Exhibit 10.1

Execution Version

TERM LOAN AGREEMENT

dated as of August 11, 2026

among

KATAPULT INTERMEDIATE HOLDINGS, LLC,

as Borrower

KATAPULT HOLDINGS, INC.,

as Holdings

THE SUBSIDIARIES OF BORROWER FROM TIME TO TIME PARTY HERETO,
as Subsidiary Guarantors,

THE LENDERS FROM TIME TO TIME PARTY HERETO,

and

BP COMMERCIAL FUNDING TRUST III, SERIES SPL-XIV,
as Administrative Agent and Documentation Agent

TABLE OF CONTENTS

Page

TERM LOAN AGREEMENT

This TERM LOAN AGREEMENT, dated as of August 11, 2026 (the “Effective Date”) (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) is among KATAPULT INTERMEDIATE HOLDINGS, LLC, a Delaware limited liability company (together with any Person from time to time party hereto as a borrower, individually and collectively as the context may require, “Borrower”); KATAPULT HOLDINGS, INC., a Delaware corporation (“Holdings”), the Subsidiary Guarantors from time to time party hereto, the Lenders from time to time party hereto, and BP COMMERCIAL FUNDING TRUST III, SERIES SPL-XIV, a statutory series of BP COMMERCIAL FUNDING TRUST III, a Delaware statutory trust, for itself and for no other series of BP COMMERCIAL FUNDING TRUST III, as the Administrative Agent and Documentation Agent.

Recitals

WHEREAS, Borrower, Holdings and Subsidiary Guarantors have requested that the Lenders make available to Borrower the extensions of credit referenced herein on the terms and conditions more specifically set forth in this Agreement; and

WHEREAS, the Lenders have agreed severally to make available to Borrower the extensions of credit referenced herein, on and subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows:

Agreement

ARTICLE 1
CERTAIN DEFINED TERMS; CERTAIN RULES OF CONSTRUCTION

SECTION 1.01.           CERTAIN DEFINED TERMS.

As used herein:

“Account Control Agreement” means, with respect to any deposit account or securities account of a Credit Party, the related account control agreement, by and among such Credit Party, the applicable depository bank or securities intermediary, as the case may be, and Administrative Agent (or agent thereof) (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time), each agreement in form and substance satisfactory to Administrative Agent, in its Administrative Discretion, which provides Administrative Agent with “control” over (within the meaning of the UCC), and a First Priority, perfected Lien on, each Deposit Account or each Securities Account of such Credit Party, as applicable, and the proceeds of Collateral and all other property and assets from time to time on deposit therein or otherwise credited thereto.

“Accounting Firm” means, as of the Closing Date, Elliott Davis, LLC, or thereafter, a firm of independent certified public accountants of recognized national standing acceptable to Administrative Agent in its Administrative Discretion.

“Acquisition” means any transaction or series of related transactions resulting, directly or indirectly, in: (a) the purchase or other acquisition by any Person of: (i) all or substantially all of the assets of another Person; or (ii) any business unit, division or line of business of another Person; (b) the purchase or other acquisition by any Person of a Controlling interest in the Equity Interests of any other Person, or otherwise causing any other Person to become a Subsidiary of such Person; or (c) a merger or consolidation, or any other combination, of any Person with another Person.

“Act” means the USA Patriot Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)).

“Administrative Agent” means, at any time, the Person acting as the administrative agent for itself and for the Lenders and other Secured Parties under each of the Term Loan Documents (which, initially, shall be BP Commercial Funding Trust III, Series SPL-XIV), and the successors and assigns of such Person.

“Administrative Agent’s Office” means Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as Administrative Agent may from time to time notify Borrower, Guarantors and each Lender in writing.

“Administrative Detail Form” means an administrative detail form in a form supplied by, or otherwise acceptable to, Administrative Agent.

“Administrative Discretion” means with respect to Administrative Agent, its Permitted Discretion acting alone and without the consent of the Required Lenders.

“Administrator” has the meaning ascribed thereto in Section 10.18.

“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

“Aggregate DDTL Commitments” means, at any time, the combined DDTL Commitments of all Lenders to make the Delayed Draw Term Loans during the DDTL Availability Period. The Aggregate DDTL Commitments as of the Closing Date is $55,000,000.00.

“Aggregate Initial Term Commitments” means, at any time, the combined Initial Term Commitments of all Lenders to make the Initial Term Loan on the Closing Date. The Aggregate Initial Term Commitments as of the Closing Date is $145,000,000.00.

“Aggregate Term Commitments” means, at any time, the combined Commitments of all Lenders to make the Term Loans on the Closing Date and from time to time thereafter during the DDTL Availability Period. The Aggregate Term Commitments as of the Closing Date is $200,000,000.00.

“Agreement” has the meaning ascribed thereto in the preamble hereto.

“Anti-Corruption Laws” means the FCPA and any other similar laws, rules and regulations of any jurisdiction applicable to any of the Credit Parties concerning or relating to bribery or corruption.

“Approved Fund” mean any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business, and that is administered or managed by a Lender, an Affiliate of a Lender, or an entity or an Affiliate of an entity that administers or manages a Lender.

“Assignment and Assumption” means an assignment and assumption agreement entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by Administrative Agent, in substantially the form of Exhibit A or any other form approved by Administrative Agent.

“Attributable Debt” means, on any date of determination: (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP; and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.

“Bankruptcy Code” means the federal Bankruptcy Reform Act of 1978 (11 U.S.C. Sections 101 et seq.).

“Bankruptcy Laws” means, collectively: (a) the Bankruptcy Code; and (b) all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

“Borrower” has the meaning ascribed thereto in the preamble hereto.

“Borrowing” a borrowing consisting of (i) the Initial Term Loan made on the Closing Date pursuant to Section 2.01(a)(i) or (ii) a Delayed Draw Term Loan made from time to time during the DDTL Availability Period pursuant to Section 2.01(b)(i).

“BP Commercial Funding Trust III, Series SPL-XIV” means BP Commercial Funding Trust III, Series SPL-XIV, a statutory series of BP Commercial Funding Trust III, a Delaware statutory trust, for itself and for no other series of BP Commercial Funding Trust III.

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, New York, New York.

“Capital Expenditures” means all expenditures (whether paid in cash or other consideration or accrued as a liability and including that portion of capital leases that is capitalized on the balance sheet of such Person including in connection with a Sale and Leaseback transaction) by such Person for the acquisition or leasing of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) that are required to be capitalized under GAAP on a balance sheet of such Person. For purposes of this definition: (a) the purchase price of equipment that is purchased simultaneously with the trade in of existing equipment owned by such Person thereof or with insurance proceeds shall be included in Capital Expenditures only to the extent of the gross amount of such purchase price minus the credit granted by the seller of such equipment for such equipment being traded in at such time, or the amount of such proceeds, as the case may be; and (b) an Acquisition complying with Section 7.02(e) shall not constitute a “Capital Expenditure”.

“Capital Lease” means, as to any Person, a lease of any interest in any kind of property or asset by that Person as lessee that is, should be or should have been recorded as a “finance lease” or a “capital lease” in accordance with GAAP.

“Cash” means cash denominated in Dollars (as determined in accordance with GAAP).

“Cash Equivalents” means, as to any Person: (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (but only so long as the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition; (b) securities issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than ninety days from the date of acquisition and having one of the two highest ratings from either Standard & Poor’s Rating Group or Moody’s Investors Service, Inc.; (c) domestic certificates of deposit, time or demand deposits or bankers’ acceptances maturing within six months after the date of acquisition issued or guaranteed by or placed with, and money market deposit accounts issued or offered by: (i) any Lender; (ii) any commercial bank other than a Lender which is organized under the laws of the United States or any state thereof or the District of Columbia having combined capital and surplus of not less than $250,000,000; and (iii) any federally insured financial institution but only up to the Federal Deposit Insurance Corporation insured deposit limit; (d) repurchase obligations with a term of not more than thirty days for underlying securities of the types described in clause (a) and (b) of this definition entered into with any bank meeting the qualifications specified in clause (c) of this definition; (e) commercial paper issued by the parent corporation of any Lender or any commercial bank (provided that the parent corporation and the bank are both incorporated in the United States) having capital and surplus in excess of $250,000,000 and commercial paper issued by any Person incorporated in the United States, which commercial paper is rated at least A-1 or the equivalent thereof by Standard & Poor’s Rating Group or at least P-1 or the equivalent thereof by Moody’s Investors Service, Inc., and in each case maturing not more than ninety days after the date of acquisition by such Person; and (f) investments in money market funds substantially all the assets of which are comprised of securities of the types described in clauses (a) through (e) of this definition.

“Cease Funding Event” means, as of any date of determination, as determined by Administrative Agent in its Administrative Discretion, any of the following events has occurred and has not been waived by Administrative Agent (provided, that Administrative Agent may, in its Administrative Discretion, provide the Borrower with thirty (30) days to cure such Cease Funding Event; provided that no Loans shall be made to Borrower during such 30-day grace period):

(a)         a Default or an Event of Default; or

(b)         a Cease Funding Material Adverse Change.

“Cease Funding Material Adverse Change” means, on any date of determination, as determined by Administrative Agent in its Administrative Discretion, any of the following events has occurred and has not been waived by Administrative Agent or cured by the applicable Credit Party to the reasonable satisfaction of Administrative Agent: any event, condition, obligation, liability or circumstance (or set of events, conditions, obligations, liabilities or circumstances), or any change(s) including, without limitation, changes in any applicable Laws, any Change in Law, or the existence of any Regulatory Action (or any changes with respect thereto), in each case, which, as determined by Administrative Agent in its Administrative Discretion,

(i)            could reasonably be expected to have a material adverse effect upon the legality, validity, binding effect or enforceability of any Term Loan Document;

(ii)           could reasonably be expected to have a material adverse effect on the value, marketability or collectability of the Collateral or the duly perfected security interest of Administrative Agent under the Term Loan Documents;

(iii)          could reasonably be expected to have a material adverse effect on the business, operations, properties, assets, liabilities or financial condition of the Credit Parties, or a material impairment of the ability of the Credit Parties to conduct their business as presently conducted, including, without limitation, any initiation, servicing, and other obligations under any of the Term Loan Documents (or any repudiation or breach thereof); or

(iv)         could reasonably be expected to materially impair the ability of a counterparty to any Term Loan Document (other than Administrative Agent or any Lender) to consummate the transactions under the Term Loan Documents.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, rule, regulation or treaty, (b) any change in any Law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority.

“Change of Control” means:

(a)         during the 24-month period following the Katapult Merger Transaction, a majority of the board of directors of Holdings ceases to be members of the board of directors that were in existence at the start of such 24-month period; or

(b)        the failure of Holdings to own, directly, beneficially and of record, free and clear of all Liens (other than Liens in favor of the Administrative Agent for the benefit of the Secured Parties), 100% of the aggregate voting power and economic interests represented by the issued and outstanding Equity Interests of Borrower (as determined on a fully diluted basis); or

(c)        the failure of Borrower to own, directly, beneficially and of record, free and clear of all Liens (other than Liens in favor of the Administrative Agent for the benefit of the Secured Parties), 100% of the aggregate voting power and economic interests represented by the issued and outstanding Equity Interests of (i) Katapult Intermediate Holdings I, (ii) Katapult Intermediate Holdings II and (iii) Katapult Intermediate Holdings III (each as determined on a fully diluted basis).

“Closing Date” means the Effective Date, subject to satisfaction (or waiver in accordance with Section 10.01) of all of the conditions precedent in Section 4.01.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” means, collectively, all property and interests in property of Borrower, Holdings and the Subsidiary Guarantors, including, without limitation, related books and records and proceeds thereof, now owned or hereafter acquired by Borrower, Holdings or any Subsidiary Guarantor in or upon which a Lien now or hereafter exists in favor of Administrative Agent, for the benefit of the Secured Parties, whether under this Agreement, the Security Agreement or any other Term Loan Document; provided, however, the Collateral shall not include any Excluded Collateral.

“Collateral Documents” means, collectively, (a) the Security Agreement, (b) each Account Control Agreement, deposit account control agreement or securities account control agreement, by and among a Credit Party, Administrative Agent and the applicable depositary bank or securities intermediary, each in form and substance satisfactory to Administrative Agent, (c) each intellectual property assignment or security agreement by a Credit Party in favor of the Administrative Agent, each in form and substance satisfactory to Administrative Agent, (d) each landlord subordination agreement, (e) each Real Estate Document and (f) all other security agreements, pledge agreements, mortgages, deeds of trust, patent, trademark and copyright assignments, lease assignments and other similar documents between Borrower or any Subsidiary thereof and Administrative Agent, for the benefit of the Secured Parties, now or hereafter delivered to Administrative Agent pursuant to or in connection with the transactions contemplated hereby.

“Controlled Account” shall mean a deposit or securities account subject to an Account Control Agreement.

“Commitment” means, as to any Lender, such Lender’s Initial Term Commitment and DDTL Commitment, collectively.

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“Competitor” means a direct competitor of Holdings, as set forth on Schedule B (as such Schedule may be amended or updated from time to time with the prior written consent of the Administrative Agent in its Administrative Discretion) or any Affiliate thereof (to the extent identified in writing to the Administrative Agent and added to Schedule B as permitted above); provided that, neither Administrative Agent nor any Affiliate of Administrative Agent may be designated as, or be deemed to be, a Competitor.

“Compliance Certificate” means a certificate substantially in the form of Exhibit B.

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Contractual Obligation” means, as to any Person, any document or other agreement or undertaking to which such Person is a party or by which it or any of its property is bound.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms “Controlling” and “Controlled” have meanings correlative thereto. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, the power to vote 5% or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent.

“Credit Parties” means, collectively, Borrower, Holdings and all Subsidiary Guarantors.

“DDA” means each checking, savings or other demand deposit account maintained by any of the Credit Parties.

“DDTL Availability Period” means the period commencing on the Closing Date through and including the DDTL Commitment Termination Date.

“DDTL Commitment” means, with respect to a Lender, such Lender’s commitment to make a Delayed Draw Term Loan hereunder. The amount of each Lender’s DDTL Commitment is set forth on Schedule 2.01 (as of the Closing Date) or in the applicable Assignment and Assumption, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The use of the term “DDTL Commitment” is a term of art that shall in no way be deemed to be a commitment by a Lender to fund any Delayed Draw Term Loan hereunder other than pursuant to the terms hereof.

“DDTL Commitment Termination Date” means the earlier to occur of (a) August 11, 2028, (b) subject to applicable cure provisions, the date on which a Cease Funding Event occurs, and (c) the date on which the full amount of the DDTL Commitment has been borrowed or otherwise terminated or reduced to zero in accordance with the terms hereof.

“DDTL Funding Date” has the meaning given to such term in Section 4.02 of this Agreement.

“DDTL Maximum Amount” means $55,000,000.00.

“DDTL Percentage Share” means, as to any Lender, the percentage set forth opposite the name of such Lender on Schedule 2.01 as its “DDTL Percentage Share”.

“Debt” means, as to any Person as of any date of determination, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all outstanding drawn letters of credit (including standby and commercial), bankers’ acceptances, and bank guaranties issued or created by or for the account of such Person; (c) the Swap Termination Value under all Swap Contracts to which such Person is a party; (d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business), including any earn-out obligations, purchase price adjustments and profit sharing arrangements arising from purchase and sale agreements; (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) the amount of Attributable Debt in respect of all Capital Leases and Synthetic Lease Obligations of such Person; (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make a payment in respect of Disqualified Equity Interests valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference (which shall include, for the avoidance of doubt, accrued and unpaid dividends); and (h) all Guarantees of such Person in respect of any of the foregoing. For all purposes hereof, the Debt of any Person shall include the Debt of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Debt is expressly made non-recourse to such Person.

“Default” means any Event of Default or any event or condition that, with the giving of notice, the passage of time, or both, would constitute an Event of Default.

“Default Rate” means, with respect to Loans and all other Obligations, a per annum rate equal to the sum of the applicable Interest Rate plus four percent (4.0%).

“Delayed Draw Term Loans” means a Delayed Draw Term Loan made to Borrower pursuant to Section 2.01(b).

“Delaware Divided LLC” shall mean any limited liability company which has been formed upon the consummation of a Delaware LLC Division.

“Delaware LLC Division” shall mean the statutory division of any limited liability company into two or more limited liability companies pursuant to Section 18-217 of the Delaware Limited Liability Company Act or a comparable provision of any other requirement of Law.

“Deposit Account” means, both individually and collectively, any and all bank or other deposit accounts of the Credit Parties, a list of which is set forth on Schedule 1.03, as the same is amended or modified from time to time in accordance with the terms of the Security Agreement.

“Discharge of Secured Obligations” means (a) the payment and performance in full of the Outstanding Legal Balance of all Loans and all other Obligations (other than unasserted contingent payment obligations which by their terms are expressly stated to survive termination of this Agreement), (b) the Commitments have been terminated and (c) there exists no Specified Claims; provided, however, that, if a Specified Claim exists and a Transaction Termination Collateral Package Event has occurred in respect of such Specified Claim in accordance with Section 10.05(b), then such Specified Claim shall not preclude the Discharge of Secured Obligations from occurring.

“Disbursement Account” means a DDA (other than an Excluded Account) that is used exclusively as an operating or disbursement account, and does not receive collections, deposits or other payments on or with respect to any Collateral.

“Disposition” means the sale, assignment transfer, conveyance, license, lease or other disposition (including any Sale and Leaseback Transaction) of any property by any Person, including any sale, assignment, transfer, conveyance or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith. The term “Dispose” has a meaning correlative thereto.

“Disqualified Equity Interest” means any Equity Interest of any Person that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, or requires or mandates payments or distributions in cash, on or prior to the date that is one year after the Maturity Date. The term “Disqualified Equity Interest” shall also include any options, warrants or other rights that are convertible into Disqualified Equity Interest or that are redeemable at the option of the holder, or required to be redeemed, prior to the date that is one (1) year after the later of the Maturity Date.

“Dollar” and “$” mean lawful money of the United States.

“Domestic Subsidiary” of any Person means any Subsidiary of such Person formed, incorporated or organized under the Laws of the United States, any state thereof or the District of Columbia.

“DQ Lender” means any Person that is (i) designated by the Borrower, by written notice delivered to the Administrative Agent on or prior to the Closing Date and as set forth on Schedule B, as a (x) “DQ Lender” or (y) “Competitor”, or (ii) either identified in writing, or clearly identifiable solely on the basis of such Person’s name, as an Affiliate of any Person referred to in clauses (i)(x) or (i)(y) above; provided, however, DQ Lender shall (A) exclude any Person that the Borrower has designated as no longer being a DQ Lenders by written notice delivered to the Administrative Agent from time to time, (B) exclude Administrative Agent and each of its Affiliates and (C) include any Person that is added as a Competitor, pursuant to a written supplement to the list of Competitors that are DQ Lenders, that is delivered by the Borrower after the Closing Date to the Administrative Agent and approved by Administrative Agent in its Administrative Discretion; provided, that no such supplement shall be effective retroactively.

“Electronic Platform” means an electronic system for the delivery of information (including documents), such as SyndTrak or Dropbox or secure FTP site that may or may not be provided or administered by Administrative Agent or an Affiliate thereof.

“Eligible Assignee” means (a) a Lender; (b) Affiliate of a Lender; (c) Approved Fund; (d) any Person (other than a DQ Lender or Competitor) approved by Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower (which approval of Borrower shall not be unreasonably withheld or delayed, and shall be deemed given if no objection is made within ten (10) days after notice of the proposed assignment; provided, however, if the sole basis on which Borrower withholds its approval is because such Person is a DQ Lender or Competitor, then Borrower’s withholding of such approval shall be deemed reasonable); or (e) if a Default or Event of Default has occurred and is continuing, any Person acceptable to Administrative Agent in its Administrative Discretion.

“Enforcement Action” means any action to enforce any Obligations or Term Loan Documents or to realize upon any Collateral (whether by judicial action, self-help, notification of account debtors, exercise of setoff or recoupment, or otherwise).

