UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549 
 
 
 
FORM 8-K
 
 
 
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
May 12, 2020
 
 
 
On Deck Capital, Inc.
(Exact name of registrant as specified in its charter)
 
 
 
Delaware
 
001-36779
 
42-1709682
(State or other jurisdiction
of incorporation)
 
(Commission
File Number)
 
(I. R. S. Employer
Identification No.)
1400 Broadway, 25th Floor
New York, New York 10018
(Address of principal executive offices, including ZIP code)
(888) 269-4246
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report) 
 
 
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 










 
 
 

Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, par value $0.005 per share
ONDK
New York Stock Exchange
 
 
 

Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b– 2 of the Securities Exchange Act of 1934 (§ 240.12b–2 of this chapter).

Emerging growth company ¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
 
 
 








































Item 1.01
Entry into a Material Definitive Agreement.

On Deck Capital, Inc. (the "Company") recently obtained amendments and waivers for certain of its debt facilities as described below.
RAOD Facility Amendment
    
On May 14, 2020, Receivable Assets of OnDeck, LLC (“RAOD”), a wholly-owned subsidiary of the Company, amended (the “RAOD Amendment”) its asset-backed revolving debt facility (the “RAOD Facility”) to further modify the Fourth Amended and Restated Credit Agreement, dated as of December 17, 2018, by and among RAOD, as Borrower, the Lenders party thereto from time to time, SunTrust Bank, as Administrative Agent, and Wells Fargo Bank, N.A, as Paying Agent and as Collateral Agent. Certain capitalized terms not defined in this section of the report are used with the meanings ascribed to them in the RAOD Facility as amended by prior amendments thereto and the RAOD Amendment.

Pursuant to the RAOD Amendment, from March 11, 2020 to August 31, 2020, receivables granted temporary relief in response to the COVID-19 pandemic will generally not be considered delinquent under the RAOD Facility so long as such receivable is paying in accordance with its modified terms. The RAOD Amendment also modifies the concentration limitations to provide, among other things, additional flexibility for certain loans impacted by COVID-19. It also provides additional flexibility with respect to certain portfolio performance test levels. Until the earlier of (x) July 10, 2020 or (y) such time as the Effective Advance Rate has reached 66% (the “Amendment Period”), the Lenders are not obligated to make any loans to RAOD, RAOD is restricted from purchasing receivables from the Company and any cash remaining in the RAOD Facility is not permitted to be distributed to the Company. Following the Amendment Period, the applicable advance rate shall be reduced to 66%. The RAOD Amendment does not modify the commitment amount or interest rate of the RAOD Facility.

The foregoing description of the RAOD Amendment does not purport to be complete and is qualified in its entirety by reference to (i) the full text of the RAOD Amendment, which is filed as Exhibit 10.1 to this report and incorporated herein by reference, and (ii) the RAOD Agreement, which was filed as Exhibit 10.20 to Company’s Annual Report on Form 10-K for the year ended December 31, 2019.
ODAF II Waiver

On May 14, 2020, we obtained a temporary waiver ("ODAF II Waiver") for the OnDeck Asset Funding II, LLC ("ODAF II") debt facility (“ODAF II Facility”).  Under the waiver, the lenders temporarily waived the occurrence and existence of reported borrowing base deficiencies and any failure to cure such deficiency amount, in each case, until the close of business on May 19, 2020.  ODAF II entered into the waiver in contemplation of entering into a broader amendment to the ODAF II Facility to enable ODAF II to remain in compliance with performance and other criteria in light of increased delinquency and other portfolio dynamics that result from COVID-impacted loans.  If such an amendment is not entered into or if the borrowing base deficiency is not otherwise cured, the borrowing base deficiency would constitute an event of default under the ODAF II Facility at close of business on May 19, 2020.

The foregoing description of the ODAF II Waiver does not purport to be complete and is qualified in its entirety by reference to (i) the full text of the ODAF II Waiver, which is filed as Exhibit 10.2 to this report and incorporated herein by reference, and (ii) the agreement related to the ODAF II Facility, which was filed as Exhibit 10.30 to Company’s Annual Report on Form 10-K for the year ended December 31, 2019.
ODART Waiver

On May 14, 2020, we obtained a temporary waiver (“ODART Waiver") for the OnDeck Account Receivables Trust 2013-1 LLC ("ODART") debt facility (“ODART Facility”).  Under the waiver, the lenders temporarily waived the occurrence and existence of reported borrowing base deficiencies and any failure to cure such deficiency amount, in each case, until the close of business on May 20, 2020. ODART entered into the waiver in contemplation of entering into a broader amendment to the ODART Facility to enable ODART to remain in compliance with performance and other criteria in light of increased delinquency and other portfolio dynamics that result from COVID-impacted loans.  If such an amendment is not entered into or if the borrowing base deficiency is not otherwise cured, the borrowing base deficiency would constitute an event of default under the ODART Facility at close of business on May 20, 2020.

The foregoing description of the ODART Waiver does not purport to be complete and is qualified in its entirety by reference to (i) the full text of the ODART Waiver, which is filed as Exhibit 10.3 to this report and incorporated herein by reference, and (ii) the agreement related to the ODART Facility, which was filed as Exhibit 10.12 to Company’s Annual Report on Form 10-K for the year ended December 31, 2019.





Item 2.04
Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement.
ODAST 2018-1 Early Amortization

As of May 12, 2020, an Amortization Event occurred with respect to the Series 2018-1 notes issued by OnDeck Asset Securitization Trust II LLC ("ODAST II") as a result of an asset amount deficiency in the Series 2018-1 transaction.  Beginning on the May 2020 payment date under the ODAST II Agreement, all remaining collections held by ODAST II that are allocated to the Series 2018-1 notes, after payment of accrued interest and certain expenses, will be applied to repay the principal balance of the Series 2018-1 notes.

Safe Harbor Statement.  

This Current Report on Form 8-K contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and other legal authority. Forward-looking statements can be identified by words such as "will," "enables," “targets,” "expects," “intends,” “may,” "allows," “plans,” "continues," "believes," "anticipates," "estimates" or similar expressions. These include statements regarding entering into the ODAF II Waiver and ODART Waiver in contemplation of entering into broader amendments to those facilities to remain in compliance with performance and other criteria in light of increased delinquency and other portfolio dynamics that result from COVID-impacted loans. Forward-looking statements are neither historical facts nor assurances of future performance. They are based only on our current beliefs, expectations and assumptions regarding the future of our business, anticipated events and trends, the economy, the COVID-19 pandemic and other future conditions. As such, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict and in many cases outside our control. Therefore, you should not rely on any of these forward-looking statements.
           
Our expected results may not be achieved, and actual results may differ materially from our expectations. Important factors that could cause or contribute to such differences include risks relating to: our ability to meet the conditions of, and remain in compliance with, the terms of the RAOD Amendment, ODAF II Waiver and ODART Waiver; our ability to cure deficiencies under our debt facilities or obtain additional waivers or amendments to avoid the risk of default; and other risks, including those described in Part II - Item 1A. Risk Factors in our Form 10-Q for the quarter ended March 31, 2020, Part I - Item 1A. Risk Factors in our Annual Report on Form 10-K for the year ended December 31, 2019 and other documents that we file with the Securities and Exchange Commission, or SEC, from time to time which are or will be available on the SEC website at www.sec.gov.

