the Administrative Agent of all principal, interest, fees and expenses due hereunder (subject to sufficient funds being available in its accounts for that purpose).

(e)    The Administrative Agent shall give prompt telephonic notice to the BorrowerBorrowers and the Lenders (confirmed in writing) if any payment is not made in conformity with this Section 2.11. Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the Interest Rate or the Default Funding Rate, as applicable, from the date such amount was due and payable until the date such amount is paid in full.

Section 2.12.    Effect of Benchmark Transition Event.

(a)    Notwithstanding anything to the contrary herein or in any other Credit Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of any Benchmark setting at or after 5:00 p.m. (Chicago time) on the 5th Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.

(b)    Notwithstanding anything to the contrary herein or in any other Credit Document and subject to the proviso below in this paragraph, if a Term SOFR Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Credit Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document; provided that, this clause (b) shall not be effective unless the Administrative Agent has delivered to the Lenders and the BorrowerBorrowers a Term SOFR Notice.

(c)    In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit

 

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Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Credit Document.

(d)    The Administrative Agent will promptly notify the BorrowerBorrowers and the Lenders of (i) any occurrence of a Benchmark Transition Event, Term SOFR Event or Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section.

(e)    Notwithstanding anything to the contrary herein or in any other Credit Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or the LIBOR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.

(f)    Upon the BorrowerBorrowers ’s receipt of notice of the commencement of a Benchmark Unavailability Period, the BorrowerBorrowers may revoke any request for a borrowing and any Loans then outstanding or thereafter requested shall be deemed to bear interest at the greater of the Base Rate as from time to time in effect and the Floor. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.

(g)    As used in this Section:

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for

 

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interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (e) of Section 2.12.

“Benchmark” means, initially, the LIBOR Rate; provided that if a Benchmark Transition Event, a Term SOFR Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to the LIBOR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (a) or (b) of Section 2.12.

“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:

(1)    the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;

(2)    the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;

(3)    the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the BorrowerBorrowers as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for U.S. dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment;

provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; provided further that, notwithstanding anything to the contrary in this Agreement or in any other Credit Document, upon the occurrence of a Term SOFR Event, and the delivery of a Term SOFR Notice, on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).

If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Credit Documents.

 

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“Benchmark Replacement Adjustment” means, with respect to any replacement of the then current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:

(1)    for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:

(a)    the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;

(b)    the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and

(2)    for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the BorrowerBorrowers for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated syndicated credit facilities;

provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” the timing and frequency of determining rates and making payments of interest, the timing of borrowing requests or prepayment, conversion or continuation notices, the length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not

 

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administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Credit Documents).

“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:

(1)    in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);

(2)    in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein;

(3)    in the case of a Term SOFR Event, the date that is 30 days after the date a Term SOFR Notice is provided to the Lenders and the BorrowerBorrowers pursuant to Section 2.12(b); or

(4)    in the case of an Early Opt-in Election, the 6th Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (Chicago time) on the 5th Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.

For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

(1)    a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);

 

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(2)    a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the FRB, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof) or

(3)    a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.12 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.12.

“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.

“Early Opt-in Election” means, if the then-current Benchmark is the LIBOR Index, the occurrence of:

(1)    a notification by the Administrative Agent to (or the request by the BorrowerBorrowers to the Administrative Agent to notify) each of the other parties hereto

 

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that at least five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and

(2)    the joint election by the Administrative Agent and the BorrowerBorrowers to trigger a fallback from LIBOR and the provision by the Administrative Agent of written notice of such election to the Lenders.

“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to LIBOR Rate. As of the Fourth Amendment Effective Date, the Floor is 0.40% per annum.

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

“Interest Period” means 1 month.

“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.

“NYFRB” means the Federal Reserve Bank of New York.

“NYFRB’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.

“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the LIBOR Index, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not the LIBOR Index, the time determined by the Administrative Agent in its reasonable discretion.

“Relevant Governmental Body” means the FRB and/or the NYFRB, or a committee officially endorsed or convened by the FRB and/or the NYFRB, or any successor thereto.

“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.

“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).

“SOFR Administrator’s Website” means the NYFRB’s Website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

 

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“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

“Term SOFR Event” means the determination by the Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event has previously occurred resulting in a Benchmark Replacement in accordance with Section 2.12 that is not Term SOFR.

“Term SOFR Notice” means a notification by the Administrative Agent to the Lenders and the BorrowerBorrowers of the occurrence of a Term SOFR Event.

“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

Section 2.13.    Increased Costs; Capital Adequacy.

(a)    Compensation For Increased Costs. Subject to the provisions of Section 2.14 (which shall be controlling with respect to the matters covered thereby), in the event that any Lender shall have reasonably determined in good faith (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any law, treaty or governmental rule, regulation or order, or any change therein or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or governmental authority, in each case that becomes effective after the date hereof, or compliance by such Lender with any guideline, request or directive issued or made after the date hereof by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law): (i) subjects such Lender (or its applicable lending office) to any additional Tax (other than any Indemnified Tax, Excluded Tax or Other Tax) with respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder, (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements set forth in the definition of LIBOR Rate), or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining the Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then, in any such case, the BorrowerBorrowers shall pay to such Lender within ten (10) Business Days of receipt of the

 

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statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder; provided that the BorrowerBorrowers shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the BorrowerBorrowers of the change in law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the change in law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. Such Lender shall deliver to the BorrowerBorrowers (with a copy to the Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.13(a), which statement shall be conclusive and binding upon all parties hereto absent manifest error.