“Enforcement Costs” means all reasonable amounts owing to Administrative Agent and/or any Lender pursuant to Section 10.04(a) or 10.04(b) when due (including any such amounts that were previously due but unpaid).

“Environmental Claims” means all claims, however asserted, by any Governmental Authority or other Person alleging Environmental Liabilities.

“Environmental Indemnity” means each environmental indemnity made by each Credit Party with respect to Real Estate required to be pledged as Collateral in favor of the Administrative Agent for the benefit of the holders of the Obligations, in each case in form and substance reasonably satisfactory to the Administrative Agent.

“Environmental Laws” means any and all Federal, state, local, and foreign statutes, Laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution, the protection of the environment or the release of any materials into the environment, including those related to Hazardous Materials or wastes, air emissions and discharges to waste or public systems.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of Borrower, any other Credit Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon: (a) violation of any Environmental Law; (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials; (c) exposure to any Hazardous Materials; (d) the release or threatened release of any Hazardous Materials into the environment; or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or partnership interests, membership interests, limited liability company interests, trust interests or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or partnership interests, membership interests, limited liability company interests, trust interests or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or partnership interests, membership interests, limited liability company interests, trust interests or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership interests, membership interests, limited liability company interests or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with Holdings, Borrower or any Subsidiary thereof within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ERISA Event” means any of the following: (a) a Reportable Event with respect to a Pension Plan; (b) the incurrence by Borrower or an ERISA Affiliate of any liability with respect to a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) the incurrence by Borrower or any ERISA Affiliate of any liability with respect to a complete or partial withdrawal (as described in Sections 4203 and 4205 of ERISA respectively) by Borrower or any ERISA Affiliate from a Multiemployer Plan or the receipt by Borrower or an ERISA Affiliate of notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan if the plan assets are not sufficient to pay all plan liabilities; (e) an event or condition that constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate; or (g) the determination that a Pension Plan is in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA) or that a Multiemployer Plan is in critical or endangered status (within the meaning of Section 432 of the Code or Section 305 of ERISA).

“Event of Default” has the meaning ascribed thereto in Section 8.01.

“Exchange Act” means the Securities Exchange Act of 1934.

“Excluded Account” means (a) any DDA that is a “zero balance” account (solely to the extent such “zero balance” accounts are at all times subject to daily standing wire instructions to sweep funds maintained in such accounts to a Controlled Account subject to a Controlled Account Agreement), and (b) any DDA that is solely used for (and the balance of which consists solely of funds set aside in connection with) payroll, trust or fiduciary, tax withholding or employee benefits, in each case, in the ordinary course of business.

“Excluded Collateral” has the meaning set forth in the Security Agreement.

“Excluded Subsidiaries” means (i) any Specified Subsidiary and (ii) any Immaterial Foreign Subsidiary. Any Subsidiary of an Excluded Subsidiary shall also be deemed to be an Excluded Subsidiary, subject to, in the case of Immaterial Foreign Subsidiaries, satisfaction of the requirements in the definition thereof.

“Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Credit Party of, or the grant by such Credit Party of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Credit Party’s failure for any reason not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time the Guarantee of such Credit Party, or grant by such Credit Party of a Lien, becomes effective with respect to such related Swap Obligation.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of a Credit Party hereunder or required to be withheld or deducted from a payment to Administrative Agent, any Lender or any such other recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of any such recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) any U.S. federal withholding Taxes that is imposed on amounts payable to or for the account of any such recipient pursuant to a law in effect at the time such recipient (i) becomes a party hereto (other than in the case of an assignee pursuant to a request by Borrower under Section 3.04) or (ii) designates a new lending office, except in each case to the extent that such recipient (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the applicable Credit Party with respect to such withholding tax pursuant to Section 3.01(a), (c) any withholding Taxes attributable to any such recipient’s failure to comply with documentation requirements under Section 3.01(f), and (d) any withholding Taxes imposed under FATCA.

“Existing Guaranteed Obligations” has the meaning ascribed thereto in Section 10.14(j).

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

“FCPA” means the United States Foreign Corrupt Practices Act of 1977, as amended.

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that: (a) if such day is not a Business Day, then the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day; and (b) if no such rate is so published on such next succeeding Business Day, then the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of one one-hundredth of 1.00%) quoted to Administrative Agent for such day for such transactions from three federal funds brokers of recognized standing selected by Administrative Agent.

“Federal Regulatory Event” means the enactment, adoption or issuance of any law, rule or regulation by the United States federal government, the effect of which would, in Administrative Agent’s Permitted Discretion, materially and adversely affect Borrower’s ability to timely repay all or any part of the Obligations; provided, that if the effective date of any such enactment, adoption or issuance is greater than thirty (30) days from the date of any such enactment, adoption or issuance, then Administrative Agent shall consider in good faith any such delay in effectiveness in making its determination.

“First Priority” means, with respect to any Lien on the Collateral in favor of the Administrative Agent, on behalf of the Secured Parties, which secures the Obligations, that such Lien is senior to any other Liens on such Collateral (except for and subject to Permitted Liens).

“Fiscal Quarter” means, as of any date of determination with respect to Holdings or any Subsidiary thereof, a fiscal quarter of any Fiscal Year.

“Fiscal Year” means the fiscal year of Holdings or any Subsidiary thereof ending on December 31 of each calendar year.

“Flood Hazard Property” shall mean Real Estate located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.

“Flood Insurance Laws” shall mean, collectively, (i) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973), as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004, as now or hereafter in effect or any successor statute thereto and (iii) the Biggert –Waters Flood Insurance Reform Act of 2012, as now or hereafter in effect or any successor statute thereto.

“Foreign Lender” means a Lender that is not a “United States person” under Section 7701(a)(30) of the Code.

“Foreign Pension Plan” means any benefit plan to which Borrower or any of its Subsidiaries may have liability which under applicable Law (other than U.S. federal, state or local law) is required to be funded through a trust or other funding vehicle other than a trust or funding vehicle maintained exclusively by a Governmental Authority.

“Foreign Subsidiary” of any Person means any Subsidiary of such Person that is not a Domestic Subsidiary.

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

“GAAP” means generally accepted accounting principles, applied on a consistent basis, as described in Opinions of the Accounting Principles Board of the American Institute of Certified Public Accountants and/or in statements of the Financial Accounting Standards Board which are applicable under the circumstances as of the date in question; provided that, when used in reference to the Borrower’s Financial Statements, “GAAP” shall be deemed not to include the rules requiring Borrower’s Financial Statements to be consolidated with its Affiliates.

“Governmental Authority” means any federal, state, municipal, national, local or other governmental department, court, commission, board, bureau, agency, regulatory body, authority or instrumentality or political subdivision thereof, including without limitation, any attorney general or agency related thereto, the Consumer Financial Protection Bureau, or any entity or officer exercising executive, legislative or judicial, taxing, regulatory or administrative functions of or pertaining to any government or any court, in each case, whether of the United States or a state, territory or possession thereof, a foreign sovereign entity or country or jurisdiction or the District of Columbia, in each case, which has legal authority over the Credit Parties.

“Group Parties” means, collectively, (a) Holdings, (b) Borrower and (c) each Subsidiary of Borrower.

“Guarantee” means, as to any Person, any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Debt or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect: (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation; (b) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Debt or other obligation of the payment or performance of such Debt or other obligation; (c) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Debt or other obligation; or (d) entered into for the purpose of assuring in any other manner the obligee in respect of such Debt or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

“Guaranteed Obligations” has the meaning ascribed thereto in Section 10.14(a).

“Guarantors” means, collectively: (a) each Subsidiary Guarantor (including each Subsidiary of Borrower who executes a Joinder Agreement following the date hereof); (b) Holdings; and (c) each other Person who, following the date hereof, is required pursuant to the terms hereof to be a guarantor of the Obligations and executes and delivers to Administrative Agent a Guaranty.

“Guaranty” means any guaranty, in form and substance acceptable to the Required Lenders, made by a Guarantor in favor of Administrative Agent and each Lender.

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

“Holdings” has the meaning set forth in the preamble.

“Immaterial Foreign Subsidiary” means any Foreign Subsidiary of Holdings that, as of the most recent Fiscal Quarter end for which financial statements have been delivered, on a consolidated basis with each of its direct and indirect Subsidiaries (a) does not have assets with a value in excess of five percent (5%) of the total assets of Holdings and its Subsidiaries (excluding Specified Subsidiaries) on a consolidated basis and (b) does not generate more than ten percent (10%) of the Consolidated Adjusted EBITDA of Holdings and its Subsidiaries (excluding Specified Subsidiaries) on a consolidated basis, in each case for the most recently completed four Fiscal Quarter period; provided that the value of the assets of all Immaterial Foreign Subsidiaries in the aggregate shall not exceed ten percent (10%) of the total assets of Holdings and its Subsidiaries (excluding Specified Subsidiaries) on a consolidated basis and that all Immaterial Foreign Subsidiaries collectively (in the aggregate) shall not generate more than ten percent (10%) of the Consolidated Adjusted EBITDA of Holdings and its Subsidiaries (excluding Specified Subsidiaries) on a consolidated basis. As of the Closing Date, each Immaterial Foreign Subsidiary is identified on Schedule 1.05.

“Indemnified Taxes” means (a) Taxes other than Excluded Taxes imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Term Loan Documents, and (b) to the extent not otherwise described in clause (a), Other Taxes.

“Indemnitees” means, collectively, Administrative Agent (and any sub-agent thereof), each Lender and each Related Party of any of the foregoing Persons.

“Initial Guarantor” has the meaning ascribed thereto in Section 10.14(a).

“Initial Guarantor Subordinated Debt” has the meaning ascribed thereto in Section 10.14(i).

“Initial Guarantor Subordinated Debt Payments” has the meaning ascribed thereto in Section 10.14(i).

“Initial Term Commitment” means, with respect to a Lender, such Lender’s commitment to make the Initial Term Loan hereunder. The amount of each Lender’s Initial Term Commitment is set forth on Schedule 2.01 (as of the Closing Date) or in the applicable Assignment and Assumption, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The use of the term “Initial Term Commitment” is a term of art that shall in no way be deemed to be a commitment by a Lender to fund the Initial Term Loan hereunder other than pursuant to the terms hereof.

“Initial Term Loan” means an Initial Term Loan made to Borrower pursuant to Section 2.01(a).

“Initial Term Loan Percentage Share” means, as to any Lender, the percentage set forth opposite the name of such Lender on Schedule 2.01 as its “Initial Term Loan Percentage Share”.

“Interest Rate” means, with respect to each Term Loan, a rate per annum equal to twenty percent (20.0%). The Interest Rate shall be calculated based on a three-hundred sixty (360) day year and charged for the actual number of days elapsed.

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person in another Person, whether by means of: (a) the purchase or other acquisition of Equity Interests or other securities of another Person; (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or limited liability company interest in such other Person and any arrangement pursuant to which the investor Guarantees the Debt of such other Person; or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

“IRS” means the United States Internal Revenue Service.

“Joinder Agreement” means an agreement entered into by a Subsidiary of Borrower following the date hereof, in substantially the form of Exhibit C or any other form approved by the Required Lenders.

“Katapult Business Plan” has the meaning ascribed thereto in Section 6.01(c).

“Katapult Intermediate Holdings I” means Katapult Intermediate Holdings I, LLC, a Delaware limited liability company.

“Katapult Intermediate Holdings II” means Katapult Intermediate Holdings II, LLC, a Delaware limited liability company.

“Katapult Intermediate Holdings III” means Katapult Intermediate Holdings III, LLC, a Delaware limited liability company.

“Katapult Merger Agreement” means that certain Agreement and Plan of Merger by and among Holdings, Katapult Merger Sub 1, Inc., Katapult Merger Sub 2, LLC, CCF Holdings LLC and Aaron’s Intermediate Holdco, Inc., dated as of October 17, 2025, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“Katapult Merger Transaction” means the consummation of and the satisfaction of all conditions precedent to the merger of newly formed Subsidiaries of Holdings to be formed in connection with such merger with and into each of (a) CCF Holdings LLC and (b) Aaron’s Intermediate Holdco, Inc., and any related restructuring transactions as described in the Katapult Merger Agreement.

“Katapult Subsidiaries” means the Subsidiaries of the Borrower listed on Schedule A.

“Laws” means any and all federal, state and local statutes, ordinances, treaties, rules, regulations, codes, orders, judgments and other legal requirements of any Governmental Authority to which the Loans, the Term Loan Documents, Borrower, any other Credit Party, or all or any portion of the Collateral is or becomes subject from time to time.

“Lender” means a Lender of an Initial Term Loan or Delayed Draw Term Loan, as the context may require.

“Lenders” means, collectively, (a) each Person listed on Schedule 2.01 as a “Lender” (whether in its capacity as Lender of an Initial Term Loan or Delayed Draw Term Loan) and (b) any other Person that shall have become a Lender hereunder pursuant to an Assignment and Assumption or otherwise, in each case, with respect to clauses (a) and (b) above, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption or otherwise.

“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Detail Form, or such other office or offices as a Lender may from time to time notify Borrower, Administrative Agent and Lenders.

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any easement, right of way or other encumbrance on title to real property).

“Loan” means, collectively, the Initial Term Loan and the Delayed Draw Term Loans or any portion thereof.

“Magnetar Entities” means, Magnetar Financial LLC and any of its Affiliates, and shall include, without limitation, any funds and accounts that are managed, advised, sub-advised or administered by Magnetar Financial LLC or any of its affiliates.

“Make-Whole Amount” means, as of the applicable date, an amount equal to the amount of interest that would have been paid under this Agreement on the principal amount of the Loan being repaid or prepaid for the period from the date of prepayment, repayment or acceleration of such Term Loan through the date that is eighteen (18) months after the Closing Date (in each case, calculated on the basis of the interest rate with respect to the Term Loan that is in effect on the date of such repayment or prepayment and on the basis of a three hundred sixty (360) day year).

“Material Adverse Effect” means, as of any date of determination, the occurrence of: any event, condition, obligation, liability or circumstance (or set of events, conditions, obligations, liabilities or circumstances), or any change(s) including, without limitation, changes in any applicable Laws, the existence of any Regulatory Action (or any changes with respect thereto) or the existence of any Federal Regulatory Event (or changes with respect thereto) in each case which, as determined by Administrative Agent, in its Permitted Discretion, has a material adverse effect upon (i) the legality, validity, binding effect or enforceability of any Term Loan Document; (ii) the value, marketability or collectability of a material portion of the Collateral, the Credit Parties’ respective interest therein or the duly perfected First Priority security interest of Administrative Agent therein; or (iii) the business, operations, properties, assets, liabilities or financial condition of (x) the Borrower or (y) the other Credit Parties, taken as a whole, or a material impairment of the ability of any Credit Party to conduct its business as presently conducted in compliance with any applicable Laws, including, without limitation, obligations under any of the Term Loan Documents (or any repudiation or breach thereof) or (iv) the ability of a counterparty to any Term Loan Document (other than Administrative Agent or any Lender) to consummate the transactions under the Term Loan Documents.

“Material Intellectual Property” means any intellectual property that is material to the business of the Borrower and its Restricted Subsidiaries, taken as a whole (in the reasonable determination of the Borrower in good faith).

“Maturity Date” means the earlier of: (i) the date that is three (3) years after the Closing Date and (ii) the date of the acceleration of the Outstanding Legal Balance and all other Obligations pursuant to Section 8.02(a) following the occurrence of an Event of Default.

“Maximum Rate” means, at any time, the maximum rate of interest permitted by applicable Law.

“Mortgages” means, collectively, each mortgage, deed of trust, trust deed, security deed, debenture, deed of immovable hypothec, deed to secure debt or other real estate security documents delivered by any Credit Party to the Administrative Agent from time to time, all in form and substance reasonably satisfactory to the Administrative Agent, as the same may be amended, amended and restated, extended, supplemented, substituted or otherwise modified from time to time.

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

“Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by Holdings or any Restricted Subsidiary in respect of any (i) sale or Disposition by Holdings or any of its Restricted Subsidiaries of any of its assets, (ii) any casualty insurance policies or eminent domain, condemnation or similar proceedings or (iii) any issuance of Debt not permitted under Section 7.03, in each case net of direct costs incurred in connection therewith (including legal, accounting and investment banking fees, and sales commissions), taxes paid or payable (other than Tax Distributions) as a result thereof and, in the case of any sale or disposition or casualty, eminent domain, condemnation or similar proceeding, (A) the amount necessary to retire any Debt secured by a Lien permitted under this Agreement (ranking senior to any Lien of the Administrative Agent) on the related property, (B) amounts reasonably and in good faith reserved, if any, for (1) pension and other post-employment benefit liabilities, (2) workers compensation liabilities, (3) liabilities associated with retiree benefits and (4) liabilities relating to environmental matters and (C) until no longer reserved, any reserves for indemnification liabilities, the amount of which are reasonably ascertainable on or prior to the consummation of such sale; it being understood that “Net Cash Proceeds” shall include any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received by Holdings or any Restricted Subsidiary in connection with any sale or disposition by Holdings or any of its Restricted Subsidiaries of any of its assets, any casualty insurance policies or eminent domain, condemnation or similar proceedings or any issuance of Debt not permitted under Section 7.03.

“Non-Consenting Lender” means any Lender that does not approve any amendment, modification, waiver or consent with respect to provisions of any Term Loan Document that (a) requires the approval of all Lenders or all affected Lenders, as the case may be, in accordance with the terms of Section 10.01 and (b) has been approved by at least the Required Lenders or by all other affected Lenders, as the case may be.

“Note” or “Notes” means, individually or collectively as the context may require, a promissory note executed by Borrower, as applicable in favor of a Lender, in the form of Exhibit E, in each case, to the extent requested by the applicable Lender pursuant to Section 2.09(a) and as the same may be amended, divided, split, supplemented and/or restated from time to time.

“Obligations” means all advances, debts, liabilities, obligations, covenants and duties of any Credit Party to any Secured Party under or in respect of any Term Loan Document, whether with respect to any Loan or otherwise, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any Bankruptcy Law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided, however, that, Obligations shall not include any Excluded Swap Obligations.

“Organizational Documents” means: (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non U.S. jurisdiction) of such Person; (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement of such Person; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization of such Person and any agreement, instrument, filing or notice with respect thereto filed in connection with such Person’s formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such Person.

“Other Connection Taxes” means, with respect to Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of a Credit Party hereunder, Taxes imposed as a result of a present or former connection between Administrative Agent, any Lender or such other recipient of any payment to be made by or on account of any obligation of a Credit Party hereunder and the jurisdiction imposing such Tax (other than connections arising from any such recipient and having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Term Loan Document, or sold or assigned an interest in any Loan or Term Loan Document).

“Other Taxes” means all present or future stamp, intangible or documentary Taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Term Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Term Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.04).

“Outstanding Legal Balance” means, with respect to any or all Loans, the sum of (a) the aggregate outstanding principal amount of such Loans plus all accrued and unpaid interest thereon (including any PIK Interest), compounded, in the case of PIK Interest, on a weekly basis as of the last day immediately preceding Remittance Date, plus (b) all unpaid and due fees (including Prepayment Fees) and other Obligations of the Credit Parties allocable to such Loans as determined by Administrative Agent in its Administrative Discretion.

“Participant” any Person who by separate written agreement with a Lender is expressly provided with all of the rights of a “Participant” as provided herein (and shall not include the holder of a silent sub-participation).

“Participant Register” has the meaning ascribed thereto in Section 10.06(d).

“PBGC” means the Pension Benefit Guaranty Corporation.

“Pension Plan” means any “employee pension benefit plan” (as that term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by Borrower or any ERISA Affiliate or to which Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.

“Percentage Share” means, as to any Lender, its Initial Term Loan Percentage Share and DDTL Percentage Share, collectively.

