(b)Each Credit Party represents and warrants that this Amendment and the Amended Credit Agreement, as applicable, constitute its legally valid and binding obligations, enforceable against it in accordance with the respective terms hereof and thereof, except as enforcement may be limited by equitable principles (regardless of whether enforcement is sought in equity or at law) or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally.
(c)Each Credit Party (with respect to itself) represents and warrants that the representations and warranties contained in Section 4 of the Existing Credit Agreement are true and correct in all material respects after giving effect to this Amendment on and as of the date hereof as though made on and as of the date hereof (except to the extent such representations and warranties expressly relate to an earlier date), and no Default or Event of Default exists (after giving effect to this Amendment) or would result from this Amendment becoming effective in accordance with its terms.
5.Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent, unless specifically waived in writing by the Administrative Agent:
(a)The Administrative Agent shall have received this Amendment duly executed by the Credit Parties.
(b)After giving effect to the terms of this Amendment, (i) the representations and warranties contained herein and in the Amended Credit Agreement and the other Credit Documents shall be true and correct in all material respects (except for such representations and
[Signature Page to Amendment No. 3 to A&R Credit Agreement (OppFunding V)]
warranties already qualified by materiality which shall be true and correct in all respects) on and as of the Effective Date (or to the extent they expressly relate to an earlier time, as of such earlier time); and (ii) no Default or Event of Default shall have occurred and be continuing.
(c)Borrower shall have paid to the Agents and the Lenders, as applicable, all other amounts required to be paid pursuant to the Amended Credit Agreement on the Effective Date and all outstanding Permitted Expenses.
6.Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the Existing Credit Agreement and the Credit Documents and, except as expressly modified and superseded by this Amendment, the terms and provisions of the Existing Credit Agreement and the other Credit Documents are ratified and confirmed as of the Effective Date and shall continue in full force and effect. The Borrower and the Company each hereby agrees that all Liens and security interests securing payment of the Obligations under the Credit Documents are hereby collectively renewed, ratified and brought forward as security for the payment and performance of the Obligations. The Credit Parties, the Agents and the Lenders agree that the Amended Credit Agreement and the other Credit Documents, as amended hereby, shall continue to be legal, valid, binding and enforceable in accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law).
7.Amendment as a Credit Document. Each Credit Party acknowledges and agrees that this Amendment constitutes a “Credit Document.” Accordingly, it shall be an Event of Default under the Existing Credit Agreement if any representation or warranty made by a Credit Party under or in connection with this Amendment shall have been false in any material respect when made and which shall not have been remedied or waived within fifteen (15) Business Days after the earlier of (i) an Authorized Officer of such Credit Party becoming aware of such falsity, or (ii) receipt by such Credit Party of written notice from the Administrative Agent or any Lender of such falsity.
8.Expenses of Agents and Lenders. Each Credit Party agrees to pay, jointly and severally, promptly after demand, all reasonable and documented out-of-pocket costs and expenses of the Agents and the Lenders in connection with the negotiation, preparation, execution and delivery of this Amendment in accordance with Section 9.2 of the Amended Credit Agreement.
9.Severability. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
10.Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of the Agents, the Lenders, the Credit Parties, and their respective successors and permitted
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assigns, except that the Credit Parties may not assign or transfer any of its respective rights or obligations hereunder without the prior written consent of the Administrative Agent.
11.Counterparts. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Amendment by telecopy or other electronic means shall be effective as delivery of a manually executed counterpart of this Amendment.
12.No Waiver. Nothing contained in this Amendment shall be construed as an amendment or waiver by the Agents or the Lenders of any covenant or provision of the Existing Credit Agreement, the other Credit Documents, this Amendment, or of any other contract or instrument among the Credit Parties, the Lenders and the Agents, and the failure of the Lenders and the Agents at any time or times hereafter to require strict performance by the Credit Parties of any provision thereof shall not waive, affect or diminish any right of the Agents to thereafter demand strict compliance therewith. The Agents and Lenders hereby reserve all rights granted to each of them under the Existing Credit Agreement, the other Credit Documents, this Amendment and any other contract or instrument among the Credit Parties and any one or more of the Agents and the Lenders.
