Exhibit 10.4


 


Certain identified information in this document has been excluded because it is both (i) not material and (ii) would be competitively
harmful if publicly disclosed, and has been marked with “[***]” to indicate where omissions have been made.


 


 


SECOND AMENDED AND RESTATED


 


LOAN PROGRAM AGREEMENT


 


between


 


CROSS RIVER BANK


 


and


 


AFFIRM, INC.


 


Dated as of


 


November 1, 2020


 


 






     


     


    

 





Table of Contents


 


Page


 




	ARTICLE I DEFINITIONS AND CONSTRUCTION	1
	Section 1.1.	Definitions	1
	Section 1.2.	Construction	9
	ARTICLE II GENERAL PROGRAM DESCRIPTION	10
	Section 2.1.	General Description	10
	Section 2.2.	Program Terms and Program Guidelines	10
	Section 2.3.	Program Modifications	10
	Section 2.4.	Ownership of Loans and Customer Information	11
	Section 2.5.	Securitization Transactions	11
	ARTICLE III DUTIES OF PLATFORM AGENT AND BANK	11
	Section 3.1.	Duties and Responsibilities of Platform Agent and Bank	11
	Section 3.2.	Duties and Responsibilities of Platform Agent	12
	Section 3.3.	Duties and Responsibilities of Platform Agent on Behalf of Bank	17
	Section 3.4.	Duties and Responsibilities of Bank	18
	Section 3.5.	Conditions Precedent to the Obligations of Bank	19
	ARTICLE IV TRADE NAMES, ADVERTISING AND PROGRAM MATERIALS	20
	Section 4.1.	Trade Names and Trademarks	20
	Section 4.2.	Advertising and Program Materials	20
	Section 4.3.	Intellectual Property	21
	ARTICLE V LOAN ORIGINATION AND COMPENSATION	22
	Section 5.1.	Loan Origination	22
	Section 5.2.	Compensation	22
	ARTICLE VI EXPENSES	22
	Section 6.1.	Expenses	22
	Section 6.2.	ACH and Wire Costs	23
	Section 6.3.	Taxes	23
	ARTICLE VII TERM	23
	Section 7.1.	Terms	23
	ARTICLE VIII TERMINATION	23
	Section 8.1.	Termination	23
	Section 8.2.	Effect of Termination	24



 






     


     


    

 





	ARTICLE IX REPRESENTATIONS, WARRANTIES AND COVENANTS	25
	Section 9.1.	Platform Agent’s Representations and Warranties	25
	Section 9.2.	Bank’s Representations and Warranties	28
	Section 9.3.	Platform Agent’s Covenants	29
	Section 9.4.	Bank’s Covenant – Improper Contact	32
	ARTICLE X MISCELLANEOUS	32
	Section 10.1.	Indemnification	32
	Section 10.2.	Limitation of Liability	34
	Section 10.3.	Governing Law	34
	Section 10.4.	Confidential Information	35
	Section 10.5.	Privacy Law Compliance; Security Breach Disclosure	36
	Section 10.6.	Force Majeure	37
	Section 10.7.	Relationship of Parties; No Authority to Bind	38
	Section 10.8.	Severability	38
	Section 10.9.	Successors and Third Parties	38
	Section 10.10.	Notices	39
	Section 10.11.	Waiver; Amendments	39
	Section 10.12.	Counterparts	39
	Section 10.13.	Further Assurances	40
	Section 10.14.	Entire Agreement	40
	Section 10.15.	Survival	40
	Section 10.16.	Referrals	40
	Section 10.17.	Interpretation	40
	Section 10.18.	Headings	40
	Section 10.19.	Amendment and Restatement	40


 









    ii


     


    

 


Exhibits


 


	Exhibit A	Program Terms
	Exhibit B	Credit Policy and Underwriting Procedures
	Exhibit C	Compliance Guidelines
	Exhibit D	Form of Loan Origination Report
	Exhibit E	Loan Performance Fee Calculation
	Exhibit F	Notice/Approval and Response Guidelines
	Exhibit G	List of Current Third-Party Service Providers




 


Schedules


	Schedule 3.2(i)	Reporting Data Fields
	Schedule 3.2(f)	Platform Agent Audit and Monitoring Program




 






    iii


     


    

 





LOAN PROGRAM AGREEMENT


 


THIS SECOND AMENDED
AND RESTATED LOAN PROGRAM AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”)
is made and entered into as of November 1, 2020 (the “Effective Date”), by and between CROSS RIVER BANK, an
FDIC-insured New Jersey state chartered bank (“Bank”) and AFFIRM, INC., a Delaware corporation (“Platform
Agent”).


 


WHEREAS, Bank is an
FDIC-insured New Jersey state-chartered commercial bank with the authority to originate consumer loans throughout the United States
of America;


 


WHEREAS, Platform Agent
is in the business of facilitating the marketing of consumer loans;


 


WHEREAS, Platform Agent
and its Affiliates have developed a loan application processing system (the “Platform”) which is capable of
processing applications for consumer loans in accordance with Bank’s credit criteria;


 


WHEREAS, Platform Agent
and Bank are parties to that certain Amended and Restated Loan Program Agreement, dated as of February 1, 2018 (the “Existing
Program Agreement”);


 


WHEREAS, Platform Agent
and Bank desire to amend and restate the Existing Program Agreement as set forth herein; and


 


WHEREAS, Bank desires
to use the Platform to promote the availability of credit, encourage the submission of applications through the Platform for such
credit and facilitate the making of loans in accordance with Bank’s credit criteria to qualifying consumers.


 


NOW, THEREFORE, in
consideration of the foregoing and the terms, conditions and mutual covenants and agreements contained herein, for good and valuable
consideration, the receipt and sufficiency of which are hereby conclusively acknowledged, the parties agree as follows:


 


ARTICLE I



DEFINITIONS AND CONSTRUCTION


 


Section 1.1.         
Definitions. The following defined terms shall have the indicated meanings set forth in this Section 1.1.
To the extent used but not otherwise defined herein, defined terms shall have the meanings attributed to them in the Loan Sale
Agreement.


 


“ACH”
means automated clearing house.


 


“Advertising
Materials” means all materials and methods used by Platform Agent in the performance of its marketing, advertising, promotional
and solicitation services under this Agreement, including advertisements, direct mail pieces, electronic, telephonic and/or internet
marketing, brochures, call scripts, website materials and any other similar materials.


 






     


     


    

 





“Affiliate”
means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with,
such Person. As used in this definition of Affiliate, the term “control” means the power, directly or indirectly, to
direct or cause the direction of the management and policies of a Person, whether through ownership of such Person’s voting
securities, by contract or otherwise, and the terms “affiliated,” “controlling” and “controlled”
have correlative meanings to the foregoing.


 


“Agreement”
means this Loan Program Agreement, including all schedules and exhibits hereto.


 


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


 


“Anti-Money
Laundering Laws” means all laws, rules and regulations of any jurisdiction applicable to Platform Agent or its Subsidiaries
from time to time concerning or relating to money-laundering, including the Bank Secrecy Act 31 U.S.C. § 5311 et seq. and
Regulation X promulgated thereunder and the applicable sections of the Patriot Act and implementing regulations related to know-your-customer
and customer identification programs.


 


“Applicable
Laws” means all federal, state and local laws, statutes, ordinances, regulations and orders, together with all rules
established by self-regulatory organizations, including the National Automated Clearing House Association, or government sponsored
entities, applicable to a party or relating to or affecting any aspect of the Program (including the Loans), consumer credit laws,
rules and regulations, and all requirements of any Regulatory Authority having jurisdiction over a party hereto or any activity
provided for in this Agreement or any other Program Document, including in connection with a judicial proceeding in which Bank,
Platform Agent or a Third-Party Service provider is a party and all rules and any regulations or policy statements or guidance
and any similar pronouncement of a Regulatory Authority, or officially published regulatory interpretation of the foregoing, applicable
to the acts of Bank, Platform Agent or a Third-Party Service Provider as they relate to the Program or a party’s performance
of their obligations under the Program Documents.


 


“Bank”
means Cross River Bank.


 


“Bank Allocation
Percentage” has the meaning set forth in Exhibit A.


 


“Bank Origination
Month” means each month in which Bank originates Loans during the Term.


 


“Bank Origination
Monthly Cohort” means, with respect to each Bank Origination Month, each of the Loans originated by Bank during such
Bank Origination Month.


 


“Borrower”
means, with respect to a Loan, each Person who is a borrower under such Loan and each other obligor (including any co-signor or
guarantor) that is required to satisfy the payment obligation with respect to such Loan.


 






    2


     


    

 





“Business
Day” means any day upon which New Jersey state banks are open for business, but excluding Saturdays and Sundays.


 


“Change of
Control” means, with respect to a Person, the occurrence of either (a) any merger or consolidation with another Person
or (b) an event by which any Person that is not an Affiliate of such Person succeeds to all or substantially all of its properties
and assets; provided, however, that neither an initial public offering of such party’s securities nor an internal
reorganization of such party whereby the same beneficial owner of such party retains such beneficial ownership after giving effect
to such transfer shall constitute a “Change of Control”.


 


“Competitor
Agent” means other platform agents which market point-of-sale or other unsecured consumer loans for Bank substantially
similar in all respects to the Loans marketed by Platform Agent under the Program.


 


“Complaint”
means an oral or written statement or inquiry from a consumer, or his or her representatives, or about a consumer concerning products
or services offered by Bank or Platform Agent in connection with this Agreement. “Inquiry” for purposes of this definition
excludes a question that a reasonable person would conclude from the facts does not indicate a concern on the part of the person
making the inquiry. For the avoidance of doubt, a Complaint shall not include: (a) general information requests; (b) transaction
requests; (c) any communication that a reasonable person would conclude from the facts does not indicate a concern on the part
of the person submitting such communication; (d) comments on social media channels maintained by Platform Agent that are either
(1) from an individual that is not a customer or prospective customer or (2) from a customer that does not seek a specific outcome
or assistance; or (e) communications from a customer after a completed or remediated application, interaction, Complaint or dispute
in which such customer expresses disagreement with the outcome but does not provide or identify any justification for such disagreement
or for changing the outcome.


 


“Compliance
Guidelines” means the policies and procedures for compliance with Applicable Laws, as set forth in Exhibit C.


 


“Confidential
Information” means confidential or proprietary information including the names and addresses of a party’s customers,
marketing plans and objectives, research and test results and other information that is confidential and the property of the party
disclosing the information, which shall include (i) the Program Documents, the Program Guidelines and the Program Materials, (ii)
Customer Information, (iii) business information (including products and services, employee information, business models, know-how,
strategies, designs, reports, data, research, financial information, pricing information, corporate client information, market
definitions and information, and business inventions and ideas), and (iv) Technical Information.


 


“Credit Policy”
means the credit requirements, including requirements applicable to applications for the extension of credit, of Bank as set forth
in the Program Guidelines to be used by Platform Agent in reviewing all Loan Applications on behalf of Bank, as more fully set
forth in Exhibit B.


 


“Credit Model
Policy” means Platform Agent’s policies and procedures regarding its model risk management, which shall include
the policies and procedures required by FIL 22.


 






    3


     


    

 





“Credit Model
Documentation” means all documentation concerning the Credit Model Policy mutually agreed between Platform Agent and
Bank and for which both parties agree to use their reasonable efforts to have in place on or before January 31, 2018, but which
shall in no event be less than the standard reasonably determined by Bank to verify compliance with the Credit Model Policy.


 


“Customer
Information” means all information concerning Borrowers and Loan Applicants, including nonpublic personal information
as defined under the Gramm-Leach-Bliley Act of 1999 and implementing regulations, including all nonpublic personal information
of or related to customers or consumers of either party, including names, addresses, telephone numbers, account numbers, customer
lists, credit scores and account, financial and transaction information, consumer reports and information derived from consumer
reports that is subject to protection from publication under Applicable Laws, including any and all Borrower information handled
by Platform Agent in connection with the Program required to be treated as confidential or otherwise subject to the control objectives
of the Payment Card Industry Data Security Standard, including the rules and regulations thereunder.


 


“Disbursed
Proceeds” means, with respect to a Loan, an amount equal to the Original Borrower Loan Amount less the Platform
Agent Facilitation Fee that is disbursed to the related Merchant, on behalf of the related Borrower, in connection with the origination
of such Loan by Bank under the Program.


 


“Effective
Date” has the meaning set forth in the preamble to this Agreement.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974 and any rule or regulation issued thereunder.


 


“FCRA”
means the Fair Credit Reporting Act of 1970 and any rule or regulation implemented thereunder.


 


“FDIC”
means the Federal Deposit Insurance Corporation.


 


“FFIEC”
means the Federal Financial Institutions Examination Council.


 


“FIL 22”
means Financial Institution Letter FIL-22-2017, dated June 7, 2017, by the FDIC and any guidance issued thereunder.


 


“Funding Date”
means any day on which Bank receives a Funding Statement from Platform Agent pursuant to Section 5.1(a); provided,
however, that if Bank receives any such Funding Statement (i) on a day that is not a Business Day or (ii) after 12:00 pm
(eastern time) on a Business Day, Bank may delay the Funding Date to be the immediately succeeding Business Day.