Item 9.01
Financial Statements and Exhibits.
(d) Exhibits.


















SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
 
 
 
 
 
 
 
Date: May 15, 2020
 
 
 
On Deck Capital, Inc.
 
 
 
 
 
 
 
 
 
 
/s/ Kenneth A. Brause
 
 
 
 
 
 
Kenneth A. Brause
Chief Financial Officer







Exhibit 10.1

AMENDMENT NO. 2 TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

This AMENDMENT NO. 2 TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) dated as of May 14, 2020, is entered into by and among RECEIVABLE ASSETS OF ONDECK, LLC, a Delaware limited liability company (“Company”), the Lenders party hereto constituting the Requisite Lenders and SUNTRUST BANK, as Administrative Agent (in such capacity, the “Administrative Agent”).

RECITALS:

WHEREAS, Company, the Lenders party thereto from time to time, the Administrative Agent, and Wells Fargo Bank, N.A., as Paying Agent and as Collateral Agent for the Secured Parties, entered into a Fourth Amended and Restated Credit Agreement, dated as of December 17, 2018, as amended by that certain Amendment No. 1 to the Fourth Amended and Restated Credit Agreement, dated as of October 2, 2019 (as may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) pursuant to which the Lenders have made advances and other financial accommodations to Company. Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement, as amended hereby;

WHEREAS, Company, the Lenders party hereto and Administrative Agent, desire to amend the Credit Agreement as set forth herein subject to the terms and conditions set forth herein.

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

SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT

The Credit Agreement is, effective as of the Second Amendment Effective Date and subject to the satisfaction of the conditions precedent set forth in Section 3.1 hereof, hereby amended as follows:


 

Exhibit 10.1

1.1    Section 1.1 of the Credit Agreement.
(a) The following definitions are hereby amended and restated in their entirety as follows:
“30 MPF Receivable” means any Pledged Receivable with a Missed Payment Factor, in the case of a Daily Pay Receivable, higher than 30, in the case of a Weekly Pay Receivable, higher than 6, or in the case of a Monthly Pay Receivable, higher than 1.5.
“Applicable Class A Advance Rate” means 76%; provided, however, that, notwithstanding the foregoing, upon the occurrence of an SPV Event, the Applicable Class A Advance Rate shall be 66% until either (x) Company shall elect for such SPV Event to be treated as an Early Amortization Event as described in Appendix G, or (y) such SPV Event is cured; provided further, that notwithstanding the foregoing, the Applicable Class A Advance Rate shall be 66% on and after the Exit Date.
“Defaulted Receivable” means, with respect to any date of determination, a Receivable which (i) is a Charged-Off Receivable or (ii) has a Missed Payment Factor of (x) with respect to Daily Pay Receivables, sixty (60) or higher, (y) with respect to Weekly Pay Receivables, twelve (12) or higher, or (z) with respect to Monthly Pay Receivables, three (3) or higher.
“Maximum 15 Day Delinquency Rate” means, with respect to any Monthly Period, the percentage equivalent of a fraction (i) the numerator of which is the aggregate Outstanding Principal Balance of all Delinquent Receivables (other than Defaulted Receivables) that are Pledged Receivables that have a Missed Payment Factor of (x) with respect to Daily Pay Receivables, fifteen (15) or higher, (y) with respect to Weekly Pay Receivables, three (3) or higher, or (z) with respect to Monthly Pay Receivables, .75 or higher, in each case, as of the last day of such Monthly Period and (ii) the denominator of which is the aggregate Outstanding Principal Balance of all Receivables (other than Defaulted Receivables) that are Pledged Receivables as of the last day of such Monthly Period.
“Missed Payment Factor” means, in respect of any Receivable, an amount equal to the sum of (a) the amount equal to (i) the total past due amount of Payments in respect of such Receivable, divided by (ii) the required periodic Payment in respect of such Receivable as set forth in the related Receivables Agreement, and other than with respect to any COVID Receivable, determined without giving effect to any temporary modifications of such required periodic Payment then applicable to such Receivable, and (b) the number of Payment Dates, if any, past the Receivable maturity date on which a Payment was due but not received.  Notwithstanding the foregoing or any other provision of this Agreement, during the period beginning as of March 11, 2020 through and including August 31, 2020, the Missed Payment Factor, solely in respect of any COVID Receivable and solely with respect to Payments during such period,  shall be determined by giving effect to any COVID Related Temporary Modifications (including, but not

 

Exhibit 10.1

limited to, grace days, holds or workout programs) then applicable to such COVID Receivable; provided that if any COVID Related Temporary Modification results in extending the number of Payments for such COVID Receivable by more than (x) with respect to Daily Pay Receivables, sixty (60), (y) with respect to Weekly Pay Receivables, twelve (12), or (z) with respect to Monthly Pay Receivables, three (3) Payment Dates past the maturity date for such COVID Receivable, the “Missed Payment Factor” calculated with respect to such COVID Related Temporary Modification shall only give effect to the first sixty (60), twelve (12) or three (3) Payments, as applicable, of any such extension. For the avoidance of doubt, beginning on September 1, 2020 the “required periodic Payment” as used in clause (a)(ii) herein shall mean (1) with respect to any Material Modification or COVID Related Material Modification, the required periodic Payment according to the modified Receivables Agreement and (2) with respect to any other Receivable, the required periodic Payment according to such Receivable’s Receivables Agreement without giving effect to any COVID Related Temporary Modifications, if any.
“Receivable Yield” means, with respect to any Receivable, the imputed interest rate that is calculated on the basis of the expected aggregate annualized rate of return (calculated inclusive of all interest and fees (other than any Upfront Fees)) of such Receivable over the life of such Receivable.
Such calculation shall assume:
(a) 12 Payment Dates per annum, for Monthly Pay Receivables;
(b) 52 Payment Dates per annum, for Weekly Pay Receivables; and
(c) 252 Payment Dates per annum, for Daily Pay Receivables;
provided, that the Receivable Yield for any COVID Receivable subject to a COVID Related Temporary Modification shall be calculated in accordance with the foregoing and then multiplied by six tenths (0.6) for all purposes hereunder.
(b) The following definitions are hereby added to Section 1.1 of the Credit Agreement in proper alphabetical order:
“Comparable Facility Condition” has the meaning set forth on Appendix G.
“COVID Receivable” means any Receivable that was (x) originated prior to March 31, 2020 and (y) designated by the Servicer as “COVID19-Confirmed”, “Pandemic-Impacted” or any other similar indication in its loan servicing platform on or prior to May 31, 2020 unless otherwise consented to by the Administrative Agent.
“COVID Related Material Modification” means any Material Modification of a COVID Receivable.