“Permitted Acquisition” means any Acquisition (whether foreign (provided that (i) such Acquisition is made by a Specified Subsidiary and (ii) the relevant jurisdiction is acceptable to the Administrative Agent in its sole discretion) or domestic) so long as (i) (a) immediately before and after giving effect to such Acquisition, (x) other than in the case of an Acquisition by a Specified Subsidiary, no Cease Funding Event is in existence or would result therefrom (including on a pro forma basis) and (y) no Event of Default is in existence or would result therefrom (including on a pro forma basis), (b) such Acquisition has been approved by the board of directors of the Person being acquired prior to any public announcement thereof, (c) other than in the case of an Acquisition by a Specified Subsidiary, such Acquisition is made with the proceeds from the issuance of Equity Interests or the proceeds from the issuance of Debt (which for the avoidance of doubt shall not include debt assumed (directly or indirectly) in connection with such Acquisition) to the extent permitted hereunder and/or proceeds which are permitted to be reinvested under Section 2.03(b)(ii) and the total consideration for all Acquisitions following the Closing Date shall not exceed $10,000,000 in the aggregate, (d) immediately before and after giving effect to such Acquisition, the Borrower is in compliance with the financial covenants set forth in Section 7.16 on a pro forma basis (calculated as of the first day of most recently reported Fiscal Quarter and recomputed as of the first day of such Fiscal Quarter consistent with the requirements of Section 1.02(h)), (e) immediately after giving effect to such Acquisition, the Borrower and its Subsidiaries will not be engaged in any business other than substantially the same business as presently conducted or such other businesses that are reasonably related or ancillary thereto, (f) the Credit Parties shall have furnished the Administrative Agent with (i) ten (10) days’ prior written notice of such intended Acquisition and a current draft of the acquisition documents (and final copies thereof as and when executed), and (ii) to the extent the consideration payable for such Acquisition exceeds $5,000,000, appropriate financial statements (to the extent available) of the Person which is the subject of such Acquisition, and pro forma projected financial statements for the twelve (12) month period following such Acquisition after giving effect to such Acquisition (including balance sheets, cash flows and income statements by month for the acquired Person, individually, and on a consolidated basis with the Borrower and its Subsidiaries), in form and containing such level of detail as is reasonably satisfactory to the Administrative Agent, together with such other information related to such Acquisition as the Administrative Agent may reasonably request, (g) other than in the case of an Acquisition by a Specified Subsidiary, after giving effect to the Acquisition, if the Acquisition is an Acquisition of Equity Interests, a Credit Party shall acquire and own, directly or indirectly, 100% of the Equity Interests in the Person being acquired and shall Control a majority of any voting interests or shall otherwise Control the governance of the Person being acquired, (h) in the case of any Acquisition by a Specified Subsidiary, if the Acquisition is an Acquisition of Equity Interests, a Specified Subsidiary shall acquire and own, directly or indirectly, 100% of the Equity Interests in the Person being acquired and shall Control a majority of any voting interests or shall otherwise Control the governance of the Person being acquired, and (h) any assets acquired shall be utilized in, and if the Acquisition involves a merger, consolidation or Acquisition of Equity Interests, the Person which is the subject of such Acquisition shall be engaged in the same line of business conducted by the Borrower and its Subsidiaries on the Closing Date or any Related Business or (ii) such Acquisition has been approved by the Administrative Agent acting at the direction of the Required Lenders.

“Permitted Discretion” means the determination by Administrative Agent, a Lender or the Required Lenders, as applicable, in their reasonable discretion (reasonable as determined in good faith from the perspective of a prudent secured term loan lender with outstanding commitments under similar circumstances).

“Permitted Katapult Debt Agreement” means any bonds, debentures, notes, loan agreements or other similar instruments to which one or more Specified Subsidiaries are a party in each case, (i) to the extent the Debt in relation thereto is incurred in compliance with Section 7.16(b) on a pro forma basis after giving effect to the incurrence of such Debt, (ii) with respect to any Permitted Katapult Debt Agreement entered into after the Closing Date, no Event of Default exists at the time of entry thereto and (iii) no Group Parties (other than Specified Subsidiaries) are a party thereto, with the exception of the Borrower’s unsecured guarantee of indebtedness issued pursuant to that certain Term Loan Agreement, dated as of August 11, 2025, by and among Katapult Midco, LLC, a Delaware limited liability company, the financial institutions party thereto as lenders, and HHCF Series 21 Sub, LLC, as administrative agent, so long as such indebtedness is in an aggregate principal amount not to exceed $80,000,000 and subject to a subordination agreement in form and substance reasonably satisfactory to the Required Lenders.

“Permitted Liens” has the meaning ascribed thereto in Section 7.01.

“Permitted Refinancing” means, with respect to any Person, any Debt issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (collectively, to “Refinance”), the Debt being Refinanced (or previous refinancings thereof constituting a Permitted Refinancing); provided, that (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing does not exceed the principal amount (or accreted value, if applicable) of the Debt so Refinanced (plus unpaid accrued interest and premiums thereon and underwriting discounts, defeasance costs, fees, commissions and expenses), (b) the weighted average life to maturity of such Permitted Refinancing is greater than or equal to the weighted average life to maturity of the Debt being Refinanced, (c) such Permitted Refinancing shall not require any scheduled principal payments due prior to the Maturity Date, (d) if the Debt being Refinanced is subordinated in right of payment to the Obligations under this Agreement, such Permitted Refinancing shall be subordinated in right of payment to such Obligations on terms at least as favorable to the Credit Parties as those contained in the documentation governing the Debt being Refinanced, (e) no Permitted Refinancing shall have direct or indirect obligors who were not also obligors of the Debt being Refinanced, or greater guarantees or security, than the Debt being Refinanced, (f) such Permitted Refinancing shall either be unsecured or secured by liens having the same priority, and subject to any applicable subordination terms, as existing liens securing the Debt being Refinanced, (g) such Permitted Refinancing shall be otherwise on terms not materially less favorable to the Credit Parties than those contained in the documentation governing the Debt being Refinanced, including, without limitation, with respect to financial and other covenants and events of default, (h) the interest rate applicable to any such Permitted Refinancing shall not exceed the then applicable market interest rate, and (i) at the time thereof, no Default or Event of Default shall have occurred and be continuing.

“Permitted Subordinated Debt” means any subordinated Debt of Borrower that has been subordinated to the Obligations on terms and conditions (including a stated maturity date beyond the Maturity Date), and pursuant to documents, satisfactory to Administrative Agent in its Administrative Discretion.

“Permitted Subordination Agreements” means any subordination or intercreditor agreement entered into in connection with any Permitted Subordinated Debt, in form and substance reasonably acceptable to the Administrative Agent in its Administrative Discretion.

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company or partnership.

“PIK Interest” means the payment-in-kind of interest in respect of the Term Loans accruing by increasing the outstanding principal amount of the Term Loans in accordance with Section 2.05(a).

“PIK Interest Rate” means, with respect to any Loan, a rate per annum equal to five percent (5.0%).

“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established, maintained or contributed to by Borrower or any ERISA Affiliate.

“Plan Asset Regulation” means 29 C.F.R. §2510.3-101, et seq., as modified by Section 3(42) of ERISA.

“Prime Rate” means the rate of interest per annum last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Any change in the Prime Rate shall take effect at the opening of business on the day such change is publicly announced or quoted as being effective.

“Prepayment Fee” means a fee payable to Administrative Agent for the account of the related Lenders upon the occurrence of a Prepayment Fee Trigger Event, in an amount equal to, (x) before February 11, 2028, (i) the Make-Whole Amount plus (ii) an amount equal to (1) the aggregate principal amount of the applicable Loan being repaid or prepaid multiplied by (2) three percent (3%) and (y) on or after February 11, 2028 but prior to February 11, 2029, an amount equal to (i) the aggregate principal amount of the applicable Loan being repaid or prepaid multiplied by (ii) three percent (3%).

“Prepayment Fee Trigger Event” means any repayment or prepayment in whole or in part or acceleration of the Initial Term Loan or any Delayed Draw Term Loan for any reason and at any time on or after the Closing Date but prior to February 11, 2029, including, without limitation, whether such repayment, prepayment or acceleration is (i) voluntary or mandatory, (ii) made when an Event of Default is then outstanding, (iii) made in connection with the sale of Collateral during any Event of Default or foreclosure upon the Collateral, (iv) the result of, upon or subsequent to the acceleration of any such Loan for any reason at any time, including, without limitation, as a result of the occurrence of any Event of Default and, in the case of a proceeding under any Bankruptcy Laws, whether or not a claim for the Prepayment Fee is allowed in such proceeding, (v) made pursuant to, or as the consequence of, any regulatory or judicial enforcement or other actions from any Governmental Authority,(vi) made pursuant to, or as the consequence of, any proceeding under any Bankruptcy Laws with respect to any Credit Party, any of their Subsidiaries or any other Person, whether or not a claim for the Prepayment Fee is allowed in such proceeding or (vii) made pursuant to, or as a consequence of, the removal or repayment of any Non-Consenting Lender pursuant to Section 3.04(a); provided, that any prepayment of the Term Loans (prior to acceleration thereof) as a result of mandatory prepayments under Section 2.03(b)(ii) or Section 2.03(b)(iv), in each case, with respect to transactions that are not prohibited hereunder shall not constitute a Prepayment Fee Trigger Event.

“Protective Advance” means any payment or advance made by Administrative Agent pursuant to Section 3.1(b)(ii) of the Security Agreement.

“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

“Public Company Costs” means, as to any Person, (a) costs associated with, or in anticipation of, or preparation for, compliance with the requirements of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, (b) costs relating to compliance with the provisions of the Securities Act and the Exchange Act or any other comparable body of laws, rules or regulations, as companies with listed equity and (c) directors’ compensation, fees and expense reimbursement, costs relating to investor relations, shareholder meetings and reports to shareholders, directors’ and officers’ insurance and other executive costs, legal and other professional fees, and listing fees, in each case to the extent arising by virtue of the listing of such Person’s or its direct or indirect parent’s equity securities on a national securities exchange.

“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Credit Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

“Real Estate” means all Real Estate Leases and all land, together with the buildings, structures, parking areas, and other improvements thereon, now or hereafter owned by any Credit Party, including all easements, rights-of-way, and similar rights relating thereto and all leases, tenancies, and occupancies thereof.

“Real Estate Documents” means, collectively, Mortgages covering all Real Estate, duly executed by each applicable Credit Party, together with (A) title insurance policies, current as-built ALTA/ACSM Land Title surveys certified to the Administrative Agent (or, if sufficient such that no survey exception appears on any such title insurance policies, existing surveys together with customary “no change” affidavits), zoning letters, building permits and certificates of occupancy, in each case relating to such Real Estate and reasonably satisfactory in form and substance to the Administrative Agent, (B) (x) “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard determinations, (y) notices, in the form required under the Flood Insurance Laws, about special flood hazard area status and flood disaster assistance duly executed by each Credit Party and (z) if any improved real property encumbered by any Mortgage is located in a special flood hazard area, a policy of flood insurance in minimum amounts required by applicable law and that is on terms reasonably satisfactory to the Administrative Agent, (C) evidence that counterparts of such Mortgages have been recorded in all places to the extent necessary or desirable, in the reasonable judgment of the Administrative Agent, to create a valid and enforceable first priority Lien (subject to Permitted Liens) on such Real Estate in favor of the Administrative Agent for the benefit of the holders of the Obligations (or in favor of such other trustee as may be required or desired under local law), (D) if requested by the Administrative Agent, an opinion of counsel in each state in which such Real Estate is located in form and substance and from counsel reasonably satisfactory to the Administrative Agent, (E) a duly executed Environmental Indemnity with respect thereto, (F) Phase I Environmental Site Assessment Reports, consistent with American Society of Testing and Materials (ASTM) Standard E 1527-05, and applicable state requirements, on all of the owned Real Estate, dated no more than six (6) months prior to the date of the applicable Mortgage or later if accompanied by no change affidavits, prepared by environmental engineers satisfactory to the Administrative Agent, all in form and substance satisfactory to the Administrative Agent, and such environmental review and audit reports, including Phase II reports, with respect to the Real Estate of any Credit Party as the Administrative Agent shall have reasonably requested, in each case together with letters executed by the environmental firms preparing such environmental reports, in form and substance reasonably satisfactory to the Administrative Agent, authorizing the Administrative Agent and the Lenders to rely on such reports, and the Administrative Agent shall be reasonably satisfied with the contents of all such environmental reports and (G) such other reports, documents, instruments and agreements as the Administrative Agent shall reasonably request, each in form and substance reasonably satisfactory to Administrative Agent.

“Real Estate Lease” means any agreement, whether written or oral, no matter how styled or structured, pursuant to which a Credit Party is entitled to the use or occupancy of any space in a structure, land, improvements or premises for any period of time.

“Register” means a register for the recordation of the names and addresses of each Lender and, as applicable, the Commitments of, and Outstanding Legal Balance of the Loans owing to, each Lender pursuant to the terms hereof from time to time.

“Regulatory Action” means (a) the formal commencement by written notice by any Governmental Authority of any legal action or adversarial proceeding against any Credit Party, any Subsidiary of any Credit Party, or any of their respective Related Parties (other than Affiliates of such Person and of such Person’s Affiliates) alleging any material non-compliance by any Credit Party, any Subsidiary of any Credit Party, or any such Related Party (other than Affiliates of such Person and of such Person’s Affiliates) with any Laws, which legal action or adversarial proceeding is not released or terminated in a manner acceptable to Required Lenders in their Permitted Discretion; (b) the issuance or entering of any stay, order, judgment, cease and desist order, injunction, temporary restraining order, or other judicial or non-judicial sanction (other than the imposition of a monetary fine), order or ruling against any Credit Party, any Subsidiary of any Credit Party, or any such Related Party (other than Affiliates of such Person and of such Person’s Affiliates); provided, that, in each case, upon the favorable resolution of any legal action or adversarial proceeding as determined by Administrative Agent in its Administrative Discretion, such Regulatory Action shall cease to exist immediately upon such determination by Administrative Agent; or (c) a Federal Regulatory Event. No Routine Inquiry shall, on its own, constitute a Regulatory Action.

“Related Business” means any business that is the same, similar or otherwise reasonably related, ancillary or complementary to the businesses of Holdings and its Subsidiaries on the Closing Date.

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, members, directors, officers and non-ministerial employees of such Person’s Affiliates.

“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.

“Remittance Date” means the second Thursday (or, if such day is not a Business Day, the immediately succeeding Business Day) after the Closing Date and each Thursday occurring thereafter (or, if such day is not a Business Day, the immediately succeeding Business Day).

“Removal Effective Date” has the meaning ascribed thereto in Section 9.06(b).

“Replacement Lender” has the meaning ascribed thereto in Section 3.04(a)(iii).

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

“Required Lenders” means Lenders holding in excess of fifty percent (50.0%) of the aggregate outstanding principal balance of the Loans and unfunded Commitments; provided that so long as the Magnetar Entities collectively hold at least the lesser of (i) $40,000,000 of the outstanding principal balance of the Loans and unfunded Commitments or (ii) twenty percent (20.0%) of the aggregate outstanding principal balance of the Loans and unfunded Commitments, “Required Lenders” shall include at least one (1) of the Magnetar Entities.

“Resignation Effective Date” has the meaning ascribed thereto in Section 9.06(a).

“Responsible Officer” means: (a) with respect to Borrower in connection with any Compliance Certificate or any other certificate or notice pertaining to any financial information required to be delivery by Borrower hereunder, the chief financial officer or controller of Borrower; and (b) otherwise, with respect to Borrower or any other Credit Party, the chief executive officer, chief operating officer, president, chief financial officer, treasurer or similar officer of such Person.

“Restricted Payment” means, as to any Person, (a) any dividend or other distribution by such Person (whether in cash, securities or other property) with respect to any Equity Interests of such Person, (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interest, and (c) with respect to clauses (a) and (b) above, any transaction that has a substantially similar effect.

“Restricted Subsidiary” means, at any time, any direct or indirect Subsidiary of Borrower other than an Specified Subsidiary.

“Routine Inquiry” means any inquiry or request, written or otherwise, formal or informal, made by a competent Governmental Authority with legal authority to regulate the activities of a Credit Party or any of their Subsidiaries, or otherwise with legal authority or mandate to request information, made via a form letter or otherwise in connection with (a) the routine transmittal of a consumer complaint or examination request, or (b) a request for information that is routine in nature, is unconnected with any alleged pattern or practice of wrongdoing, or otherwise consists of a general request for information relating to the activities of a Credit Party or any of their Subsidiaries.

“Sale and Leaseback Transaction” means, with respect to any Credit Party or any Subsidiary, any arrangement, directly or indirectly, with any Person whereby such Credit Party or such Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions, including, as of the Closing Date, the Crimea, Donetsk, and Luhansk regions of Ukraine, Cuba, Iran, North Korea, and Syria.

“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, any European Union member state, His Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b), or (d) any Person otherwise the subject of any Sanctions.

“Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (b) the United Nations Security Council, the European Union, any European Union member state, His Majesty’s Treasury of the United Kingdom or other relevant sanctions authority.

“SEC” means the Securities and Exchange Commission or any Governmental Authority succeeding to any of its principal functions.

“Secured Parties” has the meaning ascribed thereto in the Security Agreement.

“Securities Account” means, both individually and collectively, any and all securities accounts of the Credit Parties, a list of which is set forth on Schedule 1.03, as the same is amended or modified from time to time in accordance with the terms of the Security Agreement.

“Security Agreement” means that certain Security Agreement, dated as of the Closing Date, among Holdings, Borrower, each Subsidiary of Borrower from time to time party thereto, and Administrative Agent for the benefit of the Secured Parties, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Security Interest” has the meaning ascribed thereto in Section 5.18(a).

“Solvency Certificate” means a Solvency Certificate substantially in the form of Exhibit F.

“Solvent” means, as to any Person, that (a) the fair value of the assets of such Person, at a fair valuation, exceed its debts and liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of the property of such Person is greater than the amount(s) that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (c) such Person is able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (d) such Person does not intend to, and does not believe that it will, incur debts beyond such Person’s ability to pay as such debts mature, (e) such Person is not engaged in a business or a transaction, and is not about to engage in a business or transaction, for which such Person’s properties and assets would constitute unreasonably small capital after giving due consideration to the prevailing practices in the industry in which such Person is engaged, and (f) such Person is not insolvent within the meaning of the Bankruptcy Code or any other applicable Law.

“Specified Action” means any written demand, action, request, claim, inquiry, investigation, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, other legal process, or litigation, arbitration or other similar proceedings with respect to Administrative Agent and/or any Indemnitee or in which Administrative Agent and/or any Indemnitee has been named a party.

“Specified Claims” means any claim subject to indemnification by a Credit Party under Section 10.04(b) for which Administrative Agent has notified Borrower and which claim (a) constitutes a Specified Action and (b) has not been reduced to a monetary amount.

“Specified Lender” means, at any time, any Lender: (a) that has requested compensation under Section 3.02 and has not rescinded such request within five (5) Business Days of the making thereof; (b) to whom Borrower must pay an additional amount (or on whose behalf Borrower must pay an additional amount to a Governmental Authority) pursuant to Section 3.01; and, in the case of clause (a) or (b) immediately above, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.03; (c) that is a Non-Consenting Lender; or (d) that has defaulted under any funding obligation.

“Specified Materials” means, collectively, all materials or information provided by or on behalf of Borrower or any Subsidiary thereof, as well as documents and other written materials relating to the Credit Parties or any of their respective Subsidiaries or Affiliates or any other materials or matters relating to the Term Loan Documents (including any amendments or waivers of the terms thereof or supplements thereto).

“Specified Subsidiary” means (i) Katapult Intermediate Holdings I, (ii) Katapult Intermediate Holdings II, (iii) Katapult Intermediate Holdings III and any direct or indirect Subsidiary thereof.

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise Controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Borrower. It is hereby understood and agreed that each of the Katapult Subsidiaries is a Subsidiary of Borrower.