13.Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.
14.Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
15.Final Agreement. THE AMENDED CREDIT AGREEMENT CONSTITUTES THE ENTIRE CONTRACT BETWEEN AND AMONG THE PARTIES RELATING TO THE SUBJECT MATTER THEREOF AND SUPERSEDES ANY AND ALL PREVIOUS AGREEMENTS AND UNDERSTANDINGS, ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER THEREOF.
16.Time. Time is of the essence of this Amendment.
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment as of the date first above-written.
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OPPORTUNITY FUNDING SPE V, LLC,
as a Borrower
By: /s/ Todd Schwartz
Name: Todd Schwartz
Title: CEO
OPPORTUNITY FINANCIAL, LLC,
in its individual capacity, as Originator, Servicer, a Seller and a Guarantor
By: /s/ Todd Schwartz
Name: Todd Schwartz
Title: CEO
OPPWIN, LLC,
as a Seller and a Guarantor
By: /s/ Todd Schwartz
Name: Todd Schwartz
Title: CEO
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MIDTOWN MADISON MANAGEMENT LLC,
as Administrative Agent and Collateral Agent
By: /s/ David Aidi
Name: David Aidi
Title: Authorized Signatory
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ACM AIF EVERGREEN P2 DAC SUBCO LP,
as a Tranche B Lender
By: /s/ David Aidi
Name: David Aidi
Title: Authorized Signatory
ATALAYA A4 POOL 1 LP,
as a Tranche B Lender
By: /s/ David Aidi
Name: David Aidi
Title: Authorized Signatory
ATALAYA A4 POOL 1 (CAYMAN) LP,
as a Tranche B Lender
By: /s/ David Aidi
Name: David Aidi
Title: Authorized Signatory
ACM AIF EVERGREEN P3 DAC SUBCO LP,
as a Tranche C Lender
By: /s/ David Aidi
Name: David Aidi
Title: Authorized Signatory
ATALAYA ASSET INCOME FUND PARALLEL 345 LP,
as a Tranche C Lender
By: /s/ David Aidi
Name: David Aidi
Title: Authorized Signatory
ATALAYA A4 P2 DAC SUBCO LP,
as a Tranche C Lender
By: /s/ David Aidi
Name: David Aidi
Title: Authorized Signatory
[Signature Page to Amendment No. 3 to A&R Credit Agreement (OppFunding V)]
ACKNOWLEDGED AND AGREED:
OPPORTUNITY MANAGER, LLC,
as a Guarantor
By: /s/ Todd Schwartz
Name: Todd Schwartz
Title: Executive Chairman & CEO
OPPWIN CARD, LLC,
as a Guarantor
By: /s/ Todd Schwartz
Name: Todd Schwartz
Title: Executive Chairman & CEO
OPPWIN SALARYTAP, LLC,
as a Guarantor
By: /s/ Todd Schwartz
Name: Todd Schwartz
Title: Executive Chairman & CEO
OPPORTUNITY FINANCIAL CARD COMPANY, LLC,
as a Guarantor
By: /s/ Todd Schwartz
Name: Todd Schwartz
Title: Executive Chairman & CEO
SALARYTAP, LLC,
as a Guarantor
By: /s/ Todd Schwartz
Name: Todd Schwartz
Title: Executive Chairman & CEO
OPPORTUNITY FINANCIAL LOANS, LLC,
as a Guarantor
By: /s/ Todd Schwartz
Name: Todd Schwartz
Title: Executive Chairman & CEO
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OPPWIN LOANS, LLC,
as a Guarantor
By: /s/ Todd Schwartz
Name: Todd Schwartz
Title: Executive Chairman & CEO
OPPFI MANAGEMENT HOLDINGS, LLC,
as a Guarantor
By: /s/ Todd Schwartz
Name: Todd Schwartz
Title: Executive Chairman & CEO
OPPORTUNITY FUNDING SPE II, LLC,
as a Guarantor
By: /s/ Todd Schwartz
Name: Todd Schwartz
Title: Executive Chairman & CEO
[Signature Page to Amendment No. 3 to A&R Credit Agreement (OppFunding V)]