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 18, 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") has now obtained COVID-related amendments to all four of its warehouse debt facilities with outstanding balances, which have been publicly filed. The two most recent amendments are described below. The other two were previously reported.

ODAF II Facility Amendment
    
On May 19, 2020, OnDeck Asset Funding II, LLC (“ODAF II”), a wholly-owned subsidiary of the Company, amended (the “ODAF II Amendment”) its asset-backed revolving debt facility (the “ODAF II Facility”) to modify the Credit Agreement, dated as of August 8, 2018, by and among ODAF II, as Borrower, the Lenders party thereto from time to time, Ares Agent Services, L.P., as Administrative Agent and Collateral Agent, and Wells Fargo Bank, N.A, as Paying Agent. Certain capitalized terms not defined in this section of the report are used with the meanings ascribed to them in the ODAF II Facility and the ODAF II Amendment.

Pursuant to the ODAF II Amendment, from March 11, 2020 to July 22, 2020, receivables granted temporary relief in response to the COVID-19 pandemic will generally not be considered delinquent under the ODAF II Facility so long as such receivable is paying in accordance with its modified terms. The ODAF II 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 July 22, 2020 (the “Amendment Period”), the Lenders are not obligated to make any loans to ODAF II, ODAF II is restricted from purchasing receivables from the Company (other than certain subsequent line of credit advances) and any cash remaining in the ODAF II Facility is not permitted to be distributed to the Company. As of the effective date of the ODAF II Amendment, the advance rate was reduced from its original advance rate of 87.5% to 78.8%. The advance rate is subject to further reduction on each payment date under the ODAF II Facility with a final reduction to 70% to occur no later than July 23, 2020. The ODAF II Amendment does not modify the commitment amount or interest rate of the ODAF II Facility.

The foregoing description of the ODAF II Amendment does not purport to be complete and is qualified in its entirety by reference to (i) the full text of the ODAF II Amendment, which is filed as Exhibit 10.1 to this report and incorporated herein by reference, and (ii) the ODAF II Agreement, which was filed as Exhibit 10.30 to Company’s Annual Report on Form 10-K for the year ended December 31, 2019.

ODART Facility Amendment
    
On May 20, 2020, OnDeck Account Receivables Trust 2013-1 LLC (“ODART”), a wholly-owned subsidiary of the Company, amended (the “ODART Amendment”) its asset-backed revolving debt facility (the “ODART Facility”) to further modify the Fifth Amended and Restated Credit Agreement, dated as of March 12, 2019, by and among ODART, as Borrower, the Lenders party thereto from time to time, Deutsche Bank AG, New York Branch, as Administrative Agent and Collateral Agent, Deutsche Bank Securities Inc., as Syndication Agent, Documentation Agent and Lead Arranger and Deutsche Bank Trust Company Americas, as Paying Agent. Certain capitalized terms not defined in this section of the report are used with the meanings ascribed to them in the ODART Facility as amended by prior amendments thereto and the ODART Amendment.

Pursuant to the ODART Amendment, from March 11, 2020 to July 23, 2020, receivables granted temporary relief in response to the COVID-19 pandemic will generally not be considered delinquent under the ODART Facility so long as such receivable is paying in accordance with its modified terms. The ODART Amendment also modifies the concentration limitations to provide, among other things, additional flexibility for certain loans impacted by COVID-19 and, following the Amendment Period, certain additional eligibility criteria will apply to receivables impacted by COVID-19. Until the earlier of (x) July 23, 2020 or (y) such time as the Effective Advance Rate has reached 70% (the “Amendment Period”), the Lenders are not obligated to make any loans to ODART, ODART is restricted from purchasing receivables from the Company (other than certain subsequent line of credit advances) and any cash remaining in the ODART Facility is not permitted to be distributed to the Company. As of the effective date of the ODART Amendment, the advance rate was reduced from 80% to 75% and following the Amendment Period, the applicable advance rate shall be further reduced to 70%. The ODART Amendment also reduces the commitment amount from $180 million to $125 million. The interest rate of the ODART Facility was not amended.

The foregoing description of the ODART Amendment does not purport to be complete and is qualified in its entirety by reference to (i) the full text of the ODART Amendment, which is filed as Exhibit 10.2 to this report and incorporated herein by reference, and (ii) the ODART Agreement, 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.

Corporate Revolving Debt Facility

Due to COVID-19 impacts on the Company’s overall portfolio performance, as of May 18, 2020, an Asset Performance Payout Event (Level 1) occurred within the Credit Agreement, dated January 28, 2019, among the Company, the Lenders party thereto from time to time and SunTrust Bank, as Administrative Agent and Collateral Agent (as amended, the “Corporate Facility”).  The event triggers monthly principal repayments which, if not cured or amended, would commence with a $13 million payment on June 17, 2020. Subsequent principal payments are based on a percentage of the currently outstanding balance of $105 million until the Corporate Facility matures in January 2021. The Company is in active discussions with the Corporate Facility lender group to evaluate potential options with regard to this facility.

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. 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 ODAF II Amendment and ODART Amendment; our ability to cure or amend our Corporate Facility, cure deficiencies under our other 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 22, 2020
 
 
 
On Deck Capital, Inc.
 