“Subsidiary Guarantor” shall mean any Subsidiary that becomes a Subsidiary Guarantor pursuant to Section 6.13(c). For the avoidance of doubt, as of the Closing Date there are no Subsidiary Guarantors.

“Swap Contract” means: (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement; and (b) any and all transactions of any kind, and the related confirmations, that are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement including any such obligations or liabilities under any such master agreement (in each case, together with any related schedules).

“Swap Obligation” means, with respect to any Credit Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts: (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s); and (b) for any date prior to the date referenced in clause (a) of this definition, the amount(s) determined as the mark to market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts.

“Synthetic Lease Obligation” means the monetary obligation of a Person under either: (a) a so called synthetic, off balance sheet or tax retention lease; or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Tax Distributions” has the meaning ascribed thereto in Section 7.06(a).

“Term Loan” means the Initial Term Loan and each Delayed Draw Term Loan.

“Term Loan Documents” means, collectively, (a) this Agreement, (b) each Note (if any), (c) each Collateral Document, (d) the Guaranties, (e) each Account Control Agreement, (f) each Permitted Subordination Agreement (if any), (g) all other agreements, documents, instruments, powers of attorneys, directions letters and certificates executed or delivered to Administrative Agent in connection with any of the foregoing or the Loans, and (h) any and all renewals, modifications, amendments, restatements, amendments and restatements, consolidations, substitutions, replacements and extensions and modifications of any of the foregoing.

“Term Loan Request” means a written notice of a borrowing of a Term Loan hereunder in the form of Exhibit D.

“Transaction Costs” means, collectively, all fees, costs and expenses incurred or paid by Holdings, Borrower or any of their Subsidiaries in connection with the Transactions.

“Transaction Termination Collateral Package Event” means the grant by any Credit Parties to Administrative Agent of a perfected, security interest in a cash reserve amount acceptable to Administrative Agent in its Administrative Discretion, which cash reserve amount will secure a Specified Claim and be held in a Deposit Account of such Credit Party (as applicable) subject to an Account Control Agreement (fully blocked) in favor of Administrative Agent, and all of the foregoing pursuant to documentation, and in form and substance, acceptable to Administrative Agent in its Administrative Discretion.

“Transactions” means, collectively, (a) the entering into of the Term Loan Documents, (b) the borrowing of the Term Loans and the use of the proceeds thereof, and (c) the payment of the fees, costs and expenses incurred in connection with the foregoing.

“UCC” means the Uniform Commercial Code as in effect in any applicable jurisdiction.

“United States” and “U.S.” mean the United States of America.

“Specified Subsidiary” means (i) Katapult Intermediate Holdings I, (ii) Katapult Intermediate Holdings II, (iii) Katapult Intermediate Holdings III and any direct or indirect Subsidiary thereof.

“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

“Withholding Agent” means any Credit Party and Administrative Agent.

SECTION 1.02.           CERTAIN RULES OF CONSTRUCTION.

(a)         General Rules.

(i)            Unless the context otherwise clearly requires, the meaning of a defined term is applicable equally to the singular and plural forms thereof.

(ii)           The words “hereof,” “herein,” “hereunder” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement.

(iii)          The word “documents” includes instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced.

(iv)          The words “include” and “including” are not limiting and the word “or” is not exclusive.

(v)          In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including.”

(vi)         Unless the context otherwise clearly requires, the words “property,” “properties,” “asset” and “assets” refer to both personal property (whether tangible or intangible) and real property.

(vii)         Unless the context otherwise clearly requires: (A) Article, Section, subsection, clause, Schedule and Exhibit references are to this Agreement; (B) references to documents (including this Agreement) shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent such amendments and other modifications are not prohibited by the terms of any Term Loan Document; (C) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting the statute or regulation; and (D) references to any Person shall be deemed to include such Person’s successors and assigns.

(b)         Time References. Unless the context otherwise clearly requires, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

(c)         Captions. The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

(d)        Cumulative Nature of Certain Provisions. This Agreement and the other Term Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are cumulative and shall be performed in accordance with their respective terms.

(e)         No Construction Against Any Party. This Agreement and the other Term Loan Documents are the result of negotiations among, and have been reviewed by counsel to, the Credit Parties, Administrative Agent and Lenders and are the products of all parties. Accordingly, they shall not be construed against Administrative Agent or any Lender merely because of the involvement of any or all of the preceding Persons in their preparation.

(f)          GAAP. Unless the context otherwise clearly requires, all accounting terms not expressly defined herein shall be construed, and all financial computations required under this Agreement shall be made, in accordance with GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Term Loan Document, and either Borrower or Required Lenders shall so request, Administrative Agent, Lenders and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of Required Lenders); provided that, until so amended: (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein; and (ii) Borrower shall provide to Administrative Agent and Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

(g)        Rounding. Any financial ratios required to be maintained by the Credit Parties, their Affiliates or any of them pursuant to the Term Loan Documents shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number using the common – or symmetric arithmetic – method of rounding (in other words, rounding up if there is no nearest number).

(h)        Computations of Certain Financial Covenants. For purposes of computing the financial covenants set forth in Section 7.16 that measure results from the previous twelve (12) months as of any date, the previous Fiscal Quarter or the previous monthly period, as applicable, as of any date, all components of such financial tests shall include or exclude, as the case may be, for the period consisting of the previous twelve (12) months, the Fiscal Quarter or the monthly period, as applicable, in each case, all financial results (without duplication of amounts) attributable to any business or assets the subject of any Acquisition or Disposition by Borrower or any Subsidiary thereof effected during such period, as determined in good faith by Borrower on a pro forma basis for such period as if such Acquisition or Disposition had occurred (and any Debt incurred or repaid in connection therewith had been incurred and repaid, as the case may be) on (in the case of any balance sheet item) the last day of such period or on (in the case of any other item) the first day of such period (including cost savings reasonably projected by Borrower that would have been realized had such Acquisition occurred on such day and which inclusion when not otherwise permitted under GAAP has been approved by Administrative Agent).

(i)          Documents Executed by Responsible Officers. Any document delivered hereunder that is signed by a Responsible Officer of a Credit Party shall be conclusively presumed to have been authorized by all necessary corporate or other organizational action on the part of such Credit Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Credit Party.

(j)          Determination by Administrative Agent. Except as otherwise explicitly set forth herein, to the extent any provision of this Agreement is subject to conditions of materiality, reasonableness or adverse effect, the determination of such materiality, reasonableness or adverse effect shall be made by Administrative Agent exercising its Administrative Discretion.

(k)         Definitions. Capitalized terms used in this Agreement that are not otherwise defined shall have the meanings set forth in this Section 1.01 and in Exhibit 1 (Financial Covenant Definitions). All terms used which are not specifically defined herein shall, unless the context indicates otherwise, have the meanings provided for by the UCC to the extent the same are used or defined therein; in the event that any term is defined differently in different Articles or Divisions of the UCC, the definition contained in Article or Division 9 shall control.

ARTICLE 2
TERMS OF TERM LOAN

SECTION 2.01.           TERM LOAN.

(a)         Initial Term Loan.

(i)            Subject to the terms and conditions set forth herein, each Lender having an Initial Term Commitment severally agrees to make the Initial Term Loan to Borrower on the Closing Date (subject to satisfaction of the conditions set forth in Section 4.01) in an aggregate principal amount not to exceed an amount equal to such Lender’s Initial Term Commitment; provided that, after giving effect to such Borrowing: (x) the aggregate outstanding principal balance of the Initial Term Loan made on the Closing Date shall not exceed the Aggregate Initial Term Commitments; (y) the aggregate outstanding principal balance of all Term Loan shall not exceed the Aggregate Term Commitments; and (z) the aggregate outstanding principal balance of the Term Loan of any Lender shall not exceed such Lender’s Initial Term Commitment.

(ii)           The Initial Term Loan shall be made by the Lenders in accordance with their applicable Initial Term Commitment on the Closing Date. Immediately upon making the Initial Term Loan on the Closing Date, the Initial Term Commitments shall automatically terminate.

(iii)          Amounts repaid or prepaid in respect of the Initial Term Loan may not be reborrowed.

(iv)          Each Initial Term Loan made by a Lender pursuant to Section 2.01(a)(i) shall constitute an “Initial Term Loan”.

(b)         Delayed Draw Term Loans.

(i)            Subject to the terms and conditions set forth herein, each Lender having a DDTL Commitment severally agrees to make Term Loans to Borrower during the DDTL Availability Period (subject to satisfaction of the conditions set forth in Section 4.02) in an aggregate principal amount not to exceed an amount equal to such Lender’s DDTL Commitment;

provided, that, (w) no Lender shall be required to advance Delayed Draw Term Loans in excess of its DDTL Commitment, (x) the aggregate amount of all of the DDTL Commitments shall be equal to the DDTL Maximum Amount, (y) any unused amount of the DDTL Commitment shall terminate on the last day of the DDTL Availability Period and (z) the principal amount of each Delayed Draw Term Loan made by a Lender shall permanently reduce the amount available under such Lender’s DDTL Commitment; and

provided, further, that, after giving effect to any such Borrowing of a Delayed Draw Term Loan, the amount of such Delayed Draw Term Loan (x) when added to the aggregate original principal amount of all Delayed Draw Term Loans funded under this Agreement, shall not exceed the DDTL Maximum Amount and (y) shall not exceed the aggregate amount of unfunded DDTL Commitments immediately before giving effect to the funding of such Delayed Draw Term Loan.

(ii)           Each Delayed Draw Term Loan shall be made by the Lenders in accordance with their applicable DDTL Commitment during the DDTL Availability Period. Immediately upon making a Delayed Draw Term Loan on, the DDTL Commitments shall automatically be reduced by the aggregate principal amount of such Delayed Draw Term Loan.

(iii)          Amounts repaid or prepaid in respect of any Delayed Draw Term Loan may not be reborrowed.

(iv)          The requested amount of any Delayed Draw Term Loan shall be in a principal amount of at least $1,000,000.00.

(v)           Any applicable Delayed Draw Term Loan funded pursuant to this Section 2.01(b) shall constitute an applicable Term Loan hereunder and shall be entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Term Loan Documents. The Credit Parties shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens granted by the Term Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the making of any Delayed Draw Term Loan.

(vi)         For the avoidance of doubt, no Lender will be required to make a Delayed Draw Term Loan to Borrower following the occurrence and during the continuance of an Event of Default or a Cease Funding Event.

SECTION 2.02.          [RESERVED].

SECTION 2.03.          PRINCIPAL PREPAYMENTS; PREPAYMENT FEE.

(a)         Voluntary Prepayments of Term Loans.

(i)            The Borrower may voluntarily prepay the Initial Term Loan or any Delayed Draw Term Loan in-whole (but not in-part) upon thirty (30) days’ written notice to Administrative Agent, subject, however, to the payment of a Prepayment Fee under Section 2.03(c). If Borrower gives such notice, then Borrower’s prepayment obligation shall be irrevocable, and Borrower shall make such prepayment on the date specified therein. Each such prepayment shall be applied to the Initial Term Loan or the applicable Delayed Draw Term Loan of the Lenders in accordance with their respective Initial Term Loan Percentage Shares or their respective DDTL Percentage Shares, as applicable.

(ii)          For the avoidance of doubt, mandatory prepayments made pursuant to Section 2.03(b) shall not constitute voluntary prepayments for purposes of this Section 2.03(a).

(b)         Mandatory Prepayments of Term Loans.

(i)            [Reserved].

(ii)           Dispositions. Promptly (and in any event within five (5) Business Days) upon receipt by Holdings or any of its Subsidiaries of any (i) Net Cash Proceeds of any Disposition by Holdings or any of its Subsidiaries of any of its assets or (ii) any Net Cash Proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings that, in each case, exceed $5,000,000 in the aggregate in any Fiscal Year, the Borrower shall prepay the Term Loans in an amount equal to all such Net Cash Proceeds; provided, that (I) the Borrower shall not be required to prepay the Term Loans with respect to Net Cash Proceeds from Dispositions of the types described in clauses (a), (b), (d), (e), (f), (g), (h), (i) and (j) of Section 7.05, (II) with respect to proceeds of any property owned by a Specified Subsidiary, the amount of any prepayment otherwise required under this Section 2.03(b)(ii) shall be reduced on a dollar-for-dollar basis to the extent Holdings or any of its Subsidiaries is required to apply such Net Cash Proceeds to the prepayment or repayment of Debt under any Permitted Katapult Debt Agreement, and (III) if the Borrower provides prior written notice to the Administrative Agent within such five (5) Business Day period, the Borrower shall not be required to prepay the Term Loans with respect to Net Cash Proceeds from (x) Dispositions to the extent permitted by Section 7.05 (other than those described in the immediately preceding clause (I)) or (y) casualty insurance policies or eminent domain, condemnation or similar proceedings (collectively, “Reinvestment Proceeds”) that are reinvested in Permitted Acquisitions or assets then used or usable in the business of Holdings and its Subsidiaries within three hundred sixty (360) days following receipt thereof or committed to be reinvested (including in a Permitted Acquisition) pursuant to a binding contract prior to the expiration of such 360-day period and actually reinvested within five hundred forty (540) days following receipt thereof; provided, however, that (x) if the Reinvestment Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the outstanding principal amount of Term Loans with the Reinvestment Proceeds not so reinvested as set forth above and (y) pending reinvestment, all Reinvestment Proceeds shall be held by the Borrower in accordance with the terms of this Agreement.

(iii)          Issuances of Debt. No later than the Business Day following the date of receipt by the Borrower or any of its Subsidiaries of any Net Cash Proceeds from any issuance of Debt by the Borrower or any of its Subsidiaries, the Borrower shall prepay the Term Loans in an amount equal to all such Net Cash Proceeds; provided, that the Borrower shall not be required to prepay the Term Loans with respect to proceeds of Debt not prohibited by Section 7.03; provided further, that, in the case of the issuance of such Debt by any Specified Subsidiary, unless otherwise agreed by the Required Lenders in writing, such Debt must also be incurred in compliance with Section 7.16(b) on a pro forma basis after giving effect to the incurrence thereof.

(iv)          Sale and Leaseback Transactions. Notwithstanding anything in Section 2.03(b)(ii) to the contrary, no later than the Business Day following the date of receipt by any Credit Party of any Net Cash Proceeds from any Sale and Leaseback Transaction in accordance with Section 7.05(l), the Borrower shall prepay the Term Loans in an amount equal to all such Net Cash Proceeds.

(c)         Term Loan Prepayment Fee. Upon the occurrence of a Prepayment Fee Trigger Event, Borrower shall pay to Administrative Agent, for the ratable benefit of the Lenders, an amount equal to the Prepayment Fee (if any) with respect to that portion of the Term Loan being repaid or prepaid. If the Loans are accelerated or otherwise become due prior to their maturity date, in each case, as a result of an Event of Default (including upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the amount of principal of and premium on the Loans that becomes due and payable shall equal 100% of the principal amount of the Loans plus the Prepayment Fee in effect on the date of such acceleration or such other prior due date, as if such acceleration or other occurrence were a voluntary prepayment of the Loans accelerated or otherwise becoming due. Without limiting the generality of the foregoing, it is understood and agreed that if the Loans are accelerated or otherwise become due prior to their maturity date, in each case, in respect of any Event of Default (including upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the Prepayment Fee applicable with respect to a voluntary prepayment of the Loans will also be due and payable on the date of such acceleration or such other prior due date as though the Loans were voluntarily prepaid as of such date and shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s loss as a result thereof. The parties hereto acknowledge and agree that the Prepayment Fee referred to in this clause (c) (i) is additional consideration for providing the Term Loan, (ii) constitutes reasonable liquidated damages to compensate the Lenders for (and is a proportionate quantification of) the actual loss of the anticipated stream of interest payments upon an early repayment of the Term Loan (or any part thereof) (such damages being otherwise impossible to ascertain or even estimate for various reasons, including, without limitation, because such damages would depend on, among other things, (x) when the Term Loan (or any part thereof) might otherwise be repaid and (y) future changes in interest rates which are not readily ascertainable on the Closing Date), and (iii) is not a penalty to punish Borrower for its early repayment of the Term Loan (or any part thereof) or for the occurrence of any Event of Default or any other Prepayment Fee Trigger Event, as the case may be.

SECTION 2.04.          FINAL REPAYMENT.

(a)         Maturity Date. All Obligations, including, without limitation, the aggregate Outstanding Legal Balance of all Term Loans shall be due and payable in full on the Maturity Date and Borrower hereby unconditionally promises to pay to Administrative Agent for the account of the applicable Lenders in full all such Obligations (including, without limitation, the aggregate Outstanding Legal Balance of all Loans) on such dates, as applicable.

SECTION 2.05.          INTEREST.

(a)         Interest Generally. Subject to the provisions of Section 2.05(b) and 2.05(c)(i), the aggregate Outstanding Legal Balance of each Term Loan shall bear interest at the Interest Rate from the date of disbursement through the date of repayment in accordance with the terms of this Agreement; provided, that, notwithstanding anything to the contrary set forth herein, Borrower shall pay a portion of such interest due as of each Remittance Date by capitalizing it as PIK Interest, in an amount equal to (x) the aggregate Outstanding Legal Balance of each Term Loan for such Remittance Date, multiplied by (y) the PIK Interest Rate, provided, further, that for the avoidance of doubt, all interest that accrues and is payable on any Remittance Date that is not PIK Interest shall be paid in cash by Borrower. All PIK Interest shall automatically be added to the principal amount of the Loans on each Remittance Date and shall thereafter constitute principal of the Loans for all purposes of this Agreement (including the accrual of interest). All PIK Interest so capitalized shall be paid by Borrower on or prior to the Maturity Date in accordance with the terms and conditions of this Agreement. If any repayment of the Outstanding Legal Balance of any Loan is received by the applicable Lender later than 2:00 p.m. (New York City time), then interest on such Outstanding Legal Balance shall accrue through the next business Day following such receipt.

(b)         Default Rate. If any amount payable by the Borrower under this Agreement or any other Term Loan Documents (including principal of any Loan, interest, fees and other amount) is not paid when due, whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a rate per annum equal to the applicable Default Rate. Upon the occurrence of an Event of Default (unless waived by each applicable Lender), the Outstanding Legal Balance of all Loans shall bear interest at the Default Rate (i) with respect to any Event of Default occurring pursuant to Section 8.01(a), Section 8.01(f) or Section 8.01(g), without further action on the part of Administrative Agent or the Required Lenders and (ii) with respect to any other Event of Default, at the election of the Administrative Agent or the Required Lenders. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

(c)         Payment Dates; Accrual of Interest.

(i)            Interest on each Term Loan shall be due and payable in arrears on each Remittance Date, on the Maturity Date and at such other times as may be specified herein.

(ii)           Interest hereunder shall be due and payable in accordance with the terms hereof both before and after judgment, and both before and after the commencement of any proceeding under any Bankruptcy Law.

SECTION 2.06.          APPLICATION OF FUNDS.

Any prepayment pursuant to Sections 2.03(a) or (b) shall be applied on a pro rata basis to the principal of the Loans.

SECTION 2.07.          [RESERVED].

SECTION 2.08.          COMPUTATIONS OF INTEREST AND FEES.

All computations of interest and fees hereunder shall be made on the basis of a year of 360 days and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid. Each determination by Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

SECTION 2.09.          EVIDENCE OF DEBT.

(a)         Evidence of Payments. The Loans of each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by Administrative Agent in the ordinary course of business. The accounts or records maintained by Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Loans made by Lenders to Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect to the Obligations. If any conflict exists between the accounts and records maintained by any Lender and the accounts and records of Administrative Agent in respect of such matters, the accounts and records of Administrative Agent shall control in the absence of manifest error. In addition, if so requested by a Lender at any time following the Closing Date, Borrower shall, within three (3) Business Days of such request, execute and deliver a Note further evidencing such Lender’s Loans. Each Lender may attach schedules to its respective Note, if any, and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto. In the event of the mutilation, destruction, loss or theft of any Notes, Borrower shall, upon the written request of the holder of such Notes, and in any event within three (3) Business Days of any such request, execute and deliver to such Lender new replacement Notes in the same form and original principal balance amount and original date as the Notes so mutilated, destroyed, lost or stolen, and such replaced Notes shall then be deemed no longer outstanding hereunder. If the Notes being replaced have been mutilated, they shall be surrendered to Borrower after the applicable Lender’s receipt of the replacement Notes and if such replaced Notes have been destroyed, lost or stolen, such holder shall furnish Borrower with an indemnity in writing reasonably acceptable to such Lender to save them harmless in respect of such replaced Note.