 

Exhibit 10.1

“COVID Related Modification” means any COVID Related Material Modification or COVID Related Temporary Modification.
“COVID Related Temporary Modification” means any temporary modification (made in accordance with the Underwriting Policies, including, but not limited to, grace days, workout programs or holds) of a COVID Receivable.
“Effective Advance Rate” means, as of any date of determination, the percentage equivalent of a fraction (a) the numerator of which is the Total Utilization of Class A Revolving Commitments, and (b) the denominator of which is the sum of (i) the Adjusted EPOPB as of such date, plus (ii) the aggregate amount of Collections in the Lockbox Account and the Collection Account to the extent such Collections and other funds have already been applied to reduce the Eligible Portfolio Outstanding Principal Balance, plus (iii) the fair market value of all Permitted Investments held in the Collection Account on such day, minus (iv) 105% of the sum of the Accrued Interest Amount as of such day and the aggregate amount of all accrued and unpaid fees and expenses due hereunder and under the Servicing Agreement, the Backup Servicing Agreement, the Custodial Agreement and the Successor Servicing Agreement.
“Exit Date” means the earlier of (i) the first date upon which the Effective Advance Rate has reached 66% in any Borrowing Base Report and (ii) July 10, 2020.
“Monthly Pay Receivable” means any COVID Receivable for which a Payment is generally due once per month.
“Non-Paying COVID Receivable” means any COVID Receivable for which the Servicer has received less than one third (1/3rd) of the aggregate required periodic Payments due over the last 31 calendar days. For the avoidance of doubt, the “required periodic Payment” as used in the definition herein shall mean (1) with respect to any COVID Related Material Modification, the required periodic Payment according to the modified Receivables Agreement and (2) with respect to any other Receivable, the required periodic Payment according to such Receivable’s Receivables Agreement without giving effect to any COVID Related Temporary Modifications, if any.
“Paydown Period” means the period beginning on the Second Amendment Effective Date and ending on the Exit Date.
“Second Amendment” means that certain Amendment No. 2 to Fourth Amended and Restated Credit Agreement, dated as of May 14, 2020, by and among the Company, the Lenders party thereto and the Administrative Agent.
“Second Amendment Effective Date” has the meaning set forth in the Second Amendment.

 

Exhibit 10.1

1.2    Section 2.11(c)(vii) of the Credit Agreement is hereby amended by adding “(and, with respect to clause (C) below, so long as the Paydown Period is not then occurring and no Comparable Facility Condition is then occurring)” immediately after “So long as no Event of Default has occurred and shall be continuing”.
1.3    Section 2.12(a) of the Credit Agreement is hereby amended and restated in its entirety as follows:
“(a)    Application of Amounts in the Collection Account and the Lockbox Account. So long as no Event of Default has occurred and is continuing (after giving effect to the application of funds in accordance herewith on the relevant date) and an Early Amortization Period is not then occurring, on each Interest Payment Date, all amounts in the Collection Account, the Lockbox Account and all amounts (if any) in the Reserve Account in excess of the Reserve Account Funding Requirement as of the last day of the related Interest Period shall be applied by the Paying Agent based on the Monthly Servicing Report as follows:
(i) first, to Company, on a pari passu basis, (A) amounts sufficient for Company to maintain its limited liability company existence and to pay similar expenses up to an amount not to exceed $1,000 in any Fiscal Year, and only to the extent not previously distributed to Company during such Fiscal Year pursuant to clause (ix) below, and (B) to pay any accrued and unpaid Servicing Fees;
(ii) second, on a pari passu basis, (A) to the Backup Servicer to pay any accrued and unpaid Backup Servicing Fees; (B) to the Custodian to pay any costs, fees and indemnities then due and owing to the Custodian; and (C) to the Controlled Account Bank to pay any costs, fees and indemnities then due and owing to the Controlled Account Bank (in respect of the Controlled Accounts), (D) to Administrative Agent to pay any costs, fees or indemnities then due and owing to Administrative Agent under the Credit Documents; (E) to Collateral Agent to pay any costs, fees or indemnities then due and owing to Collateral Agent under the Credit Documents; and (F) to Paying Agent to pay any costs, fees or indemnities then due and owing to Paying Agent under the Credit Documents; provided, however, that the aggregate amount of costs, fees or indemnities payable to the Backup Servicer, Administrative Agent, the Custodian, the Collateral Agent, the Controlled Account Bank (in respect of the Controlled Accounts) and the Paying Agent pursuant to this clause (ii) shall not exceed $450,000 in any Fiscal Year;
(iii) third, on a pro rata basis, to the Administrative Agent for further distribution to the Class A Revolving Lenders to pay costs, fees, and accrued interest (calculated in accordance with Section 2.5(a)) on the Class A Revolving Loans and expenses payable pursuant to the Credit Documents;
(iv) fourth, to the Administrative Agent for further distribution on a pro rata basis to the Class A Lenders to repay principal on the Class A Revolving Loans, (A) prior to the first Interest Payment Date immediately succeeding the 2d Anniversary Date, (1) during any Reduction Period or Election Period, in an amount necessary to reduce any Class A Borrowing Base Deficiency - Regular to zero and (2) otherwise, in an amount necessary to reduce any Class A Borrowing Base Deficiency to zero, or (B) on and after the first Interest Payment Date immediately succeeding the 2d Anniversary Date, in an amount equal to the greater of (1) an amount necessary to reduce any Class A Borrowing Base Deficiency to zero, and (2) all Collections received during the immediately preceding Monthly Period (other than any Collections received prior to the 2d Anniversary Date)

 

Exhibit 10.1

that were applied by the Servicer to reduce the Outstanding Principal Balance of the Pledged Receivables in accordance with the Servicing Agreement;
(v) fifth, to the Administrative Agent for further distribution on a pro rata basis, to the Class B Revolving Lenders to pay costs, fees, and accrued interest (calculated in accordance with Section 2.5(a)) on the Class B Revolving Loans and expenses payable pursuant to the Credit Documents;
(vi) sixth, during any Reduction Period or Election Period, on a pro rata basis, to the Administrative Agent for further distribution to the Class A Revolving Lenders to reduce any Class A Borrowing Base Deficiency – SPV Event to zero;
(vii) seventh, to the Administrative Agent for further distribution on a pro rata basis to the Class B Lenders, (A) until the Class B Maturity Date, in an amount necessary to reduce any Class B Borrowing Base Deficiency to zero, and (B) on the Class B Maturity Date, until the Class B Revolving Loans are paid in full;
(viii) eighth, to pay to the Backup Servicer, the Administrative Agent, the Custodian, the Collateral Agent, the Controlled Account Bank (in respect of the Controlled Accounts) and the Paying Agent any costs, fees or indemnities not paid in accordance with clause (ii) above;
(ix) ninth, to the Reserve Account an amount equal to any Reserve Account Funding Amount;
(x) tenth, to pay all other Obligations or any other amount then due and payable hereunder;
(xi) eleventh, during the Paydown Period, to the Administrative Agent for further distribution to the Class A Revolving Lenders to repay the principal of the Class A Revolving Loans until, after giving effect to such application, the Effective Advance Rate is equal to 66%;
(xii) twelfth, if a Comparable Facility Condition has occurred and is continuing, to the Administrative Agent for further distribution to the Class A Revolving Lenders to repay the principal of the Class A Revolving Loans until paid in full;
(xiii) thirteenth, at the election of Company, on a pro rata basis, to the Administrative Agent for further distribution to the Class A Revolving Lenders and/or the Class B Revolving Lenders, as applicable, to repay the principal of the Revolving Loans; provided, that on and after the first Interest Payment Date following the 2d Anniversary Date, any such repayment shall be applied first to repay the principal of the Class A Revolving Loans until paid in full and second to repay any outstanding principal of the Class B Revolving Loans; and
(xiv) fourteenth, provided that no Borrowing Base Deficiency would occur after giving effect to such distribution and provided that no Reduction Period or Election Period is then in effect, any remainder to Company or as Company shall direct consistent with Section 6.5; provided further, that on and after the first Interest Payment Date immediately succeeding the 2d Anniversary Date, the first 50% of all funds available for application pursuant to this clause fourteenth shall be applied to the Administrative Agent for further distribution on a pro rata basis to the Class A Lenders, as applicable, to repay the principal of the Class A Revolving Loans and any remainder to the Company or as the Company shall direct consistent with Section 6.5.