(b)    Capital Adequacy Adjustment. In the event that any Lender shall have determined that the adoption, effectiveness, phase-in or applicability after the Closing Date of any law, rule or regulation (or any provision thereof) regarding capital adequacy or liquidity requirements, or any change therein or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender (or its applicable lending office) with any guideline, request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of, or with reference to, such Lender’s Loans or Revolving Commitments or participations therein or other obligations hereunder with respect to the Loans to a level below that which such Lender or such controlling corporation could have achieved but for such adoption, effectiveness, phase-in, applicability, change or compliance (taking into consideration the policies of such Lender or such controlling corporation with regard to capital adequacy), then from time to time, within ten (10) Business Days after receipt by the BorrowerBorrowers from such Lender of the statement referred to in the next sentence, the BorrowerBorrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling corporation on an after-tax basis for such reduction; provided that the BorrowerBorrowers shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the BorrowerBorrowers of the change in law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the change in law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. Such Lender shall deliver to the BorrowerBorrowers (with a copy to the Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.13(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error.

 

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Section 2.14.    Taxes; Withholding; Payments Free of Taxes.

(a)    Payments Without Deduction or Withholding. Any and all payments by or on account of any obligation of a Credit Party under any Credit Document shall be made free and clear of and without deduction or withholding for any Taxes; provided that if any applicable law requires the deduction or withholding of any Tax from any such payment, then such Credit Party shall make such deduction or withholding and timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after making all such deductions (including such deductions applicable to additional sums payable under this Section 2.14) the Administrative Agent or a Lender receives an amount equal to the sum it would have received had no such deductions been made.

(b)    Payment of Other Taxes. Each applicable Credit Party shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes of such Credit Party.

(c)    Indemnification. Each Credit Party shall indemnify the Administrative Agent and any Lender pursuant to this Section 2.14 within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.14) payable or paid by the Administrative Agent or such Lender and any reasonable expenses arising therefrom or with respect thereto. A certificate as to the amount of such payment or liability delivered to the BorrowerBorrowers by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(d)    Evidence of Payments. As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 2.14, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e)    Status of Lenders. (i) If a Lender is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document, such Lender shall deliver to the BorrowerBorrowers and the Administrative Agent, at the time or times reasonably requested by the BorrowerBorrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the BorrowerBorrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, a Lender, if requested by the BorrowerBorrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the BorrowerBorrowers or the Administrative Agent as will enable the BorrowerBorrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 2.14(e)(ii)(A), 2.14(e)(ii)(B)(I) through (V) and 2.14(e)(ii)(C) below) shall not be required if in the Lender’s judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

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(ii)    Without limiting the generality of the foregoing,

(A)    any Lender that is a U.S. Person shall deliver to the BorrowerBorrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the BorrowerBorrowers or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is not subject to U.S. federal backup withholding tax; and

(B)    any Non-U.S. Lender shall deliver to the BorrowerBorrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and, to the extent it is legally entitled to do so, from time to time thereafter upon the request of the BorrowerBorrowers or the Administrative Agent), whichever of the following is applicable:

(I)    in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(II)    executed originals of IRS Form W-8ECI;

(III)    in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that (A) such Non-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the BorrowerBorrowers within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code and (B) the interest payments in question are not effectively connected with a U.S. trade or business conducted by such Non-U.S. Lender (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E;

(IV)    to the extent a Non-U.S. Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as

 

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applicable; provided that if the Non-U.S. Lender is a partnership (and not a participating Lender) and one or more beneficial owners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate on behalf of each such beneficial owner;

(V)    executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E; and

(VI)    to the extent legally entitled to do so, executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the BorrowerBorrowers or the Administrative Agent to determine the withholding or deduction required to be made.

(C)    If a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the BorrowerBorrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the BorrowerBorrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the BorrowerBorrowers or the Administrative Agent as may be necessary for the BorrowerBorrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (C), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the BorrowerBorrowers and the Administrative Agent in writing of its legal inability to do so.

(f)    Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.14 (including additional amounts pursuant to this Section 2.14), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.14 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 2.14(f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such

 

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indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.14(f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.14(f) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph shall not be construed to require any indemnified party to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(g)    Survival. Each party’s obligations under this Section 2.14 shall survive any assignment of rights by, or the replacement of, a Lender, the termination of the Facility and the repayment, satisfaction or discharge of all obligations under any Credit Document.