(b)        Administrative Agent’s Records Control. If any conflict exists between the accounts and records maintained by Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of Administrative Agent shall control in the absence of manifest error.

SECTION 2.10.          PAYMENTS GENERALLY; RIGHT OF ADMINISTRATIVE AGENT TO MAKE DEDUCTIONS AUTOMATICALLY.

(a)         Payments Generally. All payments to be made by Borrower shall, subject to Section 3.01 (with respect to Taxes) be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrower hereunder shall be made to Administrative Agent, for the account of the respective Lenders to which such payment is owed, at Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein (including Section 2.06(b) and 8.03(a)), Administrative Agent will promptly distribute to each Lender its applicable pro rata share (based on the respective amounts owing to each such lender in respect of the Obligation being paid) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

(b)         Presumptions by Administrative Agent. Unless Administrative Agent shall have received notice from Borrower prior to the date on which any payment is due hereunder to Administrative Agent for the account of Lenders that Borrower will not make such payment, Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to Lenders the amount due. With respect to any payment that Administrative Agent makes for the account of the Lenders hereunder as to which Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (A) Borrower has not in fact made such payment; (B) Administrative Agent has made a payment in excess of the amount so paid by the Borrower (whether or not then owed); or (C) Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Lenders severally agree to repay to Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of Administrative Agent to any Lender or Borrower with respect to any amount owing under this Section 2.10(b) shall be conclusive, absent manifest error.

SECTION 2.11.          SHARING OF PAYMENTS.

All payments with respect to principal or interest owing to the Lenders shall be made on a pro rata basis. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it, resulting in such Lender receiving payment of a proportion of the aggregate amount of such Loans or accrued interest thereon or such other Obligations greater than its pro rata share thereof, then the Lender receiving such greater proportion shall: (a) notify Administrative Agent of such fact; and (b) purchase (for cash at face value) participations in the Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that: (i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this Section 2.11 shall not be construed to apply to: (A) any payment made by Borrower pursuant to and in accordance with Section 3.04; or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to Borrower or any Subsidiary thereof (as to which the provisions of this Section 2.11 shall apply).

Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Credit Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Credit Party in the amount of such participation.

SECTION 2.12.          SECURITY FOR THE OBLIGATIONS.

Except as otherwise specifically provided in any Term Loan Document, all Obligations shall be secured pursuant to the terms of the Collateral Documents.

SECTION 2.13.          FEES.

(a)         Administrative Agent Fee. The Borrower hereby agrees to pay to the Administrative Agent, for its own account, an administrative fee (the “Administration Fee”) in the amount equal to $3,625,000. The Administration Fee shall be fully earned solely by the Administrative Agent on the Closing Date. The Administration Fee shall be paid in monthly installments in the amount of $302,083.33 on the last day of each calendar month for the eleven (11) month period following the Closing Date and the amount of $302,083.37 on the last day of the twelfth (12^th) month following the Closing Date. The Administration Fee covers the services of Administrative Agent for the day to day discharge of Administrative Agent’s duties and responsibilities in acting as Administrative Agent under the Loan Documents (including maintenance of the Administrative Agent’s registrar, records and files, establishment of necessary cash accounts, distribution of covenant compliance and reporting items, responses to inquiries from all parties-in-interest, rendering of periodic statements and reports, and receipt and distribution of debt service payments).

(b)         OID. In connection with each Advance hereunder, Borrower agrees that the funded amount of such Advance shall be reduced by an original issue discount equal to two and one half of one percent (2.50%) of the aggregate principal amount of such Advance (the “OID”), which OID shall be retained by Administrative Agent, for the benefit of the Lenders, provided, that for the avoidance of doubt, Borrower agrees that, notwithstanding such reduction from the funded amount of each Advance, Borrower remains liable to pay (i) the full principal amount of such Advance (inclusive of such OID), without giving effect to such reduction, which shall be due and payable in full, if not earlier in accordance with this Agreement, on the Maturity Date, (ii) accrued interest shall be payable on the full outstanding principal amount of such Advance (inclusive of such OID), without giving effect to such deduction and (iii) the Borrower shall treat all OID as interest accruing over the term of the Loans made hereunder.

SECTION 2.14.          TAX TREATMENT.

All parties hereto mutually intend that the Loans shall be characterized as debt for U.S. federal and other applicable income tax purposes.  No party hereto or any of its Affiliates shall report the Loans on their tax returns, or otherwise treat the Loans for tax purposes, in a manner that is inconsistent with the foregoing intended tax treatment.

ARTICLE 3
TAXES, YIELD PROTECTION AND ILLEGALITY

SECTION 3.01.           TAXES.

(a)         Payments Free of Taxes. Any and all payments by or on account of any obligation of any Credit Party hereunder or under any other Term Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Law; provided that, if any Withholding Agent shall be required (as determined in the good faith discretion of the applicable Withholding Agent) by any applicable Law to withhold or deduct any Tax from such payments, then: (i) if such Tax is an Indemnified Tax, the sum payable by the applicable Credit Party shall be increased as necessary so that after making all required deductions or withholdings (including such deductions or withholdings applicable to additional sums payable under this Section 3.01), Administrative Agent or Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made; (ii) the applicable Withholding Agent shall be entitled to make such deductions; and (iii) the applicable Withholding Agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Law.

(b)         Payment of Other Taxes by the Credit Parties. Without limiting the provisions of Section 3.01(a), the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Law or, at the option of Administrative Agent, timely reimburse it for the payment of any Other Taxes.

(c)         Indemnification by the Lenders. Each Lender shall, and does hereby, severally indemnify Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection with any Term Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Term Loan Document or otherwise payable by Administrative Agent to the Lender from any other source against any amount due to Administrative Agent under this Section 3.01(d).

(d)        Evidence of Payments. If requested in writing by Administrative Agent, any Credit Party shall deliver to Administrative Agent, as soon as practicable after any payment of Taxes under this Section 3.01 by any Credit Party to a Governmental Authority, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Administrative Agent.

(e)         Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Term Loan Document shall deliver to Borrower and Administrative Agent, at the time or times reasonably requested by Borrower or Administrative Agent, such properly completed and executed documentation reasonably requested by Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower or Administrative Agent, shall deliver such other documentation prescribed by Law or reasonably requested by Borrower or Administrative Agent as will enable Borrower or Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 3.01(e)(ii) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii)           Without limiting the generality of the foregoing,

(A)          any Lender that is not a Foreign Lender shall deliver to Borrower and Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is not subject to U.S. federal backup withholding tax;

(B)           any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), whichever of the following is applicable:

a.             in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Term Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Term Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

b.             executed copies of IRS Form W-8ECI;

c.             in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W 8BEN-E; or

d.            to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W 8BEN-E, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner;

(C)           any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed copies of any other form prescribed by Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit Borrower or Administrative Agent to determine the withholding or deduction required to be made; and

(D)          if a payment made to a Lender under any Term Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or Administrative Agent such documentation prescribed by Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower and Administrative Agent in writing of its legal inability to do so.

(f)         Treatment of Certain Refunds. If Administrative Agent or any Lender receives a refund of any Taxes as to which it has been indemnified by the Credit Parties or with respect to which any Credit Party has paid additional amounts pursuant to this Section 3.01, it shall pay to such Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Credit Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out of pocket expenses (including Taxes) of Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the applicable Credit Party, upon the request of Administrative Agent or such Lender, as applicable, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to Administrative Agent or such Lender, as applicable, in the event Administrative Agent or such Lender, as applicable is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 3.01(f), in no event will Administrative Agent or Lender be required to pay any amount to a Credit Party pursuant to this Section 3.01(f) the payment of which would place Administrative Agent or Lender (as applicable) in a less favorable net after-Tax position than such party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 3.01(f) shall not be construed to require Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Credit Party or any other Person.

(g)        Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Term Loan Document.

SECTION 3.02.           INCREASED COSTS.

(a)         Increased Costs Generally. If any Change in Law shall:

(i)            impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender;

(ii)           subject Administrative Agent or any Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii)          impose on any Lender any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount), then, upon request of such applicable Lender, Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.

(b)         Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or the Lending Office of such Lender or such Lender’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

(c)         Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in this Section 3.02(a) or 3.02(b), as well as the basis for determining such amount or amounts, and delivered to Borrower shall be conclusive absent manifest error. Borrower shall pay such Lender the amount shown as due on any such certificate within thirty (30) days after receipt thereof.

(d)         Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section 3.02 shall not constitute a waiver of such Lender’s right to demand such compensation, provided that Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section 3.02 for any increased costs incurred or reductions suffered more than six (6) months prior to the date that such Lender notifies Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six (6) month period referred to in this Section 3.02(d) shall be extended to include the period of retroactive effect thereof).

SECTION 3.03.          MITIGATION OBLIGATIONS.

Notwithstanding anything to the contrary contained in Section 10.01, if any Lender requests compensation under Section 3.02, or Borrower is required to pay any Indemnified Taxes or additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, then such Lender, at the request of Borrower, shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment: (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or Section 3.02, as the case may be, in the future; and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender as reasonably determined by such Lender. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

SECTION 3.04.          REMOVAL OR REPLACEMENT OF LENDERS.

Notwithstanding anything to the contrary contained in Section 10.01:

(a)        Removal or Replacement of Lenders Generally. Borrower may with respect to any Specified Lender, at its sole expense and effort, upon notice to such Lender and Administrative Agent:

(i)            remove such Specified Lender by terminating such Specified Lender’s Commitments;

(ii)           request one or more of the other Lenders to acquire and assume all of such Specified Lender’s Loans and Commitments, which Lender or Lenders shall have the right, but not the obligation, to so acquire and assume such Specified Lender’s Loans and Commitments pursuant to the procedures set forth in Section 10.06(b); or

(iii)          with the prior written consent of Administrative Agent (which consent shall not be unreasonably withheld or delayed), designate a replacement bank or financial institution that is an Eligible Assignee (a “Replacement Lender”), which Replacement Lender shall assume all of the Loans and Commitments of such Specified Lender pursuant to the procedures set forth in Section 10.06(b);

provided that Borrower may not remove such Specified Lender, or require such Specified Lender to make any assignment and delegation, pursuant to the immediately preceding clauses (i), (ii) or (iii), as applicable, if: (1) an Event of Default has occurred and is continuing; or (2) Borrower has not concurrently taken an action under clause (i), clause (ii) or clause (iii) of this Section 3.04(a) with respect to all other Lenders who at the time are Specified Lenders under the same clause of the definition thereof.

Notwithstanding Section 2.06, any removal of, or assignment and delegation by, a Specified Lender pursuant to this Section 3.04(a) shall be subject to payment to such Specified Lender of the aggregate Outstanding Legal Balance of all of its Loans at the time owing to it, all accrued and unpaid interest thereon, all accrued and unpaid fees, any applicable Prepayment Fee, and all other amounts payable to it hereunder, which amounts shall be paid to such Specified Lender by: (A) in the case of a removal of such Specified Lender, Borrower; or (B) in the case of an assignment and delegation by such Specified Lender, the applicable assignee (to the extent of all such outstanding principal and accrued and unpaid interest and fees (other than the Prepayment Fee) and Borrower (to the extent of all such other amounts including the Prepayment Fee).

(b)         Indemnification by Credit Parties. The Credit Parties shall jointly and severally indemnify Administrative Agent and each Lender, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under Section 3.01) payable or paid by Administrative Agent or Lenders, or required to be withheld or deducted from a payment to Administrative Agent or Lender, as the case may be, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower by a Lender (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(c)         Certain Actions Incident to Removal. In the case of the removal of any Specified Lender pursuant to Section 3.04(a)(i), Borrower shall also release such Specified Lender from its obligations under the Term Loan Documents. Each Lender hereby grants to Administrative Agent a power of attorney (which power of attorney, being coupled with an interest, is irrevocable) to execute and deliver, on behalf of such Lender, as assignor, any Assignment and Assumption necessary to effectuate any assignment of such Lender’s interests hereunder in circumstances contemplated by this Section 3.04.

(d)         Certain Rights as a Lender. Upon the prepayment of all amounts owing to any Specified Lender pursuant to Section 3.04(a) and the termination of such Lender’s Commitments pursuant to this Section 3.04, such Specified Lender shall no longer constitute a “Lender” for purposes hereof; provided that any rights of such Specified Lender to indemnification hereunder with respect to matters that occurred prior to the date on which such Specified Lender’s Commitments were terminated shall survive as to such Specified Lender.

(e)         Evidence of Removal or Replacement. Promptly following the removal or replacement of any Specified Lender in accordance with this Section 3.04, Administrative Agent shall distribute an amended Schedule 2.01, which shall be deemed incorporated into this Agreement, to reflect changes in the identities of Lenders and adjustments of their respective Commitments or Percentage Shares, as applicable, resulting from any such removal or replacement.

SECTION 3.05.          SURVIVAL.

All obligations of Borrower under this Article 3 shall survive the Discharge of Secured Obligations.

ARTICLE 4
CONDITIONS PRECEDENT

SECTION 4.01.           CONDITIONS TO OBLIGATION TO FUND INITIAL TERM LOAN.

The obligation of each Lender with an Initial Term Commitment to fund the Initial Term Loan hereunder on the Closing Date shall not become effective until the satisfaction, or waiver in accordance with Section 10.01, of each of the following conditions precedent has occurred on or before the Closing Date:

(a)         Certain Documents. Administrative Agent shall have received each of the following:

(i)            Good Standing Certificate. Good standing certificates for Borrower, Holdings and each other Credit Party issued by the secretary of state (or similar office) of the jurisdiction in which such Credit Party is organized, incorporated, formed or created.

(ii)          Authorizations; Resolutions; Incumbency Certificates. A certificate, dated the Closing Date and duly executed by an authorized officer or individual, (i) certifying and indicating the incumbency, authority, and signatures of the individuals authorized to sign, on behalf of Borrower, Holdings, and each such other Credit Party, the Term Loan Documents to which such entity is a party, (ii) together with copies of the resolutions of the governing bodies of Borrower, Holdings, and each such other Credit Party authorizing the transactions contemplated by the Term Loan Documents and certifying that such resolutions are true, correct and complete copies thereof and are in full force and effect and have not been modified or amended, (iii) together with copies of each Organizational Document of Borrower, Holdings, and each such other Credit Party (certified as of a recent date by the appropriate governmental official, each dated the Closing Date or a recent date prior thereto), and certifying that such Organizational Documents are true, correct and complete copies thereof and are in full force and effect and have not been modified or amended, and (iv) together with the certificates of good standing referred to in Section 4.01(a)(i).

(iii)          Solvency Certificates. A Solvency Certificate duly executed by the chief financial officer of Borrower.

(iv)          Closing Certificate. A closing certificate, substantially in the form of Exhibit G, together with all attachments thereto, duly executed by a Responsible Officer of Borrower.

(v)          Term Loan Documents. This Agreement, and each of the other Term Loan Documents (including, if requested by any Lender, an Initial Term Loan Note in the form of Exhibit E hereto), in each case, duly executed by the applicable Credit Parties and delivered to the Administrative Agent for the benefit of the Lenders, together with all schedules to the Term Loan Documents.

(b)         Fees and Expenses. All reasonable and documented fees, expenses and other amounts required to be paid on or before the Closing Date pursuant to this Agreement and the other Term Loan Documents (including without limitation, the Administration Fee described in Section 2.13(a)) shall have been paid, or shall be paid substantially concurrently with, the funding of the Initial Term Loan on the Closing Date.

(c)         Representations and Warranties. The representations and warranties of each Credit Party contained in this Agreement and the other Term Loan Documents are true and correct in all material respects on and as of the date hereof, as though made on and as of such date (other than any representation and warranty that specifically relates to a specified prior date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specified prior date); provided that, in each case, such materiality qualifier shall not be applicable to any such representations and warranties that already are qualified or modified by Material Adverse Effect, materiality or material adverse change in the text thereof.

(d)         Katapult Merger Transaction. The Katapult Merger Transaction shall have been, or substantially concurrently with the borrowing of the Initial Term Loan hereunder on the Closing Date shall be, consummated in all material respects in accordance with applicable law and in accordance with the terms of the Katapult Merger Agreement. No provision of the Katapult Merger Agreement as in effect on the date hereof and provided to the Lenders prior to the date hereof shall have been amended, waived or otherwise modified and Borrower shall not have granted any consents under the Katapult Merger Agreement, in each case, in a manner materially adverse to the Lenders (in their capacities as such) without the consent of the Lenders (such consent not to be unreasonably withheld, delayed, denied or conditioned); provided, that any amendment or modification to the defined term “Material Adverse Effect” in the Katapult Merger Agreement shall be deemed to be materially adverse to the Lenders and shall require the consent of the Lenders (not to be unreasonably withheld, delayed, denied or conditioned).

(e)         Opinions of Counsel. Administrative Agent shall have received an executed copy of the favorable written legal opinion of King & Spalding LLP, counsel for the Credit Parties, dated the Closing Date.

(f)         Security Interest in Collateral. In order to create in favor of Administrative Agent, for the benefit of the Secured Parties, a valid, perfected priority security interest in the Collateral securing the Obligations, subject to (in the case of the Collateral) Permitted Liens:

(i)            Borrower and each Credit Party shall have executed and delivered to Administrative Agent such documents, agreements and instruments as required pursuant to Section 6.13(b), and shall have taken, or cause to be taken, such actions as required pursuant to Section 6.13(b);

(ii)           Each Credit Party shall have executed and delivered to Administrative Agent such documents, agreements and instruments as required pursuant to Section 6.13(c), and shall have taken, or cause to be taken, such actions as required pursuant to Section 6.13(c);

(iii)          Administrative Agent shall have received evidence reasonably satisfactory to Administrative Agent of the compliance by the Credit Parties of its respective obligations under the applicable Term Loan Documents in order to grant to Administrative Agent, for the benefit of the Secured Parties, a fully perfected First Priority Lien in the applicable Collateral securing the Obligations; and

(iv)         Administrative Agent shall have received results of a search of the UCC (or equivalent) filings made with respect to the Credit Parties in the jurisdictions identified by Administrative Agent and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to Administrative Agent that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or unless otherwise agreed to by the Administrative Agent, have been, or substantially contemporaneously with the Closing Date will be, released.

(g)         Absence of Material Adverse Effect. Since the date of the Katapult Merger Agreement, there shall not have occurred an event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

(h)         Term Loan Request. Administrative Agent shall have received a fully executed and delivered Term Loan Request no later than 12:00 p.m. (New York City Time) two (2) Business Days prior to the Closing Date.

(i)          KYC; Beneficial Ownership. Administrative Agent shall have received, at least three (3) Business Days prior to the Closing Date, (a) all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, that has been requested in writing at least ten (10) Business Days prior to the Closing Date and (b) with respect to each Credit Party to the extent that it qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation and requested in writing at least ten (10) Business Days prior to the Closing Date.

The Term Loan Request submitted by Borrower, pursuant hereto, shall be deemed to be a representation and warranty that the conditions specified in Sections 4.01(b), Section 4.01(c), Section 4.01(d), Section 4.01(e), Section 4.01(f), and Section 4.01(h) have been satisfied on and as of the date of the making of the Borrowing or the honoring of the Term Loan Request.

SECTION 4.02.          CONDITIONS TO OBLIGATION TO FUND DELAYED DRAW TERM LOANS.

