REVOLVING CREDIT AGREEMENT
Exhibit 10.38
THIS REVOLVING CREDIT AGREEMENT (this “Agreement”), dated as of February 3, 2015 is entered into between ONEMAIN FINANCIAL HOLDINGS, INC., a Delaware corporation (“Lender”) and ONEMAIN FINANCIAL WAREHOUSE, LLC, a Delaware limited liability company (“Borrower”).
BACKGROUND
1. The Borrower is organized for the specific purpose of securitizing personal loans.
2. Pursuant to a Loan Purchase Agreement, dated as of February 3, 2015 (as amended and supplemented from time to time, the “Loan Purchase Agreement”), among the various “Sellers” party thereto, the Borrower and the Depositor Loan Trustee, each of the Sellers will sell all of its right, title and interest in and to the Loans and other related Purchased Assets to the Borrower and the Depositor Loan Trustee for the benefit of the Depositor. Such sales shall be made on the Closing Date and from time to time thereafter in accordance with the Loan Purchase Agreement. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Loan Purchase Agreement, or, if not defined therein, in Part A of Schedule II to the Sale and Servicing Agreement (together with Part B of such Schedule II, the “Definitions Schedule”). The rules of construction set forth in Part B of the Definitions Schedule shall be applicable to this Agreement. In addition, with respect to all terms used in this Agreement, the singular includes the plural and the plural the singular; words importing any gender include the other gender; references to “writing” include printing, typing, lithography and other means of reproducing words in a visible form; references to agreements and other contractual instruments include schedules and exhibits thereto and all subsequent amendments, modifications and changes thereto or therein entered into in accordance with their respective terms and not prohibited by this Agreement; references to Persons include their permitted successors and assigns; and the terms “include” or “including” mean “include without limitation” or “including without limitation,” respectively.
3. The Borrower is the depositor of Loans to the OneMain Financial Warehouse Trust (the “Trust”) pursuant to a Sale and Servicing Agreement, dated as of February 3, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Sale and Servicing Agreement”), by and among the Borrower, as Depositor (in such capacity, the “Depositor”), Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo”), as Depositor Loan Trustee (in such capacity, the “Depositor Loan Trustee”), the Trust, as Issuer (the “Issuer”), Xxxxx Fargo, as Issuer Loan Trustee (in such capacity, the “Issuer Loan Trustee”), OneMain Financial, Inc., as Servicer, and the various “Subservicers” party thereto.
4. (a) Pursuant to the Sale and Servicing Agreement, (i) the Borrower will sell, transfer and assign all of its right, title and interest in and to the Loans and other related Sold Assets to the Issuer and (ii) the Depositor Loan Trustee, for the benefit of the Depositor, will sell, transfer and assign all of its right, title and interest in and to the Loans (with respect to legal title) to the Issuer Loan Trustee for the benefit of the Issuer, and (b) pursuant to the Indenture, the Issuer will issue Notes secured by, among other things, the Loans and other related Sold Assets.
5. The Borrower desires that the Lender extend financing to the Borrower to fund a portion of the aggregate purchase price for the Loans and other related Purchased Assets purchased from the Lender and the other Sellers pursuant to the Loan Purchase Agreement.