 


“Funding
Statement” means a statement provided by Platform Agent to Bank with respect to each Loan that Platform Agent is
submitting to Bank for origination containing (i) a list of all Loan Applicants that meet the eligibility criteria set forth
in the Program Guidelines; (ii) the Original Borrower Loan Amount and the Disbursed Proceeds for each such Loan; (iii) all
information necessary for the transfer of the Disbursed Proceeds to the related Merchant on behalf of the Borrower, including
depository institution names, routing numbers and account numbers; and (iv) such other information as shall be reasonably
requested by Bank and mutually agreed to by Bank and Platform Agent.


 






    4


     


    

 


“GAAP”
means generally accepted accounting principles in the United States of America, applied on a materially consistent basis.


 


“Government
List” means (i) the Annex to Presidential Executive Order 13224 (Sept. 23, 2001), (ii) OFAC’s most current list
of “Specifically Designated National and Blocked Persons” (which list may be published from time to time in various
mediums including the OFAC website, http://www.treasury.gov/ofac/downloads/sdnlist.pdf or any successor website or webpage) and
(iii) any other list of terrorists, terrorist organizations or narcotics traffickers maintained by a Governmental Authority that
Bank notifies Platform Agent in writing is now included in a “Government List.”


 


“Governmental
Authority” means any court, board, agency, commission, office or authority of any nature whatsoever or any governmental
unit (federal, state, commonwealth, county, district, municipal, city or otherwise), including the Office of the Comptroller of
the Currency, the Department of Justice, the Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve
System and the New Jersey Department of Banking and Insurance whether now or hereafter in existence, including any Regulatory Authority.


 


“Information
Security Incident” means any actual or reasonably suspected unauthorized access to or acquisition, use, disclosure, modification
or destruction of any nonpublic personal information.


 


“Initial Term”
means the three (3) years following the Effective Date.


 


“Intellectual
Property Rights” means (i) all intellectual property rights of any kind, worldwide, including utility patents, design
patents, utility models and all applications for the foregoing, (ii) Marks, and (iii) published and unpublished works of authorship,
registered and unregistered copyrights and all registrations and applications for the foregoing; software, technology and documentation;
and trade secrets, Technical Information, business information, ideas, inventions, know-how and other confidential and proprietary
information, in whatever form.


 


“Level One
Complaint” means any Complaint (i) received through a Governmental Authority, or (ii) identifying any violation of UDAAP
or Fair Lending Laws (as defined in Exhibit C) that requires immediate attention.


 


“Loan”
means a consumer loan made by Bank to a Borrower under the Program.


 


“Loan Account
Agreement” means, with respect to a Loan, the document or documents containing the terms and conditions of such Loan,
including the disclosure statement, the loan agreement and the privacy notice.


 


“Loan Applicant”
means a prospective Borrower that has completed a Loan Application for a Loan.


 






    5


     


    

 





“Loan Application”
means, with respect to a Loan or prospective Loan, the completed electronic application submitted by a Loan Applicant, on a form
approved by Bank, related to a request for a Loan, together with any exhibits and ancillary materials; provided that the
Loan Application may only be modified with the consent of Bank in its sole discretion.


 


“Loan Documents”
mean, collectively, with respect to a Loan, the related Loan Account Agreement, the related Loan Application and any other documents
provided to the related Borrower in connection with such Loan.


 


“Loan Origination
Report” means a report substantially in the form of Exhibit D.


 


“Loan Performance
Fee” means [***].


 


“Loan Performance
Fee Rate” has the meaning set forth in Exhibit A.


 


“Loan Sale
Agreement” means the Second Amended and Restated Loan Sale Agreement, dated as of the date hereof, between Bank, as seller,
and the Purchaser [***].


 


“Losses”
means all costs, damages, losses, fines, penalties, judgments, settlements and expenses whatsoever, including outside attorneys’
fees and disbursements and court costs reasonably incurred by an indemnified party.


 


“Marks”
means trademarks, trade names, service marks, logos, brands, corporate names, trade dress, domain names, social media user names,
other source identifiers or indicia of goods or services, whether registered or unregistered, all registrations and applications
for registration of the foregoing, all issuances, extensions, and renewals of such registrations and applications, and all goodwill
associated with any of the foregoing.


 


“Material
Adverse Effect” means, (a) with respect to a party, a material adverse effect on (i) the business, condition (financial
or otherwise), operations or performance under this Agreement or any other Program Document of such party or (ii) the validity,
enforceability or collectability of this Agreement or any other Program Document or (b) with respect to the Loans, the validity,
enforceability or collectability of a material portion of (i) the Loans or (ii) the Loan Documents.


 


“Merchant”
means a seller of goods or services to a Borrower.


 


“Monthly Minimum
Purchase Premium” [***].


 


“Multiemployer
Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA.


 


“Notification
Related Costs” means Bank’s internal and external costs associated with investigating, addressing and
responding to an Information Security Incident, including: (i) preparation and mailing or other transmission of notifications
or other communications to consumers, employees or others as Bank deems reasonably appropriate; (ii) establishment of a call
center or other communications procedures in response to such Information Security Incident (e.g., customer service FAQs,
talking points and training); (iii) public relations and other similar crisis management services; (iv) legal, consulting,
forensic expert and accounting fees and expenses associated with Bank’s investigation of and response to such incident;
and (v) costs for commercially reasonable credit reporting and monitoring services that are associated with legally required
notifications or are advisable under the circumstances.


 






    6


     


    

 


“OFAC”
means the Office of Foreign Assets Control of the U.S. Department of Treasury.


 


“Original
Borrower Loan Amount” means, with respect to a Loan, the original principal balance of such Loan.


 


“Patriot Act”
means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA
PATRIOT Act) of 2001, and corresponding provisions of future laws.


 


“Patriot Act
Offense” means any violation of the criminal laws of the Unites States of America or any state therein, or that would
be a criminal violation if committed within the jurisdiction of the United States of America or any state therein, as well as the
crimes of conspiracy to commit, or aiding and abetting another to commit a crime, relating to terrorism or the laundering of monetary
instruments, including any offense under (A) the criminal laws against terrorism, (B) the criminal laws against money laundering,
(C) the Bank Secrecy Act, (D) the Money Laundering Control Act of 1986 or (E) the Patriot Act.


 


“Pension Plan”
means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, other than a Multiemployer Plan, which
Borrower sponsors or maintains, or to which it makes, is making, or is obliged to make contributions, or in the case of a multiple
employer plan (as defined in Section 4064(a) of ERISA) has made contributions at any time during the immediately preceding five
plan years.


 


“Person”
means any individual, corporation, partnership, limited liability company, joint venture, estate, trust, unincorporated association,
any other entity, any Governmental Authority or any fiduciary acting in such capacity on behalf of any of the foregoing.


 


“Platform
Agent” means Affirm, Inc., a Delaware corporation.


 


“Platform
Agent Facilitation Fee” means, with respect to a Loan, the applicable fee payable to Platform Agent for the acquisition
of the Borrower related to such Loan in an amount equal to the product of the Platform Agent Facilitation Fee Rate and the Original
Borrower Loan Amount related to such Loan.


 


“Platform
Agent Facilitation Fee Rate” means, with respect to each Loan, the rate negotiated between Platform Agent and the related
Merchant or a Third-Party Service Provider within the range set forth in Exhibit A.


 


“Platform
Agent Platform” means the computer software, proprietary system information, and related technology and
documentation, developed and owned by, or licensed by third parties to, Platform Agent relating to the services offered or
provided by Platform Agent to its customers pursuant to this Agreement, including the website operated by Platform Agent, and
all Intellectual Property Rights therein owned by Platform Agent or licensed by third parties to Platform Agent; provided that
the Platform Agent Platform does not include any Intellectual Property Rights owned by Bank or licensed by third parties to
Bank.


 






    7


     


    

 


“Platform
Technical Auditor” means a consultant that is (a) not an Affiliate of Bank and (b) qualified to audit the Technical Information
related to the Program.


 


“Program”
means the Platform Agent’s program for the marketing and servicing of Loans which Bank will originate pursuant to this Agreement
and the Program Guidelines.


 


“Program Documents”
means, collectively, this Agreement, the Servicing Agreement and the Loan Sale Agreement.


 


“Program Guidelines”
means the guidelines for the administration of the Program, including the Credit Policy, the Underwriting Procedures and the Compliance
Guidelines.


 


“Program Manager”
means the respective principal contact appointed by Bank and Platform Agent to facilitate day-to-day operations and resolve issues
that may arise in connection with the Program.


 


“Program Materials”
means all Loan Documents and all other documents, materials and methods used in connection with the performance of Platform Agent’s
and Bank’s obligations under this Agreement, including the Loan Applications, disclosures required by Applicable Laws and
collection materials.


 


“Program Terms”
means the pricing schedule and other loan terms and conditions in connection with the Program and all Loans, as specified on Exhibit
A and the Credit Policy.


 


“Projection”
means, with respect to a future fiscal year of Platform Agent, a report to be delivered by Platform Agent setting forth projected
origination volumes, growth rates, loan term, expectations of credit quality (e.g., likelihood of delinquencies, losses and charge-offs)
and projected liquidity for such fiscal year with respect to the Loans to be originated under the Program.


 


“Purchase
Premium” means, [***].


 


“Purchase
Premium Rate” has the meaning set forth in Exhibit A.


 


“Purchaser”
means Affirm, Inc., in its capacity as Purchaser pursuant to the Sale Agreement.


 


“Regulatory
Authority” means the Office of the New Jersey Department of Banking, the FDIC and any local, state or federal regulatory
authority, that currently has, or may in the future have, jurisdiction or exercising regulatory or similar oversight with respect
to any of the activities contemplated by this Agreement or any other Program Document or to Bank, Platform Agent or Third-Party
Service Providers (except that nothing herein shall be deemed to constitute an acknowledgement by Bank or Platform Agent that any
Regulatory Authority other than the New Jersey Department of Banking and the FDIC has jurisdiction or exercises regulatory or similar
oversight with respect to Bank or this Agreement).


 






    8


     


    

 





“Representatives”
means, with respect to any Person, the respective Affiliates, officers, directors, counsel, representatives, employees, advisors,
accountants, auditors or agents of such Person.


 


“Retained
Loan” means each Loan that is not sold by Bank to Purchaser pursuant to Section 2 of the Loan Sale Agreement.


 


“Reportable
Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period
has been waived.


 


“Sanctions”
means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the United States
government, including those administered by the OFAC or the U.S. Department of State.


 


“Securitization
Transaction” means the issuance of an “asset backed security” (as defined under 17 C.F.R. § 229.1101(c)
or Section 3(a)(77) of the Securities Exchange Act of 1934) backed by any Loans and any amounts owing thereunder.


 


“Servicing
Agreement” means the Second Amended and Restated Servicing Agreement, dated as of the date hereof, between Affirm, Inc.,
as servicer, and Bank.


 


“Subsidiary”
means, with respect to a Person, any entity with respect to which more than fifty percent (50%) of the outstanding voting securities
shall at any time be owned or controlled, directly or indirectly, by such Person or any similar business organization which is
so owned or controlled.


 


“Technical
Information” means, with respect to the Program and Platform Agent Platform, all software, source code, documentation,
algorithms, models, developments, inventions, processes, ideas, designs, drawings, hardware configuration and technical specifications,
including computer terminal specifications and the source code developed from such specifications.


 


“Termination
Event” has the meaning set forth in Section 8.1(a).


 


“Third-Party
Service Provider” means, with respect to either Bank or Platform Agent, any contractor or service provider retained by
Bank or Platform Agent, respectively, that provides or renders services in connection with the Program or this Agreement.


 


“Underwriting
Procedures” means the underwriting requirements of Bank to be used by Platform Agent in reviewing all Loan Applications
on behalf of Bank, as set forth in Exhibit B.


 


Section 1.2.          Construction.
As used in this Agreement: (i) all references to the masculine gender shall include the feminine gender (and vice versa);
(ii) all references to “include,” “includes” or “including” shall be deemed to be
followed by the words “without limitation”; (iii) references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor law or regulation; (iv) references to another agreement,
instrument or other document means such agreement, instrument or other document as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof; (v) references to “dollars” or
 “$” shall be to United States dollars unless otherwise specified herein; (vi) unless otherwise specified, all
references to days, months, quarters or years shall be deemed to be preceded by the word “calendar”; (vii)
 “or” is not exclusive; (viii) unless otherwise specified, all references to an article, section, subsection,
exhibit or schedule shall be deemed to refer to, respectively, an article, section, subsection, exhibit or schedule of or to
this Agreement; (ix) unless the context otherwise clearly indicates, words used in the singular include the plural and words
in the plural include the singular; and (x) in connection with the computation of any time period, the word
 “from” means “from and including” and the words “to” and “until” each means
 “to but excluding”.


 






    9


     


    

 


ARTICLE II



GENERAL PROGRAM DESCRIPTION


 


Section 2.1.         
General Description. Platform Agent and Bank hereby agree that (a) Platform Agent shall market loans in accordance
with the Program Guidelines throughout the United States and its territories in order to facilitate the making of Loans by Bank
to Borrowers; (b) any review or other involvement by Bank in any action or any document preparation shall not relieve Platform
Agent from its obligations to ensure that Loans are originated and Loan Applications are handled in accordance with Applicable
Laws and the Program Guidelines; and (c) Platform Agent is acting under this Agreement as a service provider for Bank.


 


Section 2.2.         
Program Terms and Program Guidelines. Platform Agent shall comply with the Program Terms and the Program Guidelines
in connection with the administration of the Program.


 


Section 2.3.         
Program Modifications.