 

Exhibit 10.1

1.4    Section 2.12(b)(i) of the Credit Agreement. Section 2.12(b)(i) of the Credit Agreement is hereby amended by replacing “Section 2.12(a)(xii)” with “Section 2.12(a)(xiv)”.
1.5    Section 3.3(a)(viii) of the Credit Agreement. Section 3.3(a)(viii) of the Credit Agreement is hereby amended and restated in its entirety as follows:
(viii)    no Reduction Period, Paydown Period, Election Period, Comparable Facility Condition or Early Amortization Event has occurred and is continuing

1.6    Section 5.1 of the Credit Agreement. Section 5.1(k) of the Credit Agreement is hereby amended and restated in its entirety as follows
“(i)    not later than Friday of each week (or if such day is not a Business Day, the immediately preceding Business Day) in which a Borrowing Base Report has not otherwise been delivered hereunder, a Borrowing Base Report; provided, that during the Paydown Period, such delivery shall occur no less frequently than once every five (5) consecutive Business Days;
(ii)    any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in such certification;
(iii)    such material information and data with respect to Holdings or any of its Subsidiaries as from time to time may be reasonably requested by any Agent or Lender, in each case, which relate to Company’s or Holdings’ financial or business condition or the Collateral; and
(iv)    during the Paydown Period, on the first Business Day of each calendar week, a “Payment File” in a form reasonably acceptable to the Administrative Agent, calculated as of the last Business Day of the immediately preceding calendar week.”

 

Exhibit 10.1

1.7    Section 5.5 of the Credit Agreement. Section 5.5(a) of the Credit Agreement is hereby amended by adding “(or, with respect to the Fiscal Year occurring in 2020, not more than two (2) times)” immediate after “not more than one (1) time per Fiscal Year”.
1.8    Section 6.5 of the Credit Agreement. Section 6.5 of the Credit Agreement is hereby amended by replacing “Section 2.12(a)(xii)” with “Section 2.12(a)(xiv)”.
1.9 Appendix C of the Credit Agreement. Appendix C to the Credit Agreement is amended as set forth on Exhibit A hereto.
1.10 Appendix D of the Credit Agreement. Appendix D to the Credit Agreement is amended as set forth on Exhibit B hereto.
1.11 Appendix E of the Credit Agreement. Appendix E to the Credit Agreement is amended as set forth on Exhibit C hereto.
1.12 Appendix F of the Credit Agreement. Appendix F to the Credit Agreement is amended as set forth on Exhibit D hereto.
1.13 Appendix G of the Credit Agreement. Appendix G to the Credit Agreement is amended as set forth on Exhibit E hereto.
SECTION 2. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders party hereto to enter into this Amendment, Company represents and warrants to the Administrative Agent and the Lenders, on the Second Amendment Effective Date, that the following statements are true and correct, it being understood and agreed that the representations and warranties made on the Second Amendment Effective Date are deemed to be made concurrently with the consummation of the transactions contemplated hereby:
2.1    Due Authorization. The execution, delivery and performance of this Amendment have been duly authorized by all necessary action on the part of Company.
2.2    Binding Obligation. This Amendment has been duly executed and delivered by the Company and is the legally valid and binding obligation of the Company enforceable against the Company in accordance with its 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.
2.3    Incorporation of Representations and Warranties from Credit Agreement. The representations and warranties contained in Section 4 of the Credit Agreement are true and correct in all material respects on and as of the Second Amendment Effective Date (as defined below) 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 they were true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof.
2.4    Absence of Default. No event has occurred and is continuing or will result from the consummation of this Amendment that would constitute a Default or an Event of Default.

 

Exhibit 10.1

SECTION 3. MISCELLANEOUS
3.1    Conditions of Effectiveness. This Amendment shall become effective as of the date (such date, the “Second Amendment Effective Date”) on which the Administrative Agent has received counterparts of (a) this Amendment executed by Company, the Lenders party hereto and the Administrative Agent, (b) Amendment No. 3 to Servicing Agreement, dated as of the Second Amendment Effective Date, which amends the Servicing Agreement, executed by Company, Holdings and the Administrative Agent, and (c) Amendment No. 4 to Backup Servicing Agreement, dated as of the Second Amendment Effective Date, which amends the Backup Servicing Agreement, executed by Company, Holdings, Vervent Inc. (f/k/a Portfolio Financial Servicing Company), as backup servicer, and the Administrative Agent.
3.2    Monthly Servicing Report. The Lenders hereby acknowledge and agree that the Monthly Servicing Report delivered on May 12, 2020 is hereby superseded in its entirety with the Monthly Servicing Report delivered on and as of the Amendment Effective Date (the “Amendment Date Monthly Servicing Report”), which such Amendment Date Monthly Servicing Report has been delivered giving effect to the amendments as set forth herein.
3.3    Reference to and Effect on the Credit Agreement and the Other Credit Documents.
(a) On and after the Second Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the Credit Documents and the Related Agreements to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Amendment. This Amendment is hereby designated as a Credit Document for all purposes of the Credit Documents.
(b) Except as expressly set forth herein, no other amendments, changes or modifications to the Credit Agreement and each other Credit Document are intended or implied, and in all other respects the Credit Agreement and each other Credit Document are and shall continue to be in full force and effect and are hereby in all respects specifically ratified, restated and confirmed by all parties hereto as of the Second Amendment Effective Date and Company shall not be entitled to any other further amendment by virtue of the provisions of this Amendment or with respect to the subject matter of this Amendment. To the extent of conflict between the terms of this Amendment and the other Credit Documents, the terms of this Amendment shall control. The Credit Agreement and this Amendment shall be read and construed as one agreement.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender, Administrative Agent or Agent under the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement.
3.4    Binding Effect. This Amendment shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.
3.5    Governing Law. This Amendment and the rights and obligations of the parties hereunder shall be governed by, and shall be construed and enforced in accordance with, the laws of the State of New York.