The obligation of each Lender with a DDTL Commitment to fund a Delayed Draw Term Loan hereunder during the DDTL Availability Period shall not become effective until the satisfaction, or waiver in accordance with Section 10.01, of each of the following conditions precedent has occurred on or before such DDTL Funding Date.

(a)         No Default or Event of Default shall be continuing on the date of request for such Delayed Draw Term Loan or the date of the funding thereof.

(b)         The Credit Parties shall be in compliance with the financial covenants set forth in Section 7.16 on a pro forma basis as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered, calculated after giving effect to the use of proceeds and the incurrence of such Delayed Draw Term Loan.

(c)         As of the DDTL Funding Date, immediately prior to and after giving effect to the requested Delayed Draw Term Loan, no event shall have occurred and be continuing or would immediately result therefrom that would constitute a Cease Funding Event.

(d)         The representations and warranties of the Credit Parties set forth in the Term Loan Agreement and the other Term Loan Documents are true and correct in all material respects as if made on and as of such date (except, in the case of any such representations and warranties which expressly relates to a given date or period, such representation and warranties shall be true and correct in all material respects on and as of the respective date or for the respective period, as the case may be); provided, however, that if any such representations and warranties is qualified by materiality, Material Adverse Effect or material adverse change, then such representations and warranties shall be true and correct in all respects.

(e)         If requested by any Lender, Administrative Agent shall have received a duly executed note evidencing the Delayed Draw Term Loan in the form of Exhibit E hereto.

Each borrowing of Delayed Draw Term Loans shall be made upon the Borrower irrevocable delivery to Administrative Agent of a Term Loan Request with respect to each proposed Delayed Draw Term Loan no later than 12:00 p.m. (New York City Time) at least thirty (30) days (or such shorter time as agreed by Administrative Agent) prior to such proposed borrowing (“DDTL Funding Date”). Each such DDTL Funding Date shall be on a Business Day. Administrative Agent and Lenders shall have the right to reasonably rely on any Term Loan Request for a Delayed Draw Term Loan made by anyone purporting to be a Responsible Officer, without further investigation. The Term Loan Request submitted by Borrower, pursuant hereto, shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a), Sections 4.02(b), Section 4.02(c), and Section 4.01(d) have been satisfied on and as of the date of the making of the Borrowing or the honoring of the Delayed Draw Term Loan Request.

ARTICLE 5
REPRESENTATIONS AND WARRANTIES

Borrower represents and warrants to Administrative Agent and each Lender that:

SECTION 5.01.           CORPORATE EXISTENCE AND POWER.

Each of the Credit Parties and their respective Subsidiaries: (a) is a corporation, partnership or limited liability company duly, as applicable, organized, validly existing and, if applicable, in good standing under the Laws of the jurisdiction of its incorporation, organization or formation, as applicable, (subject to such changes after the date hereof as are permitted under the Term Loan Documents); (b) has the power and authority and all governmental licenses, authorizations, consents and approvals: (i) to own its assets and carry on its business, except to the extent that any failure to have any of the foregoing could not reasonably be expected to have a Material Adverse Effect; and (ii) to execute, deliver, and perform its obligations under the Term Loan Documents to which each is a party in all material respects; and (c) is duly qualified as a foreign corporation, partnership or limited liability company, as applicable, and is licensed and in good standing under the Laws of each jurisdiction where its ownership, leasing or operation of property or the conduct of its business requires such qualification or license, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect. Each of the Credit Parties and their respective Subsidiaries is in compliance in all material respects with all Laws in relation to lender licensing requirements applicable to them.

SECTION 5.02.           CORPORATE AUTHORIZATION; NO CONTRAVENTION.

The execution and delivery by each of the Credit Parties, and the performance by each of the Credit Parties of its obligations under, each Term Loan Document to which such Person is party have been duly authorized by all necessary corporate or other organizational action, and do not and will not: (a) contravene the terms of any of such Person’s Organizational Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien (other than the Liens created under the Term Loan Documents) under, or require any payment to be made under: (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any Subsidiary thereof, which breach or default could reasonably be expected to result in a Material Adverse Effect or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject in all material respects; or (c) violate any applicable Law which could reasonably be expected to result in a Material Adverse Effect. Each of the Credit Parties and their respective Subsidiaries are in compliance with all Contractual Obligations referred to in clause (b)(i), except to the extent that any failure to be in compliance could not reasonably be expected to have a Material Adverse Effect. No Credit Party or any Subsidiary thereof is a party to or is bound by any Contractual Obligation, or is subject to any restriction in any Organizational Document, or any requirement of Law, which, in any case, could reasonably be expected to have a Material Adverse Effect.

SECTION 5.03.           GOVERNMENTAL AUTHORIZATION; COMPLIANCE WITH LAWS.

(a)         Governmental Authorizations. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority is necessary or required in connection with the execution and delivery by any Credit Party of, or the performance by any Credit Party of its obligations under, any Term Loan Document to which it is a party other than (i) such as have been obtained or made and are in full force and effect, (ii) filings necessary to perfect Liens created by the Term Loan Documents, or (iii) such as have been previously disclosed to the Administrative Agent.

(b)         Compliance with Laws. Each Credit Party and each Subsidiary thereof are in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees that are applicable and material to it or to its properties, except in such instances in which such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted and the failure to comply therewith while such any such Law, order writ, injunction or decree is being contested, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

SECTION 5.04.          BINDING EFFECT.

This Agreement has been, and each other Term Loan Document (when delivered hereunder) will have been, duly executed and delivered by each Credit Party that is party thereto. This Agreement and each other Term Loan Document to which any Credit Party is a party constitutes the legal, valid and binding obligations of such Credit Party, enforceable against such Credit Party in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other Laws of general applicable effecting enforcements of creditors’ rights or general principles of equity.

SECTION 5.05.          LITIGATION.

Except as specifically disclosed on Schedule 5.05, there are no actions, suits, proceedings, claims, disputes or Regulatory Actions pending, or to the best knowledge of Borrower, threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, against any Credit Party or any Subsidiary of any Credit Party that: (a) purport to affect or pertain to any Term Loan Document or any of the transactions contemplated thereby; or (b) could reasonably be expected to have a Material Adverse Effect or, as of the Closing Date, could result in liabilities to the any Credit Party or any Subsidiary in excess of $1,000,000 which is not covered by third party insurance from an unaffiliated entity. No injunction, writ, temporary restraining order or any order of any nature has been issued by any court or other Governmental Authority purporting to enjoin or restrain the execution, delivery or performance of any Term Loan Document, or directing that the transactions provided for therein not be consummated as therein provided, or purporting to enjoin or restrain the consummation of the Transactions. Since the Closing Date, there has been no change in the status of any matters disclosed on Schedule 5.05 that individually or in the aggregate has resulted in, or materially increased the likelihood of, a Material Adverse Effect.

SECTION 5.06.          NO DEFAULTS.

No Default or Event of Default has occurred and is continuing or would result from the incurring of any Obligations by Borrower or from the grant and perfection of the Liens upon the Collateral in favor of Administrative Agent. As of the Closing Date, none of any Credit Party or any Subsidiary of any Credit Party is in default under or with respect to any Contractual Obligation in any respect that, individually or together with all such defaults, could reasonably be expected to have a Material Adverse Effect, or that would, if such default had occurred after the Closing Date, create an Event of Default under Section 8.01(e).

SECTION 5.07.          EMPLOYEE BENEFIT PLANS.

(a)         Compliance with ERISA Generally. Borrower and each ERISA Affiliate are in compliance with the applicable provisions of ERISA, the Code and other federal or state Law with respect to each Plan, and each Plan which is intended to qualify under subsection 401(a) of the Code has received a favorable determination letter from the IRS and nothing has occurred that would cause the loss of such qualification, in each case, except as could not reasonably be expected to have a Material Adverse Effect. Borrower and each ERISA Affiliate have made all required contributions to any Pension Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.

(b)         No Actions. (i) There are no pending or, to the best knowledge of Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect; and (ii) there has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.

(c)         Certain Events. (i) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Event has occurred or is reasonably expected to occur and neither Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069(a) or 4212(c) of ERISA; (ii) no event or circumstance has occurred or exists that, if such event or circumstance had occurred or arisen after the Closing Date, would create an Event of Default under Section 8.01(i); and (iii) the assets of Holdings, the Borrower or any of their Subsidiaries do not constitute “plan assets” of any Benefit Plan, within the meaning of the Plan Asset Regulation.

(d)         Each Foreign Pension Plan is in compliance in all material respects with all requirements of Law applicable thereto and the respective requirements of the governing documents for such plan except to the extent such non-compliance could not reasonably be expected to result in a Material Adverse Effect. With respect to each Foreign Pension Plan, none of Borrower, its Affiliates or any of their respective directors, officers, employees or agents has engaged in a transaction which would subject Holdings, Borrower or any of its Subsidiaries, directly or indirectly, to a tax or civil penalty which could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. With respect to each Foreign Pension Plan, reserves have been established in the financial statements furnished to Administrative Agent in respect of any unfunded liabilities in accordance with applicable Law and prudent business practice or, where required, in accordance with ordinary accounting practices in the jurisdiction in which such Foreign Pension Plan is maintained. The aggregate unfunded liabilities with respect to such Foreign Pension Plans could not reasonably be expected to result in a Material Adverse Effect. There are no actions, suits or claims (other than routine claims for benefits) pending or threatened against Borrower or any of its Affiliates with respect to any Foreign Pension Plan which could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

SECTION 5.08.           USE OF PROCEEDS.

Borrower will use the proceeds of the Loans solely for the purposes set forth in and as permitted by Section 6.11 and Section 7.10.

SECTION 5.09.           TITLE TO PROPERTIES.

Except as disclosed on Schedule 5.09 (as the same may be updated from time to time by Borrower with the prior written consent of Administrative Agent in its Administrative Discretion), Credit Party and each Subsidiary thereof have good record and marketable title in fee simple to, or valid leasehold interests in, or valid rights to use (including easements) all real property necessary to the ordinary conduct of their respective businesses, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. As of the Closing Date, the properties of Borrower and each Credit Party are subject to no Liens other than Permitted Liens.

SECTION 5.10.           TAXES.

Each Credit Party and each Subsidiary thereof have filed all U.S. federal and other material Tax returns and reports required to be filed with a taxing authority, and have paid prior to delinquency all U.S. federal and other material Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and owing by them, except those (i) that are being contested in good faith by appropriate proceedings timely instituted and diligently conducted and for which such Person has set aside adequate reserves, if any, on its financial statements in accordance with GAAP and (ii) where failure to file or pay while such taxes are being contested could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. There is no proposed tax assessment against any Credit Party or any Subsidiary thereof that would, if made, have a Material Adverse Effect.

SECTION 5.11.          FINANCIAL CONDITION.

(a)         No Material Adverse Effect. Since the date of the Katapult Merger Agreement, there has not occurred an event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

SECTION 5.12.          ENVIRONMENTAL MATTERS.

Each Credit Party and each of its Subsidiaries conducts in the ordinary course of business a review of the effect of existing Environmental Laws and existing Environmental Claims on its business, operations and properties, and as a result thereof each Credit Party and each of its Subsidiaries has reasonably concluded that, except as specifically disclosed on Schedule 5.12, such Environmental Laws and Environmental Claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Since the Closing Date, there has been no change in the status of the any matters disclosed on Schedule 5.12 that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect.

SECTION 5.13.           MARGIN REGULATIONS; REGULATED ENTITIES.

(a)         Margin Regulations. Neither Holdings, Borrower nor any Subsidiary thereof is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.

(b)         Investment Company Act. None of Holdings, Borrower or any Subsidiary thereof, or any Person controlling Borrower is required to be registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

SECTION 5.14.          SWAP OBLIGATIONS.

Neither Holdings, Borrower nor any Subsidiary of Borrower has incurred any outstanding obligations under any Swap Contracts not permitted by Section 7.03(b) hereof.

SECTION 5.15.          INTELLECTUAL PROPERTY.

Holdings, Borrower and each Subsidiary thereof own or are licensed or otherwise have the right to use all of the patents, trademarks, service marks, trade names, copyrights, contractual franchises, authorizations and other rights that are reasonably necessary for the operation of their respective businesses, except for those the failure of which to own or license could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The use of such intellectual property by Holdings, Borrower and its Subsidiaries and the operation of their respective businesses do not infringe any valid and enforceable intellectual property rights of any other Person, except to the extent any such infringement could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by Holdings, Borrower or any Subsidiary thereof infringes upon any rights held by any other Person, except to the extent any such infringement could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as specifically disclosed on Schedule 5.05, no claim or litigation regarding any of the foregoing is pending or, to Borrower’s knowledge, threatened in writing, and no patent, invention, device, application, principle or any statute, Law, rule, regulation, standard or code is pending or, to Borrower’s knowledge, proposed, which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

SECTION 5.16.          EQUITY INTERESTS HELD BY BORROWER; EQUITY INTERESTS IN BORROWER.

(a)         As of the Closing Date: (i) the only Subsidiaries of Holdings are those listed on Schedule 5.16; and (ii) neither Holdings nor any Subsidiary of Holdings holds any Equity Interests in any other Person other than those specifically disclosed on Schedule 5.16. Schedule 5.16 sets forth, as of the Closing Date, the names and ownership interests of each of the shareholders or each equity holder of each of the Subsidiaries of Holdings.

(b)        Schedule 5.16 sets forth, as of the Closing Date, the names and ownership interests of the shareholders or other equity holders of each Group Party. All of the outstanding Equity Interests in Holdings and in each Subsidiary of Holdings have been validly issued and are fully paid and nonassessable.

(c)         [Reserved].

(d)        To the knowledge of the Credit Parties, no owner of any Equity Interests in Borrower has granted any security interest or Lien on such Equity Interests to any Person.

(e)         Each Immaterial Foreign Subsidiary does not have any assets or conduct any business.

SECTION 5.17.          INSURANCE.

The properties of each Credit Party and each Subsidiary thereof are insured with financially sound and reputable insurance companies that are not Affiliates of any of the Credit Parties, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and leasing or owning similar properties in localities where such Credit Party or its Subsidiary operates.

SECTION 5.18.           COLLATERAL AND COLLATERAL DOCUMENTS.

(a)         Enforceable and Perfected Security Interest.

(i)            The Security Agreement creates in favor of Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral and the proceeds thereof (the “Security Interest”) and (i) when the applicable Collateral (other than Uncertificated Securities, as defined in the Security Agreement) required to be delivered pursuant to the Security Agreement are delivered to Administrative Agent together with the proper endorsements, the Security Interest therein shall be perfected, (ii) when a Uniform Commercial Code financing statement in appropriate form is filed in the Office of the Secretary of State (or similar office as appropriate) of each Credit Party’s state of organization, incorporation or formation, as the case may be, the Security Interest (other than with respect to certain Intellectual Property (as defined in the Security Agreement) with respect to which additional filings may be necessary or desirable as described in Section 5.18(a)(ii)) shall be perfected to the extent the Security Interest may be perfected by the filing of a UCC financing statement.

(ii)          Upon the recordation of the Security Agreement (or a short form security agreement in form and substance reasonably satisfactory to Borrower and Administrative Agent) with the United States Patent and Trademark Office and the United States Copyright Office, and the filing of each UCC financing statement in the office indicated therein, the Security Interest in all of the Intellectual Property of Borrower and the other Credit Parties constituting Collateral shall be perfected.

(iii)          Each Account Control Agreement perfects the Security Interest in each Deposit Account and each Securities Account, and each other deposit account and securities account constituting Collateral.

(b)        Truth and Correctness of Representations and Warranties. All representations and warranties of each Credit Party in each Collateral Document are true and correct in all material respects (except to the extent already qualified by materiality, in which case, such representations and warranties are true and correct in all respects).

SECTION 5.19.          LABOR RELATIONS.

Except as otherwise previously disclosed to the Administrative Agent in writing, there are no strikes, lockouts or other material labor disputes against Holdings, Borrower or any Subsidiary thereof, or to Borrower’s knowledge, threatened against or affecting Holdings, Borrower or any Subsidiary thereof, and no significant unfair labor practice complaint is pending against Holdings, Borrower or any Subsidiary thereof or, to the knowledge of Borrower, threatened against any of them before any Governmental Authority. Except as set forth on Schedule 5.19: (a) neither Holdings, Borrower, nor any Affiliate or Subsidiary thereof are a party to any collective bargaining agreements or contracts; and (b) no union representation exists and, to the knowledge of Borrower, no union organizing activities are taking place.

SECTION 5.20.          SOLVENCY.

(a)         Immediately after giving effect to the making of the Initial Term Loan on the Closing Date (i) the Credit Parties (on consolidated basis) are Solvent and (ii) the Group Parties (on a consolidated basis) are Solvent.

SECTION 5.21.          FULL DISCLOSURE.

To the best knowledge after due inquiry of any Responsible Officer of Borrower, the Term Loan Documents and the statements contained in the exhibits, reports, statements and certificates furnished by or on behalf of any Group Party in connection with the Term Loan Documents (including the offering and disclosure materials delivered by or on behalf of any Group Party to Administrative Agent and Lenders (or any of the foregoing Persons) prior to the Closing Date) as supplemented from time to time in writing, taken as a whole, do not contain any untrue statement of a material fact or omit any material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they are made, not misleading as of the time when made or delivered; provided that with respect to projected financial information, Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.

SECTION 5.22.          CERTAIN DOCUMENTS.

Borrower has delivered to Administrative Agent on the Closing Date a true, complete and correct copy of the Katapult Merger Agreement, as in effect on and as of the Closing Date.

SECTION 5.23.          ANTI-CORRUPTION LAWS AND SANCTIONS.

Each of Holdings, Borrower and its Subsidiaries has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by Holdings, Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and Holdings, Borrower, its Subsidiaries and, to the knowledge of Borrower, their respective officers, directors, employees and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) Holdings, Borrower, any Subsidiary of Borrower, or, to the knowledge of Holdings, Borrower or such Subsidiary, any of their respective directors, officers or employees, or (b) to the knowledge of Holdings, Borrower, any agent of Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. The Katapult Merger Transaction will not violate any Anti-Corruption Law or applicable Sanctions.

SECTION 5.24.          DEPOSIT ACCOUNTS AND SECURITIES ACCOUNTS.

(a)         Schedule 1.03 sets forth a true, correct and complete list of any and all deposit accounts and securities accounts of each Credit Party as of the Closing Date.

(b)         [Reserved].

ARTICLE 6
AFFIRMATIVE COVENANTS

So long as the Discharge of Secured Obligations shall not have occurred:

SECTION 6.01.          REPORTING REQUIREMENTS.

Borrower shall deliver, or cause to be delivered, to Administrative Agent and each Lender, in form and detail satisfactory to Administrative Agent:

(a)         Annual Audited Financial Reports. As soon as available, but in any event:

(i)            within one hundred twenty (120) days after the end of each Fiscal Year of Borrower:

(A)          a consolidated balance sheet of Holdings and its consolidated subsidiaries as at the end of such Fiscal Year, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such Fiscal Year, setting forth, in each case in comparative form, the figures for the previous Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, and certified by the chief financial officer of Holdings as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of Holdings and its consolidated subsidiaries as at the end of such Fiscal Year and for the period covered thereby, in accordance with GAAP;

provided, that such consolidated financial statements referred to in clause (A) immediately above shall be audited and accompanied by a report and opinion of an Accounting Firm, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (other than as to prior periods not audited by such Accounting Firm).