 


(a)              
Program Modifications. Bank may change the Program Guidelines in its discretion, upon not less than thirty (30)
days prior notice to Platform Agent, provided that the foregoing prior notice shall not be required in the event such modification
is the result of a change in Applicable Law or at the request of a Regulatory Authority; provided further that
if (i) such change is not as a result of a change in Applicable Law or at the request of a Regulatory Authority and such change
would, in the reasonable and good faith determination of Platform Agent, materially and adversely affect Platform Agent, Platform
Agent may suspend the Program until it has mutually agreed with Bank to modify the Program Guidelines in a manner that satisfies
Bank, and (ii) such change is as a result of a change in Applicable Law or at the request of a Regulatory Authority, Platform
Agent shall implement such change as soon as practicable. In the event that Bank’s change to the Program Guidelines requires
modifications to the Platform Agent Platform, Bank agrees to provide Platform Agent with adequate time as may be reasonably necessary
for Platform Agent to implement such changes.


 


(b)              
Platform Agent Requests. Platform Agent may recommend modifications to the Program Guidelines for the improvement
of the Program to Bank for incorporation into the Program Guidelines by Bank. Such modifications shall not be unreasonably rejected
or delayed.


 


(c)               Temporary
Suspension. Notwithstanding anything in this Agreement to the contrary, Platform Agent may suspend its promotion or
marketing of the Program, and may suspend its acceptance of Loan Applications on behalf of Bank, during any period in which
the Platform Agent and the Bank do not agree on the terms of the Program Guidelines, including any Advertising Materials or
Program Materials.


 






    10


     


    

 


Section 2.4.         
Ownership of Loans and Customer Information.


 


(a)              
From the date Bank funds a Loan in accordance with the Program Guidelines to the date on which Bank sells, transfers and
assigns any such Loan to the Purchaser pursuant to the Loan Sale Agreement, Bank shall be the sole owner for all purposes (including
for tax, accounting and legal purposes) of such Loan, it being understood that Bank shall be the sole owner of any Loans that are
not sold under the Loan Sale Agreement. Bank agrees to make entries on its books and records to clearly indicate the sale, transfer
and assignment of each Loan to Purchaser pursuant to the terms of the Loan Sale Agreement. Except as otherwise set forth in this
Agreement, Bank shall not have any liability to Purchaser for (i) the repayment of any amount at any time due under any Loan or
(ii) the servicing of any Loan after each such date on which Bank sells, transfer and assigns such Loan to Purchaser pursuant to
the Loan Sale Agreement. Subject to the right of Platform Agent to purchase Loans pursuant to the Loan Sale Agreement, nothing
in this Agreement, or any other Program Documents, shall be construed to limit Bank’s ability to sell any Loans to another
Person in the event Platform Agent is unwilling or unable, or for any reason fails, to purchase such Loans under the terms of the
Loan Sale Agreement.


 


(b)              
Bank shall have sole ownership of all Customer Information at all times prior to the sale of the related Loan pursuant to
the Loan Sale Agreement including with respect to a Retained Loan and the Platform Agent shall be the owner of all Customer Information
associated with any Loan purchased by Platform Agent. Without limiting the foregoing, Bank shall be permitted to retain copies
of and use Customer Information associated with all Loans as necessary to comply with all Applicable Laws and Platform Agent shall
deliver copies of all Customer Information that Bank has not received upon request of Bank.


 


Section 2.5.         
Securitization Transactions.


 


(a)              
Except as set forth in the Loan Sale Agreement, each of Platform Agent and Bank shall be permitted to (i) securitize any
or all of the Loans it owns and any amounts owing thereunder, (ii) enter into a Securitization Transaction, or (iii) effect one
or more sales of such Loans.


 


ARTICLE III



DUTIES OF PLATFORM AGENT AND BANK


 


Section 3.1.         
Duties and Responsibilities of Platform Agent and Bank. Platform Agent and Bank shall perform and discharge the following
duties and responsibilities in connection with the Program:


 


(a)              
Compliance with Applicable Laws. Platform Agent and Bank shall comply in all material respects with Applicable Laws
in performing their respective duties under this Agreement.


 






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(b)              Executive
Departure. Each party shall notify the other party in writing (email being sufficient) within ten (10) Business Days after
the departure from such party of an employee identified as being part of “Leadership” on such party’s corporate
website, provided that a violation of this Section 3.1(b) shall not be considered a default for purposes of Section 8.1(a).


 


(c)              
Notice/Approval and Response Guidelines. Each party shall comply with the obligations set forth in Exhibit F;
provided that a violation of this Section 3.1(c) shall not be considered a default for purposes of Section 8.1(a). Where
Platform Agent is seeking Bank’s approval (the “Approval Request”), Bank shall provide approval or rejection
within the applicable timeline specified in Exhibit F (the “Response Timeline”); provided that Bank's
failure to respond to the Approval Request within the applicable Response Timeline shall be deemed an approval only if (i) the
Approval Request was sent via email to the marketplace lending group responsible for responding to Approval Requests as designated
by Bank from time to time and (ii) the Approval Request clearly states that Affirm is requesting Bank's approval of the subject
matter therein.


 


Section 3.2.         
Duties and Responsibilities of Platform Agent. Platform Agent shall perform and discharge the following duties and
responsibilities in connection with the services provided to Bank hereunder:


 


(a)              
Compliance Management. Platform Agent shall adopt and maintain compliance management systems satisfactory for (i)
complying with the examination manual of the FDIC, (ii) achieving at least a “satisfactory” rating under the FFIEC
consumer compliance rating system and (iii) meeting the Compliance Guidelines set forth in Exhibit C attached hereto. Platform
Agent shall provide Bank full access to any information or data necessary for Bank, in Bank’s discretion, to perform its
oversight, risk management and compliance management responsibilities, including, but not limited to, Platform Agent’s loan
application and performance data, internal and external audits, liquidity and funding information.


 


(b)              
Reports and Information.


 


(i)                
Monthly Report. On the fifth (5th) Business Day of each month, Platform Agent shall deliver to Bank a report setting
forth (1) the calculation of [***] for the prior Bank Origination Month and [***] for the prior month, which Bank may independently
verify and (2) the information included in Schedule 3.2(b); provided that Bank may provide an updated Schedule
3.2(b) at any time upon reasonable prior notice to Platform Agent. Exhibit E outlines the reporting (as mutually agreed
upon between Bank and Platform Agent) that will be provided to Bank by Platform Agent to reconcile the accuracy of the calculation
of [***]. In the event that the reporting provided by Platform Agent appears to be erroneous or deviates materially from Exhibit
E, each in Bank’s reasonable discretion, Platform Agent shall provide any additional report or calculation as requested
by Bank for Bank to reconcile the accuracy of the calculation of the [***].


 


(ii)              Platform
Reporting and Compliance. Platform Agent shall provide to Bank data submissions and reports reasonably requested by Bank
to maintain effective enterprise risk management and internal controls to monitor Platform Agent’s and its Third-Party
Service Provider’s compliance with this Agreement and with Applicable Laws. In addition, and without limiting the
foregoing, Platform Agent shall provide such supplemental information as Bank may reasonably request regarding Loans
originated using the Platform Agent Platform including measures such as production volumes and trends, approval rates,
rejection or decline rates, losses, delinquencies, collections and any other measure that Platform Agent tracks in order to
comply with the Program Guidelines. For Loans originated under this Agreement, Platform Agent shall provide such information
(to the extent such information is not otherwise readily available to Bank) in a commercially reasonable manner and in a form
sufficient to permit Bank to conduct a meaningful analysis for compliance with the Program Guidelines.


 






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(c)              
Projections. On an annual basis beginning not later than July 1 of each fiscal year of Platform Agent, if such date
is a Business Day, or if not, the first Business Day thereafter, Platform Agent shall provide a Projection to Bank. Platform Agent
shall prepare a Projection in a commercially reasonable manner.


 


(d)              
Access to Records. Platform Agent shall provide Bank and applicable Regulatory Authorities with reasonable access
to Platform Agent’s offices (and shall cause its Third-Party Service Providers to provide access to their offices), to the
books and records of Platform Agent (solely to the extent such books and records pertain to the Loans), the officers, employees
and accountants of Platform Agent in each case, and to all computer files containing the Loan Documents, for the purpose of ensuring
that Platform Agent and its Third-Party Service Providers are complying with the Program Guidelines and Applicable Laws.


 


(e)              
Access to Business Models and Technical Information. Platform Agent shall at all times comply with the Credit Model
Policy and shall provide Bank with periodic access to the Technical Information underlying the Credit Model Policy, including
all pricing, credit and underwriting assumptions related thereto and the applicable Credit Model Documentation for the sole purpose
of validating consistency with FIL 22 and the Program Guidelines. Bank shall have the right to test and validate the Technical
Information and the Credit Model Policy, including any underlying data, for the sole purpose of validating consistency with FIL
22 and the Program Guidelines. Subject to the confidentiality provisions of Section 10.4 hereof, Bank may, at its election
and at the expense of Platform Agent, require Platform Agent to submit all Technical Information to a Platform Technical Auditor
of Platform Agent’s choosing (i) for validation of compliance with FIL 22 and the Program Guidelines, including, but not
limited to, Applicable Laws and (ii) to independently test and validate Platform Agent’s models for the Program, including
Platform Agent’s loan performance models. In connection with any such testing and validation, Bank shall cooperate with
Platform Agent and Platform Technical Auditor including delivering any requested information and making available responsible
personnel to answer questions on a timely and complete basis and Bank shall consent to the scope of such audit and such scope
shall be designed to satisfy FIL 22. Any information shared with such Platform Technical Auditor shall be considered Confidential
Information hereunder and such Platform Technical Auditor shall be subject to the confidentiality restrictions hereunder and may
not share any Technical Information received from Platform Agent in connection with such audit with Bank. Platform Agent shall
be the owner of the results of such review and shall share the results and any other requested information related to the Credit
Model Policy, Program Guidelines and Applicable Laws with Bank promptly upon the completion of such review or audit. If the Platform
Agent desires to modify the credit model, Platform Agent shall provide Bank ten (10) Business Days’ prior written notice
of the intended effectiveness of such credit model update, including a full-context summary of the assumptions underlying such
credit model update as well as the anticipated effects thereof and Bank shall provide its consent to such update, not to be unreasonably
withheld, within five (5) Business Days of the receipt of such notice; provided that in the event that Bank does not provide
its consent by such 5th Business Day, Bank’s consent shall be deemed to have been given to the implementation of such update;
provided further that Bank may request that Platform Agent extend the time required to consent by five (5)
Business Days while it reviews such update in good faith.


 






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(f)               
Audit.


 


(i)                Subject
to any other agreement entered into with respect to Bank’s right to audit, or cause an audit of, Platform Agent, on an annual
basis, Bank shall be permitted to cause an audit (except to the extent a Platform Technical Auditor has audited the Program) by
an independent third party firm selected by Platform Agent and acceptable to Bank and at Platform Agent’s sole cost and
expense, [***], to be conducted of Platform Agent’s controls relating to the control, monitoring and supervision of the
operation of the Program and of Platform Agent’s and its Third-Party Service Provider’s compliance with this Agreement,
including ensuring that all Loans comply with the Program Guidelines and all Applicable Laws; provided, however,
that if such audit has been conducted within the twelve (12) months prior to the Effective Date, then Platform Agent shall have
met its Platform Audit obligations for the initial year under this Agreement; provided further that Bank shall
(i) own the results of such audit, (ii) share such results with Platform Agent and (iii) keep such audit confidential except as
required by Applicable Laws; provided further that Bank hereby consents to Platform Agent sharing the results
of such audit with a third party, as Platform Agent deems reasonably necessary (subject to Platform Agent entering into a non-disclosure
or other confidentiality agreement with any such third party). Platform Agent shall provide Bank with notice of such sharing of
any audit that was paid for by both Parties. In addition to the foregoing, Platform Agent shall comply with all auditing obligations
set forth in Schedule 3.2(f), and to cause the auditing reports to be delivered to Bank on the dates specified in such
Schedule 3.2(f), each in form and substance satisfactory to Bank. [***].


 


(ii)              Notwithstanding anything in this Agreement to the contrary, Bank shall have the following obligations to Platform Agent
with respect to the annual audit performed pursuant to Section 3.2(f)(i):


 


a.       Bank
shall prepare and send an annual audit plan to Platform Agent on or before January 31st of the calendar year the audit
is scheduled to take place, which sets forth the proposed scope and schedule of the audit; and


 


b.       After
an engagement letter has been negotiated and executed among the parties and the auditor, but before the audit has officially commenced,
Bank shall, at a minimum, host and participate in a kick-off call (or multiple calls, if necessary) among Bank, Platform Agent
and the auditor, which shall include a thorough discussion and consensus agreement about the exact scope and timeline of the audit.


 






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(g)               Non-Compliance and Remediation. Platform Agent agrees that should an audit, investigation or review of Platform
Agent or its Third-Party Service Providers reveal noncompliance with this Agreement, the Program Guidelines or Applicable Laws,
Platform Agent shall notify Bank as soon as reasonably practicable but in any event within ten (10) days of notice of the noncompliance.
In addition to the indemnification provided for in Section 10.1, Platform Agent agrees to take all necessary steps to conform
its or its Third-Party Service Providers’ actions to the terms of this Agreement, the Program Guidelines or Applicable Laws,
including providing applicable remediation or restitution to affected Borrowers that is required by Applicable Law.


 


(h)              Quarterly Report. (a) In addition to Platform Agent’s provision of annual and quarterly financial statements
in accordance with Sections 9.3(a)(i) and 9.3(a)(ii), Platform Agent agrees that, upon the reasonable request by
Bank not more often than quarterly, Platform Agent will provide a written overview of any material updates to its liquidity profile
and loan funding capital partnerships.