 

Exhibit 10.1

3.6    Execution in Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Amendment by fax or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Amendment.
3.7    Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

IN WITNESS THEREOF, the parties hereto have caused this Amendment No. 2 to the Fourth Amended and Restated Credit Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

RECEIVABLE ASSETS OF ONDECK, LLC, as Company

By:    /s/ Kenneth A. Brause
Name: Kenneth A. Brause
Title:     Chief Financial Officer




SUNTRUST BANK, as Administrative Agent and Class A Revolving Lender

By:    /s/Brock Wolf
Name:    Brock Wolf
Title:    Senior Vice President




Exhibit 10.2

TEMPORARY WAIVER AND CONSENT

This TEMPORARY WAIVER AND CONSENT (this “Waiver and Consent”) dated as of May 14, 2020 is entered into by and among ONDECK ASSET FUNDING II, LLC, a Delaware limited liability company (“Company”), solely with respect to Section 3, On Deck Capital, Inc., a Delaware corporation (“Holdings”), the Lenders party hereto which constitute all the Lenders currently party to the Credit Agreement (defined below) and ARES AGENT SERVICES, L.P., as Administrative Agent (in such capacity, the “Administrative Agent”).
RECITALS:
WHEREAS, Company, the Lenders party thereto from time to time, the Administrative Agent, Ares Agent Services L.P., as Collateral Agent for the Secured Parties, and Wells Fargo Bank, N.A., as Paying Agent, entered into a Credit Agreement, dated as of August 8, 2018 (as may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) pursuant to which the Lenders have made advances and other financial accommodations to Company. Capitalized terms not otherwise defined in this Waiver and Consent have the same meanings as specified in the Credit Agreement;
WHEREAS, Company has advised the Lenders and the Administrative Agent that Borrowing Base Deficiencies exist as set forth in (i) the weekly Borrowing Base Reports delivered by the Company on May 1, 2020 and May 8, 2020, in each case pursuant to Section 5.1(k)(i) of the Credit Agreement, (ii) the monthly Borrowing Base Certificate delivered by the Company with respect to the April 2020 Monthly Period pursuant to Section 5.1(f)(i) of the Credit Agreement, and (iii) the April 2020 Monthly Servicing Report delivered by the Company on May 12, 2020, pursuant to Section 5.1(f)(ii) of the Credit Agreement (such Borrowing Base Deficiencies as so reported in such Borrowing Base Reports, Borrowing Base Certificate and Monthly Servicing Report, as applicable, the “Existing Borrowing Base Deficiencies”);
WHEREAS, Company has requested that the Lenders and the Administrative Agent grant a temporary limited waiver solely during the Waiver Period (as defined below) with respect to (i) the occurrence and existence of the Existing Borrowing Base Deficiencies and (ii) the Company’s failure to prepay the Loans in an amount sufficient to cure the Existing Borrowing Base Deficiencies as required by Section 2.9 of the Credit Agreement, (the events and circumstances described in the foregoing clauses (i) through (ii), the “Specified Events”), and the Lenders and the Administrative Agent have agreed to grant such temporary limited waiver of the Specified Events subject to the terms and conditions set forth herein; and
WHEREAS, Company has requested that on the Interest Payment Date occurring on May 15, 2020 the Lenders and the Administrative Agent agree to apply Collections for the month of April 2020 (the “April Collections”) solely with respect to items “first” through “fifth” of Section 2.11(a) of the Credit Agreement, retain the remaining April Collections in the Collection Account and apply them in accordance with Section 2.11(b) of the Credit Agreement (without duplication of payments already made in accordance with Section 2.11(a) of the Credit Agreement) at the end of the Waiver Period (as defined below) unless otherwise agreed upon in writing by Company, the Lenders and the Administrative Agent.

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. TEMPORARY WAIVER AND CONSENT
1.1    Waiver; Limitations. Effective as of the Effective Date (defined below), subject to the satisfaction of the conditions to effectiveness set forth in Section 4.1 below, the Lenders and the Administrative Agent hereby waive the occurrence, existence or continuance of any Specified Event solely




Exhibit 10.2

during the period commencing on the Effective Date and ending at the close of business on May 19, 2020 (such period, the “Waiver Period”). The waiver set forth in this Section 1.1 is a one-time waiver only and applies only during the Waiver Period.
Automatically upon termination of the Waiver Period, (i) the waiver granted by the Lenders and the Administrative Agent hereunder shall terminate, (ii) all rights and remedies of the Lenders and the Administrative Agent with respect to the Specified Events shall be reinstated, (iii) all obligations of the Company (including any obligation to repay the Loans) with respect to the Specified Events shall be reinstated. For the avoidance of doubt, if any of the Existing Borrowing Base Deficiencies or any other Borrowing Base Deficiency exists upon termination of the Waiver Period, an Event of Default shall be deemed to have occurred for all purposes immediately upon such termination of the Waiver Period.
Notwithstanding anything to the contrary herein or in any other Credit Documents, neither the Lenders nor the Administrative Agent is now waiving, nor have any of them agreed to waive in the future (i) the breach of any provision of the Credit Documents (whether presently or subsequently existing or arising), (ii) any Specified Event or any consequence thereof, except solely to extent the consequences thereof have been expressly waived solely during the Waiver Period pursuant to this Section 1.1, (iii) any other Event of Default or Default (whether presently or subsequently existing or arising) or (iv) any rights, powers or remedies presently or subsequently available to any Lender, the Administrative Agent or any other Person against the Company, Holdings, the Seller, any other Person or any collateral, property or assets, under the Credit Agreement, any of the other Credit Documents, applicable law or otherwise, relating to any matter other than solely to the extent expressly waived herein, each of which rights, powers or remedies is hereby specifically and expressly reserved and shall continue. Without limiting the generality of the foregoing, this Waiver and Consent shall not be construed as a waiver or cure of any Specified Event; and all consequences of the Specified Events (other than those expressly and temporarily waived pursuant to this Section 1.1) shall survive this Waiver and Consent; and all consequences of the Specified Events waived pursuant to this Section 1.1 shall be automatically reinstated with full force and effect immediately following the Waiver Period.
1.2    Agreement Related to Collections. The parties hereto agree that on the Interest Payment Date occurring on May 15, 2020 the April Collections shall be applied solely with respect to items “first” through “fifth” of Section 2.11(a) of the Credit Agreement and the remaining April Collections shall be held in the Collection Account and applied in accordance with Section 2.11(b) of the Credit Agreement (without duplication of payments already made in accordance with Section 2.11(a) of the Credit Agreement) at the end of the Waiver Period unless otherwise agreed upon in writing by Company, the Lenders and the Administrative Agent.
1.3    No Obligation to Make Loans. During the Waiver Period the Company shall not request any Loans and the Lenders shall not be required to fund any Loans to the Company and the Company shall not be permitted to make any Restricted Junior Payments during the Waiver Period.
1.4        Reservation of Rights. The Lenders and the Administrative Agent hereby expressly reserve all of their rights and remedies under and with respect to the Credit Agreement and the other Credit Documents from and after the Waiver Period with respect to any Specified Events.
SECTION 2. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders party hereto to enter into this Waiver and Consent, Company represents and warrants to the Administrative Agent and Lenders, on the Effective Date, that the following statements are true and correct, it being understood and agreed that the representations