 
 
 
 
 
 
 
 
 
/s/ Kenneth A. Brause
 
 
 
 
 
 
Kenneth A. Brause
Chief Financial Officer






Exhibit 10.1

AMENDMENT NO. 1 TO
CREDIT AGREEMENT

This AMENDMENT NO. 1 TO CREDIT AGREEMENT (this “Amendment”) dated as of May 19, 2020, is entered into by and among ONDECK ASSET FUNDING II LLC, a Delaware limited liability company (“Company”), the Lenders party hereto which constitute all the Lenders currently party to the Credit Agreement (as defined below) and ARES AGENT SERVICES, L.P., as Administrative Agent for the Lenders (in such capacity, “Administrative Agent”).
RECITALS:
WHEREAS, Company, the Lenders party thereto from time to time, the Administrative Agent, ARES AGENT SERVICES, L.P., as Collateral Agent, 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 Amendment have the same meanings as specified in the Credit Agreement, as amended hereby;
WHEREAS, Company, the Lenders and the Administrative Agent desire to amend the Credit Agreement as set forth herein subject to the terms and conditions set forth herein; and
WHEREAS, pursuant to the Temporary Waiver, dated as of May 14, 2020 (the “Temporary Waiver”), by and among Company, the Administrative Agent and the Lenders, the parties hereto agreed to apply Collections for the month of April 2020 (the “April Collections”) on the Interest Payment Date occurring on May 15, 2020 solely with respect to items “first” through “fifth” of Section 2.11(a) of the Credit Agreement, to retain the remaining April Collections (the “Retained April Collections”) in the Collection Account and desire to apply all Collections in the Collection Account, including the Retained April Collections, as of the date hereof as 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 First Amendment Effective Date and subject to the satisfaction of the conditions precedent set forth in Section 4.1 hereof, hereby amended as follows:

1.1
Section 1.1 of the Credit Agreement.
(a)
The following new definitions are hereby added to Section 1.1 of the Credit Agreement in the appropriate alphabetical order:
“COVID Impacted Industries” means the industries set forth on Appendix F.
“COVID Policies” means the portion of the written Underwriting Policies attached hereto as Appendix G that relate to the COVID-19 pandemic.
“COVID Receivable” means any Receivable arising under an OnDeck LOC that (i) was originated and the first advance thereunder was funded on or prior to March 11, 2020, (ii) had, as


 
Exhibit 10.1

of April 24, 2020, a Missed Payment Factor of less than (x) if such Receivable is a Daily Pay Receivable, thirty (30), (y) if such Receivable is a Weekly Pay Receivable, six (6) or (z) if such Receivable is a Monthly Pay Receivable, one and one half (1.5) and (iii) the Servicer subsequently determines that such Receivable is “COVID19-Confirmed” or “Pandemic-Impacted” or that it has any other similar COVID-19 related indication in its loan servicing platform, in each case, in accordance with the Underwriting Policies (as amended by the COVID Policies).
“COVID Related Material Modification” means any Material Modification of a COVID Receivable made in accordance with the Underwriting Policies (as amended by the COVID Policies) during the Relief Period that (x) had a Missed Payment Factor of zero as of March 11, 2020 and (y) had, as of April 24, 2020, a Missed Payment Factor of less than (i) if such Receivable is a Daily Pay Receivable, thirty (30), (ii) if such Receivable is a Weekly Pay Receivable, six (6) or (iii) if such Receivable is a Monthly Pay Receivable, one and one half (1.5).For the avoidance of doubt, no COVID Related Material Modifications may be made after the expiration of the Relief Period.
“COVID Related Modification” means any COVID Related Material Modification or COVID Related Temporary Modification.
“COVID Related Temporary Modification” means any temporary modification of a COVID Receivable made in accordance with Underwriting Policies (as amended by the COVID Policies) during the Relief Period, including, but not limited to, grace days, workout programs or holds, that (x) had a Missed Payment Factor of zero as of March 11, 2020 and (y) had, as of April 24, 2020, a Missed Payment Factor of less than (i) if such Receivable is a Daily Pay Receivable, thirty (30), (ii) if such Receivable is a Weekly Pay Receivable, six (6) or (iii) if such Receivable is a Monthly Pay Receivable, one and one half (1.5). For the avoidance of doubt, no COVID Related Temporary Modifications may be made after the expiration of the Relief Period.
“Effective Advance Rate” means, (a) as of the First Amendment Effective Date, the lesser of (i) 82.5% and (ii) the Effective Advance Rate Benchmark calculated as of the First Amendment Effective Date and (b) as of any subsequent Interest Payment Date from the First Amendment Effective Date to but excluding the Relief Period End Date, the lesser of (i) the Effective Advance Rate Benchmark calculated as of such Interest Payment Date and (ii) the lowest Effective Advance Rate as of any date on or after the First Amendment Effective Date. The Effective Advance Rate shall be (x) determined on the First Amendment Effective Date and on each Interest Payment Date occurring from the First Amendment Effective Date to but excluding the Relief Period End Date, (y) reflected in a report in form and substance acceptable to the Administrative Agent and the Requisite Lenders delivered by the Servicer on each such date and (z) used for calculations of the Borrowing Base until re-determined on the immediately succeeding Interest Payment Date during the period beginning on the First Amendment Effective Date to but excluding the Relief Period End Date.
“Effective Advance Rate Benchmark” means, as of the First Amendment Effective Date or any subsequent Interest Payment Date from the First Amendment Effective Date to but excluding the Relief Period End Date, the percentage equivalent of a fraction (a) the numerator of which is (i) the Total Utilization of Commitments as of such date, after giving effect to any repayments of the Loans on such date minus (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 as of such date, after the application of Collections pursuant to Section 2.11 on such date, minus (iii) the fair market value of all Permitted


 
Exhibit 10.1

Investments held in the Collection Account as of such date, after the application of Collections pursuant to Section 2.11 on such date, plus (iv) 100% of the sum of the Accrued Interest Amount through such date 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 through such date and (b) the denominator of which is the Adjusted EPOPB as of such date.
“First Amendment” means that certain Amendment No. 1 to Credit Agreement, dated as of May 19, 2020, by and among the Company, the Lenders party thereto and the Administrative Agent.
“First Amendment Effective Date” means May 20, 2020.
“Monthly Pay Receivable” means any COVID Receivable for which a Payment is due once per month (after giving effect to any COVID Related Modification relating thereto).
“Relief Period” means the period beginning on March 11, 2020 to but excluding the Relief Period End Date.
“Relief Period End Date” means July 23, 2020, or such later date as mutually agreed by the Administrative Agent (acting with the prior written consent of the Requisite Lenders) and the Company.
“Specified Servicer Default” means the occurrence of a Servicer Default under clause (viii) of the definition thereof that has not been waived by the holders of the related Indebtedness.