 


(i)                Monthly Report. Platform Agent shall provide a report to Bank, on a monthly basis not later than the twentieth (20th)
day of each month and in form and substance satisfactory to Bank, detailing all Complaints received by Platform Agent or any Third-Party
Service Provider. Such report shall include for each Complaint, the name and address of the complaining Borrower or Loan Applicant,
a brief summary of the Borrower’s or Loan Applicant’s Complaint, and (A) if resolved, a brief summary of how the Complaint
was resolved (B) if not resolved, an anticipated timeframe for resolution.


 


(j)                Platform Agent’s Program Manager; Monthly Meetings. Platform Agent shall designate a Program Manager. On a
monthly basis, Platform Agent’s Program Manager and/or designated personnel shall meet with Bank’s Program Manager
and/or designated personnel to review the processes and procedures used by Platform Agent to ensure that the Program and this Agreement
comply with Applicable Laws. If Platform Agent’s Program Manager and Bank’s Program Manager are unable to reach agreement
with respect to any processes or procedures under the Program, then the dispute will be handled in accordance with Section 3.4(f)
below.


 


(k)               Regulatory Examinations. Both parties agree to submit to any examination that may be required by a Regulatory Authority
having jurisdiction over the other party, during regular business hours and upon reasonable prior notice, and to otherwise reasonably
cooperate with the other party in responding to such Regulatory Authority’s examination and requests related to the Program.


 


(l)                [***]


 


(m)              Anti-Money
Laundering Laws; Anti-Corruption Laws; Sanctions. Platform Agent shall comply and cause each of its Affiliates and
Third-Party Service Providers to take action to enable Bank to comply in all material respects with all applicable Anti-Money
Laundering Laws, Anti-Corruption Laws and Sanctions. Without limiting the generality of the foregoing, Platform Agent shall
(a) maintain an anti-money laundering compliance program that is in compliance, in all material respects, with Anti-Money
Laundering Laws, (b) conduct, in all material respects, the due diligence required under Anti-Money Laundering Laws and
Sanctions in connection with all Loan Applications and Borrowers, including with respect to the applicable Borrower and (c)
maintain sufficient information to identify the applicable Borrower for purposes of compliance, in all material respects,
with Anti-Money Laundering Laws and Sanctions. Platform Agent shall provide notice to Bank, within five (5) Business Days of
receipt, of any written notice of a violation or action received under any Anti-Money Laundering Law, Anti-Corruption Law or
Sanctions involving Platform Agent or Third-Party Service Providers.


 






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(n)               Governmental Proceedings. Platform Agent shall reasonably cooperate with Bank with respect to any proceedings before
any Governmental Authority related to this Agreement, the Loan Sale Agreement, the Servicing Agreement, including related to any
Loan and, in connection therewith, permit Bank, at its election, to participate in any such proceedings.


 


(o)               Disaster Recovery. Platform Agent shall establish and maintain a disaster recovery plan and business continuity plan,
consisting of policies and procedures, as well as ancillary backup capabilities and facilities (“DRP”), that
is designed to enable the performance of all Platform Agent’s duties and obligations contemplated under this Agreement and
other Program Documents in the event of any natural disaster or other unplanned interruption of services. At the request of Bank,
the Platform Agent shall provide a current copy or summary of the DRP. Platform Agent shall not amend the DRP in a manner that
knowingly materially increases the risks of disruptions and delays of its services without the consent of the Bank. Reinstating
the services contemplated under this Agreement shall receive as high a priority as reinstating the similar services provided to
Platform Agent’s affiliates and other customers.


 


(p)               Accounting System. Platform Agent shall establish and maintain, at its sole cost and expense, a comprehensive accounting
and Loan tracking system to accurately track and report all Loan Applications, Loans and related information regarding the Program
to satisfy the requirements of Bank set forth in this Agreement, applicable Regulatory Authorities and Bank’s internal and
external auditors. Platform Agent shall cause such system to provide Bank with access to copies of all Loan Applications and Loan
Documents, including the information needed for Bank to underwrite and approve Loan Applications pursuant to the Program Guidelines.


 


(q)              
Site Visits. Upon reasonable prior notice from Bank to Platform Agent, Platform Agent shall permit Bank no more than
once per calendar year (unless Platform Agent is in breach of this Agreement) the ability to visit the Platform Agent’s office
and the Platform Agent shall provide Bank with an update on its business practices relating to the Program during such visit. Platform
Agent shall reimburse Bank for its reasonable and documented out-of-pocket expenses incurred in connection with such site visit
[***].


 


(r)               
New Product RFPs. During the Term, Platform Agent hereby agrees to (i) allow Bank to participate in any request for
proposal process undertaken by Platform related to a new Platform Agent product for which a bank partner is sought and (ii) consider
Bank’s proposal in good faith.


 


(s)               
[reserved]


 


(t)                Third-Party
Service Providers. Platform Agent shall not be permitted to retain or otherwise engage any Third Party Service Provider
that will provide services that are (i) deemed critical by Platform Agent based on Platform Agent’s Third Party Risk
Management Policy and (ii) material to the Program, without the prior written consent of Bank; provided that any such
Third-Party Service Provider listed on Exhibit G hereto shall be deemed to be approved by Bank as of the Effective
Date.


 






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(u)              
Monitoring Communications. Platform Agent shall maintain records of all communication with Borrowers and Loan Applicants.


 


Section 3.3.         
Duties and Responsibilities of Platform Agent on Behalf of Bank. Platform Agent shall perform and discharge the following
duties and responsibilities in connection with the services provided on behalf of Bank under this Agreement:


 


(a)              
Marketing. Platform Agent shall be responsible for marketing Loans to persons through the use of the Advertising
Materials. Platform Agent’s marketing efforts may include the use of radio, television, internet and print advertising and
any other form of media deemed reasonable by Bank and approved by Bank in accordance with Section 4.2. In marketing the
Loans, Platform Agent shall at all times and in all material respects comply with Bank’s trademark usage guidelines which
may be updated from time to time.


 


(b)              
Program Controls and Monitoring Policies. Platform Agent shall establish and maintain such controls as may be necessary
or desirable to adequately control, monitor and supervise the operation of the Program, including the approval of each Loan thereunder.
Platform Agent shall maintain policies and procedures to meet the Program Guidelines for the Program that are acceptable to Bank,
including procedures relating to periodic training and on-going monitoring and auditing of Platform Agent and Third-Party Service
Providers to ensure compliance with this Agreement, the Program Guideline, and all Applicable Laws. Platform Agent acknowledges
that Bank retains the authority to require Platform Agent to revise its existing policies and procedures, or, as necessary, implement
new policies and procedures, relating to any function or activity integral to the Program Guidelines for the Program and all Applicable
Laws; provided that Bank shall give Platform Agent the notice required by Section 2.3(a).


 


(c)              
Loan Origination.


 


(i)                Application Processing. Platform Agent shall (i) accept Loan Applications from Loan Applicants, (ii) provide reasonable
assistance to each Loan Applicant in completing such Loan Application, (iii) on behalf of Bank, review all completed Loan Applications
for compliance with the Credit Policy and Underwriting Procedures, (iv) take appropriate measures to verify the identity of all
Loan Applicants consistent with Applicable Laws and the Program Guidelines, (v) take such further steps as it deems reasonably
necessary to prevent fraud in connection with the Program and (vi) forward completed Loan Applications that meet the Credit Policy
and the Underwriting Procedures and Platform Agent’s standards to Bank (or its designated loan processing agent) electronically
or by other appropriate means acceptable to Platform Agent and Bank.


 


(ii)              Approvals.
All approvals shall be made in accordance with the Underwriting Procedures and shall be based upon the information provided
in the related Loan Application and such other information as Platform Agent obtains at the direction of Bank. Bank shall
have the exclusive authority to approve or deny any or all Loan Applications in its sole discretion and any Loan Application
shall be deemed not approved by Bank to the extent it does not comply with the Program Guidelines.


 






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(iii)            
Declines. On behalf of Bank, Platform Agent shall provide notices in accordance with FCRA, including any adverse
action notices, to the Loan Applicant if the related Loan Application is rejected by Bank.


 


(d)              
FCRA. Platform Agent shall furnish, in accordance with FCRA, as well as Platform Agent’s own policies and practices,
information (e.g., favorable and unfavorable) on its Loan Applicant credit files to TransUnion, Experian or Equifax. For purposes
of FCRA, the Platform Agent and not Bank, shall be the “furnisher.” Platform Agent shall be responsible for receiving
and responding timely to Complaints (as they pertain to Loans), and forwarding copies of each Complaint and any response thereto
to Bank. Platform Agent shall maintain Complaint resolution policies and procedures, and shall further include information summarizing
the Complaints and responses thereto for the given time period in each FCRA report by the 10th day of each month, along with sufficient
information for Bank to analyze Program activity relating to the Loans. As part of the FCRA report, Platform Agent shall provide
Bank information with respect to the number of Loan Applications rejected as a percentage of both total Loan Applications received
and total Loan Applications accepted, as well as any additional information reasonably requested by Bank for its fair lending review
and analysis.


 


(e)              
Loan Document Submission. Platform Agent shall be responsible for preparing and transmitting to each Loan Applicant
all documents and all notices required by Bank to originate the Loan, including the Loan Account Agreement. Prior to submitting
any Loan to Bank pursuant to Section 5.1(b), Platform Agent shall, on behalf of Bank, (i) obtain from the Borrower the executed
Loan Account Agreement and (ii) deliver a copy of Bank’s privacy notice to the related Borrower.


 


(f)               
Document Retention. Platform Agent shall maintain and retain on behalf of Bank all Loan Applications and copies of
all adverse action notices and other documents relating to rejected Loan Applications for the period required by Applicable Laws.
Platform Agent shall further maintain copies of all Loan Documents and any other documents provided to or received from Borrowers
for the period required by Applicable Laws.


 


Section 3.4.         
Duties and Responsibilities of Bank. Bank shall perform and discharge the following duties and responsibilities in
connection with the Program:


 


(a)              
Bank shall comply with any reporting requirements of the New Jersey Department of Banking and Insurance or the FDIC applicable
to Bank’s performance of this Agreement.


 


(b)              
Bank may modify the Program Guidelines from time to time in its reasonable discretion in accordance with Section 2.3.


 


(c)               Bank
shall establish and maintain such controls as may be reasonably necessary to adequately control, monitor and supervise the
operation of the Program, including the approval of each Loan. Bank shall be solely responsible for the cost of such
activities. All Loan Application processing functions performed by Platform Agent hereunder shall be supervised by Bank and
Bank shall review and audit Loan Applications to determine compliance with the Program Guidelines; provided that
neither Bank’s failure to establish and maintain any such controls nor the inadequacy of any Bank’s controls
shall relieve Platform Agent of its obligations to establish and maintain its own such controls or to comply with the Program
Guidelines and Applicable Laws.


 






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(d)              
Bank shall manage the Program in good faith, employing at least the same degree of care, skill and attention that Bank devotes
to the management of its other assets.


 


(e)              
Bank shall fund all Loans in the manner set forth in the Program Guidelines. Notwithstanding anything contained in this
Agreement, nothing in this Agreement shall obligate Bank to extend credit to a Loan Applicant or disburse a Loan if Bank determines
in its reasonable discretion that doing so would be an unsafe or unsound banking practice.


 


(f)               
Bank shall designate a Program Manager. Bank’s Program Manager and Platform Agent’s Program Manager shall meet
monthly. If during the course of such meetings, Bank’s Program Manager and Platform Agent’s Program Manager are unable
to solve a dispute which arises, then the dispute will be escalated within each of Bank and Platform Agent to authorized personnel
who will work together in good faith towards a resolution. If the parties are unable to resolve the dispute, a party may, upon
written notice to the other party, resolve the dispute in accordance with Section 10.3.


 


(g)              
Upon Platform Agent’s request, Bank shall facilitate ACH debits from Merchant bank accounts for which Platform Agent
has been properly authorized to initiate direct debits of amounts owed to Platform Agent.


 


Section 3.5.         
Conditions Precedent to the Obligations of Bank. The obligations of Bank in this Agreement are subject to the satisfaction
of the following conditions precedent on or prior to Bank’s funding of a Loan pursuant to Section 5.1(b):


 


(a)              
Each Loan shall be sourced by the Platform Agent under the Program and meet the standards set forth in the Program Terms
and the Program Guidelines then in effect;


 


(b)              
No action or proceeding shall have been instituted or threatened against Platform Agent or Bank to prevent or restrain the
consummation of the origination or other transactions contemplated hereby and there shall be no injunction, decree, or similar
restraint preventing or restraining such consummation;


 


(c)              
The representations and warranties of Platform Agent set forth in Section 9.1 shall be true and correct in all material
respects as though made on and as of such date and the Platform Agent shall be in compliance in all material respects with its
covenants and agreements set forth in this Agreement and each other Program Document;


 


(d)              
The obligations of Platform Agent set forth in this Agreement and Section 5 of the Loan Sale Agreement to be performed
on or before each date that a Loan is funded shall have been performed in all material respects as of such date by Platform Agent;


 


(e)              
Each other Program Document to which Platform Agent and Bank are parties shall be in full force and effect and Platform
Agent shall not be in default thereunder; and


 






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(f)               
 Consistent with Section 3.2(e), the efficacy of the Technical Information, including any algorithm used by Platform
Agent in connection with the Program, shall be established to Bank’s satisfaction.