Exhibit 10.2

and warranties made on the Effective Date are deemed to be made concurrently with the consummation of the transactions contemplated hereby:
2.1    Due Authorization. The execution, delivery and performance of this Waiver and Consent have been duly authorized by all necessary action on the part of Company.
2.2    Binding Obligation. This Waiver and Consent has been duly executed and delivered by the Company and is the legally valid and binding obligation of the Company enforceable against the Company in accordance with its 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.
2.3    Incorporation of Representations and Warranties from Credit Agreement. The representations and warranties contained in Section 4 of the Credit Agreement are true and correct in all material respects on and as of the Effective Date 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 they were true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof.
2.4    No Default or Event of Default. After giving effect to the limited waiver set forth in Section 1.1, no Servicer Default, Default or Event of Default has occurred and is continuing.
SECTION 3. RELEASE. IN CONSIDERATION OF THE LIMITED WAIVER CONTAINED HEREIN THE SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, EACH OF THE COMPANY AND HOLDINGS, ON BEHALF OF THEMSELVES AND THEIR RESPECTIVE SUBSIDIARIES, HEREBY IRREVOCABLY RELEASES AND FOREVER DISCHARGES THE ADMINISTRATIVE AGENT AND EACH LENDER AND EACH OF THEIR RESPECTIVE AFFILIATES AND ITS OFFICERS, PARTNERS, DIRECTORS, TRUSTEES, EMPLOYEES AND AGENTS (EACH, A “RELEASED PERSON”) OF AND FROM ALL DAMAGES, LOSSES, CLAIMS, DEMANDS, LIABILITIES, OBLIGATIONS, ACTIONS AND CAUSES OF ACTION WHATSOEVER WHICH ANY SUCH PERSON MAY NOW HAVE OR CLAIM TO HAVE ON AND AS OF THE DATE HEREOF AGAINST ANY RELEASED PERSON, WHETHER PRESENTLY KNOWN OR UNKNOWN, LIQUIDATED OR UNLIQUIDATED, SUSPECTED OR UNSUSPECTED, CONTINGENT OR NON-CONTINGENT, AND OF EVERY NATURE AND EXTENT WHATSOEVER WITH RESPECT TO THE CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY (COLLECTIVELY, “CLAIMS”). EACH OF THE COMPANY AND HOLDINGS REPRESENTS AND WARRANTS TO THE ADMINISTRATIVE AGENT AND EACH LENDER THAT NONE OF THE COMPANY, HOLDINGS OR THEIR RESPECTIVE SUBSIDIARIES HAS GRANTED OR PURPORTED TO GRANT TO ANY OTHER PERSON ANY INTEREST WHATSOEVER IN ANY CLAIM, AS SECURITY OR OTHERWISE.
SECTION 4. MISCELLANEOUS
4.1    Conditions of Effectiveness. This Waiver and Consent shall become effective as of the date (such date, the “Effective Date”) on which the Administrative Agent has received counterparts of this Waiver and Consent executed by Company, the Administrative Agent and all Lenders currently party to the Credit Agreement.
4.2    Fees and Expenses. The Company shall pay or reimburse all the Administrative Agent’s and the Lenders’ respective out-of-pocket fees and expenses (including fees and expenses of counsel)



Exhibit 10.2

incurred in connection with this Waiver and Consent and the transactions contemplated hereby in accordance with Section 9.2 of the Credit Agreement.
4.3    Reference to and Effect on the Credit Agreement and the Other Credit Documents.
(a) Except as expressly set forth herein, no other amendments, changes or modifications to the Credit Agreement and each other Credit Document are intended or implied, and in all other respects the Credit Agreement and each other Credit Document are and shall continue to be in full force and effect and are hereby in all respects specifically ratified, restated and confirmed by all parties hereto as of the Effective Date and Company shall not be entitled to any other further amendment by virtue of the provisions of this Waiver and Consent or with respect to the subject matter of this Waiver and Consent. To the extent of conflict between the terms of this Waiver and Consent and the other Credit Documents, the terms of this Waiver and Consent shall control. The Credit Agreement and this Waiver and Consent shall be read and construed as one agreement.
(b) The execution, delivery and effectiveness of this Waiver and Consent shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender, Administrative Agent or Agent under the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement.
4.4    Binding Effect. This Waiver and Consent shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.
4.5    Governing Law. This Waiver and Consent and the rights and obligations of the parties hereunder shall be governed by, and shall be construed and enforced in accordance with, the laws of the State of New York.
4.6    CONSENT TO JURISDICTION. WITHOUT LIMITING SECTION 9.14 OF THE CREDIT AGREEMENT, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS WAIVER AND CONSENT, EACH OF COMPANY AND HOLDINGS, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (b) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (c) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 9.1 OF THE CREDIT AGREEMENT AND TO ANY PROCESS AGENT APPOINTED BY IT IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY OR HOLDINGS (AS THE CASE MAY BE) IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (d) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE COURTS OF ANY OTHER JURISDICTION.
4.7    WAIVER OF JURY TRIAL. WITHOUT LIMITING SECTION 9.15 OF THE CREDIT AGREEMENT, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO



Exhibit 10.2

THE SUBJECT MATTER HEREOF OR THE LENDER/BORROWER RELATIONSHIP ESTABLISHED PURSUANT TO THE CREDIT DOCUMENTS. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
4.6    Execution in Counterparts. This Waiver and Consent may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page of this Waiver and Consent by fax or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Waiver and Consent.
4.7    Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
4.8    Credit Document. This Waiver and Consent shall constitute a Credit Document for all purposes.

IN WITNESS THEREOF, the parties hereto have caused this Temporary Waiver and Consent to be executed by their respective officers thereunto duly authorized, as of the date first above written.

ONDECK ASSET FUNDING II, LLC,
as Company


By:    /s/ Kenneth A. Brause
Name:    Kenneth A. Brause
Title:    Chief Financial Officer


ON DECK CAPITAL, INC.
solely with respect to Section 3, as Holdings,


By:    /s/ Kenneth A. Brause
Name:    Kenneth A. Brause
Title:    Chief Financial Officer


ARES AGENT SERVICES, L.P.,
as Administrative Agent

By: Ares Agent Services GP LLC,
its General Partner


By:    /s/ Jeffrey W. Kramer
Name:    Jeffrey W. Kramer
Title:    Authorized Signatory




Exhibit 10.2

LIBERTY MUTUAL INSURANCE COMPANY,
as a Class A Lender


By:    /s/ Christopher J. Felton
Name:    Christopher J. Felton
Title:    Executive Vice President


PEERLESS INSURANCE COMPANY,
as a Class A Lender


By:    /s/ Christopher J. Felton
Name:    Christopher J. Felton
Title:    Executive Vice President


EMPLOYERS INSURANCE COMPANY OF WAUSAU,
as a Class A Lender


By:    /s/ Christopher J. Felton
Name:    Christopher J. Felton
Title:    Executive Vice President


THE OHIO CASUALTY INSURANCE COMPANY,
as a Class A Lender


By:    /s/ Christopher J. Felton
Name:    Christopher J. Felton
Title:    Executive Vice President