“Step Down Phase 1 Period” means the 30-day period beginning on (and including) the Relief Period End Date.
“Step Down Phase 2 Period” means the 30-day period beginning immediately after the expiration of the Step Down Phase 1 Period.
“Target Advance Rate” means 70%.
(b)    The following definitions in Section 1.1 of the Credit Agreement are hereby amended and restated as follows:
“Advance Rate” means, (a) from the First Amendment Effective Date to but excluding the Relief Period End Date, the Effective Advance Rate then applicable in accordance with the definition thereof and (b) at all times on and after the Relief Period End Date, the Target Advance Rate.


 
Exhibit 10.1

“Charged-Off Receivable” means, with respect to any date of determination, a Receivable which (i) consistent with the Underwriting Policies has or should have been written off the Company’s books as uncollectable, (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, (iii) which, to the Company’s or Servicer’s knowledge, has been the subject of fraud in connection with its origination or (iv) for which, to the Company’s or Servicer’s knowledge, the related Receivables Obligor is the subject of a bankruptcy or insolvency proceeding.
“Delinquency Ratio” means, as of any Determination Date, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) that had 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, 0.75 or higher, in each case, as of such Determination Date, and (b) the denominator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged-Off Receivables) as of such Determination Date.
“Excess Interest Collections” means, with respect to any Monthly Period, an amount equal to (a) the sum of all Collections received during such Monthly Period that were not applied by the Servicer to reduce the Outstanding Principal Balance of the Pledged Receivables in accordance with the Servicing Agreement minus (b) the aggregate amount paid (or payable) by Company on the first Interest Payment Date following such Monthly Period pursuant to clauses (a)(i), (a)(ii), (a)(iii), (a)(iv), (a)(v), (a)(vi), (a)(vii), (a)(ix), (a)(x), (a)(xi), (a)(xii), (a)(xiii), and (a)(xv) of Section 2.11.

“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, determined, with respect to Payments due during the Relief Period, by giving effect to COVID Related Temporary Modifications during the Relief Period, but without giving effect to any other temporary modifications (including, but not limited to, grace days, workout programs or holds) 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; provided that, unless otherwise agreed to by the Administrative Agent and the Requisite Lenders prior to June 10, 2020, at all times after the First Amendment Effective Date, “Missed Payment Factor” shall have the following meaning for the purpose of calculating the Delinquency Ratio to determine whether a Hot Backup Servicer Event (as defined in the Backup Servicing Agreement) has occurred: “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, determined without giving effect to any temporary modifications (including, but not limited to, grace days, workout programs or holds) 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.



 
Exhibit 10.1

“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.
“Weekly Pay Receivable” means any Receivable for which a Payment is generally due once per week (and, for the avoidance of doubt, each LOC Receivable, other than Monthly Pay Receivables, shall be considered a Weekly Pay Receivable hereunder).

1.2    Section 2.1(a) of the Credit Agreement is hereby amended by (x) inserting “or the Relief Period” immediately after “the Early Amortization Period” where it appears therein and (y) adding the following sentence at the end thereof:
Notwithstanding anything to the contrary herein, the Company shall not request any Loans, and the Lenders shall not be required to fund any Loans to the Company, from the First Amendment Effective Date to but excluding the Relief Period End Date.

1.3    Section 2.10(c)(vii) of the Credit Agreement is hereby amended by replacing the first parenthetical therein with the following:
(and, (x) with respect to clause (A) below, so long as no Early Amortization Period is then occurring, and (y) with respect to clause (C) below, so long as the Commitment Period is in effect and, other than with respect to Subsequent LOC Advances made after May 12, 2020, the Relief Period has ended (unless otherwise agreed with the consent of the Administrative Agent and the Requisite Lenders))
1.4    Section 2.11(a) of the Credit Agreement is hereby amended to restate clauses (i), (v) – (viii) and (xii) – (xv) and to add a new clause (xvi) as set forth below:

(i)    first, to Company, 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 (xvi) below;
(v)     fifth, (A) prior to the occurrence of a Specified Servicer Default, on a pro rata basis to the Class B Lenders, at the direction of the Administrative Agent, to pay fees (including, without any limitation, any and all payments payable or allocable to the Class B Lenders pursuant to the Pricing Letter) and unpaid accrued Class B Interest Amounts (calculated in accordance with Section 2.5), (B) on and after the occurrence of a Specified Servicer Default until the Class A Loans have been reduced to zero, to the Class A Lenders based on their Pro Rata Shares at the direction of


 
Exhibit 10.1

the Administrative Agent, to pay in reduction of the Class A Loans, an amount equal to the fees and unpaid accrued Class B Interest Amounts that would have been paid to the Class B Lenders if clause (A) applied and (C) on and after the occurrence of a Specified Servicer Default, but only if the Class A Loans have been previously reduced to zero, on a pro rata basis to the Class B Lenders, at the direction of the Administrative Agent, to pay fees (including, without any limitation, any and all payments payable or allocable to the Class B Lenders pursuant to the Pricing Letter) and unpaid accrued Class B Interest Amounts (calculated in accordance with Section 2.5), including all unpaid fees and unpaid accrued Class B Interest Amounts that were not paid to the Class B Lenders on previous Interest Payment Dates due to the application of clause (B);
(vi)    sixth, (A) prior to the occurrence of a Specified Servicer Default, to the Class A Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, to pay in reduction of the Class A Loans, any amount necessary to reduce the Class A Borrowing Base Deficiency Amount, if any, to zero and (B) on and after the occurrence of a Specified Servicer Default, to the Class A Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, to pay in reduction of the Class A Loans, any amount necessary to reduce the Borrowing Base Deficiency, if any, to zero;
(vii)    seventh, (A) prior to the occurrence of a Specified Servicer Default, to the Class B Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, to pay in reduction of the Class B Loans, any amount necessary to reduce the Class B Borrowing Base Deficiency Amount, if any, to zero and (B) on and after the occurrence of a Specified Servicer Default, but only if the Class A Loans have been previously reduced to zero, to the Class B Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, to pay in reduction of the Class B Loans, any amount necessary to reduce the Class B Borrowing Base Deficiency Amount, if any, to zero;
(viii)    eighth, on or after the Interest Payment Date occurring in September 2021 (A) prior to the occurrence of a Specified Servicer Default, to the Lenders, at the direction of the Administrative Agent, the Principal Payment Amount to reduce the outstanding principal balance of the Loans (which amount shall be allocated to the Class A Loans and the Class B Loans pro rata based on the Class A Commitments and Class B Commitments (and thereafter allocated to each Class A Lender or Class B Lender, as applicable, based on their related Pro Rata Shares)) and (B) on and after the occurrence of a Specified Servicer Default, (1) first, to the Class A Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, the Principal Payment Amount to reduce the outstanding principal balance of the Class A Loans and (2) second, after the Class A Loans have been reduced to zero, to the Class B Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, the Principal Payment Amount to reduce the outstanding principal balance of the Class B Loans;
(xii)    twelfth, (A) prior to the occurrence of a Specified Servicer Default, on a pro rata basis, to the Class B Lenders (based on their Pro Rata Shares), at the direction of the Administrative Agent, to pay any other Obligations then due and owing to the Class B Lenders or Class B Indemnitees, (B) on and after the occurrence of a Specified Servicer Default until the Class A Loans have been reduced to zero, to the Class A Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, to pay in reduction of the Class A Loans, an amount equal to any other Obligations then due and owing to the Class B Lenders or Class B Indemnitees that would have been paid to the Class B Lenders or Class B Indemnitees if clause (A) applied and (C) on and after the occurrence of a Specified Servicer Default, but only if the Class A Loans have been