Section 2.15.    Obligation to Mitigate. (a) Each Lender agrees that, as promptly as practicable after an officer of such Lender responsible for administering its Loans becomes aware of the occurrence of an event or the existence of a condition that would entitle such Lender to receive payments under Sections 2.13 or 2.14, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use commercially reasonable efforts to (a) make, issue, fund or maintain its Credit Extensions through a Lender Affiliate, or (b) take such other measures as such Lender may, in its sole discretion, deem appropriate if, as a result thereof, the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender pursuant to Sections 2.13 or 2.14 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of its Revolving Commitments or Loans through such Lender Affiliate, or in accordance with such other measures, as the case may be, would not otherwise adversely affect its Revolving Commitments or Loans or the interests of the BorrowerBorrowers or such Lender; provided, such Lender will not be obligated to utilize a Lender Affiliate, pursuant to this Section 2.142.15 unless the Borrower agreesBorrowers agree to pay all reasonable, documented, out-of-pocket incremental expenses incurred by such Lender as a result of utilizing such Lender Affiliate as described above. A certificate as to the amount of any such expenses payable by the BorrowerBorrowers pursuant to this Section 2.142.15 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to the BorrowerBorrowers (with a copy to the Administrative Agent) shall be conclusive absent manifest error.

(b)    If the Administrative Agent or any Lender determines, in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified by the BorrowerBorrowers or with respect to which the Borrower hasBorrowers have paid additional amounts pursuant to Section 2.14, it shall pay to the BorrowerBorrowers an amount equal to such refund, as determined by the Administrative Agent or such Lender in its sole discretion exercised in good faith (but only to the extent of indemnity payments made, or additional amounts paid, by the BorrowerBorrowers under Section 2.14 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses incurred by the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the BorrowerBorrowers , upon the request of the Administrative Agent or a Lender, agreesagree to repay the amount paid over to the BorrowerBorrowers (plus any penalties,

 

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interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such governmental authorityGovernmental Authority. This subsection shall not be construed to require the Administrative Agent or each Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the BorrowerBorrowers or any other Person.

Section 2.16.    Determination of Borrowing Base. TheEach Borrowing Base, at any time of determination, shall be determined by reference to the most recent applicable Borrowing Base Certificate and Monthly Servicing Report delivered to the Administrative Agent.

Section 2.17.    Cure of Borrowing Base Deficiency. With respect to any Borrowing Base Deficiency resulting solely from thea reduction of the applicable Advance Rate, the applicable Borrower shall, within thirty (30) days of the date on which thesuch Advance Rate was reduced, pledge additional Eligible Receivables to the Collateral Agent and/or prepay the Loans in an aggregate amount up to the amount necessary to cure such Borrowing Base Deficiency. With respect to any Borrowing Base Deficiency not resulting solely from thea reduction of the applicable Advance Rate, the applicable Borrower shall, within two (2) Business Days, pledge additional Eligible Receivables to the Collateral Agent and/or prepay the Loans in an aggregate amount up to the amount necessary to cure such Borrowing Base Deficiency. In connection with any prepayment of the Loans made in order to cure a Borrowing Base Deficiency, the Company may make a corresponding capital contribution to the applicable Borrower by depositing an amount equal to such Borrowing Base Deficiency into thesuch Borrower’s Disbursement Account (or, if then required by the Collateral Agent, to thesuch Borrower’s Collection Account) for distribution in accordance with Section 2.10 hereof.

Section 2.18.    Increases. The BorrowerBorrowers may, on any Business Day ninety (90) days or more prior to the Termination Date, with the written consent of the Administrative Agent, increase the aggregate amount of the Revolving Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit H (or in such other form acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase”) identifying an additional Lender (or additional Revolving Commitment for an existing Lender) and the amount of its Revolving Commitment (or additional amount of its Revolving Commitment); provided, however, that:

(a)    the aggregate amount of all such Revolver Increases shall not exceed $15,000,00030,000,000 and any such Revolver Increase shall be in an amount not less than $5,000,000 (or such lesser amount then agreed to by the Administrative Agent);

(b)    no Default or Event of Default shall have occurred and be continuing at the time of the request or the effective date of the Revolver Increase; and

(c)    each of the representations and warranties set forth in Section 4 and in the other Credit Documents shall be and remain true and correct in all material respects on the effective date of such Revolver Increase (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date.

 

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The effective date of the Revolver Increase shall be agreed upon by the BorrowerBorrowers and the Administrative Agent. Upon the effectiveness thereof, Appendix A shall be deemed amended to reflect the Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Loans in an amount sufficient such that after giving effect to its Loans each Lender shall have outstanding its pro rata share of all Loans outstanding under the Revolving Commitments. It shall be a condition to such effectiveness that the BorrowerBorrowers shall not have terminated any portion of the Revolving Commitments pursuant to Section 2.6. The Borrower agreesBorrowers agree to pay the expenses of the Administrative Agent (including reasonable attorneys’ fees) relating to any Revolver Increase. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to increase its Revolving Commitment and no Lender’s Revolving Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to increase its Revolving Commitment. For the avoidance of doubt, no consent of any Lenders (other than the Lenders which agree to participate in the Revolver Increase and the Administrative Agent) shall be required in connection with a Revolver Increase in accordance with this Section.

Section 2.19.    Defaulting Lenders.

(a)    Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i)    Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders.

