You have to play the “What If” game when reviewing bank partnership agreements for fintech companies. This game is a pressure-testing exercise, asking yourself as you read through program and platform agreements whether there is adequate contractual coverage if something big happens. Of course, you have to be judicious in doing so, recognizing you may not have leverage on certain points and understanding each party’s desire to negotiate the agreements full speed ahead. 

Here are some questions that you should consider as you go through the agreements: 

• What if the fintech wants to see a change made to the program after launch?
• What if the bank plans to make a material change to the program when everything is going well?
• What if a lending fintech–bank partnership arrangement gets challenged in a lawsuit or regulator action on “true lender” grounds?
• What if there is a regulator inquiry? Is the fintech’s perspective and input considered and worked into the response?
• What if the fintech wants some rights to customer data?
• What if the fintech wants to solicit customers for other products and services?
• What if the bank wants to significantly increase the required balance of the reserve or collateral account?
• What if there is an exclusivity provision that does not permit a second or backup bank?

These are all good ones, but perhaps the most important question is: What if the agreement is terminated or not renewed and the program ends? As the saying goes, “all good things must come to an end,” and the parties have to be prepared for this possibility.