 
Exhibit 10.1

previously reduced to zero, on a pro rata basis, to the Class B Lenders (based on their Pro Rata Shares), at the direction of the Administrative Agent, to pay any other Obligations then due and owing to the Class B Lenders or Class B Indemnitees, including all unpaid Obligations that were due and owing but not paid to the Class B Lenders or Class B Indemnitees on previous Interest Payment Dates due to the application of clause (B);
(xiii)    thirteenth, (A) prior to the occurrence of a Specified Servicer Default, to pay all other Obligations or any other amount then due and owing hereunder; (B) on and after the occurrence of a Specified Servicer Default until the Class A Loans have been reduced to zero, to the Class A Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, to pay in reduction of the Class A Loans, an amount equal to any other Obligations or any other amount then due and owing to the Class B Lenders or Class B Indemnitees that would have been paid to the Class B Lenders or Class B Indemnitees if clause (A) applied and (C) on and after the occurrence of a Specified Servicer Default, but only if the Class A Loans have been previously reduced to zero, to pay all other Obligations or any other amount then due and owing hereunder, including all unpaid Obligations or any other amounts that were due and owing but not paid to the Class B Lenders or Class B Indemnitees on previous Interest Payment Dates due to the application of clause (B);
(xiv)    fourteenth, from the First Amendment Effective Date to but excluding the Relief Period End Date, (A) prior to the occurrence of a Specified Servicer Default, all remaining amounts to be applied on a pro rata basis, at the direction of the Administrative Agent, to the Class A Lenders and the Class B Lenders to repay the principal of the Loans (which amount shall be allocated to the Class A Loans and the Class B Loans pro rata based on the Class A Commitments and the Class B Commitments (and thereafter allocated to each Class A Lender or Class B Lender, as applicable, based on their related Pro Rata Shares)) and (B) on and after the occurrence of a Specified Servicer Default, all remaining amounts to be applied (1) first, to the Class A Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, to repay the principal of the Class A Loans and (2) second, after the Class A Loans have been reduced to zero, to the Class B Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, to repay the principal of the Class B Loans;
(xv)    fifteenth, (A) prior to the occurrence of a Specified Servicer Default, at the election of Company, on a pro rata basis, at the direction of the Administrative Agent, to the Class A Lenders and the Class B Lenders to repay the principal of the Loans (which amount shall be allocated to the Class A Loans and the Class B Loans pro rata based on the Class A Commitments and the Class B Commitments (and thereafter allocated to each Class A Lender or Class B Lender, as applicable, based on their related Pro Rata Shares)) and (B) on and after the occurrence of a Specified Servicer Default, at the election of Company, (1) first, to the Class A Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, to repay the principal of the Class A Loans and (2) second, after the Class A Loans have been reduced to zero, to the Class B Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, to repay the principal of the Class B Loans; and
(xvi)    sixteenth, to the extent that no Principal Payment Amount Adjustment Event would exist after giving effect to such distribution, any remainder to Company or as Company shall direct consistent with Section 6.5; provided, that if and to the extent a Principal Payment Amount Adjustment Event would occur after giving effect to any such distribution to the Company, then such amount of such distribution shall be paid to reduce the outstanding principal balance of the Loans, as follows: (A) prior to the occurrence of a Specified Servicer Default, such amount shall be