LIBERTY MUTUAL FIRE INSURANCE COMPANY,
as a Class A Lender


By:    /s/ Christopher J. Felton
Name:    Christopher J. Felton
Title:    Executive Vice President







Exhibit 10.2

SAFECO INSURANCE COMPANY OF AMERICA,
as a Class A Lender


By:    /s/ Christopher J. Felton
Name:    Christopher J. Felton
Title:    Executive Vice President


ARES SECURED INCOME MASTER FUND LP,
as a Class A Lender

By: Ares Management LLC,
its Manager

By:    /s/ Jeffrey W. Kramer
Name:    Jeffrey W. Kramer
Title:    Authorized Signatory


SONORAN CACTUS PRIVATE ASSET BACKED FUND, LLC, as a Class B Lender

By: Ares Cactus Operating Manager GP, LLC, its Manager

By:    /s/ Jeffrey W. Kramer
Name:    Jeffrey W. Kramer
Title:    Authorized Signatory


GLENLAKE LOAN FUND, LLC,
as a Class B Lender

By: Ares Management LLC, its Investment Manager

By:    /s/ Jeffrey W. Kramer
Name:    Jeffrey W. Kramer
Title:    Authorized Signatory


ARES CREDIT STRATEGIES INSURANCE DEDICATED FUND SERIES OF SALI MULTI-SERIES FUND, L.P., as a Class B Lender

By: Ares Management LLC, its investment subadvisor

By:    /s/ Matthew G. Jill
Name:    Matthew G. Jill
Title:    Authorized Signatory



Exhibit 10.2


SA REAL ASSETS 20 LIMITED,
as a Class B Lender

By: Ares Management LLC, its investment manager

By:    /s/ Matthew G. Jill
Name:    Matthew G. Jill
Title:    Authorized Signatory


ARES ASSET-BACKED LOAN FUND LP,
as a Class B Lender

By: Ares Capital Management III LLC, its management company

By:    /s/ Jeffrey W. Kramer
Name:    Jeffrey W. Kramer
Title:    Authorized Signatory





Exhibit 10.3

WAIVER AGREEMENT
THIS WAIVER AGREEMENT (this “Agreement”) is made as of May 14, 2020 (the “Effective Date”), by and among Deutsche Bank AG, New York Branch (“DBNY” and the “Administrative Agent”), OnDeck Account Receivables Trust 2013-1 LLC, as a borrower (the “Borrower”), and Vervent Inc., as Backup Servicer.
W I T N E S S E T H:
WHEREAS, the Borrower and the Administrative Agent, together with various lenders, Deutsche Bank AG, New York Branch, as Collateral Agent (in such capacity, the “Collateral Agent”), Deutsche Bank Trust Company Americas, as paying agent (the “Paying Agent”), and Deutsche Bank Securities Inc., as syndication agent, documentation agent and lead arranger (“DB Securities”), are parties to the Fifth Amended and Restated Credit Agreement, dated as of March 12, 2019 (as amended as of the date hereof, the “Credit Agreement”). The Company, the Administrative Agent, the Collateral Agent, the Paying Agent and DB Securities are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”, as the context may require. Any capitalized terms used in this Agreement without definition shall have the respective meaning given to them in the Credit Agreement;
WHEREAS, Borrower has requested that the Administrative Agent (on behalf of the Requisite Class A Lenders) grant a temporary waiver with respect to potential Events of Default that may as a result of one or more Specified Events (as defined below) and the Administrative Agent (on behalf of the Requisite Class A Lenders) has agreed to grant such temporary waiver of the Specified Events subject to the terms and conditions set forth here;
NOW, THEREFORE, in consideration of the foregoing recitals and the agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:



Exhibit 10.3

1. Incorporation of Recitals. The recitals set forth above are true and correct and incorporated herein by reference.
2. Defined Terms.  Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings assigned to such terms in the Credit Agreement.
3. Acknowledgment of Specified Events. The Borrower acknowledges and agrees that (a) a breach of its Obligations may soon occur due to a Borrowing Base Deficiency and such event would, with the passage of time, become an Event of Default pursuant to Section 7.1(m) of the Credit Agreement; (b) other Events of Default may occur solely as a result of any Event of Default described in clause (a) above; and (c) a Hot Backup Servicer Event may occur with respect to the Interest Payment Date occurring in May 2020 (each event specified in clause (a) through (c) above, a “Specified Event”). Other than the waiver expressly set forth below, the Administrative Agent reserves all rights under the Credit Agreement and the other Credit Documents and the Administrative Agent's rights in such regard shall be indefinite from and after the date of this Agreement until withdrawn by the Administrative Agent in writing.
4. No Novation or Release. Except as otherwise expressly stated in this Agreement with respect to any Specified Event, neither this Agreement, nor any payments made or other actions taken pursuant to this Agreement, is intended to cure, and shall not be deemed or construed to cure any other existing defaults under the Credit Documents, or to constitute a reinstatement, novation or release of the Credit Documents or a modification, amendment, or waiver of the Credit Documents. The Administrative Agent reserves all of its rights and remedies in connection with any such other defaults.
5. Waiver.
(a) Subject to the terms and conditions set forth herein, the Administrative Agent (on behalf of the Requisite Class A Lenders) hereby (a) waives, solely during the period commencing on the date hereof and ending on the Termination Date (as defined below), the occurrence of any Specified Event and (b) agrees that, during such period only, no Default or Event of Default shall be deemed to exist under the Credit Agreement or any other Credit Document solely as a result of any Specified Event. The waiver set forth in this Section 5(a) is a one-time waiver only and applies only to the matters set forth in this Section 5(a).
(b) The Borrower hereby agrees and understands that during the waiver period it shall not request any Class A Revolving Loans and no Class A Revolving Loans shall be made.
6. Waiver Period.     The waiver of the Specified Events shall expire on the earlier of (i) the close of business, New York City time, May 20, 2020 or (ii) the date upon which any Termination Event (as defined below) may occur (either such date, the “Termination Date”). The Borrower acknowledges that the Administrative Agent shall have no obligation to extend the Termination Date. The Administrative Agent shall have the right, any time after the Termination Date, to exercise any and all rights and remedies against the Borrower and the Collateral as set forth in the Credit Documents in equity or at law, to the same extent as the Administrative Agent would be entitled if the Administrative Agent had not entered into this Agreement, and the Borrower expressly consents to the Administrative Agent’s exercise of such remedies in accordance with their terms. Upon expiration of the waiver period, all of the Administrative Agent’s rights and remedies under the Credit Documents and at law and in equity shall be available without restriction or modification, as if the waiver had not occurred. At or after the Termination Date, the Administrative Agent may renew or extend the waiver period with respect to any Specified Event or grant additional waivers with respect to the Credit Agreement.