(ii)    Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.10 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.4 hereto shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the BorrowerBorrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the BorrowerBorrowers, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the

 

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BorrowerBorrowers as a result of any judgment of a court of competent jurisdiction obtained by the BorrowerBorrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with their percentages of the Revolving Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.18(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii)    Certain Fees. No Defaulting Lender shall be entitled to receive any unused line of credit fee for any period during which that Lender is a Defaulting Lender (and the BorrowerBorrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(b)    Defaulting Lender Cure. If the BorrowerBorrowers and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders in accordance with their respective percentages of the Revolving Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the BorrowerBorrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

SECTION 3.    CONDITIONS PRECEDENT

Section 3.1.    Closing Date. The obligation of the Lenders to make the initial Loans hereunder is subject to the satisfaction, or waiver in accordance with Section 9.5, of the following conditions on or before the Closing Date:

(a)    Credit Documents. The Administrative Agent shall have received copies of each Credit Document originally executed and delivered by each applicable Credit Party, the Backup Servicer, the Disbursement Account Bank and the Collection Account Bank, as applicable.

 

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(b)    Organizational Documents; Incumbency. The Administrative Agent shall have received copies of (i) each Organizational Document executed and delivered by each Credit Party, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, (ii) signature and incumbency certificates of the officers of each Credit Party, (iii) resolutions of the board of directors, board of managers, managing member or similar governing body of each Credit Party approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, as applicable, or by which it or its assets may be bound as of the Closing Date, certified as of the Closing Date by its secretary or an assistant secretary or its director of operations as being in full force and effect without modification or amendment, (iv) a good standing certificate from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Closing Date, and (v) such other security agreements, insurance certificates and endorsements, financing statements, opinions of counsel, documents and instruments as the Administrative Agent may reasonably request, each in form and substance reasonably satisfactory to the Administrative Agent.

(c)    Due Organization and Good Standing. Each Credit Party shall be duly organized and in good standing in the jurisdiction of its organization and qualified to do business in any other jurisdiction where it conducts its business other than in jurisdictions where the failure to be so qualified has not had, and could not be reasonably expected to have, a Material Adverse Effect.

(d)    Governmental Authorizations and Consents. Each Credit Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Credit Documents to which it is a party and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Administrative Agent. All applicable waiting periods shall have expired without any action being taken or threatened (in writing) by any Governmental Authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable agency to take action to set aside its consent on its own motion shall have expired.

(e)    Collateral. In order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid, perfected first priority Lien in the Collateral, the Collateral Agent shall have received:

(i)    evidence satisfactory to the Administrative Agent of the compliance by the Credit Parties with their obligations under the Collateral Documents and the Related Agreements (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper and any agreements governing deposit accounts as provided therein);

 

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(ii)    the results of a recent search of all effective UCC financing statements (or equivalent filings) made with respect to any personal property of the Borrower in Delaware and the Company in Delaware and OppWin in Delaware, together with copies of all such filings disclosed by such search, which shall be provided by the Credit Parties;

(iii)    UCC termination statements (or similar documents) duly approved by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such searches with respect to the Collateral (other than any UCC financing statement filed in connection with the transactions contemplated under the Credit Documents);

(iv)    evidence that each of the Borrower and the Company shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by the Collateral Agent or the Administrative Agent; and

(v)    evidence that any Indebtedness (other than the Obligations) secured by the Collateral has been paid in full.

(f)    A written subordination agreement from TCS GLOBAL HOLDINGS LP as the holder of Qualifying Subordinated Debt outstanding on the Closing Date, and acknowledged and agreed to by the Company, which shall be in form and substance acceptable to the Administrative Agent.

(g)    Each Credit Party shall have delivered to the Administrative Agent an originally executed Closing Date Certificate and, to the extent not otherwise included therein, each Lender shall have received (i) audited financial statements (including an income statement, a balance sheet, and a cash flow statement) of the Company for the periods ended December 31, 2017, and December 31, 2018, and unaudited monthly financial statements (including an income statement, a balance sheet, and a cash flow statement) and loan receivable contract quality report of the Company for the months ended January 31, 2019, through and including April 30, 2019, 2-year projected financial statements prepared on a monthly basis for such period (including an income statement and balance sheet for each such month together with monthly originations, collections and charge offs for such period), each in form and substance reasonably acceptable to the Administrative Agent and certified to by an Authorized Officer of the Company; (ii) a Borrowing Base Certificate prepared by the Borrower and certified to by an Authorized Officer of the Borrower evidencing Commitment Availability of at least the amount required by Section 5.11(b)(iii) as of the Closing Date after giving effect to the initial Credit Extension and the transactions contemplated hereby and payment of all costs and expenses in connection therewith; (iii) true, correct and complete copies of the Credit Policies and the Servicing Policy, each in form and substance acceptable to the Administrative Agent, and certified to by an Authorized Officer of the Company; (iv) a

 

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true, correct and complete copy of the September 18, 2018, field examination report of the Company performed by Duff & Phelps, certified to by an Authorized Officer of the Company; and (v) a certificate from an Authorized Officer of the Company certifying that no Closing Date Material Adverse Effect has occurred and no Regulatory Trigger Event has occurred.

(h)    Solvency Certificates. On the Closing Date, the Administrative Agent shall have received Solvency Certificates from each Credit Party dated as of the Closing Date and addressed to the Administrative Agent, attesting that before and after giving effect to the consummation of the initial Credit Extension, such Credit Party is Solvent.

(i)    No Litigation. There shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments, pending or threatened (in writing) in any court or before any arbitrator or Governmental Authority with respect to any of the Credit Parties, any of the Key Employees or the transactions contemplated by the Credit Documents, that could reasonably be expected to have a Material Adverse Effect.