 
Exhibit 10.1

allocated to the Class A Loans and the Class B Loans pro rata based on the Class A Commitments and Class B Commitments (and thereafter allocated to each Class A Lender or Class B Lender, as applicable, based on their related Pro Rata Shares), and (B) on and after the occurrence of a Specified Servicer Default, such amount shall be allocated (1) first, to the Class A Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, to repay the principal of the Class A Loans and (2) second, after the Class A Loans have been reduced to zero, to the Class B Lenders based on their Pro Rata Shares at the direction of the Administrative Agent, to repay the principal of the Class B Loans.”
1.5    Section 2.11(b) of the Credit Agreement is hereby amended to restate clause (i) as set forth below:
(i) first, to Company, 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 Section 2.11(a)(i) or 2.11(a)(xvi) above;
1.6     Section 5.1(k) of the Credit Agreement is hereby amended as follows:
(a)    clause (i) is hereby amended and restated in its entirety as follows:
“(i)    on either Thursday or Friday of each week (or if such day is not a Business Day, the immediately preceding Business Day), a Borrowing Base Report;”
(b)    clause (iii) is hereby amended by replacing “; and” with “;”.
(c)     clause (iv) is hereby amended by replacing “.” with “; and”.
(d)    A new clause (v) is hereby added thereto as follows:
“(v) such other reporting specific to the Receivables or the Company as reasonably requested by the Administrative Agent or any Lender during the Relief Period, the Step Down Phase 1 Period and Step Down Phase 2 Period (including without limitation, measures of actual to scheduled contractual collections and Company’s liquidity on a weekly basis).”
1.7     Section 6.5 of the Credit Agreement is hereby amended by (x) replacing “Section 2.11(a)(xv)” with “Section 2.11(a)(xvi)” where it appears therein and (y) by replacing the portion thereof beginning with “[n]otwithstanding anything herein to the contrary” in its entirety with the following sentence:
Notwithstanding anything herein to the contrary herein, (i) on any Credit Date with respect to a Credit Extension, and (ii) on any date the Loans are repaid hereunder as described in the last sentence of Section 2.1(b) when the Early Amortization Period or Relief Period is not in effect and there is no Borrowing Base Deficiency, Company may without further action on the part of Company distribute the proceeds of such Credit Extension, or such amounts that have been released from the Reserve Account, as applicable, to Holdings so long as no Borrowing Base Deficiency has occurred or would result therefrom (each, a “Borrower Distribution”). For the avoidance of doubt, notwithstanding anything to the contrary herein, the Company shall not be permitted to make any Restricted Junior Payments during the Relief Period.


 
Exhibit 10.1

1.8    Section 7.1(c) of the Credit Agreement is hereby amended and restated as follows:
(c) Breach of Certain Covenants. (i) Failure of Company to perform or comply with any term or condition contained in Section 2.3, Section 2.10, Section 5.1(j), Section 5.2, Section 5.7 or Section 6, or failure to distribute Collections in accordance with Section 2.11, (ii) failure of Company to comply with any term or covenant in the letter agreement dated as of May 20, 2020 among Company, Holdings, the Administrative Agent and the Lenders or (iii) failure of Holdings to perform or comply with any term or condition contained in Section 6 of the Undertakings Agreement; or

1.9    Appendix C to the Credit Agreement. Appendix C to the Credit Agreement is amended as set forth on Exhibit A hereto.
1.10    Appendix D to the Credit Agreement. Appendix D to the Credit Agreement is amended as set forth on Exhibit B hereto.
1.11    Appendix E to the Credit Agreement. Appendix E to the Credit Agreement is amended as set forth on Exhibit C hereto.
1.12    Appendix F to the Credit Agreement. A new Appendix F as set forth on Exhibit D hereto is hereby added to the Credit Agreement.
1.13    Appendix G to the Credit Agreement. A new Appendix G as set forth on Exhibit E hereto is hereby added to the Credit Agreement.
SECTION 2. AGREEMENT TO APPLY COLLECTIONS
The Company, Administrative Agent and the Lenders agree to apply all of the Collections, including the Retained April Collections, in the Collection Account as of the date hereof as set forth in the Borrowing Base Certificate delivered to the Administrative Agent and the Lenders on the First Amendment Effective Date to (i) distribute $1,808,332 to the Company to make a distribution to Holdings and (ii) to repay the Loans pro rata based on the Class A Commitments and Class B Commitments (and thereafter allocated to each Class A Lender or Class B Lender, as applicable, based on their related Pro Rata Shares).
SECTION 3.    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 each Lender, on the First Amendment Effective Date, that the following statements are true and correct, it being understood and agreed that the representations and warranties made on the First Amendment Effective Date are deemed to be made concurrently with the consummation of the transactions contemplated hereby:
3.1    Due Authorization. The execution, delivery and performance of this Amendment have been duly authorized by all necessary action on the part of Company.
3.2    Binding Obligation. This Amendment has been duly executed and delivered by Company and is the legally valid and binding obligation of Company enforceable against Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium


 
Exhibit 10.1

or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.
3.3    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 First 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.
3.4    Absence of Certain Circumstances.
(a)    No event has occurred and is continuing or will result from the consummation of the transactions contemplated by this Amendment that would constitute a Default, an Event of Default or a Servicer Default.
(b)    After giving effect to the amendments herein, no Borrowing Base Deficiency shall have occurred and be continuing under the Credit Agreement or will result from the consummation of the transactions contemplated by this Amendment.
SECTION 4. MISCELLANEOUS
4.1    Conditions of Effectiveness. This Amendment (other than Section 4.10 below) shall become effective as of the date (such date, the “First Amendment Effective Date”) on which:
(a)    the Administrative Agent has received counterparts of (i) this Amendment executed by Company, the Administrative Agent and the Lenders party hereto, (ii) Amendment No. 1 to Asset Purchase Agreement, dated as of the First Amendment Effective Date, substantially in the form attached as Exhibit F hereto, executed by Company, On Deck Capital, Inc. (“Holdings”), the Lenders party thereto and the Administrative Agent, and (iii) Amendment No. 1 to Servicing Agreement, dated as of the First Amendment Effective Date, substantially in the form attached as Exhibit G hereto, executed by Company, Holdings, the Lenders party thereto and the Administrative Agent;
(b)    the Administrative Agent shall have received a pro forma Borrowing Base Certificate setting forth the calculations required to be provided pursuant to the form thereof, after giving effect to the application of all of the Collections, including the Retained April Collections, in the Collection Account as of the date hereof, in accordance with Section 2;

(c)    no Borrowing Base Deficiency shall exist after giving effect to the amendments to the Credit Agreement set forth herein; and
(d)    the Company shall have paid in full (i) the Administrative Agent’s costs and expenses, including the fees and expenses of counsel to the Administrative Agent, in connection with this Amendment and the Temporary Waiver and (ii) the fees and expenses of counsel to the Lenders in connection with this Amendment and the Temporary Waiver.
4.2    Reference to and Effect on the Credit Agreement and the Other Credit Documents.