Exhibit 10.3

7. Borrower Representations and Warranties. The Borrower hereby represents and warrants to the Administrative Agent as of the Effective Date that the representations and warranties of the Borrower contained in the Credit Agreement and each Credit Document are true and correct in all respects on and as of such day (other than any representation and warranty that is made as of a specific date).
8. Termination Events. The agreement of the Administrative Agent to forbear as provided in this Agreement shall immediately terminate and be of no further force and effect, without any notice whatsoever to the Borrower or any other party upon the occurrence of any of the following (each, a “Termination Event”):
(a) a breach by the Borrower of any obligations set forth in this Agreement;
(b) any representation or warranty of the Borrower in this Agreement shall be untrue or inaccurate in any material respect other than with respect to any Specified Event;
(c) the Borrower shall, directly or indirectly, file or institute, or cause to be filed or instituted or cooperate in the filing or institution against the Administrative Agent (or any affiliate), any lawsuit, complaint, administrative claim, adversary proceeding, or other legal action relating, directly or indirectly, to the Receivables or the Credit Documents;
(d) any Default or Event of Default shall occur under the Credit Documents other than any Specified Event; and
(e) any creditor of the Borrower or Holdings commences an action against the Borrower or Holdings seeking to collect any debt, obligation or liability.
9. Administrative Agent’s Rights upon Occurrence of Termination Event. Upon the occurrence of a Termination Event, the Administrative Agent’s agreement to refrain from the exercise of any of the remedies set forth in the Credit Documents with respect to any Specified Event shall immediately and without further notice to the Borrower, terminate and be of no further force and effect. The Administrative Agent shall thereupon have the right, at any time and from time to time, to exercise any and all rights and remedies available against the Borrower to satisfy the Borrower’s obligations under this Agreement and the Credit Documents, in equity or at law to the same extent as the Administrative Agent would be entitled if the Administrative Agent had not entered into this Agreement.
10.    Release of the Administrative Agent. The Borrower, by execution of this Agreement, does waive and release, all existing defenses, setoffs, damages, claims, counterclaims, or causes of action of any kind or nature whatsoever against the Secured Parties and all of their respective past, present, and future partners, officers, directors, employees, agents, attorneys, servicers, representatives, participants, heirs, successors and assigns and their predecessors in interest (collectively, “Administrative Agent Parties”) with respect to (i) the Credit Documents, (ii) the Obligations of the Borrower, (iii) any other documents or instruments now or previously evidencing, securing or in any way relating to such Obligations, (v) the administration and funding of the Obligations and (vi) the operation or transfer of the Receivables. To the extent required by the Credit Agreement and any other Credit Documents, the Borrower acknowledges and agrees it has received timely and proper notice of any existing defaults and the opportunity to cure (if any), in accordance with the relevant provisions of the Credit Agreement and any other Credit Documents, as applicable, or applicable law The Administrative Agent’s decision to enter into this Agreement is without prejudice to the Administrative Agent’s right to pursue any and all remedies under the Credit Documents (other than in respect of any Specified Events prior to the Termination Date), pursuant to applicable law or in equity, available to the Administrative Agent in its sole discretion upon the termination (whether upon expiration



Exhibit 10.3

thereof, upon acceleration, or otherwise) of this Agreement. But for this Agreement, the Administrative Agent would be entitled to exercise its rights and remedies under the Credit Documents and applicable law in respect of any Specified Event, and the Borrower has no defenses, setoffs, or counterclaims against the Administrative Agent or, alternatively, to the extent that any defenses, setoffs, or counterclaims exist, the Borrower hereby waives any and all defenses, setoffs, and counterclaims which they may have or claim to have in respect of the obligations of the Borrower under the Credit Documents.
11.    Survival of Provisions. The covenants, acknowledgements, representations, warranties, agreements and obligations in this Agreement shall survive the consummation of the transactions contemplated by this Agreement.
12.    No Limitation of Remedies. No right, power or remedy conferred upon or reserved to or by the Administrative Agent in this Agreement is intended to be exclusive of any other right, power or remedy conferred upon or served to or by the Administrative Agent under the Credit Documents or at law, but each and every remedy shall be cumulative and concurrent, and shall be in addition to each and every other right, power and remedy given under the Credit Documents or now or subsequently existing in equity or at law.
13.    No Waivers. Except as otherwise provided in this Agreement, nothing in this Agreement shall constitute a waiver of any rights or remedies of the Administrative Agent under the Credit Documents. No delay or failure on the part of the Administrative Agent to exercise any right or remedy under this Agreement or the Credit Documents shall operate as a waiver. No single or partial exercise of any right or remedy by the Administrative Agent shall preclude other or further exercise thereof or the exercise of any other right or remedy. No action, waiver or forbearance by the Administrative Agent contrary to the provisions of this Agreement shall be construed to constitute a waiver of any of the express provisions of this Agreement.
14.    Successors or Assigns. Whenever in this Agreement any party is named or referenced, the heirs, executors, legal representatives, successors, successors-in-title, and assigns of such party shall be included. All covenants and agreements in this Agreement shall bind and inure to the benefit of the parties’ respective heirs, executors, legal representatives, successors, successors-in-title, and assigns, whether so expressed or not.
15.    Construction of Agreement. No representations or warranties have been made by or on behalf of the Administrative Agent or the Borrower, or relied upon by the Borrower or the Administrative Agent, pertaining to the subject matter of this Agreement, other than those in this Agreement. All prior statements, representations and warranties related to any Specified Event, if any, are superseded and merged into this Agreement, which represents the final and sole agreement of the parties with respect to the matters described in this Agreement. All of the terms of this Agreement were negotiated at arm’s-length, and were prepared and executed without fraud, duress, undue influence or coercion of any kind exerted by any of the parties upon the others. The execution and delivery of this Agreement is the free and voluntary act of each party hereto.
16.    Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
17.    Notice. All notices given hereunder shall be given in accordance with Section 9.1 of the Credit Agreement.



Exhibit 10.3

18.    Governing Law. This Agreement shall be governed and construed in accordance with the law of the State of New York as set forth in Section 19.14 of the Credit Agreement, which provision is incorporated herein by reference.
19.    Counterparts. This Agreement may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original but all of which shall constitute together but one and the same agreement. Delivery of this Agreement by facsimile or electronic mail shall be equally as effective as delivery of an original executed counterpart of this Agreement.
20.    Amendment. The terms of this Agreement and the rights and obligations of the parties hereunder may not be amended, supplemented, waived or otherwise modified except in an instrument in writing signed by the parties hereto.
21.    Time of Essence. Time is of the essence in this Agreement.
22.    WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE BORROWER, HOLDINGS, THE ADMINISTRATIVE AGENT OR ANY OTHER AFFECTED PERSON. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER TRANSACTION DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ITS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER TRANSACTION DOCUMENT.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers thereunto duly authorized as of the date first written above.



Exhibit 10.3

ONDECK ACCOUNT RECEIVABLES TRUST 2013-1 LLC, as Borrower


By:
/s/ Kenneth A. Brause
Name:
Kenneth A. Brause
Title:
Chief Financial Officer


DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative Agent


By:
/s/ Kevin Tanzer
Name:
Kevin Tanzer
Title:
Managing Director


By:
/s/ Peter Sabino
Name:
Peter Sabino
Title:
Director


VERVENT INC., as Backup Servicer


By:
/s/ Laurence Chiavan
Name:
Laurence Chiavan
Title:
Executive Vice President