6. Accordingly, in consideration of the mutual agreements contained herein, and subject to the terms and conditions hereof, the parties hereto agree as follows:
ARTICLE I
LENDER LOANS; RECORDKEEPING
Section 1.01. Lender Loans. Subject to the terms and conditions of this Agreement, on any day, the Lender agrees in its sole discretion to make loans to the Borrower (collectively called the “Revolving Credit Loans,” and individually called a “Revolving Credit Loan”) on a revolving basis from time to time before the earlier of the following occurs (A) termination of the Loan Purchase Agreement or (B) an Event of Default (as defined below), as the Borrower may from time to time request from the Lender for the sole purpose of purchasing Loans and other related Purchased Assets from the Sellers; provided, however, that the Lender shall not make any such loan in the event that, immediately after giving effect to such loan, the aggregate outstanding principal amount of the Revolving Credit Loans exceeds $800,000,000.00 (eight hundred million dollars) and provided, further, that the principal amount of the Revolving Credit Loans outstanding immediately following any such draw shall not exceed an amount that would result in the net equity value of the Borrower being less than 50% of the overcollateralization required for the Issuer to avoid the occurrence of an Overcollateralization Event as of such date. For the avoidance of doubt, if Lender has made a commitment to Borrower to make an equity contribution within a specified date for the purpose of Borrower having cash to purchase Loans and other Purchased Assets from the Sellers, then such commitment shall be included for purposes of determining the net equity value of the Borrower for these purposes, but shall be subject to the set-off and recoupment set forth in Section 4.02 hereof.
Section 1.02. Recordkeeping. The Lender shall record in its records the date and amount of each Revolving Credit Loan made hereunder, the amount of interest accrued monthly on each Revolving Credit Loan and any repayments thereof. In the absence of manifest error, the aggregate unpaid principal amount so recorded shall be the principal amount owing and unpaid on the applicable Revolving Credit Loan. The failure to record any such information or any error in so recording any such information shall not, however, limit, extinguish or otherwise affect the actual obligations of the Borrower hereunder to repay the principal amount of all Revolving Credit Loans together with all interest accruing thereon.
ARTICLE II
INTEREST
Section 2.01. Interest Rate. Interest on the unpaid principal amount of each Revolving Credit Loan for the period commencing on the date of such Revolving Credit Loan is made to the Borrower until such Revolving Credit Loan is re-paid in full by the Borrower to the
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Lender shall be paid by the Borrower at a per annum rate equal to the sum of the Lender’s cost of funds from time to time (determined according to a commercially reasonable method to be established by the Lender from time to time in its discretion) plus .50% (the “Cost of Funds Rate”); provided that during the existence of any Event of Default, the unpaid principal amount of each Revolving Credit Loan shall be paid at a per annum rate equal to the sum of the applicable Cost of Funds Rate, plus an additional 2.00%. To the fullest extent permitted under applicable law, interest shall continue to accrue on the Revolving Credit Loans after the filing by or against Borrower of a petition seeking relief in bankruptcy or under any act or law pertaining to insolvency or debtor relief, whether state, federal or foreign.
Section 2.02. Interest Payment Dates. Subject to Sections 3.02 and 3.04 hereof, accrued interest on each Revolving Credit Loan shall be payable monthly on the 20th day of each calendar month, or, if such 20th day is not a Business Day, the next succeeding Business Day, and at maturity, commencing with the first of such dates to occur after the making of the first Revolving Credit Loan hereunder.
Section 2.03. Computation of Interest. Interest on each Revolving Credit Loan shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE III
MATURITY AND PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01. Maturity. Subject to Section 3.02 hereof, principal on the Revolving Credit Loans is payable (i) in full on demand of the Lender at any time following the termination of the Loan Purchase Agreement and (ii) on demand of the Lender at any time from Funds (as defined below) available to the Borrower.