 
Exhibit 10.1

(a) On and after the First 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)    This Amendment is hereby designated as a Credit Document.
(c)     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 First 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.
(d) 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, the Administrative Agent, the Collateral Agent or the Paying Agent under the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement.
4.4    RELEASE. IN CONSIDERATION OF THE AMENDMENTS CONTAINED HEREIN THE SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, COMPANY, ON BEHALF OF ITSELF AND ITS 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”). COMPANY REPRESENTS AND WARRANTS TO THE ADMINISTRATIVE AGENT AND EACH LENDER THAT NONE OF IT OR ITS SUBSIDIARIES HAS GRANTED OR PURPORTED TO GRANT TO ANY OTHER PERSON ANY INTEREST WHATSOEVER IN ANY CLAIM, AS SECURITY OR OTHERWISE.
4.5    Binding Effect. This Amendment shall be binding upon and inure to the benefit of each of the parties hereto, each of the Lenders and each of their respective successors and assigns.
4.6    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 WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) THEREOF.


 
Exhibit 10.1

4.7    Execution in Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The words “execution,” signed,” “signature,” and words of like import in this Amendment or in any other certificate, agreement or document related to this Amendment shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
4.8    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.
4.9    Administrative Agent and Lender Consent. Each of the Administrative Agent and the Lenders hereby consents to Amendment No. 1 to the Asset Purchase Agreement and Amendment No. 1 to the Servicing Agreement attached hereto as Exhibits F and G, respectively.
4.10    Extension of Temporary Waiver and Consent. Effective as of the date hereof, the “Waiver Period” as defined in Section 1.1 of that certain Temporary Waiver and Consent, dated as of May 14, 2020, by and among the Company, solely with respect to Section 3 thereof, Holdings, the Lenders and the Administrative Agent, is hereby extended to end at the close of business on May 20, 2020.
IN WITNESS THEREOF, the parties hereto have caused this Amendment No. 1 to Credit Agreement 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


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 10.1


LIBERTY MUTUAL INSURANCE COMPANY,
as a Class A Lender

By: Liberty Mutual Group Asset Management Inc., its Adviser


By:    /s/ Paul Mitrokostas
Name:    Paul Mitrokostas
Title:     Executive Vice President


PEERLESS INSURANCE COMPANY,
as a Class A Lender

By: Liberty Mutual Group Asset Management Inc., its Adviser


By:    /s/ Paul Mitrokostas
Name:    Paul Mitrokostas
Title:     Executive Vice President


EMPLOYERS INSURANCE COMPANY OF WAUSAU,
as a Class A Lender

By: Liberty Mutual Group Asset Management Inc., its Adviser


By:    /s/ Paul Mitrokostas
Name:    Paul Mitrokostas
Title:     Executive Vice President


THE OHIO CASUALTY INSURANCE COMPANY,
as a Class A Lender

By: Liberty Mutual Group Asset Management Inc., its Adviser


By:    /s/ Paul Mitrokostas
Name:    Paul Mitrokostas
Title:     Executive Vice President



 
Exhibit 10.1


LIBERTY MUTUAL FIRE INSURANCE COMPANY, as a Class A Lender

By: Liberty Mutual Group Asset Management Inc., its Adviser


By:    /s/ Paul Mitrokostas
Name:    Paul Mitrokostas
Title:     Executive Vice President


SAFECO INSURANCE COMPANY OF AMERICA,
as a Class A Lender

By: Liberty Mutual Group Asset Management Inc., its Adviser


By:    /s/ Paul Mitrokostas
Name:    Paul Mitrokostas
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




 
Exhibit 10.1

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


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 10.2

AMENDMENT NO. 2 TO
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT

This AMENDMENT NO. 2 TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) dated as of May 20, 2020, is entered into by and among ONDECK ACCOUNT RECEIVABLES TRUST 2013-1 LLC, a Delaware limited liability company (“Company”), the Lenders party hereto which constitute each affected Lender and DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative Agent for the Class A Revolving Lenders (in such capacity, “Administrative Agent”).
RECITALS:
WHEREAS, Company, the Lenders party thereto from time to time, the Administrative Agent, Deutsche Bank AG, New York Branch, as Collateral Agent, Deutsche Bank Trust Company Americas, as Paying Agent and Deutsche Bank Securities Inc., as Syndication Agent, Documentation Agent and Lead Arranger, entered into a Fifth Amended and Restated Credit Agreement, dated as of March 12, 2019, as amended by Amendment No. 1 to Fifth Amended and Restated Credit Agreement, dated as of November 1, 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; and
WHEREAS, Company, the Lender party hereto and the 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:

1.1    Section 1.1 of the Credit Agreement.
The following new definitions are hereby added to Section 1.1 of the Credit Agreement in the appropriate alphabetical order:
“Advance Rate Reduction Period” means the period beginning on the Second Amendment Effective Date up to and including the Exit Date.




 
Exhibit 10.2

“COVID Receivable” means each Receivable designated by the Servicer as “COVID19-Confirmed”, “Pandemic-Impacted” or any other similar indication in its loan servicing platform, in each case in accordance with the Servicing Standard.
“COVID Related Material Modification” means any Material Modification 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) 100% 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.

“Eligible Post-Waiver Receivable” means any COVID Receivable for which the related Receivables Obligor has made its first scheduled loan payment due on or after July 23, 2020 in an amount equal to or greater than 20% of the required scheduled loan payment in respect of such Receivable, as set forth in the applicable Receivable Agreement (without giving effect to any temporary modification or COVID Related Material Modification).
 
“Exit Date” means the earlier of (x) July 23, 2020 and (y) the first date upon which the Effective Advance Rate has reached 70%.