 


ARTICLE IV



TRADE NAMES, ADVERTISING AND PROGRAM MATERIALS


 


Section 4.1.         
Trade Names and Trademarks. Platform Agent shall have no authority to use any Marks of Bank except as explicitly
permitted in this ARTICLE IV. Bank acknowledges that approved Program Materials or Advertising Materials may contain Marks
of Platform Agent, and Bank shall have no authority to use any Marks of Platform Agent separate and apart from their use in the
Program Materials or Advertising Materials or as otherwise approved hereunder or in writing by Platform Agent. The parties shall
use Program Materials and Advertising Materials only as permitted under this Agreement for the purpose of implementing the provisions
of this Agreement and shall not use Program Materials or Advertising Materials in any manner that would violate Applicable Laws,
the terms of this Agreement or any provision of the Program Guidelines.


 


Section 4.2.         
Advertising and Program Materials.


 


(a)              
Platform Agent shall prepare Advertising Materials and Program Materials to be used in connection with the Program and shall
ensure that such materials (i) comply, at all times, with Applicable Laws, the terms of this Agreement, Section 4.1 and
the Program Guidelines, (ii) are true and accurate and not misleading in any material respect and (iii) are approved and authorized
by Bank prior to use (which approval may have been given prior to the date of this Agreement).


 


(b)              
At least ten (10) Business Days prior to the first use of any Marks of Bank, Platform Agent shall provide to Bank all Advertising
Materials and all Program Materials proposed to be used by Platform Agent in connection with the Program in order to enable Bank
to complete an initial review and to approve or reject any such materials. Bank shall review and shall promptly (and in no event,
later than thirty (30) Business Days following receipt thereof) approve or reject any such Advertising Materials or Program Materials
(which approval shall not be unreasonably withheld or delayed); provided that Advertising Materials and Program Materials
shall be considered approved and authorized by Bank only upon approval and authorization clearly communicated by Bank in writing,
which may be by email. In the event that Bank does not accept and authorize such materials, Platform Agent shall not use any such
materials in connection with the Program and Bank shall provide Platform Agent the reason for such denial. Platform Agent hereby
agrees that any approval by Bank of any Advertising Materials and Program Materials shall not relieve Platform Agent of its primary
responsibility for the preparation and maintenance of Advertising Materials and Program Materials in accordance with this Section
4.2.


 


(c)              
Bank may at any time retract or modify any approval previously given by it with respect to any Advertising Materials or
Program Materials if Bank reasonably determines that such action is required to remain in compliance with Applicable Laws or for
the safe and sound operation of the Program, or to preserve or protect the Marks of the Bank or its reputation.


 






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(d)              
 Upon the prior written approval of Platform Agent and subject to Section 4.2(b) above, Platform Agent (i) may use
such Advertising Materials and Program Materials in accordance with the terms of this Agreement and (ii) shall comply with all
instructions from Bank (including any restrictions or prohibitions) as to the use of the Bank's Marks with any other Marks. In
the event that the Platform Agent desires to make a substantive change in the Advertising Materials or Program Materials, Platform
Agent shall submit such materials to Bank for review and approval in accordance with Section 4.2(b).


 


(e)              
Subject to the terms and conditions of this Agreement, Bank hereby grants Platform Agent a non-exclusive, non-assignable
license without the right to sublicense, to use and reproduce Bank’s Marks in the United States, as necessary to perform
its obligations under this Agreement; provided, however, that (a) Platform Agent shall obtain Bank’s prior
written approval for the use of Bank’s Marks and such use shall at all times comply with all written instructions provided
by Bank regarding the use of Bank’s Marks; (b) Platform Agent acknowledges that it shall acquire no interest in Bank’s
Marks; and (c) Platform Agent shall obtain Bank’s prior written approval for the release of any press release incorporating
the name, Marks or likeness of Bank. Upon termination of this Agreement, Platform Agent shall cease using Bank’s Marks.


 


(f)               
Platform Agent recognizes the value of the goodwill associated with the Bank's Marks and acknowledges that Bank exclusively
owns all right, title and interest in and to the Bank's Marks and all goodwill pertaining thereto. Platform Agent acknowledges
and agrees that any and all of its use of the Bank's Marks shall be on behalf of and accrue and inure solely to the benefit of
Bank.


 


(g)              
Platform Agent shall not, anywhere in the world, use or seek to register in its own name, or that of any third party, any
Marks that are the Bank's Marks, that are colorably or confusingly similar to the Bank's Marks, or that incorporate the Bank's
Marks or any element colorably or confusingly similar to the Bank's Marks.


 


Section 4.3.         
Intellectual Property.


 


(a)              
Platform Agent shall retain sole and exclusive right, title and interest to all of its Intellectual Property Rights, including
its Marks, its websites, the Platform Agent Platform, the Platform Agent technology related thereto, and Platform Agent’s
proprietary information. Bank shall retain sole and exclusive right, title and interest in and to all of Bank’s Intellectual
Property Rights, including its Marks, websites, promotional materials, proprietary information and technology. This Agreement does
not transfer any Intellectual Property Rights from Platform Agent to Bank.


 


(b)              
Bank shall retain sole and exclusive right, title, and interest to all of its Intellectual Property Rights, its Marks, its
website(s), including all aspects of the website(s)’ content, and the services and processes performed by Bank under the
Program. This Agreement does not transfer any Intellectual Property Rights from Bank to Platform Agent.


 






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ARTICLE V



LOAN ORIGINATION AND COMPENSATION


 


Section 5.1.         
Loan Origination.


 


(a)              
On (i) each day on which Platform Agent receives a Loan Application from a Loan Applicant that Platform Agent determines
satisfies the eligibility criteria set forth in the Program Guidelines, and (ii) each Business Day on which any Loan is sold by
Bank to Purchaser pursuant to the Loan Sale Agreement, Platform Agent shall provide to Bank a Funding Statement.


 


(b)              
On each Funding Date, Bank shall (1) confirm that each Loan listed on the related Funding Statement complies with the Program
Guidelines, (2) originate each such Loan, (3) deliver to Platform Agent a Loan Origination Report related to such Funding Date
and (4) by the close of business on such Funding Date, distribute via ACH transfer or wire the following amounts:


 


(i)               to the related Merchant on behalf of the related Borrower, an amount equal to the Disbursed Proceeds for the applicable
Loan; and


 


(ii)             
to Platform Agent, an amount equal to the applicable Platform Agent Facilitation Fee; provided that, upon mutual agreement
by the parties, the Platform Agent Facilitation Fee may be distributed on a different cadence.


 


Section 5.2.         
Compensation.


 


(a)              
Within ten (10) days after receipt of an invoice from Bank (or if such day is not a Business Day, the following Business
Day), Platform Agent shall pay to Bank [***].


 


(b)              
Within ten (10) days after receipt of an invoice from Bank (or if such day is not a Business Day, the following Business
Day), Platform Agent shall pay to Bank [***].


 


(c)              
[***]


 


ARTICLE VI



EXPENSES


 


Section 6.1.         
Expenses.


 


(a)              
Platform Agent shall pay all reasonable and documented costs and expenses of Bank incurred in connection with any event
with respect to which the Platform Agent requests Bank enter into an amendment, modification or waiver of any provision of this
Agreement or the Program Documents or enter into another agreement with Platform Agent or a third party with respect to the Program
(including reasonable legal fees and expenses); provided that Bank shall be responsible for any expenses incurred by it
as a result of any amendment, modification or waiver of any provision of this Agreement requested by Bank or at the request of
a Regulatory Authority; it being understood that each of Platform Agent and Bank shall be responsible for any expenses incurred
by it as a result of the execution of this Agreement and the Loan Sale Agreement.


 


(b)               Platform
Agent shall pay all costs and expenses incurred by Platform Agent in connection with (a) providing the services set forth in
this Agreement, including the costs of obtaining credit reports and delivering adverse action notices and (b) implementing a
compliance management system to comply with Applicable Laws and the Program Guidelines.


 






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Section
6.2.         
ACH and Wire Costs. Without limiting the generality of Section 6.1, Platform Agent shall be responsible for
the costs associated with all ACH and wire transfers executed in connection with the Program and as described in Section 5.1(b).


 


Section
6.3.         
Taxes. Each party shall be responsible for the payment of any federal, state or local taxes or assessments applicable
to such party associated with the performance of its obligations under this Agreement and for compliance with all filing, registration
and other requirements applicable to such party related to this Agreement.


 


ARTICLE VII



TERM


 


Section 7.1.         
Terms. Unless terminated earlier in accordance with Article VIII, this Agreement shall remain in effect for
the Initial Term, and shall automatically renew for two (2) successive terms of one (1) year, (each a “Renewal Term,”
collectively, the Initial Term and Renewal Term(s) shall be referred to as the “Term”), unless either party
provides notice to the other party of its intent not to renew at least ninety (90) days prior to the end of the Initial Term or
Renewal Term.


 


ARTICLE VIII



TERMINATION


 


Section 8.1.         
Termination.


 


(a)              
Either party shall have the right to terminate this Agreement immediately upon written notice to the other party in any
of the following circumstances (each a “Termination Event”):


 


(i)                the other party shall default in any material respect in the performance of any obligation or undertaking under this Agreement
or the Loan Sale Agreement and such default is not cured within thirty (30) days after such other party obtains knowledge thereof
or written notice thereof has been given to such other party;


 


(ii)               any representation or warranty made by the other party in this Agreement or the Loan Sale Agreement is incorrect in any
material respect and is not corrected within thirty (30) days after such other party obtains knowledge thereof or written notice
thereof has been given to such other party;


 


(iii)             the
other party commences a voluntary action or other proceeding seeking reorganization, liquidation or other relief with respect
to itself or its debts under any bankruptcy, insolvency, receivership, conservatorship or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver, liquidator, conservator, custodian or other similar official of
it or any substantial part of its property, or shall consent to any such relief or to the appointment of a trustee, receiver,
liquidator, conservator, custodian or other similar official or to any involuntary action or other proceeding commenced
against it; or


 






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(iv)             the other party becomes subject to an involuntary action or other proceeding, whether pursuant to banking regulations or
otherwise, seeking reorganization, liquidation or other relief with respect to it or its debts under any bankruptcy, insolvency,
receivership, conservatorship or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, conservator, custodian or other similar official of it or any substantial part of its property; or an order for relief
shall be entered against either party under the federal bankruptcy laws as now or hereafter in effect.


 


(b)              
Either party shall have the right to terminate this Agreement (i) upon written notice to the other party if the activities
of either party under this Agreement or the Program (A) violate Applicable Laws in any material respects, and (B) such activities
cannot be remedied without causing a Material Adverse Effect on the other party or the Loans, provided, however,
that if the illegality or prohibition is of a state or local rule, the parties shall only discontinue the Program in those states
or localities affected by such Applicable Laws without terminating this Agreement in its entirety for such reason; (ii) upon written
notice to the other party if such party reasonably determines in good faith that the continued activities of the parties under
this Agreement would affect the continued viability and existence of such party; or (iii) if Bank determines in its reasonable
discretion that the continuing operation of the Program will, in the case of Bank, materially and adversely affect the safety and
soundness of Bank or at the request of a Regulatory Authority.


 


(c)              
This Agreement shall automatically be terminated upon the termination of the Loan Sale Agreement in accordance with its
terms.


 


(d)              
In addition to any other rights or remedies available to the Platform Agent under this Agreement or by law, either party
shall have the right to terminate this Agreement upon five (5) days’ written notice to the other if (i) the other party is
materially unable to perform its obligations in connection with the Program, (ii) a Material Adverse Effect has occurred with respect
to the other party or (iii) a Change of Control occurs with respect to the other party that the terminating party determines in
its reasonable discretion will have a Material Adverse Effect with respect to Bank, Platform Agent or the Loans. For the avoidance
of doubt, a termination pursuant to this Section 8.1(d) by Platform Agent shall not be subject to any termination fees or
penalties that would otherwise be payable by Platform Agent to the Bank under this Agreement or under the Program Terms.


 


Section 8.2.          Effect
of Termination. Upon the termination of this Agreement, (a) Bank shall cease originating any new Loans, (b) Platform
Agent shall cease marketing the Program and soliciting new Borrowers, (c) each party shall immediately discontinue the use of
the other party’s Marks, (d) all amounts due and owing hereunder shall become due and payable, including any amounts
due under Section 6.1; provided that any Loan Performance Fees shall continue to be payable by Platform Agent
as described in Section 5.2(b), and (e) [***]. Notwithstanding the termination hereof, to the extent that any terms
set forth in this Agreement are applicable to the servicing of the Loans, such terms shall survive the termination of this
Agreement and shall remain in effect until such time as each Loan is paid in full by the related Borrower or charged off by
Platform Agent or Bank.


 






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ARTICLE IX



REPRESENTATIONS, WARRANTIES AND COVENANTS


 


Section 9.1.         
Platform Agent’s Representations and Warranties. Platform Agent makes the following warranties and representations
to Bank:


 


(a)              
This Agreement constitutes a legal, valid and binding obligation of Platform Agent, enforceable against Platform Agent in
accordance with its terms, except (i) to the extent such enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect, which may affect the enforcement of creditors’ rights in general,
and (ii) as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity)
and Platform Agent has received all necessary approvals and consents for the execution, delivery and performance by it of this
Agreement.