(j)    Opinions of Counsel to Credit Parties. The Administrative Agent shall have received originally executed copies of the favorable written opinions of DLA Piper LLP (US), counsel for the Credit Parties, as to (i) corporate and enforceability matters, (ii) the creation and perfection of the security interests (A) in favor of the Collateral Agent in the Collateral under the Collateral Documents and (B) in favor of the Borrower in the Receivables under the Purchase Agreement, and (iii) such other matters as the Administrative Agent may reasonably request, dated as of the Closing Date and otherwise in form and substance reasonably satisfactory to the Administrative Agent and its counsel.

(k)    Fees and Expenses. The Credit Parties shall have paid to the Administrative Agent the fees payable on the Closing Date referred to in the Fee Letter (including without limitation any Upfront Fees as defined therein) and all outstanding Permitted Expenses shall have been paid by the Credit Parties or reimbursed to the Agents and Lenders, as applicable.

(l)    No New Information. The Administrative Agent shall not have become aware, since December 31, 2018, of any new information or other matters not previously disclosed to the Administrative Agent relating to any Credit Party or their respective Affiliates or the transactions contemplated herein that the Administrative Agent, in its reasonable judgment, deems inconsistent in a material and adverse manner with the information or other matters previously disclosed to the Administrative Agent relating to the Credit Parties or their respective Affiliates or the transactions contemplated herein.

(m)    Service of Process. On the Closing Date, the Administrative Agent shall have received evidence that each of the Credit Parties has appointed Cogency Global Inc. as its agent for the purpose of service of process and such agent shall agree in writing to give the applicable Credit Party and the Administrative Agent notice of any resignation of such service agent or other termination of the agency relationship.

 

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(n)    Evidence of Insurance. The Collateral Agent shall have received certificates from the Servicer’s, the Company’s and the Borrower’s insurance broker, or other evidence satisfactory to it that all insurance required to be maintained hereunder is in full force and effect, and the Administrative Agent shall have completed its review of the insurance coverage for the Servicer, the Company and the Borrower and the results of such review shall be satisfactory to the Administrative Agent.

(o)    Servicing Report. The Administrative Agent shall have received a form of Monthly Servicing Report, set forth as Exhibit B to the Servicing Agreement, acceptable to the Administrative Agent in its sole discretion.

(p)    Backup Servicer Data Mapping. The Backup Servicer shall have completed all required data mapping and obtained any other information necessary to act in its capacity as Backup Servicer, in each case, as set forth in the Backup Servicing Agreement and in a manner acceptable to the Administrative Agent in its sole discretion.

(q)    Access to Servicing Systems. The Servicer shall have provided the Administrative Agent and the Backup Servicer with remote, read-only on-line access to the Loan Database, acceptable to the Administrative Agent in its sole discretion.

(r)    Know your Customer, Etc. Each of the Lenders shall have received, sufficiently in advance of the Closing Date, all documentation and other information requested by any such Lender required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act and the information described in Section 9.19; and the Administrative Agent shall have received a fully executed Internal Revenue Service Form W-9 (or its equivalent) for the Borrower and the Company.

(s)    Beneficial Ownership Certification. At least five days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to it.

(t)    Designated Disbursement Account Certificate. The Borrower shall deliver a certificate identifying its Designated Disbursement Account, which shall be in form acceptable to the Administrative Agent in its sole discretion.

(u)    Other Information. The Administrative Agent shall have received such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent may reasonably request.

Fort the avoidance of doubt, the parties hereto agreed that the conditions precedent in Section 3.1 are not amended by the Sixth Amendment and any defined terms used herein shall have the meanings assigned thereto before giving effect to the Sixth Amendment.

 

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Section 3.2.    Conditions to Each Credit Extension.

(a)    Conditions Precedent. The obligation of the Lenders to make any Loan, on any Credit Date, including on or after the ClosingSixth Amendment Effective Date, is subject to the satisfaction, or waiver in accordance with Section 9.5, of the following conditions precedent:

(i)    each Credit Document shall be in full force and effect, shall include terms and provisions reasonably satisfactory to the Administrative Agent (provided that the terms and provisions set forth in the Credit Documents as of the ClosingSixth Amendment Effective Date shall be deemed satisfactory to the Administrative Agent) and no provision thereof shall have been amended, restated, supplemented, modified or waived in any respect determined by the Administrative Agent to be material, in each case, without the consent of the Administrative Agent.

(ii)    the Administrative Agent shall have received a fully executed Funding Notice from the applicable Borrower together with a Borrowing Base Certificate prior to 11:00 a.m. (Chicago, Illinois time) on the requested Credit Date, evidencing sufficient Commitment Availability with respect to the requested Loan together with an updated schedule of Receivables including the Receivables to be pledged in connection with the Loan, such schedule to (A) be in an electronic file format reasonably satisfactory to the Administrative Agent and (B) set forth the information required to be provided under the Backup Servicing Agreement (including, without limitation, and with respect to each Contract, (1) the account number; (2) Obligor name, (3) the outstanding principal balance of the Receivable evidenced by such Contract), (4) the Remaining Funded Amount of such Receivable, and (5) any other information reasonably requested by the Administrative Agent with respect to such Credit Date;