“Monthly Pay Receivable” means any Receivable for which a Payment is generally due once per month.
"Projected Maturity Date Balance" means, with respect to any Receivable, the projected Outstanding Principal

 
Exhibit 10.2

Balance as of March 20, 2022, assuming that the Receivables Obligor is making Payments in accordance with the applicable Receivable Agreement.
“Second Amendment” means Amendment No. 2 to Fifth Amended and Restated Credit Agreement, dated as of May 20, 2020, by and among the Company, the Lenders party thereto and the Administrative Agent.
“Second Amendment Effective Date” has the meaning set forth in Section 3.1 of the Second Amendment, which for the avoidance of doubt is May 21, 2020.
The following definitions in Section 1.1 of the Credit Agreement are hereby amended and restated 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, prior to the Exit Date, 75%, and on and after the Exit Date, 70%.  
“Charged-Off Receivable” means, with respect to any date of determination, a Receivable which (i) consistent with the Underwriting Policies has or should have been written off the Company’s books as uncollectable 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.
“Delinquency Ratio” means, as of any Determination Date, the percentage equivalent of a fraction (a) the numerator of which is the aggregate Outstanding Principal Balance of all Pledged Receivables (that are not Charged Off Receivables) that had 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, 0.75 or higher, in each case, as of such Determination Date, and (b) the denominator of which is the aggregate Outstanding Principal Balance of all Pledged

 
Exhibit 10.2

Receivables (that are not Charged Off Receivables) as of such Determination Date.
“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 as set forth in the immediately succeeding sentences, 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, with respect to Payments during the period beginning as of March 11, 2020 through and including July 23, 2020, the Missed Payment Factor in respect of any COVID Receivable and solely with respect to Payments during such period, shall be determined by giving effect to any temporary modifications (including, but not limited to, grace days, workout programs or holds) then applicable to such COVID Receivable. For the avoidance of doubt, beginning on July 24, 2020, the “required periodic Payment” as used in clause (a)(ii) 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 temporary modifications (including, but not limited to, grace days, workout programs or holds) if any.

“One and Half Year Equivalent” means, (i) for a Term Receivable that is a Daily Pay Receivable, 378 scheduled loan payments, (ii) for a Term Receivable that is a Weekly Pay Receivable, 78 scheduled loan payments, (iii) for a Term Receivable that is a Monthly Pay Receivable, 18 scheduled loan payments, (iv) for a LOC Receivable that is a Weekly Pay Receivable, an “applicable amortization period” set forth in the respective Receivable Agreement of 78 full weeks following the date of the last advance made thereunder, and (v) for a LOC Receivable that is a Monthly Pay Receivable, an “applicable amortization

 
Exhibit 10.2

period” set forth in the respective Receivable Agreement of 18 months following the date of the last advance made thereunder.
“One Year Equivalent” means, (i) for a Term Receivable that is a Daily Pay Receivable, 252 scheduled loan payments, (ii) for a Term Receivable that is a Weekly Pay Receivable, 52 scheduled loan payments, (iii) for a Term Receivable that is a Monthly Pay Receivable, 12 scheduled loan payments, (iv) for a LOC Receivable that is a Weekly Pay Receivable, an “applicable amortization period” set forth in the respective Receivable Agreement of 52 full weeks following the date of the last advance made thereunder, and (v) for a LOC Receivable that is a Monthly Pay Receivable, an “applicable amortization period” set forth in the respective Receivable Agreement of 12 months following the date of the last advance made thereunder.
Clause (b) of the definition of “Permitted Asset Sale” is hereby amended as follows:
“(b) the sale by the Servicer on behalf of Company of Charged-Off Receivables to any third party in accordance with the Servicing Standard or, in the case of Charged-Off Receivables that are 90 or more days delinquent in payment, at the request of the Administrative Agent, provided, that such sales are made without representation, warranty or recourse of any kind by Company (other than customary representations regarding title and absence of liens on the Charged-Off Receivables, and the status of Company, due authorization, enforceability, no conflict and no required consents in respect of such sale),”
“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

 
Exhibit 10.2


(c) 252 Payment Dates per annum, for Daily Pay Receivables.

“Revolving Commitment Period” means the period from the Original Closing Date to but excluding the Revolving Commitment Termination Date or such other date as requested by Company and agreed to by the Administrative Agent, in its sole discretion, provided that the Commitment Period shall be deemed suspended (and no Lender shall have any obligation to make a Loan hereunder) during the Advance Rate Reduction Period.

“Weekly Pay Receivable” means any Receivable for which a Payment is generally due once per week (and, for the avoidance of doubt, each LOC Receivable, other than Monthly Pay Receivables, shall be considered a Weekly Pay Receivable hereunder).


1.2    Section 2.11(c)(vii) of the Credit Agreement is hereby amended by adding the words “(and, with respect to clause (C) below, other than with respect to Subsequent LOC Advances, during the Advance Rate Reduction Period)” immediately after the words “so long as an Early Amortization Event is not occurring”.
1.3    Section 2.12(a) of the Credit Agreement is hereby amended and restated in its entirety as follows:
“(a)    Application of Amounts. 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 and in 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 (xiii) below, and (B) to pay any accrued and unpaid Servicing Fees (provided, however, that the amount of any Successor Servicer Fees payable to a Successor Servicer under this clause (i) shall not exceed $225,000 in any calendar month);
(ii) second, on a pari passu basis, (A) to Company to pay any accrued and unpaid Backup Servicing Fees and any accrued and unpaid fees and expenses of the Custodian and the Controlled Account Bank (in respect of the Controlled Accounts), (B) to