 


(b)              
Platform Agent is duly organized, existing and in good standing under the laws of the state of its organization and is authorized,
registered and licensed to do business in each state in which the lack of such authorization, registration or licensing would have
a Material Adverse Effect with respect to Platform Agent or the Loans.


 


(c)              
Platform Agent has the full power and authority to execute and deliver this Agreement and perform all of its obligations
hereunder.


 


(d)              
The execution of this Agreement and the completion of all actions required or contemplated to be taken by Platform Agent
hereunder are within the ordinary course of Platform Agent’s business and not prohibited by Applicable Laws in any material
respect.


 


(e)              
The provisions of this Agreement and the performance of each of its obligations hereunder do not conflict with Platform
Agent’s organizational or governing documents, or any material agreement, contract, lease, order or obligation to which Platform
Agent is a party or by which Platform Agent is bound, including any exclusivity or other provisions of any other agreement to which
Platform Agent or any related entity is a party, and including any non-compete agreement or similar agreement limiting the right
of Platform Agent to engage in activities competitive with the business of any other party or any Governmental Authority that Platform
Agent is subject to.


 


(f)               
No approval, authorization or other action by, or filing with, any Governmental Authority is required in connection with
the execution, delivery and performance by it of this Agreement or any other Program Document other than approvals and authorizations
that have previously been obtained and filings which have previously been made or would not have a Material Adverse Effect with
respect to the Loans.


 


(g)               All
information which was heretofore furnished by it or on its behalf in writing to Platform Agent for purposes of or in
connection with this Agreement, any Program Document or any transaction contemplated hereby or thereby is true and accurate
in all material respects in the aggregation and as of the date such information was furnished (except to the extent that such
furnished information relates solely to an earlier date, in which case such information was true and accurate in all material
respects on and as of such earlier date).


 






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(h)              
Except as licensed or otherwise permitted, Platform Agent has not used the Intellectual Property Rights, trade secrets or
other confidential business information of any third party that it was not authorized to use in connection with the development
of the Program Materials and Advertising Materials or in carrying out its obligations or exercising its rights under this Agreement.


 


(i)                
There is no action, suit, proceeding or investigation pending or, to the knowledge of Platform Agent, threatened against
Platform Agent seeking a determination or ruling which, either in any one instance or in the aggregate, would reasonably be expected
to result in a Material Adverse Effect with respect to Platform Agent, or which would render invalid this Agreement or any Program
Document, or asserting the invalidity of, or seeking to prevent the consummation of any of the transactions contemplated by, the
Program Documents. No proceeding has been instituted against Platform Agent seeking to adjudicate it bankrupt or insolvent, or
seeking the liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee or other similar official for Platform Agent or any substantial part of its property.


 


(j)                
Neither Platform Agent nor any principal thereof has been or is the subject of any of the following that will materially
effect Platform Agent’s ability to perform under this Agreement:


 


(i)                Enforcement agreement, memorandum of understanding, cease and desist order, administrative penalty or similar agreement
concerning lending matters, or participation in the affairs of a financial institution;


 


(ii)               Administrative or enforcement proceeding or investigation commenced by the Securities Exchange Commission, state securities
regulatory authority, Federal Trade Commission, any banking regulator or any other state or federal Regulatory Authority, with
the exception of routine communications from a Regulatory Authority concerning a Complaint and routine examinations of Platform
Agent conducted by a Regulatory Authority in the ordinary course of Platform Agent’s business; or


 


(iii)             Restraining order, decree, injunction or judgment in any proceeding or lawsuit alleging fraud or deceptive practices on
the part of Platform Agent or any principal thereof.


 


For purposes of this
Section 9.1(f) the word “principal” of Platform Agent shall include (i) any person owning or controlling [***]
or more of the voting power of Platform Agent, (ii) any officer or director of Platform Agent and (iii) any person actively participating
in the control of Platform Agent’s business.


 


(k)               None
of Platform Agent, any of its Affiliates or any of their respective officers, directors or members is a Person (or to
Platform Agent’s knowledge, is owned or controlled by a Person) that (i) is listed on any Government Lists, (ii) is a
person who has been determined by competent authority to be subject to the prohibitions contained in Presidential Executive
Order No. 13224 (Sept. 23, 2001) or any other similar prohibitions contained in the rules and regulations of OFAC or in any
enabling legislation or other Presidential Executive Orders in respect thereof, (iii) has been previously indicted for or
convicted of any felony involving a crime or crimes of moral turpitude or for any Patriot Act Offense, or (iv) is currently
under investigation by any Governmental Authority for alleged felony involving a crime of moral turpitude.


 






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(l)                
Platform Agent and each of its Affiliates is in compliance in all material respects with all applicable Anti-Money Laundering
Laws. Without limiting the generality of the foregoing, to the extent required by Anti-Money Laundering Laws or Anti-Corruption
Laws, Platform Agent has established an anti-money laundering compliance program that is in compliance, in all material respects,
with Anti-Money Laundering Laws and Anti-Corruption Laws.


 


(m)             
Platform Agent has a compliance management system in place to ensure compliance with the terms of this Agreement, including
the Program Guidelines, Applicable Laws, that includes management of Third-Party Service Providers and Complaints filed with Platform
Agent that provides Platform Agent with the ability to track and respond to Complaints to the extent required within the required
time period.


 


(n)              
Platform Agent is solvent and does not believe, nor does it have any reason or cause to believe, that it cannot perform
its obligations contained in this Agreement.


 


(o)              
Platform Agent is not required to register as an “investment company” within the meaning of the Investment Company
Act of 1940, and is not owned or controlled by an “investment company” within the meaning of the Investment Company
Act of 1940.


 


(p)              
Platform Agent is not a “money services business” as it is defined in 31 C.F.R. § 1010.100(ff).


 


(q)              
Platform Agent is in material compliance with all Applicable Laws.


 


(r)               
Platform Agent has in full force and effect insurance in such amounts and with such terms, as follows:


 


(i)               comprehensive general liability with limits not less than $1 million per occurrence and $5 million annual aggregate, with
coverages to include contractual liability, personal injury and advertising injury;


 


(ii)             
statutorily required worker’s compensation;


 


(iii)             employer’s liability of five million ($5,000,000.00) dollars per employee/occurrence;


 


(iv)            
crime liability of not less than five million ($5,000,000.00) dollars;


 


(v)              cybersecurity and privacy liability of not less than five million ($5,000,000.00) Dollars;


 






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(vi)            
umbrella liability with limits not less than twenty five million ($25,000,000.00) dollars per occurrence and aggregate;


 


(vii)            professional liability/errors & omissions of not less than five million ($5,000,000.00) dollars.


 


Section 9.2.         
Bank’s Representations and Warranties. Bank makes the following warranties and representations to Platform
Agent:


 


(a)              
This Agreement constitutes a valid and binding obligation of Bank, enforceable against Bank in accordance with its terms
except (i) to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect, which may affect the enforcement of creditors’ rights in general, and (ii)
as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity).


 


(b)              
Bank is an FDIC-insured New Jersey state-chartered commercial bank, duly organized, validly existing, and in good standing
under the laws of the State of New Jersey.


 


(c)              
Bank has full corporate power and authority to execute, deliver and perform all of its obligations under this Agreement.


 


(d)              
The execution of this Agreement and the completion of all actions required or contemplated to be taken by Bank hereunder
are within the ordinary course of Bank’s business and not prohibited by Applicable Laws.


 


(e)              
The execution, delivery and performance of this Agreement have been duly authorized by Bank, and are not in conflict with
and do not violate the terms of the charter or by-laws of Bank and will not result in a material breach of or constitute a default
under, or require any consent under, any indenture, loan or agreement to which Bank is a party.


 


(f)               
Bank has the authority to originate Loans in accordance with the Program Terms to the Borrowers who meet the minimum Credit
Policy requirements established in the Program Guidelines as contemplated hereunder. Bank has adopted the Credit Policy and approved
each Loan in accordance therewith, and each Loan and disbursement of Disbursed Proceeds complies with Applicable Laws; provided
that Bank shall have no responsibility with respect to complying with Applicable Laws to the extent any such non-compliance arises
out of erroneous data or information provided by Platform Agent to Bank hereunder unless Bank is aware of such error and refuses
to remedy its compliance to the extent Bank is able to remedy such error or the failure of Platform Agent to comply with Applicable
Laws in the performance of its duties hereunder;


 


(g)              
Bank has the authority to originate Loans in each state in which Loans are originated under the Program.


 


(h)               To
the best knowledge of Bank, and as of each date of origination and sale of the Loans to Platform Agent, (i) each Loan meets
the criteria outlined in the Program Guidelines; (ii) each Loan has not been satisfied, subordinated or rescinded, and no
right of rescission, set-off, counterclaim or defense exists or has been asserted with respect to such Loan; (iii) each Loan
was originated and disbursed by Bank in accordance with Applicable Laws; and (iv) there is no action before any Regulatory
Authority involving such Loan in which an adverse result would have a Material Adverse Effect with respect to such Loan.


 






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(i)                
Neither Bank nor any principal thereof has been or is the subject of any of the following that will materially effect Bank’s
ability to perform under this Agreement:


 


(i)                An enforcement agreement, memorandum of understanding, cease and desist order, administrative penalty or similar agreement;


 


(ii)               An administrative or enforcement proceeding or investigation commenced by the Securities Exchange Commission, state securities
regulatory authority, Federal Trade Commission, any banking regulator or any other state or federal Regulatory Authority; or


 


(iii)              A restraining order, decree, injunction or judgment in any proceeding or lawsuit alleging fraud or deceptive practices on
the part of Bank or any principal thereof.


 


For purposes of this
Section 9.2(i) the word “principal” of Bank shall include (i) any person owning or controlling [***] or more
of the voting power of Bank, (ii) any officer or director of Bank and (iii) any person actively participating in the control of
Bank’s business.


 


(j)                
Bank is in full compliance with applicable minimum capital requirements prescribed by the FDIC and any other Regulatory
Authority having jurisdiction over Bank, and Bank meets the requirements to be considered “adequately capitalized”
as defined in the Federal Deposit Insurance Act, as amended, and the applicable regulations promulgated thereunder.


 


Section 9.3.         
Platform Agent’s Covenants. Platform Agent hereby covenants and agrees as follows:


 


(a)              
Information. Platform Agent shall furnish to Bank:


 


(i)                Annual Financial Statements. Within one hundred twenty (120) days after the end of each of its fiscal years, copies
of its annual audited financial statements certified by independent certified public accountants reasonably satisfactory to Bank
and prepared on a consolidated basis in conformity with GAAP, together with a report of such firm expressing such firm’s
opinion thereon without a “going concern” or like qualification or exception and without any qualification or exception
as to the scope of the audit.


 


(ii)              Quarterly
Financial Statements. Within forty-five (45) days after each of its fiscal quarters, copies of its unaudited consolidated
balance sheet and related statements of operations and stockholders’ equity as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the
corresponding period of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by
one of its chief financial officer, principal accounting officer, treasurer or controller as presenting fairly in all
material respects its (and its consolidated Subsidiaries) financial condition and results of operations on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of
footnotes.


 






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(iii)             Auditors’ Management Letters. Promptly after receipt thereof, notice that it has received any auditors’
management letters from its accountants that refer in whole or in part to any inadequacy, defect, problem, qualification or other
lack of fully satisfactory accounting controls utilized by it and an opportunity to discuss the contents of such letter with its
management.


 


(iv)             Representations. Promptly upon having knowledge or notice that any representation or warranty set forth herein or
in any other Program Document was incorrect at the time it was given or deemed to have been given, which failure or breach would
reasonably be expected to materially and adversely affect Bank, together with a written notice setting forth in reasonable detail
the nature of such facts and circumstances.


 


(v)              Reportable Event. Promptly upon having knowledge of the occurrence of any Reportable Event with respect to any Pension
Plan, notice of such Reportable Event.


 


(vi)             Proceedings. As soon as possible and in any event within three (3) Business Days after any of its executive officers
receives notice or obtains knowledge thereof, any settlement of, material judgment (including a material judgment with respect
to the liability phase of a bifurcated trial) in or commencement of any material labor controversy, litigation, action, suit or
proceeding before any Governmental Authority, which, in the case of any of the foregoing, has had or would reasonably be expected
to have a Material Adverse Effect with respect to Platform Agent.


 


(vii)            Notice of Material Events. Promptly upon becoming aware thereof, notice of any other event or circumstances that,
in its reasonable judgment has had or would reasonably be expected to have a Material Adverse Effect with respect to Platform Agent.


 


(viii)           Other. As promptly as practicable, from time to time, such information, documents or records or reports respecting
the Program or the condition or operations, financial or otherwise, of Platform Agent as Bank may reasonably request; provided
that Platform Agent shall not be required to deliver any Technical Information to Bank.


 


(b)               Notice of Termination Events. As soon as possible, after obtaining actual knowledge thereof, notify Bank of the occurrence
of any Termination Event applicable to it.


 


(c)              
Conduct of Business. The Platform Agent shall perform all actions necessary to remain duly organized or incorporated,
validly existing and in good standing in its jurisdiction of formation and to maintain all requisite authority to conduct its business
in each jurisdiction in which it conducts business except where the failure to preserve and maintain such existence has had, or
could reasonably be expected to have, a Material Adverse Effect with respect to Platform Agent or the Loans.


 


(d)               Preservation
of Corporate Existence. The Platform Agent shall preserve and maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its incorporation, and qualify and remain qualified and in good standing as a foreign
corporation in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges
and qualifications has had, or could reasonably be expected to have, a Material Adverse Effect with respect to Platform
Agent.