(iii)    as of such Credit Date, the representations and warranties made by the applicable Credit Parties contained herein and in the other Credit Documents to which it is a party shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) on and as of such earlier date;

(iv)    as of such Credit Date, after giving effect to such Loan, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;

(v)    as of such Credit Date, the Collateral Agent shall have received a fully executed Assignment;

(vi)    the Administrative Agent shall have approved all material changes made to the Credit Policies and the Servicing Policy in accordance with the terms set forth herein;

 

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(vii)    in accordance with the terms of the Backup Servicing Agreement, the applicable Borrower shall have delivered, or caused to be delivered, to the Backup Servicer, imaged copies of the Verified Documents and the related Lender Report, and (to the extent required pursuant to the Backup Servicing Agreement) the Administrative Agent shall have received a Verified Receivables Report from the Backup Servicer, which Verified Receivables Report is acceptable to the Administrative Agent in its sole discretion;

(viii)    no Material Adverse Effect shall have occurred;

(ix)    no Tier 2 Collateral Performance Trigger shall have occurred;

(x)    no Regulatory Trigger Event shall have occurred;

(xi)    immediately prior to and after making the Credit Extensions requested on such Credit Date, no Borrowing Base Deficiency shall exist;

(xii)    immediately after making the Credit Extensions requested on such Credit Date, Commitment Availability shall not be less than the amount required pursuant to Section 5.11(b)(ii)iii) or Section 5.11(c)(iii), as applicable; and

(xiii)    none of the Receivables to be sold to the applicable Borrower on such Credit Date and reflected on the Borrowing Base Certificate delivered pursuant to clause (ii) above were originated in any state or jurisdiction with respect to which any Governmental Authority has instituted any formal inquiry or investigation (which for the avoidance of doubt excludes any routine inquiry or investigation), legal action or proceeding against any Credit Party, any Originator, any Bank Partner Originator or any sub-servicer relating to such Person’s authority to originate, hold, own, service, pledge or enforce any Receivable with respect to the residents of such state, which formal inquiry, investigation, legal action or proceeding has not been resolved prior to such Credit Date.

Any Agent shall be entitled, but not obligated, to request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent, such request is warranted under the circumstances.

(b)    Funding Notices. Any Funding Notice shall be executed by an Authorized Officer of the applicable Borrower and delivered to the Administrative Agent in accordance with Section 3.2(a)(ii). Each request for a Credit Extension pursuant to a Funding Notice shall be deemed to be a representation and warranty by thesuch Borrower on the date of such Credit Extension as to the facts specified in Section 3.2(a).

             (c)    Performance Triggers. Notwithstanding anything to the contrary contained herein, following the occurrence and during the continuance of a Tier 1 Collateral Trigger, the Lenders shall not be required make any Loan hereunder until such time as the Administrative Agent has reviewed and discussed such Tier 1 Collateral Trigger with the Borrowers and

 

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determined in its sole and absolute discretion that it is comfortable with the Lenders continuing to make Loans hereunder notwithstanding the occurrence and continuance of such Tier 1 Collateral Trigger (a “Continued Lending Determination”). The Administrative Agent shall promptly notify the Borrowers and the Lenders of any Continued Lending Determination made in accordance with the foregoing.

Section 3.3.    Conditions to Each Release of Funds.

(a)    Conditions Precedent. The obligation of the Collateral Agent to release funds in thea Disbursement Account to the applicable Borrower in accordance with Section 2.10(c) is subject to the satisfaction, or waiver in accordance with Section 9.5, of the following conditions precedent:

(i)    each Credit Document shall be in full force and effect, shall include terms and provisions reasonably satisfactory to the Administrative Agent (provided that the terms and provisions set forth in the Credit Documents as of the ClosingSixth Amendment Effective Date shall be deemed satisfactory to the Administrative Agent) and no provision thereof shall have been amended, restated, supplemented, modified or waived in any respect determined by the Administrative Agent to be material, in each case, without the consent of the Administrative Agent.

(ii)    the Administrative Agent shall have received a fully executed Funds Release Request together with a Borrowing Base Certificate no later than 11:00 a.m. (Chicago, Illinois time) on the Business Day on which the applicable Borrower proposes to use the requested funds to purchase additional Eligible Receivables (the “Release Date”), evidencing sufficient Facility Availability with respect to the requested funds together with an updated schedule of Receivables including the Receivables to be purchased on the Release Date, such schedule to (A) be in an electronic file format reasonably satisfactory to the Administrative Agent and (B) set forth the information required to be provided under the Backup Servicing Agreement (including, without limitation, and with respect to each Contract, (1) the account number; (2) Obligor name, (3) the outstanding principal balance of the Receivable evidenced by such Contract), (4) the Remaining Funded Amount of such Receivable and (5) any other information reasonably requested by the Administrative Agent with respect to such Release Date;

(iii)    as of such Release Date, the representations and warranties made by the applicable Credit Parties contained herein and in the other Credit Documents to which it is a party shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) on and as of that Release Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) on and as of such earlier date;

(iv)    as of such Release Date, after giving effect to the requested release of funds from the applicable Disbursement Account, no event shall have occurred and be continuing or would result from such release of funds from thesuch Disbursement Account to the applicable Borrower that would constitute an Event of Default or a Default;