 
Exhibit 10.2

Administrative Agent to pay any costs, fees or indemnities then due and owing to Administrative Agent under the Credit Documents, (C) to Collateral Agent to pay any costs, fees or indemnities then due and owing to Collateral Agent under the Credit Documents and (D) to Paying Agent to pay any costs, fees or indemnities then due and owing to Paying Agent under the Credit Documents; provided, however, that (1) the aggregate amount of costs, fees or indemnities payable to Administrative Agent, Collateral Agent and Paying Agent pursuant to this clause (ii) shall not exceed $450,000 in any Fiscal Year, and (2) the aggregate amount of Backup Servicing Fees payable under this clause (ii) shall not exceed $200,000 in any Fiscal Year;
(iii) third, on a pro rata basis, to the Administrative Agent for the benefit of the Class A Revolving Lenders, the amount of accrued interest calculated in accordance with Section 2.5(a)(i) on the Class A Revolving Loans owing to the Class A Revolving Lenders;
(iv) fourth, to the Administrative Agent for the benefit of the Class A Revolving Lenders, (A) prior to the Interest Payment Date immediately succeeding the 2d Anniversary Date, in an amount necessary to reduce any Class A Borrowing Base Deficiency to zero, or (B) on or after the 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 solely to the extent received following the 2d Anniversary Date and that were applied by the Servicer to reduce the Outstanding Principal Balance of the Pledged Receivables in accordance with the Servicing Agreement;
(v) fifth, on a pro rata basis, to the Administrative Agent for the benefit of the Class A Revolving Lenders to pay any costs and other fees on the Class A Revolving Loans and expenses payable pursuant to the Credit Documents;
(vi) sixth, to the Class B Agent for further distribution on a pro rata basis to the Class B Revolving Lenders to pay any costs and other fees, and accrued interest calculated in accordance with Section 2.5(a)(ii) on the Class B Revolving Loans and expenses payable pursuant to the Credit Documents;
(vii) seventh, on a pro rata basis, to the Class B Agent for further distribution to the Class B Lenders to repay principal on the Class B Loans (A) prior to the Interest Payment Date immediately succeeding the 2d Anniversary Date, in an amount necessary to reduce any Class B Borrowing Base Deficiency to zero, or (B) on or after the 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 B Borrowing Base Deficiency to zero, and (2) all Collections received during the immediately preceding Monthly Period solely to the extent received following the 2d Anniversary Date and that were applied by the Servicer to reduce the Outstanding Principal Balance of the Pledged Receivables in accordance with the Servicing Agreement;

 
Exhibit 10.2

(viii) eighth, to pay to Administrative Agent, Collateral Agent or Paying Agent any costs, fees or indemnities not paid in accordance with clause (ii) above;
(ix) ninth, to pay (A) any accrued and unpaid Servicing Fees payable to a Successor Servicer not paid in accordance with clause (i) above, and (B) any accrued and unpaid Backup Servicing Fees not paid in accordance with clause (ii) above;
(x) tenth, to the Reserve Account an amount equal to any Reserve Account Funding Amount;
(xi) eleventh, to pay all other Obligations or any other amount then due and payable hereunder;
(xii) twelfth, during the Advance Rate Reduction Period, to the Administrative Agent for further distribution on a pro rata basis to the Class A Revolving Lenders, to repay the principal of the Class A Revolving Loans in an amount to reduce the Effective Advance Rate to 70%;
(xiii) thirteenth, at the election of Company, on a pro rata basis, to the Administrative Agent for further distribution on a pro rata basis to the Class A Revolving Lenders or to the Class B Agent for further distribution on a pro rata basis to the Class B Revolving Lenders, as applicable, to repay the principal of the Class A Revolving Loans or the Class B Revolving Loans, respectively; and
(xiv) fourteenth, (A) prior to the 2d Anniversary Date, and provided that no Borrowing Base Deficiency would occur after giving effect to such distribution, any remainder to Company or as Company shall direct consistent with Section 6.5, or (B) after the 2d Anniversary Date, (i) 50% to Company or as Company shall direct consistent with Section 6.5, and (ii) 50%, on a pro rata basis, to the Administrative Agent to repay the principal of the Class A Revolving Loans (or, if the Class A Revolving Loans have been paid in full, to the Class B Agent to repay the principal of the Class B Revolving Loans).”
1.4    Appendix A to the Credit Agreement. Appendix A to the Credit Agreement is hereby amended and restated in its entirety as set forth on Exhibit A hereto.
1.5    Appendix C to the Credit Agreement. Appendix C to the Credit Agreement is amended as set forth on Exhibit B hereto.
1.6    Appendix D to the Credit Agreement. Appendix D to the Credit Agreement is amended as set forth on Exhibit C hereto.
SECTION 2. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lender party hereto to enter into this Amendment, Company represents and warrants to the Administrative Agent and the Lender, 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

 
Exhibit 10.2

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, an Event of Default or a Servicer Default.
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:
(a)    the Administrative Agent has received counterparts of this Amendment executed by Company, the Administrative Agent and the Lenders party hereto, (b) Amendment No. 1 to Third Amended and Restated Asset Purchase Agreement, dated as of the Second Amendment Effective Date, which amends the Third Amended and Restated Asset Purchase Agreement, executed by Company, Holdings, the Lender party thereto and the Administrative Agent, and (c) Amendment No. 1 to Third Amended and Restated Servicing Agreement, dated as of the Second Amendment Effective Date, which amends the Third Amended and Restated Servicing Agreement, executed by Company, Holdings and the Administrative Agent;
(b)    no Borrowing Base Deficiency shall exist after giving effect to the amendments to the Credit Agreement set forth herein and the execution and delivery of a Bill of Sale and Assignment attached as Exhibit D hereto; and
(c) the Company shall have paid, or caused to have been paid, in immediately available funds, any fees (including reasonable and documented fees, disbursements and other

 
Exhibit 10.2

charges of outside counsel to the Administrative Agent) and other amounts due and payable on the Second Amendment Effective Date, subject to the satisfaction of the Administrative Agent.
3.2    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, the Administrative Agent, the Collateral Agent or the Paying Agent under the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement.
3.3    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.
3.4    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.
3.5    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.
3.6    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.

 
Exhibit 10.2

3.7    Electronic Signatures. The words “execution,” “signed,” “signature,” and words of like import in this Amendment shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
3.8    Extension of Temporary Waiver and Consent. Effective as of the date hereof, the “Waiver Period” as defined in Section 6 of that certain Waiver Agreement, dated as of May 14, 2020 (“Waiver Agreement”), by and among the Company, the Administrative Agent and certain other parties thereto, solely with respect to clauses (a) and (b) in the definition of "Specified Event" as defined in Section 3 of the Waiver Agreement, is hereby extended to end at the close of business on May 21, 2020.

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

ONDECK ACCOUNT RECEIVABLES TRUST 2013-1 LLC, as Company

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





 
Exhibit 10.2

DEUTSCHE BANK AG, NEW YORK BRANCH, as Class A Revolving Lender


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

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