 






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(e)              
Taxes. The Platform Agent shall file and pay any and all material taxes.


 


(f)               
ERISA Matters. The Platform Agent shall not (i) engage in any prohibited transaction for which an exemption is not
available or has not previously been obtained from the United States Department of Labor, (ii) fail to satisfy the minimum funding
standards under Section 302 of ERISA or Section 412 of the Code with respect to any Pension Plan, (iii) fail to make any payments
to a Multiemployer Plan that it may be required to make under the agreement relating to such Multiemployer Plan or any law pertaining
thereto, (iv) terminate any Pension Plan so as to result in any liability to it, or (v) permit to exist any occurrence of any Reportable
Event with respect to any Pension Plan.


 


(g)              
Total Systems Failure. It shall promptly notify Bank of any total systems failure and shall advise Bank of the estimated
time required to remedy such total systems failure. Until a total systems failure is remedied, it shall (i) furnish to Bank such
periodic status reports and other information relating to such total systems failure as Bank may reasonably request and (ii) promptly
notify Bank if it believes that such total systems failure cannot be remedied by the estimated date, which notice shall include
a description of the circumstances which gave rise to such delay, the action proposed to be taken in response thereto and it shall
promptly notify Bank when a total systems failure has been remedied.


 


(h)              
Improper Contact. Platform Agent shall not, and shall cause its Affiliates not to, without the prior written consent
of Bank, initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, or customer
of Bank for the purposes of obtaining information regarding Bank’s operations, assets, prospects or finances.


 


(i)                
USA PATRIOT Act. The parties hereto acknowledge that in order to help the United States government fight the funding
of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003, Section
326 of the USA PATRIOT Act requires all financial institutions to obtain, verify, record and update information that identifies
each person establishing a relationship or opening an account. The Platform Agent agrees that it will provide Bank such information
as it may request, from time to time, in order for Bank to satisfy the requirements of the USA PATRIOT Act, including but not limited
to the name, address, tax identification number and other information that will allow it to identify the individual or entity who
is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation
or other identifying documents to be provided.


 


(j)                
Furnishing of Information. It will furnish to Bank, as soon as practicable after receiving a request therefor in
accordance with Section 10.10, such information with respect to the Program as Bank may reasonably request.


 


(k)              
Disaster Recovery Plan. It will maintain an adequate disaster recovery plan in light of its duties under this Agreement
and contemplated volume of business.


 






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(l)                Mergers,
Acquisition, Sales, etc. It will not consolidate with or merge into any other Person or convey substantially all of its assets
to any Person, unless:


 


(i)               it is the surviving entity in a consolidation or merger;


 


(ii)              it has delivered to Bank an officer’s certificate and an opinion of counsel each stating that any consolidation, merger
or conveyance complies with this subsection and that all conditions precedent herein provided for relating to such transaction
have been complied with and such other matters as the Bank may reasonably request;


 


(iii)             it shall have delivered prior written notice of such consolidation, merger or conveyance to Bank; and


 


(iv)            after giving effect thereto, no Termination Event or event that with notice or lapse of time, or both, would constitute
a Termination Event shall have occurred.


 


Section 9.4.         Bank’s Covenant – Improper Contact. Bank hereby covenants and agrees that it shall not, and shall cause
its Affiliates not to, without the prior written consent of Platform Agent, initiate or maintain contact (except in the ordinary
course of business) with any officer, director, employee, or customer of Platform Agent for the purposes of obtaining information
regarding Platform Agent’s operations, assets, prospects or finances.


 


 


ARTICLE X



MISCELLANEOUS


 


Section 10.1.        Indemnification.


 


(a)               Indemnification
by Platform Agent. Except to the extent of any Losses which arise from the direct acts or omissions of Bank or an
Affiliate of Bank, Platform Agent shall be liable to and shall indemnify Bank and its directors, officers, employees, agents
and Affiliates and permitted assigns from and against any and all Losses arising out of (i) any failure of Platform Agent or
any of its Third-Party Service Providers to comply with any of the terms and conditions of this Agreement or any other
Program Document (without giving effect to any qualification as to materiality or Platform Agent’s knowledge or lack
thereof in such term or condition), (ii) the inaccuracy of any representation or warranty made by Platform Agent or any of
its Third-Party Service Providers herein or any other Program Document (without giving effect to any qualification as to
materiality or Platform Agent’s knowledge or lack thereof in such term or condition), (iii) any infringement by
Platform Agent or by any of its Third-Party Service Providers of any Marks of Bank, or the use thereof hereunder or any
infringement or misappropriation or alleged infringement or misappropriation of any Intellectual Property Rights, (iv) a
failure of Platform Agent or any of its Third-Party Service Providers to comply, in respect of its obligations in connection
with the Program hereunder, with any Applicable Laws, (v) any act or omission by a Merchant in connection with the Program,
(vi) any claim that a Loan Document, the Program Materials, the Advertising Materials, any other Program Document or any
other aspect of the Program violate any Applicable Law (whether material or immaterial), (vii) any claims based on a
fraudulent application submitted by a Loan Applicant or (viii) any Information Security Incident. [***]. Platform Agent
agrees to promptly notify Bank of any event or occurrence that would reasonably be expected to impair Platform Agent’s
capacity to honor its indemnification obligations under this Agreement.


 






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(b)              
Indemnification by Bank. Except to the extent of any Losses which arise directly from any act or omission of Platform
Agent or an Affiliate of Platform Agent, Bank shall be liable to and shall indemnify and hold harmless Platform Agent and its officers,
directors, employees, agents and Affiliates and permitted assigns, from and against any Losses arising out of (i) the failure of
Bank to comply with any of the terms and conditions of this Agreement or in any Program Document (ii) the inaccuracy of any representation
or warranty made by Bank in this Agreement or in any Program Document, (iii) any infringement or alleged infringement by Bank of
any trade names, trademarks or service marks of Platform Agent, or the use thereof hereunder, or (iv) [***].


 


(c)              
Notice of Claims. In the event any claim is made, any suit or action is commenced or any knowledge of a state of
facts that, if not corrected, would give rise to a right of indemnification of a party hereunder by the other party is received,
the indemnified party will give notice to the indemnifying party as promptly as practicable, but, in the case of lawsuit, in no
event later than the time necessary to enable the indemnifying party to file a timely answer to the complaint. The indemnified
party shall make available to the indemnifying party and its counsel and accountants at reasonable times and for reasonable periods,
during normal business hours, all books and records of the indemnified party relating to any such possible claim for indemnification,
and each party hereunder will render to the other such assistance as it may reasonably require of the other (at the expenses of
the party requesting assistance) in order to insure prompt and adequate defense of any suit, claim or proceeding based upon a state
of facts which may give rise to a right of indemnification hereunder.


 


(d)               Defense
and Counsel. Subject to the terms hereof, the indemnifying party shall have the right to assume the defense of any suit,
claim, action or proceeding. In the event that the indemnifying party elects to defend any suit, claim or proceeding, then
the indemnifying party shall notify the indemnified party via facsimile transmission or email, with a copy by mail, within
ten (10) days of having been notified pursuant to this Section 10.1 that the indemnifying party elects to employ
counsel and assume the defense of any such claim, suit, action or proceeding. The indemnifying party shall institute and
maintain any such defense diligently and reasonably and shall keep the indemnified party fully advised of the status thereof.
The indemnified party shall have the right to employ its own counsel if the indemnified party so elects to assume such
defense, but the fees and expense of such counsel shall be at the indemnified party’s expenses, unless (i) the
employment of such counsel shall have been authorized in writing by the indemnifying party; (ii) such indemnified party shall
have reasonably concluded that the interests of such parties are conflicting such that it would be inappropriate for the same
counsel to represent both parties or shall have reasonably concluded that the ability of the parties to prevail in the
defense of any claim are improved if separate counsel represents the indemnified party (in which case the indemnifying party
shall not have the right to direct the defense of such action on behalf of the indemnified party), and in either of such
events such reasonable fees and expenses shall be borne by the indemnifying party; (iii) the indemnified party shall have
reasonably concluded that it is necessary to institute separate litigation, whether in the same or another court, in order to
defend the claims asserted against it; (iv) the indemnified party reasonably concludes that the ability of the parties to
prevail in the defense of any claim is materially improved if separate counsel represents the indemnified party; and (v) the
indemnifying party shall not have employed counsel reasonably acceptable to the indemnified party to take charge of the
defense of such action after electing to assume the defense thereof. In the event that the indemnifying party elects not to
assume the defense of any suit, claim, action or proceeding, then the indemnified party shall do so and the indemnifying
party shall pay for, or reimburse indemnified party, as the indemnified party shall elect, all Losses of the indemnified
party.


 






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(e)              
Settlement of Claims. The indemnifying party shall have the right to compromise and settle any suit, claim or proceeding
in the name of the indemnified party; provided, however, that the indemnifying party shall not compromise or settle
a suit, claim or proceeding (i) unless it indemnifies the indemnified party for all Losses arising out of or relating thereto and
(ii) with respect to any suit, claim or proceeding which seeks any non-monetary relief, without the consent of the indemnified
party, which consent shall not unreasonably be withheld. The indemnifying party shall not be permitted to make any admission of
guilt on behalf of the indemnified party. Any final judgment or decree entered on or in, any claim, suit or action which the indemnifying
party did not assume the defense of in accordance herewith, shall be deemed to have been consented to by, and shall be binding
upon, the indemnifying party as fully as if the indemnifying party had assumed the defense thereof and a final judgment or decree
had been entered in such suit or action, or with regard to such claim, by a court of competent jurisdiction for the amount of such
settlement, compromise, judgment or decree. The indemnifying party shall be subrogated to any claims or rights of the indemnified
party as against any other Persons with respect to any amount paid by the indemnifying party under this Section 10.1(e).


 


(f)               
Indemnification Payments. Amounts owing under Section 10.1 shall be paid promptly upon written demand for
indemnification containing in reasonable detail the facts giving rise to such Losses.


 


Section 10.2.       Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE,
CONSEQUENTIAL, OR EXEMPLARY DAMAGES OR LOST PROFITS (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING
OUT OF OR IN CONNECTION WITH THE PROGRAM DOCUMENTS; PROVIDED, HOWEVER, THAT NOTIFICATION RELATED COSTS SHALL NOT
BE DEEMED INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES.


 


Section 10.3.        Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, INCLUDING GENERAL OBLIGATIONS LAW §5-1401 AND §5-1402, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT
OF LAWS PRINCIPLES THEREOF.


 


EACH PARTY HERETO
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN NEW YORK CITY IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURTS OR, TO THE EXTENT PERMITTED BY LAW,
IN SUCH FEDERAL COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING. THE PARTIES HERETO AGREE THAT A FINAL
JUDGMENT NOT SUBJECT TO FURTHER APPEAL, IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.


 






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Section 10.4.        Confidential Information.


 


(a)              
In performing their obligations pursuant to this Agreement, either party may disclose Confidential Information to the other
party, either directly or indirectly, in writing, orally or by inspection of intangible objects (including documents).


 


(b)              
Bank and Platform Agent agree that Confidential Information shall be used by each party solely in the performance of its
obligations under the Program Documents.


 


(c)              
Each party (including their respective Representatives) shall receive Confidential Information in confidence and shall not,
without the prior written consent of the disclosing party, disclose any Confidential Information of the disclosing party; provided,
however, that there shall be no obligation on the part of the parties to maintain in confidence any Confidential Information
disclosed to it by the other which (i) is generally known to the trade or the public at the time of such disclosure, (ii) becomes
generally known to the trade or the public subsequent to the time of such disclosure, but not as a result of disclosure by the
other in violation of this Agreement, (iii) is legally received by either party or any of its respective Representatives from a
third party on a non-confidential basis provided that to such party’s knowledge such third party is not prohibited from disclosing
such information to the receiving party by a contractual, legal or fiduciary obligation to the other party, its Representatives
or another party, or (iv) was or hereafter is independently developed by either party or any of its Representatives without using
Confidential Information or in violation of its obligations under this Agreement.


 


(d)              
The parties agree that the disclosing party owns all rights, title and interest in and to its Confidential Information,
and that the party receiving such Confidential Information will not reverse-engineer any software or other materials embodying
the Confidential Information. The parties acknowledge that Confidential Information is being provided for limited use internally,
and the receiving party agrees to use the Confidential Information only in accordance with the terms and conditions of this Agreement.


 


(e)               Notwithstanding
the foregoing, however, disclosure of the Confidential Information may be made if, and to the extent, requested or required
by Applicable Laws or Governmental Authority without liability and, except as required by the following sentence, without
notice to the other party. In the event that the receiving party or any of its Representatives receives a demand or request
to disclose all or any part of the disclosing party’s Confidential Information to a Governmental Authority, (i) to the
extent practicable and permitted, the receiving party agrees to promptly notify the disclosing party of the existence, terms
and circumstances surrounding such a demand or request and (ii) if the receiving party or its applicable Representative is
compelled to disclose all or a portion of the disclosing party’s Confidential Information, the receiving party or its
applicable Representative may disclose that Confidential Information that its counsel advises that it is compelled to
disclose and will exercise reasonable efforts to obtain assurance that confidential treatment will be accorded to the
Confidential Information that is being so disclosed.


 






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(f)               
Each party represents and covenants that it will protect the Confidential Information of the other party in accordance with
prudent business practices and will use the same degree of care to protect the other party’s Confidential Information that
it uses to protect its own confidential information of a similar type. Except as expressly provided herein, no right or license
whatsoever is granted with respect to the Confidential Information or otherwise.