 

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(v)    as of such Release Date, the Collateral Agent shall have received a fully executed Assignment;

(vi)    in accordance with the terms of the Backup Servicing Agreement, the applicable Borrower shall have delivered, or caused to be delivered, to the Backup Servicer, imaged copies of the Verified Documents and the related Lender Report, and (to the extent required pursuant to the Backup Servicing Agreement) the Administrative Agent shall have received the Verified Receivables Report from the Backup Servicer, which Verified Receivables Report is acceptable to the Administrative Agent in its sole discretion;

(vii)    no Material Adverse Effect shall have occurred;

(viii)    no Tier 2 Collateral Performance Trigger shall have occurred;

(ix)    no Regulatory Trigger Event shall have occurred;

(x)    immediately after the release of the requested funds to the applicable Borrower and the purchase by thesuch Borrower of additional Eligible Receivables on such Release Date, no Borrowing Base Deficiency shall exist;

(xi)    immediately after making the Credit Extensions requested on such Credit Date, Commitment Availability shall not be less than the amount required pursuant to Section 5.11(b)(iii) or Section 5.11(c)(iii), as applicable; and

(xii)    none of the Receivables to be sold to the applicable Borrower on such Release Date and reflected on the applicable Borrowing Base Certificate delivered pursuant to clause (ii) above were originated in any state or jurisdiction with respect to which any Governmental Authority has instituted any formal inquiry or investigation (which for the avoidance of doubt excludes any routine inquiry or investigation), legal action or proceeding against any Credit Party, any Originator, any Bank Partner Originator or any sub-servicer relating to such Person’s authority to originate, hold, own, service, pledge or enforce any Receivable with respect to the residents of such state, which formal inquiry, investigation, legal action or proceeding has not been resolved prior to such Credit Date.

Any Agent shall be entitled, but not obligated, to request and receive, prior to the release of any funds from theany Disbursement Account to the applicable Borrower, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent, such request is warranted under the circumstances. Notwithstanding anything to the contrary contained herein, following the occurrence and during the continuance of a Tier 1 Collateral Trigger, the Lenders shall not be required make any Loan hereunder until such time as the Administrative Agent has reviewed and discussed such Tier 1 Collateral Trigger with Borrower and determined in its sole and absolute discretion that it is

 

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comfortable with the Lenders continuing to make Loans hereunder notwithstanding the occurrence and continuance of such Tier 1 Collateral Trigger (a “Continued Lending Determination”). The Administrative Agent shall promptly notify the Borrower and the Lenders of any Continued Lending Determination made in accordance with the foregoing.

(b)    Funds Release Request. Any Funds Release Request shall be executed by an Authorized Officer of the applicable Borrower and delivered to the Administrative Agent in accordance with Section 3.3(a)(ii). Each request for a release of funds pursuant to a Funds Release Request shall be deemed to be a representation and warranty by the applicable Borrower on the date of such request as to the facts specified in Section 3.3(a).

SECTION 4.    REPRESENTATIONS AND WARRANTIES

In order to induce the Agents and the Lenders to enter into this Agreement and to make each Credit Extension to be made hereunder, each of the Borrower and each Guarantor represents and warrants, as to itself and on behalf of each Credit Party, to the Agents and the Lenders, on the Closing Date, on the Sixth Amendment Effective Date, on each Credit Date and on each Release Date, that the following statements are true and correct (it being understood and agreed that the representations and warranties made on the Closing Date are deemed to be made concurrently with the consummation of the transactions contemplated by the Credit Documents):

Section 4.1.    Organization; Requisite Power and Authority; Qualification; Other Names. Each Credit Party and each Guarantor(a) is duly organized or formed, validly existing and in good standing under the laws of the State of its organization, (b) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is a party, and to carry out the transactions contemplated thereby and fulfill its Obligations thereunder, and (c) is qualified to do business and is in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to have, a Material Adverse Effect. Neither theany Borrower nor any Guarantor operates or does business under any assumed, trade or fictitious name other than, in the case of the Company, opploans, OppFi, SalaryTap, OppFi Card, Opportunity Loans and Opp Loans. The Borrower has no Subsidiaries. The Company has no Subsidiaries except as set forth on Schedule 4.1 hereto (as the same may be amended from time to time pursuant to the terms of this Agreement).

Section 4.2.    Due Authorization. The execution, delivery and performance of the Credit Documents to which each Credit Party or Guarantor is a party have been duly authorized by all necessary action on the part of such Credit Party or Guarantor, as applicable.

Section 4.3.    No Conflict. The execution, delivery and performance by each Credit Party and each Guarantor of the Credit Documents to which it is a party and the consummation of the transactions contemplated by the Credit Documents do not and will not (a)(i) violate any provision of any law or any governmental rule or regulation applicable to such Credit Party or Guarantor, (ii) violate any of the Organizational Documents of such Credit Party or Guarantor, or (iii) violate any order, judgment or decree of any court or other agency of government binding on such Credit Party

 

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or Guarantor, (b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of such Credit Party or Guarantor, except as could not reasonably be expected to result in a Material Adverse Effect, (c) result in or require the creation or imposition of any Lien upon any of the properties or assets of such Credit Party or Guarantor (other than any Permitted Liens), or (d) require any approval of stockholders, members or partners or any approval or consent of any Person under any Contractual Obligation of such Credit Party or Guarantor, except for such approvals or consents which will be obtained on or before the Closing Date (or, in the case of a Guarantor, the date such Person became a Guarantor) and delivered to the Administrative Agent.