Section 3.02. Payments; Limited Recourse. Payments of principal and interest by the Borrower shall only be made in accordance with this provision and only from the Funds (as defined below) available to the Borrower. The Lender acknowledges that the only recourse it has under this Agreement for such payments is such Funds. Payments of interest or principal by the Borrower to be made in accordance with this Agreement shall be made by the Borrower from funds paid or payable to the Borrower pursuant to the Loan Purchase Agreement, Sale and Servicing Agreement, the Indenture or the Trust Agreement, including funds paid or payable in respect of the Trust Certificate, that are not required by the terms of the Loan Purchase Agreement, the Sale and Servicing Agreement, the Indenture, the Trust Agreement or any other Transaction Document to be used by the Borrower for any other purpose and the payment of which to the Lender pursuant to this Agreement would not cause a default (or any event that, with the giving of notice or passage of time or both, could give rise to a default) to occur under the Loan Purchase Agreement, the Sale and Servicing Agreement, the Indenture, the Trust Agreement or any other Transaction Document (the “Funds”). Notwithstanding anything herein to the contrary, no payment of interest or principal in respect of outstanding Revolving Credit Loans shall be considered due until Funds become available to make such payment. In such event, interest shall continue to accrue on the unpaid principal amount until payment is made at the rate provided in Section 2.01. Notwithstanding any provision to the contrary in this Agreement, the Borrower and the Lender agree that all payment obligations of the Borrower
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under this Agreement on any date are hereby expressly made subordinate and subject in right of payment to the prior payment in full in cash of all obligations of the Borrower, whether direct or indirect, absolute or contingent, at any time due under the Loan Purchase Agreement, the Sale and Servicing Agreement, the Indenture, the Trust Agreement or any other Transaction Document.
Section 3.03. Prepayments. If permitted by Section 3.02 hereof, the Borrower may prepay the Revolving Credit Loans at any time, in whole or in part, without penalty.
Section 3.04. Timing. If any payment of principal or interest falls due on a day that is not a Business Day, then such due date shall be extended to the next succeeding Business Day, and interest shall continue to accrue on the outstanding principal for such period of extension, but interest for the period of extension shall not be due or payable until the next payment date.
ARTICLE IV
COVENANT OF LENDER
Section 4.01. Nonpetition Covenant.
(a) To the fullest extent permitted by law and notwithstanding any prior termination of this Agreement, the Lender agrees that it shall not file, commence, join or acquiesce in a petition or proceeding, or cause the Depositor to file, commence, join or acquiesce in a petition or proceeding, that causes (i) the Depositor to be a debtor under any Debtor Relief Law or (ii) a trustee, conservator, receiver, liquidator or similar official to be appointed for the Depositor or any substantial part of its property.
(b) To the fullest extent permitted by law and notwithstanding any prior termination of this Agreement, the Lender agrees that it shall not file, commence, join or acquiesce in a petition or proceeding, or cause the Issuer to file, commence, join or acquiesce in a petition or proceeding, that causes (i) the Issuer to be a debtor under any Debtor Relief Law or (ii) a trustee, conservator, receiver, liquidator or similar official to be appointed for the Issuer or any substantial part of its property.
(c) The parties hereto agree that the provisions of this Section 4.01 shall survive the resignation or removal of any such party to this Agreement and the termination of this Agreement.
Section 4.02. Set-off or Recoupment.
Lender hereby acknowledges and agrees that if Lender has made a commitment in writing (which shall be evidenced in writing substantially in the form of Schedule I hereto or via other written means) to make an equity contribution to Borrower (whether as set forth in Section 1.01 above or a Committed Closing Date Equity Contribution as set forth in Section 6.01 below or otherwise), or if Lender permits Borrower to borrow an amount that would result in Borrower immediately following such borrowing having a net equity value less than 50% of the overcollateralization required for the Issuer to avoid the occurrence of an Overcollateralization
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Event as of the date of such borrowing (such excess lending to be deemed a commitment to make an equity contribution in the amount of such excess no less than three months following such borrowing), then, at the earlier of (i) the date on which such equity contribution is to be made and (ii) the date on which any principal payment is due and payable (whether upon demand, acceleration or otherwise) to Lender under this Agreement, any amounts due to Lender under this Agreement shall be reduced by its set-off or recoupment against any such equity contribution commitment by the Lender (whether or not matured or contingent) and any amounts so set-off or recouped shall be deemed discharged in all respects.
ARTICLE V
DEFAULT
Section 5.01. Events of Default. Each of the following shall constitute an Event of Default under this Agreement (an “Event of Default”):
(a) Non-Payment. Default and continuance thereof for five (5) business days, in the payment when due of any interest on the Revolving Credit Loans or default when due of payment of principal.