 


Following termination
of this Agreement, upon the request of the disclosing party, the non-disclosing party will, within ten (10) days after receiving
a request by the disclosing party, destroy all Confidential Information furnished to it or any of its Representatives by or on
behalf of the disclosing party. Except to the extent a party is advised by legal counsel that such destruction is prohibited by
law, the non-disclosing party and its Representatives will also destroy all written material, memoranda, notes, copies, excerpts
and other writings or recordings whatsoever prepared by the non-disclosing party or its Representatives based upon, containing
or otherwise reflecting any Confidential Information; provided, however, that neither the non-disclosing party nor
any of its Representatives shall be obligated to return or destroy Confidential Information (i) to the extent it has been electronically
archived by any such party in accordance with its automated security or disaster recovery procedures as in effect from time to
time or (ii) to the extent required by their respective internal record retention policies for legal, compliance or regulatory
purposes; provided that any such Confidential Information so retained shall remain subject to the confidentiality provisions
contained herein for so long as it is retained by the non-disclosing party, irrespective of the Term of this Agreement. At the
request of the disclosing party made at the time of its request for the return or destruction of Confidential Information, the
return or destruction of materials in accordance with the foregoing shall be certified to the disclosing party in writing by a
Representative of the non-disclosing party.


 


Section 10.5.        Privacy Law Compliance; Security Breach Disclosure. In addition to the requirements of Section 10.4, each
party agrees that it shall obtain, use, retain and share Customer Information in strict compliance with all applicable state and
federal laws and regulations concerning the privacy and confidentiality of such Customer Information, including the requirements
of the federal Gramm-Leach-Bliley Act of 1999, its implementing regulations, the California Consumer Privacy Act, Cal. Civ. Code
 §1798.100 et seq., and any regulations promulgated thereunder by the Attorney General of California, and Bank’s privacy
notice, in connection with this Agreement. Neither party shall disclose or use Customer Information concerning Borrowers or Loan
Applicants other than (i) to carry out the purposes for which such Customer Information has been disclosed to it hereunder or (ii)
in connection with a sale or financing of the related Loans. Further, Platform Agent shall by written contract require any Third-Party
Service Providers to maintain the confidentiality of Customer Information in a similar manner.


 


Platform Agent
shall immediately inform Bank in writing of any Information Security Incident of which Platform Agent becomes aware, but in
no case later than twenty-four (24) hours after it becomes aware of such Information Security Incident. Such notice shall
summarize in reasonable detail the effect on Bank, if known, of the Information Security Incident and the corrective action
taken or to be taken by Platform Agent. Platform Agent shall promptly take all necessary and advisable corrective actions,
and shall cooperate fully with Bank in all reasonable and lawful efforts to prevent, mitigate or rectify such Information
Security Incident. Platform Agent shall (i) investigate such Information Security Incident and perform a root cause analysis
thereon; (ii) remediate the effects of such Information Security Incident; and (iii) provide Bank with such assurances as
Bank shall request that such Information Security Incident is not likely to recur. The content of any filings,
communications, notices, press releases or reports related to any Information Security Incident shall be approved by Bank
prior to any publication or communication thereof.


 






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Upon the occurrence
of an Information Security Incident involving nonpublic personal information in the possession, custody or control of Platform
Agent or for which Platform Agent is otherwise responsible, Platform Agent shall reimburse Bank on demand for all reasonable Notification
Related Costs incurred by Bank arising out of or in connection with any such Information Security Incident.


 


In addition, Platform
Agent agrees that it will not make any material changes to its security procedures and requirements affecting the performance of
its obligations hereunder which would materially reduce the security of its operations or materially reduce the confidentiality
of any databases and information maintained with respect to Bank, Borrowers and Loan Applicants without the prior written consent
of Bank.


 


Each of Bank and Platform
Agent agrees and represents to the other that it and each of its Third-Party Service Providers have, or will have prior to the
receipt of any Confidential Information or Customer Information, designed and implemented an information security program that
will comply in all material respects with the applicable requirements set forth in 12 C.F.R. Part 332 (Privacy of Consumer Financial
Information), 12 C.F.R. Part 364 (including the Interagency Guidelines Establishing Information Security Standards found at Appendix
B to Part 364), and 16 C.F.R Part 314, all as amended, supplemented or interpreted in writing by Regulatory Authorities and all
other Applicable Law.


 


Section 10.6.        Force Majeure. In the event that either party fails to perform its obligations under the Program Documents in whole
or in part as a consequence of events beyond its reasonable control (including acts of God, fire, explosion, public utility failure,
accident, floods, embargoes, epidemics, war, terrorist acts, nuclear disaster or riot), such failure to perform shall not be considered
a breach of the Program Documents during the period of such disability. In the event of any force majeure occurrence as set forth
in this Section 10.6, the disabled party shall use its best efforts to meet its obligations as set forth in the Program
Documents. The disabled party shall promptly and in writing advise the other party if it is unable to perform due to a force majeure
event, the expected duration of such inability to perform and of any developments (or changes therein) that appear likely to affect
the ability of that party to perform any of its obligations hereunder in whole or in part.


 






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Section
10.7.        Relationship
of Parties; No Authority to Bind. Bank and Platform Agent agree that they are independent contractors to each other in
performing their respective obligations hereunder. Nothing in this Agreement or in the working relationship established and
developed hereunder shall be deemed or is intended to be deemed, nor shall it cause, Bank and Platform Agent to be treated as
partners, joint venturers or otherwise as joint associates for profit. Platform Agent understands and agrees that Platform
Agent’s name shall not appear on any Loan Document as a maker of a Loan and that Bank shall be responsible for all
decisions to make or fund a Loan. Prior to the purchase by Purchaser, Platform Agent shall refer to Bank any inquiries from
the related Borrowers concerning the accuracy, interpretation or legal effect of any Loan Document. Platform Agent shall not
modify the terms of any Loan Document on behalf of Bank prior to purchase of the Loan by Platform Agent. Platform
Agent’s responsibilities hereunder shall not constitute the “receipt” of the Loan Documents by Bank;
instead, Bank shall be deemed to have received and reviewed the Loan Documents and supporting materials only after the Loan
Documents and materials have previously been received at Bank’s offices, at which time and place Bank shall decide
whether to make the Loan. Platform Agent shall not represent to anyone that Platform Agent has the authority or power to do
any of the foregoing and shall make no representations concerning Bank’s transactions except as Bank shall expressly
authorize in writing. Bank shall not have any authority or control over any of the property interests or employees of
Platform Agent. Without limitation of the foregoing, Bank and Platform Agent intend, and they agree to undertake such action
as may be necessary or advisable to ensure, that: (a) the Program complies with federal guidelines regarding outsourcing of
bank-related activities, installment loans, bank supervision and control and safety and soundness procedures; (b) Bank is the
lender under applicable federal standards and is authorized to export its home-state interest rates and matters material to
the rate under 12 U.S.C.A. § 1831d; (c) all activities related to the marketing and origination of a loan are made by or
on behalf of Bank as disclosed principal for any relevant regulatory, agency law and contract-law purposes; and (d) the
Program has been initiated by Platform Agent for its benefit, that Bank is acting as an accommodation party for the benefit
of Platform Agent for the purpose of origination of each Loan.


 


Section 10.8.        Severability. In the event that any part of this Agreement is ruled by a court, Regulatory Authority or other public
or private tribunal of competent jurisdiction to be invalid or unenforceable, such provision shall be deemed to have been omitted
from this Agreement. The remainder of this Agreement shall remain in full force and effect, and shall be modified to any extent
necessary to give such force and effect to the remaining provisions, but only to such extent. In addition, if the operation of
the Program or the compliance by a party with its obligations set forth herein causes or results in a violation of an Applicable
Law, the parties agree to negotiate in good faith to modify the Program or this Agreement as necessary in order to permit the parties
to continue the Program in full compliance with Applicable Laws.


 


Section 10.9.       Successors and Third Parties. This Agreement and the rights and obligations hereunder shall bind and inure to the
benefit of the parties hereto and their successors and assigns. The rights and benefits hereunder are specific to the parties and
shall not be delegated or assigned without the prior written consent, not to be unreasonably withheld, of the other party. Nothing
in this Agreement is intended to create or grant any right, privilege or other benefit to or for any person or entity other than
the parties hereto. Notwithstanding the foregoing, in the event that (a) Bank agrees to sell all, or substantially all, of its
assets to a third party or (b) agrees to merge with a third party pursuant to which Bank will not be the surviving entity, then
Bank may assign this Agreement and its rights hereunder to such third party upon Platform Agent’s consent, provided that
to the extent Platform Agent does not consent to such assignment then Bank may terminate this Agreement.


 






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Section 10.10.      Notices.
All notices and other communications under this Agreement shall be in writing (including communication by facsimile copy or other
electronic means) and shall be deemed to have been duly given when delivered in person, by facsimile or email transmission, by
express or overnight mail delivered by a nationally recognized courier (delivery charges prepaid), or by registered or certified
mail (postage prepaid, return receipt requested) to the respective parties as follows:


 


	 	To Bank:	Cross River Bank




400 Kelby
Street


Fort Lee,
New Jersey 07024


Attention:
Gilles Gade, President


Telephone:
[***]


Facsimile
No.: [***]


Email: [***]


 


	 	With a copy to:	Cross River Bank




400 Kelby
Street


Fort Lee,
New Jersey 07024


Attention:
Arlen Gelbard, Esq., General Counsel


Telephone:
[***]


Facsimile
No.: [***]


Email: [***]


 


	 	To Platform Agent:	Affirm, Inc.




650 California
St., 12th Floor


San Francisco,
CA 94108


Attention:
Max Levchin, Chief Executive Officer


Email: [***]


 


	 	With a copy to:	Affirm, Inc.




650 California
St., 12th Floor


San Francisco,
CA 94108


Attention:
Sharda Caro, Chief Legal Officer


Email: [***]


 


Section 10.11.      Waiver; Amendments. The delay or failure of either party to enforce any of the provisions of this Agreement shall
not be construed to be a waiver of any right of that party. All waivers must be in writing and signed by both parties. Subject
to Section 2.3(a), alterations, modifications or amendments of a provision of this Agreement, including all exhibits and
schedules attached hereto, shall not be binding and shall be void unless such alteration, modification or amendment is in writing
and signed by authorized representatives of Platform Agent and Bank.


 


Section
10.12.      Counterparts. This Agreement may be executed and delivered by the parties
hereto in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute
one and the same instrument. The parties agree that this Agreement and signature pages may be transmitted between them by
electronic mail and that PDF signatures may constitute original signatures and that a PDF signature page containing the
signature (PDF or original) is binding upon the parties.


 






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Section 10.13.      Further
Assurances. From time to time, each party will execute and deliver to the other such additional documents and will provide
such additional information as such other party may reasonably require to carry out the terms of this Agreement.


 


Section 10.14.     Entire
Agreement. The Program Documents, including this Agreement and its schedules and exhibits (all of which schedules and exhibits
are hereby incorporated into this Agreement) and the documents executed and delivered pursuant hereto and thereto, constitute
the entire agreement between the parties with respect to the subject matter hereof and thereof, and supersede any prior or contemporaneous
negotiations or oral or written agreements between the parties hereto with respect to the subject matter hereof or thereof, except
where survival of prior written agreements is expressly provided for herein.


 


Section 10.15.     Survival.
The terms of Section 4.2(f), 4.2(g), 4.3, 4.3 (Effect of Termination), Section 9.1 (Platform
Agent’s Representations and Warranties), Section 9.2 (Bank’s Representations and Warranties), and this Article
X (Miscellaneous) shall survive the termination or expiration of this Agreement.


 


Section 10.16.     Referrals.
Neither party has agreed to pay any fee or commission to any agent, broker, finder or other person for or on account of such person’s
services rendered in connection with this Agreement that would give rise to any valid claim against the other party for any commission,
finder’s fee or like payment.


 


Section 10.17.     Interpretation.
The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rule of construction
to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of
this Agreement or any amendments thereto, and the same shall be construed neither for nor against either party, but shall be given
a reasonable interpretation in accordance with the plain meaning of its terms and the intent of the parties.


 


Section 10.18.      Headings.
Captions and headings in this Agreement are for convenience only, and are not deemed part of this Agreement.


 


Section 10.19.      Amendment
and Restatement. As of the Effective Date, (a) this Agreement shall amend and restate the Existing Program Agreement in its
entirety and all rights and obligations under the Existing Program Agreement arising prior to the Effective Date shall be governed
by the Existing Program Agreement, (b) the Existing Program Agreement shall terminate with respect to the Program after the Effective
Date and (c) the relationship of the parties with respect to the Program after the Effective Date shall be governed exclusively
by the terms set forth in this Agreement.


 


[Signature Page Follows]


 






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IN WITNESS WHEREOF,
the parties have entered into this Agreement as of the date set forth above.


 


	 	CROSS RIVER BANK
	 	 
	 	By:	/s/ Gilles Gade
	 	 	Name:	Gilles Gade
	 	 	Title:	CEO
	 	 
	 	By:	/s/ Arlen Gelbard
	 	 	Name:	Arlen Gelbard
	 	 	Title:	General Counsel
	 	 
	 	AFFIRM, INC.
	 	 
	 	By:	/s/  Geoffrey Kott
	 	 	Name: Geoffrey Kott
	 	 	Title: Chief Capital Officer