Section 4.4.    Governmental Consents. The execution, delivery and performance by each Credit Party and each Guarantor of the Credit Documents to which it is a party and the consummation of the transactions contemplated by the Credit Documents do not and will not require any registration with; consent or approval of; permit, license, authorization, plan or directive from; notice to; or other action to, with or by, any Governmental Authority or any other Person, except for filings and recordings with respect to the Collateral to be made, or otherwise delivered to the Collateral Agent for filing and/or recordation, as of the Closing Date (or, (i) in the case of STF Borrower, as of the Sixth Amendment Effective Date and (ii) in the case of a Guarantor, the date such Person became a Guarantor).

Section 4.5.    Binding Obligation. Each Credit Document to which each Credit Party and each Guarantor is a party has been duly executed and delivered by such Credit Party or Guarantor and is the legally valid and binding obligation of such Person, and is in full force and effect, enforceable against such Person in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.

Section 4.6.    Receivables. Each Receivable that is identified by thea Borrower as an Eligible Receivable on a Borrowing Base Certificate or Funding Notice, or by the Servicer on a Monthly Servicing Report, satisfies the applicable Eligibility Criteria. Except with respect to a Bank Partner Originated Receivable, unless otherwise approved by the Administrative Agent in its sole discretion, no Depository Institution participated in the origination of any Receivable and at no time has any Receivable been owned, purchased, or serviced by a Depository Institution.

Section 4.7.    No Adverse Selection. As of the date of the transfer by the applicable Seller to theany Borrower (a) the Receivables sold or transferred by such Seller to thesuch Borrower on such date, when taken together with the Receivables previously sold by the Sellers to thesuch Borrower and considered as a whole, are of no lesser quality than (i) the Company Receivables, considered as a whole, or (ii) the Company Receivables pledged under any other financing facility or sold pursuant to any sale agreement under which the Company or an Affiliate of the Company is a borrower or seller, either directly or indirectly (acting through a special purpose borrowing entity, or otherwise indirectly), in each case, as of the time of that transfer, and (b) no selection procedures adverse to thesuch Borrower, the Administrative Agent, the Collateral Agent or any Lender have been used (i) in selecting any Receivable from all other similar Company Receivables, or (ii) in allocating Company Receivables among any financing facility or sale agreement under which the Company or an Affiliate of the Company is a borrower, either directly

 

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or indirectly (acting through a special purpose borrowing entity, or otherwise indirectly); provided, however, that, for the avoidance of doubt, (i) differences in Receivables resulting from differences between the applicable Eligibility Criteria and any eligibility criteria of another financing facility or sale agreement shall not alone result in the Receivables being considered “lesser quality” for purposes of this Section 4.7 and (ii) selections or allocations resulting from differences between the applicable Eligibility Criteria and any eligibility criteria of another financing facility or sale agreement shall not alone constitute selection procedures adverse to the BorrowerBorrowers, the Administrative Agent, the Collateral Agent or any Lender.

Section 4.8.    No Material Adverse Effect; No Tier 2 Collateral Performance Trigger. Since December 31, 20182020, no event, circumstance or change has occurred that has caused or evidences, either individually or in the aggregate, a Material Adverse Effect. No Tier 2 Collateral Performance Trigger has occurred.

Section 4.9.    No Change of Control. No Change of Control has occurred other than with the prior written consent of the Administrative Agent.

Section 4.10.    Adverse Proceedings, etc. There are no Adverse Proceedings pending against the Credit Parties or Guarantors that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. None of the Guarantors or Credit Parties nor, to the knowledge of any Credit Party, any Bank Partner Originator is (a) in violation of any applicable laws that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (b) subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 4.11.    Payment of Taxes. Except as otherwise permitted under Section 5.3, (i) all U.S. federal income tax returns and all other material tax returns and reports of the BorrowerBorrowers and the Guarantors required to be filed have been timely filed, and (ii) all U.S. federal income Taxes and all other material Taxes due and payable, and all material assessments, fees and other governmental charges upon the BorrowerBorrowers and the Guarantors and upon their properties, assets, income, businesses and franchises which are due and payable have been timely paid when due and payable. Neither theany Borrower nor any Guarantor knows of any threatened (in writing) or proposed Tax assessment against it which is not being actively contested by thesuch Borrower or such Guarantor, as applicable, in good faith and by appropriate proceedings; provided, that such reserves or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have been made or provided therefor.

Section 4.12.    Title to Assets. Each of the Borrower and each Guarantor has good and valid title to all of its assets reflected in the most recent financial statements delivered pursuant to Section 3.1 and Section 5.9. Except as permitted by this Agreement, all such properties and assets are free and clear of Liens, other than Permitted Liens.

Section 4.13.    No Indebtedness. Neither theany Borrower nor any Guarantor has any Indebtedness, other than Indebtedness incurred under (or contemplated by) the terms of this Agreement, the other Credit Documents or permitted pursuant to Section 6.1 or otherwise permitted hereunder.

 

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