(b) Insolvency. An Insolvency Event with respect to the Borrower has occurred.
Section 5.02. Effect of Default. If an Event of Default shall occur and be continuing, the Lender shall cease to make advances pursuant to Section 1.01 hereof and all principal and accrued but unpaid interest of any outstanding Revolving Credit Loans shall become immediately due and payable, subject to Section 3.02 hereof.
ARTICLE VI
USE OF PROCEEDS
Section 6.01. Use of Proceeds. The Borrower agrees that the proceeds of the Revolving Credit Loans will be used only to purchase Loans and other related Purchased Assets from the Sellers as contemplated in the Loan Purchase Agreement and, if Lender as of the date hereof has made a commitment to make a cash equity contribution to Borrower in a specified amount (“Committed Closing Date Equity Contribution”) then Borrower may also use proceeds from Revolving Credit Loans not to exceed any such unpaid Committed Closing Date Equity Contribution to pay expenses payable by the Borrower or the Trust on or about the Closing Date.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lender and their respective successors and assigns; provided, however, that neither party to this Agreement may assign any rights or obligations under this Agreement without the prior written consent of the other party.
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Section 7.02. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE COUNTY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OTHER PARTY HERETO OR ANY OF THEIR PROPERTY IN THE COURTS OF OTHER JURISDICTIONS.
EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, AMONG ANY OF THEM ARISING OUT OF, CONNECTED WITH, RELATING TO AND INCIDENT TO THE RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.
Section 7.03. Counterparts. This Agreement may be executed by one or more parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 7.04. Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall for any reason whatsoever be held invalid, then such covenants, agreements, provisions, or terms shall be deemed severable from the remaining covenants, agreements, provisions, and terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement.
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Section 7.05. Amendments. This Agreement may only be amended, waived or otherwise modified with (1) the prior written consent of all parties hereto and the Issuer, (2) the consent of the Required Noteholders and the Administrative Agent and (3) the prior satisfaction of the Rating Agency Condition.
Section 7.06. Term. This Agreement shall continue in effect until the later of the termination of the Loan Purchase Agreement or the date on which all of the obligations of the Borrower hereunder have been paid in full.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
| ONEMAIN FINANCIAL HOLDINGS, INC., as the Lender | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | ||
| Title: Vice President & Treasurer | ||
| ONEMAIN FINANCIAL WAREHOUSE, LLC, as the Borrower | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | ||
| Title: Vice President & Assistant Treasurer | ||
[Signature Page to Revolving Credit Agreement]
Schedule I
Form of Notice of
Intention to Make an Equity Contribution
OneMain Financial Warehouse, LLC
000 Xx. Xxxx Xxxxx
XXX00
Xxxxxxxxx, XX 00000
[ ], 20[ ]
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement, dated as of February 3, 2015 (the “Credit Agreement”), by and among ONEMAIN FINANCIAL HOLDINGS, INC., as Lender and you, as Borrower.
The Lender hereby notifies the Borrower of its intention to make an equity contribution to the Borrower in the amount of U.S.$ [ ] no later than three months after the date of this notice.
The Lender hereby acknowledges that, pursuant to Section 4.02 of the Credit Agreement, upon the earlier of (i) the date on which such equity contribution is to be made and (ii) the date on which any principal payment is due and payable (whether upon demand, acceleration or otherwise), any amounts due to Lender under the Credit Agreement shall be reduced by the setting-off or recouping against any such equity contribution commitment by the Lender (whether or not matured or contingent) and any amounts so set-off or recouped shall be deemed discharged in all respects.
| Very truly yours, | ||
| ONEMAIN FINANCIAL HOLDINGS, INC., as the Lender | ||
| By: |
| |
| Name: Xxxx Xxxxxxxx | ||
| Title: Vice President & Treasurer | ||