(b)         Fiscal Quarters Financial Statements. As soon as available, but in any event within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year of Borrower, commencing with the Fiscal Quarter ending September 30, 2026:

(i)            a consolidated balance sheet of Holdings and its consolidated subsidiaries as at the end of such Fiscal Quarter, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the portion of its Fiscal Year then ended, setting forth, in each case in comparative form, the figures for the corresponding portion of the previous Fiscal Year, all in reasonable detail, such consolidated statements to be internally prepared and certified by the chief financial officer of Holdings as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of Holdings and its consolidated subsidiaries as at the end of such Fiscal Quarter and for the period covered thereby, in accordance with GAAP, subject only to normal year end audit adjustments and the absence of footnotes; and

(c)         Katapult Business Plan. Borrower shall submit, or cause to be submitted, on August 30, 2026 and on each February 28th and August 30th thereafter, forecasts of Holdings and its Subsidiaries, in form and substance satisfactory to Administrative Agent and the Required Lenders in their Permitted Discretion (X) of consolidated balance sheets and statements of income or operations and cash flows of Holdings and its consolidated subsidiaries for the immediately following Fiscal Year (including for the Fiscal Year immediately following the Fiscal Year in which the Maturity Date occurs) and (Y) showing revenues, initiation costs, overhead costs, outstanding balance of debt and other financial metrics for the immediately following Fiscal Year (clauses (X) and (Y) immediately above, a “Katapult Business Plan”); provided, that for any Katapult Business Plan delivered to Administrative Agent and Lenders on or after February 28, 2027, a comparison of the previous Katapult Business Plan delivered to Administrative Agent and the Lenders to actual performance over the related period.

Notwithstanding the foregoing, the obligations in Sections 6.01(a) and 6.01(b) may be satisfied with respect to financial information of Holdings and its Subsidiaries by furnishing Holdings’ Form 10-K or 10-Q (or any comparable or successor form), as applicable, filed with the SEC.

SECTION 6.02.           CERTIFICATES; OTHER INFORMATION.

Borrower shall deliver or cause to be delivered to Administrative Agent and each Lender, in form and detail satisfactory to Administrative Agent, the following:

(a)         Accountants’ Certificate. Concurrently with Borrower’s delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants certifying and stating that, in connection with their audit, nothing came to their attention that caused them to believe that Borrower failed to comply with the financial covenants of Section 7.16, but also noting that their audit was not directed primarily toward obtaining knowledge of or non-compliance with Section 7.16.

(b)        Compliance Certificate. Concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of Section 6.01, a duly completed Compliance Certificate signed by an appropriate Responsible Officer of Borrower.

(c)         Audit Reports. Promptly after any request by Administrative Agent or any Lender, copies of any detailed audit reports management letters submitted to the board of directors (or the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, any Credit Party or any Subsidiary thereof, or any audit of any of them.

(d)         Equity Interest Holder Reports and Certain Public Filings. Promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the holders of Equity Interests of Borrower and copies of all annual, regular, periodic and special reports and registration statements that Borrower may file or be required to file with the SEC under Section 13 or Section 15(d) of the Exchange Act, and, in each case, not otherwise required to be delivered to Administrative Agent pursuant hereto.

(e)        Debt Holder Reports. Promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Credit Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement that are not otherwise required to be furnished to Administrative Agent and Lenders pursuant to Section 6.01 or any other clause of this Section 6.02.

(f)         Materials from Governmental Authorities. Promptly, and in any event within five (5) Business Days after receipt thereof by any Credit Party or any Subsidiary thereof, copies of each material notice or other material correspondence received from any Governmental Authority concerning any investigation (other than Routine Inquiries) regarding any material financial or other material operational results of Borrower and its Subsidiaries, taken as a whole.

(g)        Additional Information. Promptly, such additional information regarding the business, financial or corporate affairs of any Credit Party or any Subsidiary thereof or compliance with the terms of the Term Loan Documents, as Administrative Agent or any Lender may from time to time request in its Permitted Discretion.

SECTION 6.03.           NOTICES.

(a)         Borrower shall promptly, and in any event within five (5) Business Days after any Responsible Officer of Borrower obtains actual knowledge, or receives notice, thereof, notify Administrative Agent and each Lender of:

(i)            Defaults; Events of Default. The occurrence of any Cease Funding Event, Default, Default, Event of Default or any event of default (or analogous term) under any Permitted Katapult Debt Agreement (without giving effect to clauses (i), (ii) and (iii) in such definition).

(ii)           Matters Involving a Material Adverse Effect. Any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including any such matter arising from: (i) any breach or non performance of, or any default under, a Contractual Obligation of any Credit Party; (ii) any dispute, litigation, investigation, proceeding or suspension between any Credit Party and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting any Credit Party thereof, including pursuant to any applicable Environmental Laws.

(iii)         ERISA Events. The occurrence of any ERISA Event that has resulted, or could reasonably be expected to result, in a Material Adverse Effect.

(iv)         Certain Acquisitions. Any Acquisition (including of any Real Estate), or the incurrence of any Contractual Obligations with respect to any Acquisition, by Borrower or any Subsidiary thereof, which notice shall identify the related acquiree(s), if any, the anticipated closing date of such Acquisition and the aggregate cash and non-cash consideration (including assumption of Debt) to be paid in connection with such Acquisition.

(v)          Litigation. Any (A) institution (by filing) of any litigation or any proceeding against any Credit Party or any Subsidiary thereof involving an alleged liability of, or which could reasonably be excepted to result in liabilities, equal to or greater than $500,000 individually, (B) adverse determination in any litigation or proceeding referenced in the preceding clause (A) against any Credit Party or any Subsidiary thereof equal to or greater than $500,000 individually, (C) certification of a class in relation to, or adverse determination in, any class action litigation against any Credit Party or any Subsidiary thereof, or (D) any assertion of any allegation of fraud, criminal conduct, misappropriation or other wrongful or illegal conduct on the part of any Credit Party or any Subsidiary thereof except to the extent such assertion could not reasonably be expected to result in a Material Adverse Effect; provided, however, that, notice under clause (A) of this section is not required for litigation (x) alleging non-class action personal injury claims for acts or omissions that arose in the ordinary course of Borrower or its Subsidiaries’ business and (y) for which the Credit Party or any Subsidiary is insured and Borrower and the amount of uninsured liability shall not exceed $500,000.

(vi)         Regulatory Action. Any complaint, order, citation, notice, request for information or other written communication from a Governmental Authority or any other Person (other than a Routine Inquiry) delivered to any Credit Party or any Subsidiary thereof with respect to, or if any Responsible Officer of any Credit Party becomes actually aware of (i) any material violation or alleged material violation by a Credit Party or any Subsidiary thereof of any applicable Law, or (ii) any Regulatory Action.

(vii)         Financial Matters. Any material change in accounting policies or financial reporting practices by Holdings, any Credit Party or any Subsidiary of a Credit Party, except as required or permitted by GAAP.

(viii)        Change of Law. Any change to any Law materially and adversely affecting Borrower’s or any of its Subsidiaries’ respective business, taken as a whole.

(ix)          Formation of New Subsidiary. Any Credit Party forms or acquires a new Subsidiary.

(x)           Taxes. Any proposed adjustments, reports, proceedings or investigations related to any material Taxes and any other material reports or notices received by any Credit Party or any Subsidiary thereof from, or filed by any Credit Party or any Subsidiary thereof with, any Governmental Authority.

(xi)         Certain Amendments. Any material amendments, restatements, supplements, modifications or waivers to or of any provisions of any Organizational Document of any Credit Party.

(b)         [Reserved].

Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of Borrower, setting forth details of the occurrence referred to therein and stating what action, if any, Borrower (or the other applicable Person) has taken or proposes to take with respect thereto. To the extent applicable, each notice given pursuant to Section 6.03 shall describe with reasonable particularity any and all provisions of this Agreement and any other Term Loan Document that have been (or could reasonably be expected to be) breached or violated.

SECTION 6.04.          PAYMENT OF CERTAIN OBLIGATIONS.

Each Credit Party shall and shall cause each of its Subsidiaries to pay and discharge prior to delinquency all material Tax liabilities, assessments and governmental charges or levies upon their respective properties, unless the same are being contested in good faith by appropriate proceedings timely instituted and diligently conducted by the applicable Person and such Person has set aside adequate reserves, if any, on its financial statements in accordance with GAAP.

SECTION 6.05.          PRESERVATION OF EXISTENCE, ETC.

Each Credit Party shall and shall cause each of its Subsidiaries to: (a) preserve, renew and maintain in full force and effect their respective legal existence and good standing under the Laws of the jurisdiction of their organization except in a transaction permitted by Section 7.04 or Section 7.05; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of their respective businesses, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of their respective registered patents, trademarks, trade names and service marks and other intellectual property, the non preservation of which could reasonably be expected to have a Material Adverse Effect.

SECTION 6.06.           MAINTENANCE OF PROPERTIES.

Each Credit Party shall and shall cause each of its Subsidiaries to: (a) maintain, preserve and protect all of their respective material properties and equipment necessary to the operation of their respective businesses in good working order and condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals and replacements thereof; in each of the foregoing clauses (a) and (b), except where the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

SECTION 6.07.           MAINTENANCE OF INSURANCE.

Each Credit Party shall and shall cause each of its Subsidiaries to maintain, with financially sound and reputable insurance companies not Affiliates of any Credit Party, property, liability and casualty insurance (including hazard insurance where customary) with respect to their respective properties and businesses against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self insurance compatible with the following standards) as are customarily carried under similar circumstances by such other Persons. Within 30 days after the Closing Date, any casualty and/or property insurance of the Credit Parties and of the Restricted Subsidiaries shall name the Administrative Agent as lenders’ loss payee and any liability insurance shall name the Administrative Agent as an additional insured (provided the foregoing shall exclude any D&O insurance). Within 30 days after the Closing Date such policies of the Credit Parties and of the Restricted Subsidiaries shall contain a provision whereby they may not be canceled or materially amended except upon thirty (30) days’ prior written notice to the Administrative Agent. The Borrower will promptly deliver to the Administrative Agent, at the Administrative Agent’s request, evidence satisfactory to the Agent that such insurance has been so procured.

SECTION 6.08.          COMPLIANCE WITH LAWS.

Each Credit Party shall and shall cause each of its Subsidiaries to comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees that are applicable and material to them or to their respective properties or businesses, except in such instances in which such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings timely instituted and diligently conducted.

SECTION 6.09.          BOOKS AND RECORDS.

Each Credit Party shall and shall cause each of its Subsidiaries to: (a) maintain proper books of record and account, in which full, true and correct (in all material respects) entries in conformity with GAAP consistently applied are made of all financial transactions and matters involving their respective properties and businesses; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over them, as the case may be.

SECTION 6.10.          INSPECTION RIGHTS.

Each Credit Party shall and shall cause each of its Subsidiaries to permit each of (x) Administrative Agent and representatives and independent contractors of Administrative Agent selected by Administrative Agent, in the exercise of its Administrative Discretion, and (y) any Lender and their representatives and independent contractors selected by such Lender, to visit and inspect any of Holdings’, Borrower’s and its Subsidiaries’ respective properties, to examine their corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss their respective affairs, finances and accounts with their respective directors, officers, members, managers and independent public accountants, at such reasonable times during normal business hours and as often as may be reasonably desired, upon five (5) Business Days’ advance notice to Borrower; provided, that unless an Event of Default has occurred and is continuing, the cost of only one visit and inspection by the Administrative Agent (and not any Lender) per calendar year shall be paid by Borrower; provided further that when an Event of Default has occurred and is continuing, Administrative Agent or any Lender (or any of their respective representatives or independent contractors selected by such Lender) may do any of the foregoing at the expense of Borrower at any time during normal business hours and without advance notice and as many times as Administrative Agent or any Lender may require.

SECTION 6.11.          USE OF PROCEEDS.

(a)         Borrower shall use the proceeds of the Initial Term Loan solely: (i) to pay Transaction Costs; and (ii) for working capital and general corporate purposes.

(b)         Borrower shall use the proceeds of each Delayed Draw Term Loan solely for working capital and general corporate purposes.

SECTION 6.12.          DEPOSIT ACCOUNTS; SECURITIES ACCOUNTS; CASH MANAGEMENT

(a)         The Credit Parties shall take all actions necessary to maintain, preserve and protect the rights of Administrative Agent, for the benefit of the Secured Parties, with respect to all proceeds of Collateral in accordance with Administrative Agent’s security interest.

(b)         Subject to Section 6.14, at all times, each Deposit Account and each Securities Account (other than any Excluded Account) shall be subject to an Account Control Agreement pursuant to which Administrative Agent (or its agent), for the benefit of the Secured Parties, has “springing control”.

(c)        Each Credit Party hereby irrevocably makes, constitutes and appoints Administrative Agent (and all Persons designated by Administrative Agent for that purpose) as such Credit Party’s true and lawful attorney and agent-in-fact, to do any of the following at Administrative Agent’s sole election (and Administrative Agent shall not have any obligations to do so) after the occurrence and during the continuance of an Event of Default: (i) to endorse the name of such Credit Party upon all authorizations to transfer any funds out of any Deposit Accounts or Securities Account (other than any Excluded Account) maintained by or on behalf of such Credit Party as contemplated by the Term Loan Documents, or upon any chattel paper, document, instrument, invoice or similar document or agreement relating to any of the Collateral; (ii) to take control in any manner of any item of payment or proceeds thereof relating to the Collateral; (iii) to have access to any lock box or postal box into which mail of such Credit Party related to the Collateral is deposited; and (iv) to open and process all mail addressed to such Credit Party and deposited therein related to the Collateral. The power of attorney granted herein shall be deemed an agency, coupled with an interest and irrevocable, and not subject to termination without the consent of Administrative Agent.

(d)         From and after the Closing Date, the Credit Parties shall cause to be deposited or sent via ACH or wire transfer, in each case no less frequently than each Business Day to a Controlled Account (other than a Disbursement Account) all of the following (collectively, “Receipts and Collections”):

(i)            all amounts on deposit in each DDA (other than any DDA under clause (b) of the definition of Excluded Account) (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained);

(ii)           all payments due from credit card processors and credit card issuers and proceeds of all credit card charges;

(iii)          all cash receipts from the Disposition of assets (whether or not constituting Collateral); and

(iv)          all Net Cash Proceeds and Reinvestment Proceeds, and all other cash payments received by a Credit Party from any Person or from any source or on account of any Disposition or other transaction or event.

SECTION 6.13.           FURTHER ASSURANCES; ADDITIONAL SUBSIDIARIES; EXCLUDED SUBSIDIARIES

(a)         Further Assurances. Promptly upon the written request by Administrative Agent, each Credit Party shall and shall cause each of its Subsidiaries to take such further acts (including the acknowledgement, execution, delivery, recordation, filing and registering of documents) as may reasonably be required from time to time to: (a) carry out more effectively the purposes of this Agreement or any other Term Loan Document; (b) subject to the Liens created by any of the Collateral Documents any of the properties, rights or interests covered by any of the Collateral Documents or any other properties, rights or interests (including real property) acquired by Holdings, Borrower or any Subsidiary thereof following the Closing Date; (c) perfect and maintain the validity, effectiveness and priority of the Liens created or intended to be created by any of the Term Loan Documents; and (d) better assure, convey, grant, assign, transfer, preserve, protect and confirm to Administrative Agent the rights, remedies and privileges existing or granted or now or hereafter intended to be granted to such Persons under any Term Loan Document or other document executed in connection therewith.

(b)         [Reserved].

(c)         Additional Subsidiary Guarantors. Without limiting the generality of the foregoing, each Credit Party shall cause any Person that becomes a Subsidiary of a Credit Party (other than an Excluded Subsidiary) following the Closing Date to: (1) within ten (10) Business Days of such Person becoming a Subsidiary of a Credit Party, enter into a Joinder Agreement and otherwise deliver a Guaranty; and (2) as soon as commercially practicable and in any event within thirty (30) days (or such longer period as approved by Administrative Agent in writing) of such Person becoming a Subsidiary, enter into such Collateral Documents and Account Control Agreements as shall be required by Administrative Agent so as to create, perfect and protect a Lien in favor of Administrative Agent in all of the properties of such Person which constitute Collateral; and Borrower shall deliver or cause to be delivered to Administrative Agent, such opinions, certificates and other documents as Administrative Agent shall reasonably require; provided that, on the Closing Date, Borrower shall cause each Credit Party to execute this Agreement and such Collateral Documents and Account Control Agreements as shall be required by Administrative Agent and deliver to Administrative Agent such opinions, certificates and other documents as Administrative Agent shall reasonably require in connection therewith.

(d)        Foreign Subsidiaries. Upon (i) any acquisition or formation of Foreign Subsidiaries by a Credit Party after the Closing Date or (ii) upon any Immaterial Foreign Subsidiary ceasing to qualify as an “Immaterial Foreign Subsidiary” based on the calculations in clauses of (a) and (b) of the definition thereof (in each case, other than any Excluded Subsidiaries), then, in each case, the Borrower (A) shall promptly notify the Administrative Agent and the Lenders thereof, (B) within thirty (30) days following the acquisition or formation of such Foreign Subsidiary or such Immaterial Foreign Subsidiary ceasing to qualify as such, (I) to the extent not already delivered, deliver stock certificates and related pledge agreements, in form satisfactory to Administrative Agent, evidencing the pledge of sixty-six percent (66%) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and one hundred percent (100%) of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Foreign Subsidiary, and (II) cause such Foreign Subsidiary to deliver simultaneously therewith such other Collateral Documents as reasonably requested by the Administrative Agent.

SECTION 6.14.          POST-CLOSING OBLIGATIONS.

Execute and deliver the documents or complete the tasks, as applicable, set forth on Schedule 6.14, in each case, within the time limits specified on such Schedule (or such later times as determined by the Administrative Agent in writing in its sole discretion), each of which shall be completed or provided in form and substance reasonably satisfactory to the Administrative Agent.

SECTION 6.15.          SPECIFIED SUBSIDIARIES.

Notwithstanding anything to the contrary herein, (w) no Specified Subsidiary may, at any time, own, directly or indirectly, any Debt (other than intercompany Debt owing to such Specified Subsidiary by Borrower or any Restricted Subsidiary to the extent otherwise permitted by this Agreement), Liens on assets or Equity Interests of the Borrower or any Restricted Subsidiary, (x) none of the Borrower or any Subsidiary may transfer, sell, assign or otherwise dispose of, or grant an exclusive license in, any Material Intellectual Property to an Specified Subsidiary, (y) no Specified Subsidiary may, at any time, own, or hold an exclusive license in, any Material Intellectual Property (it being understood that to the extent any ownership of any Material Intellectual Property vests in any Specified Subsidiary, such Specified Subsidiary shall, as promptly as reasonably practicable, assign such ownership of such Material Intellectual Property to any Restricted Subsidiary or designate (or re-designate) such Specified Subsidiary as a Restricted Subsidiary) and (z) no Restricted Subsidiary may become an Specified Subsidiary if, on the date of and after giving effect to such designation, such Specified Subsidiary owns, or holds an exclusive license in, any Material Intellectual Property.

ARTICLE 7
NEGATIVE COVENANTS

So long as the Discharge of Secured Obligations shall not have occurred, the Credit Parties will not, and will not permit any Restricted Subsidiary or, solely in the case of Sections 7.02, 7.04(a), 7.04(b), 7.05, 7.06, 7.08, 7.10, 7.11, 7.12(e) or as otherwise expressly provided in this Article 7, any Specified Subsidiary, directly or indirectly, to:

SECTION 7.01.          LIENS.

Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than any of the following (collectively, the “Permitted Liens”):

(a)         any Lien created under any Term Loan Document;

(b)        any Lien for Tax liabilities, assessments and governmental charges or levies arising in the ordinary course of business that are not yet due or to the extent that non payment thereof is permitted by Section 6.04; so long as (i) (A) no notice of lien has been filed or recorded under the Code, or (B) payment in respect of any such Lien is being properly contested in good faith by appropriate proceedings, and (ii) in each case, such Liens could not reasonably be expected to cause, individually or in the aggregate, a Material Adverse Effect;

(c)         any landlord’s, grower’s, supplier’s, producer’s, carrier’s, warehouseman’s, mechanic’s, materialman’s, repairman’s or other like Lien arising in the ordinary course of business that is not overdue for a period of more than thirty (30) days (or, if more than 30 days overdue, that are unfiled and no other action has been taken to enforce such Lien) or that is being contested in good faith and by appropriate proceedings timely instituted and diligently conducted, if adequate reserves with respect thereto, if any, in accordance with GAAP are set aside on the financial statements of the applicable Person;

(d)         (i) any pledge or deposit in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to the Borrower or any Restricted Subsidiary;

(e)         any deposit or other Liens to secure the performance of bids, trade contracts, government contracts and other similar contracts (other than Debt), leases (other than Debt) or letters of credit issued in lieu of such deposits, statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature, in each case, incurred in the ordinary course of business;

(f)          any lease, sublease, easement, right of way, encroachment, restriction or other similar encumbrance affecting real property that, when aggregated with all other such Liens, is not substantial in amount, and that does not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;

(g)         any Lien securing a judgment for the payment of money not constituting an Event of Default under Section 8.01(h) or securing an appeal or other surety bond related to any such judgment;

(h)         any Lien existing on any property prior to the acquisition thereof by Borrower or any Restricted Subsidiary thereof or existing on any property of any Person at the time such Person is merged into or consolidated with Borrower or a Restricted Subsidiary of Borrower; provided that: (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person being merged into or consolidated with Borrower or any Restricted Subsidiary of Borrower, as the case may be; (ii) such Lien shall not apply to any other property or assets of Borrower or any Restricted Subsidiary thereof; and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person is merged into or consolidated with Borrower or any Restricted Subsidiary of Borrower, as the case may be;

(i)          any Lien (i) securing Debt permitted by Section 7.03(d) covering only the assets acquired with such Debt and directly related assets such as proceeds (including insurance proceeds), products, replacements, substitutions and accessions thereto and (ii) on cash collateral securing Debt permitted by Section 7.03(b);

(j)          any Lien arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that: (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by Borrower or any Restricted Subsidiary thereof in excess of those set forth by regulations promulgated by the FRB; and (ii) such deposit account is not intended by Borrower or any Restricted Subsidiary thereof to provide collateral to the depository institution;

(k)         the right of a licensee under a license agreement entered into by Borrower or any Restricted Subsidiary thereof, as licensor, in the ordinary course of business for the use of intellectual property or other intangible assets of Borrower or any such Restricted Subsidiary, in each case, which does not interfere in any respect with the ordinary conduct of its business; provided that, in the case of any such license granted by Borrower or any such Restricted Subsidiary on an exclusive basis: (i) such Person shall have determined in its reasonable business judgment that such intellectual property or other intangible assets are no longer useful in the ordinary course of business; (ii) such license shall be on terms and conditions that do not restrict the Administrative Agent’s right to utilize and/or dispose of the Intellectual Property or other intangible assets which are subject of such license in connection with the Administrative Agent’s realization on any Collateral (and, if requested by the Administrative Agent, the licensee shall agree in writing to be bound by a non-exclusive, royalty-free, worldwide license of such Intellectual Property in favor of the Administrative Agent for use in connection with the exercise of the Administrative Agent’s rights and remedies under the Loan Documents, which license shall be in form and substance satisfactory to the Administrative Agent), (iii) the license is for the use of intellectual property or other intangible assets in geographic regions in which Borrower or any Restricted Subsidiary thereof does not have material operations or in connection with the exploitation of any product not then produced or planned to be produced by Borrower or any Restricted Subsidiary thereof; or (iv) such license is granted in connection with a transaction otherwise permitted by this Agreement in which a third party acquires the right to manufacture or sell any product covered by such intellectual property or other intangible assets from Borrower or such Restricted Subsidiary; provided further that, in the case of clauses (ii) and (iii) of this Section 7.01(k), Borrower or such Restricted Subsidiary has determined that it is in its best economic interest to grant such license;

(l)           any Liens in favor of Borrower or a Subsidiary Guarantor;

(m)       any customary banker’s Liens in favor of banking institutions (including the right of setoff) encumbering Deposit Accounts maintained at such banking institutions by Borrower or any Restricted Subsidiaries that are within the general parameters in the banking industry or arising pursuant to such banking institution’s general terms and conditions, including deposits made in the ordinary course of business in respect of obligations of any Credit Party with respect to cash management services or other treasury services to the extent permitted by Section 7.03(c); provided, that such deposits shall not secure any Debt;

(n)         Liens arising from filings of UCC financing statements or similar documents regarding leases or otherwise for precautionary purposes relating to arrangements not constituting Debt;

(o)        Liens on any property or asset of Borrower or any Restricted Subsidiary thereof existing on the Closing Date and described on Schedule 7.01; provided that (i) such Lien shall not encumber, or apply or extend to, any other property or asset of Borrower or any Restricted Subsidiary thereof and (ii) such Lien shall secure only those obligations which it secures on the date hereof and extensions, renewals, refinancings and replacements thereof that do not increase the outstanding principal amount thereof;

(p)         Liens solely on any cash earnest money deposits made by Borrower or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to transaction that otherwise permitted under this Agreement;

(q)        Liens granted in the ordinary course of business on the unearned portion of insurance premiums under insurance policies of any Credit Party or any Subsidiary thereof securing the financing of the premiums with respect thereto;

(r)          any interest or title of a lessor, sublessor, licensor or sublicensor under any lease, sublease, license or sublicense entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business and covering only the assets so leases or licensed;

(s)         Liens solely on assets pursuant to merger agreements, stock or asset purchase agreement and similar agreements in respect of the Disposition of such assets otherwise permitted hereunder;

(t)          Liens on cash or Cash Equivalents used to defease or to satisfy and discharge Debt; provided that such defeasance or satisfaction and discharge is permitted by this Agreement;

(u)         Liens on motor vehicles leased in the ordinary course of business under operating leases; and

(v)         Liens securing Permitted Refinancings of Debt permitted under 7.03(n); provided that (i) such Liens shall not encumber, or apply or extend to, any other property or asset of Borrower or any Restricted Subsidiary thereof, and (ii) such Lien was permitted hereunder prior to such Permitted Refinancing.

Furthermore, the Specified Subsidiaries shall not incur any Liens in respect of Capital Leases or Synthetic Leases (excluding any leases of motor vehicles) except in an aggregate amount not to exceed the greater of $25,000,000 and 5.0% of Consolidated Adjusted EBITDA.

SECTION 7.02.           INVESTMENTS.

Make any Investments, except:

(a)         Investments in cash and Cash Equivalents;

(b)        Investments arising from transactions by Borrower or any Subsidiary thereof with customers or suppliers in the ordinary course of business, including Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers and suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business;

(c)        advances to officers, directors, employees, shareholders, partners or members of Borrower or any Subsidiary thereof for travel, entertainment, relocation and analogous ordinary business purposes in a maximum aggregate amount at any time outstanding not to exceed, in the case of the Borrower or any Restricted Subsidiary, $500,000 or, in the case of any Specified Subsidiary, to the extent permitted under the Permitted Katapult Debt Agreement applicable to such Specified Subsidiary, in an amount not to exceed $500,000 in the aggregate for all Specified Subsidiaries;

(d)         Investments of Holdings in Borrower or any Subsidiary Guarantor;

(e)         any Permitted Acquisition;

(f)         Investments made for the benefit of employees of Borrower or any Subsidiary thereof for the purposes of deferred compensation or advances of payroll payments in the ordinary course of business;

(g)        Investments consisting of Swap Contracts permitted by Section 7.03(b) or, in the case of any Specified Subsidiary, any Swap Contracts that would not be prohibited by the terms of any Permitted Katapult Debt Agreement applicable to such Specified Subsidiary to the extent entered into for a bonafide business purpose and not for speculative purposes;

(h)         Investments consisting of Capital Expenditures;

(i)          Investments in any wholly owned Subsidiary of the Borrower; provided that (i) if the Investment is being made from a Credit Party to a Subsidiary that is not a Credit Party or (ii) from a Restricted Subsidiary to a Subsidiary that is neither a Credit Party nor a Restricted Subsidiary, then no default or Event of Default shall have occurred and be continuing at the time of such Investment;

(j)         any Investment set forth on Schedule 7.02 or an Investment consisting of any extension, modification or renewal of any such Investment; provided that the amount of any such Investment may only be increased (x) as required by the terms of such Investment as in existence on the date of this Agreement or (y) as otherwise permitted under this Agreement;

(k)        Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers’ compensation, performance and other similar deposits;

(l)          Investments consisting of non-cash consideration received in the form of securities, notes or similar obligations in connection with dispositions of obsolete or worn out assets permitted pursuant to this Agreement;

(m)       Investments (which may constitute unsecured Debt consisting of promissory notes or similar Debt issued by Borrower or any Subsidiary of Borrower) consisting of obligations of current, future or former officers, directors and employees thereof, or to their respective estates, spouses or former spouses to Borrower or its Subsidiaries in connection with such current, future or former officers’, directors’ and employees’, or their respective estates’, spouses’ or former spouses’ acquisition of Equity Interests in Holdings (other than Disqualified Equity Interests) so long as no cash is actually advanced by any Group Party in connection with the acquisition of such obligations;

(n)         Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection and deposit and UCC Article 4 customary trade arrangements with customers consistent with past practices;

(o)         Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;

(p)         to the extent constituting an Investment, any obligations or guarantees permitted by Section 7.03(i) or, in the case of any Specified Subsidiary, any obligations or guarantees of the type described in Section 7.03(i) constituting indebtedness that would not be prohibited by the terms of any Permitted Katapult Debt Agreement applicable to such Specified Subsidiary;

(q)        Investments in company-owned life insurance policies, solely to the extent obtained in relation to deferred compensation plans consistent with past practices;

(r)          in the case of Specified Subsidiaries, (i) Investments in (A) the Borrower or any Restricted Subsidiary or (B) any other wholly-owned Specified Subsidiary and (ii) Investments that are not prohibited by the terms of any Permitted Katapult Debt Agreement applicable to such Specified Subsidiary in an aggregate principal amount not to exceed the greater of $37,500,000 and 7.5% of Consolidated Adjusted EBITDA provided no Event of Default has occurred and is continuing at the time of any such Investment;

(s)         Investments consisting of obligations of officers and employees to Borrower or its Subsidiaries in connection with such officers’ and employees’ acquisition of Equity Interests in Borrower (other than Disqualified Equity Interests) so long as no cash is actually advanced by any Group Party in connection with the acquisition of such obligations;

(t)         any credit services organization, credit access business, or analogous program (each, a "CSO Program") that would otherwise constitute an Investment, to the extent (i) such CSO Program is operated in a state in which a credit services organization, credit access bureau, or analogous model is required or authorized under applicable Law; (ii) the role of the applicable Subsidiary in such CSO Program constitutes one or more of the following: (A) providing a guaranty of, or credit enhancement with respect to, the repayment obligations of consumers under loans originated by one or more unaffiliated third-party lenders or debt providers (whether as sole guarantor or together with other guarantors), (B) marketing, administering, facilitating, or arranging the extension of credit by such unaffiliated third-party lenders or debt providers to consumers, and/or (C) acquiring, by assignment or otherwise, defaulted consumer obligations in connection with the satisfaction of a guaranty or credit enhancement obligation described in clause (A); and (iii) the applicable Subsidiary does not hold as principal any performing consumer loan prior to such loan becoming a defaulted obligation acquired pursuant to clause (ii)(C); provided that such Investment shall be with an unaffiliated third party and on fair and reasonable terms as favorable to Borrower or any Subsidiary, as applicable, as would be obtainable by such Person at the time in a comparable arm’s length transaction with a Person other than an Affiliate;

(u)         any lending or credit program in which a federally insured depository institution or other regulated financial institution originates or funds loans or extensions of credit using technology, operational, servicing, marketing, underwriting support, or other services provided by Borrower or any of its Subsidiaries pursuant to a written program agreement, together with all loans, receivables, servicing rights, servicing assets, contract rights, deposit accounts, reserve accounts, collections, proceeds, and related assets arising from or associated with such program; provided that such Investment shall be with an unaffiliated third party and on fair and reasonable terms as favorable to Borrower or any Subsidiary, as applicable, as would be obtainable by such Person at the time in a comparable arm’s length transaction with a Person other than an Affiliate.

SECTION 7.03.           DEBT.

Create, incur, assume or suffer to exist any Debt, except:

(a)         Debt under the Term Loan Documents;

(b)        Swap Contracts entered into for the purpose of fixing or hedging (A) interest rate risk with respect to any floating rate Debt that is permitted by the terms of this Agreement to be outstanding, (B) currency exchange risk in connection with financial obligations in the ordinary course of business and not for purposes of speculation or (C) other commodity risks or obligations in the ordinary course of business and not for purposes of speculation;

(c)        obligations of any Credit Party under any cash management or other treasury management arrangements consisting of netting services, automatic clearinghouse arrangements, overdraft facilities, employee credit card programs, prefunding accounts, debit card programs and other cash management services established and repaid in the ordinary course of business;

(d)        Debt in respect of: (i) capital leases and operating leases and any refinancings thereof; (ii) Synthetic Lease Obligations and any refinancings thereof; and (iii) purchase money obligations for the purpose of financing (or refinancing) all or any part of the purchase price or cost of construction or improvement of property (real or personal), plant or equipment used in the business of Borrower or such Restricted Subsidiary that, added to all other Debt permitted pursuant to this clause (e) and then outstanding will not exceed an amount equal to $5,000,000, plus (B) the amount of any fees and expenses incurred in connection with any financing transaction or refinancing; provided, however, that any such refinancing Debt shall (i) be issued by the same obligor as the Debt being so refinanced and be on terms, taken as a whole, not materially more restrictive than the terms of the documents governing the Debt being so refinanced; and (ii) be in a principal amount not exceeding the principal amount of the Debt being refinanced on such date plus any call premiums, prepayment fees, costs and expenses paid in connection with such refinancing;

(e)         Debt in respect of: (i) workers’ compensation claims or obligations in respect of health, disability or other employee benefits; (ii) property, casualty or liability insurance or self insurance; (iii) completion, bid, performance, appeal or surety bonds issued for the account of Borrower or any Restricted Subsidiary thereof; or (iv) bank guarantees, letters of credit, bankers’ acceptances and other similar obligations not constituting Debt for borrowed money; in each of the foregoing cases, to the extent incurred in the ordinary course of business;

(f)          intercompany Debt of Borrower or any Restricted Subsidiary owing to and held by Borrower or any other Restricted Subsidiary; provided that (i) if Borrower or any Subsidiary Guarantor is the obligor on such Debt and any Restricted Subsidiary (other than a Subsidiary Guarantor) is the obligee thereof, such Debt must be acceptable to Administrative Agent in its Administrative Discretion and also be unsecured and expressly subordinated to the prior Discharge of Secured Obligations and the prior satisfaction of all Obligations (including, with respect to any Subsidiary Guarantor, its obligations under Section 10.14), (ii) Debt owed to Borrower or any Subsidiary Guarantor must be evidenced by an unsubordinated promissory note pledged to Administrative Agent under the applicable Collateral Document and (iii) Debt owing from a Restricted Subsidiary that is not a Credit Party to a Credit Party shall constitute an Investment and be subject to the limitations set forth in Section 7.02;

(g)         [Reserved];

(h)         Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;

(i)          Unsecured Debt arising from agreements of Borrower or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case, incurred in connection with the disposition of any business, assets or Restricted Subsidiary, other than guarantees of Debt incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition; provided that (i) the maximum aggregate liability in respect of all such Debt shall at no time exceed the gross proceeds actually received by Borrower or such Subsidiary in connection with such disposition and (ii) with respect to Debt all such Debt (other than indemnification obligations) in an aggregate principal amount in excess of $500,000, such Debt must be expressly subordinated to the Obligations pursuant to terms satisfactory to the Administrative Agent;

(j)          Debt described on Schedule 7.03;

(k)         (i) Debt representing deferred compensation or stock-based compensation to employees of the Borrower or any Restricted Subsidiary incurred in the ordinary course of business and (ii) Debt consisting of obligations of the Borrower or any Restricted Subsidiary under deferred compensation or other similar arrangements incurred in connection with any Investment permitted hereunder;

(l)         Debt of the Borrower or any Restricted Subsidiary constituting the financing of insurance premiums in the ordinary course of business;

(m)        unsecured Permitted Subordinated Debt incurred solely for the purpose of exercising any Cure Right in accordance with Section 7.16(c); and

(n)         Permitted Refinancings of any such Debt.

SECTION 7.04.          FUNDAMENTAL CHANGES.

(a)        Engage in any material line of business substantially different from those lines of business conducted by Borrower and its Subsidiaries on the date hereof or any Related Business.

(b)        Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:

(i)            (A) any Subsidiary of Borrower may merge with Borrower; provided that Borrower shall be the continuing or surviving Person; or (B) any Subsidiary of Borrower may merge with any other Subsidiary of Borrower; provided that all of the following conditions are met: (x) when any wholly owned Subsidiary of Borrower is merging with another Subsidiary of Borrower, then another wholly owned Subsidiary of Borrower shall be the continuing or surviving Person and (y) when the merger involves a Subsidiary Guarantor, then another Subsidiary Guarantor shall be the continuing or surviving Person;

(ii)           any Subsidiary of Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Borrower or to another Subsidiary of Borrower; provided that if the transferor in such a transaction is (i) a Subsidiary Guarantor, then the transferee must be the Borrower or a Subsidiary Guarantor, (ii) a Restricted Subsidiary that is not a Subsidiary Guarantor, then the transferee must be the Borrower or a Restricted Subsidiary or (iii) a Specified Subsidiary, then the transferee must be the Borrower, a Restricted Subsidiary or a wholly-owned Specified Subsidiary;

(iii)         any Subsidiary of Borrower may dissolve, so long as concurrently therewith (A) if such Subsidiary is a Subsidiary Guarantor, then it must convey all of its assets to the Borrower or a Subsidiary Guarantor, (B) if such Subsidiary is a Restricted Subsidiary that is not a Subsidiary Guarantor, then it must convey all of its assets to the Borrower or a Restricted Subsidiary and (C) if such Subsidiary is a Specified Subsidiary, then it must convey all of its assets to the Borrower, a Restricted Subsidiary or a wholly-owned Specified Subsidiary;

(iv)          Borrower or any Subsidiary thereof may consummate any Acquisition permitted under Section 7.02(e) or 7.02(r);

(v)           Borrower may cause the dissolution or winding up of each Immaterial Foreign Subsidiary so long as its assets are conveyed to a Restricted Subsidiary or the Borrower or, if such Immaterial Foreign Subsidiary is a Specified Subsidiary, to a wholly-owned Specified Subsidiary;

(vi)          Borrower and its Subsidiaries may complete any Dispositions permitted by Section 7.05; and

(vii)        any Subsidiary of Borrower may convert from a corporation to a limited liability company provided that, in the case of any Restricted Subsidiary, it shall comply with the requirements of Section 7.12 and, in the case of any Specified Subsidiary, such conversion is not prohibited by the terms of any Permitted Katapult Debt Agreement applicable to such Specified Subsidiary.

(c)         Make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Debt, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Debt, except:

(i)            payments in respect of the Obligations;

(ii)           with respect to any Debt permitted under Section 7.03 (other than the Obligations, Permitted Subordinated Debt and Debt described in Section 7.03(k)), payments in respect of such Debt as and when due or in connection with any Permitted Refinancings thereof;

(iii)          with respect to any Debt permitted under Section 7.03(k), payments in respect of such Debt so long as (x) no Event of Default has occurred and is continuing and (y) after giving effect to the payment thereof on a pro forma basis, the Borrower and its Restricted Subsidiaries would be in compliance with the financial covenants set forth in Section 7.16 measured as of the last day of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered hereunder; and

(iv)          with respect to any Permitted Subordinated Debt to the extent expressly permitted under Section 7.03, payments in respect of such Permitted Subordinated Debt as and when due to the extent permitted by the Permitted Subordination Agreement in relation thereto.

SECTION 7.05.          DISPOSITIONS.

Make any Disposition or enter into any agreement to make any Disposition, except:

(a)         Dispositions of used, obsolete, surplus or worn-out property, whether now owned or hereafter acquired, in the ordinary course of business and the abandonment or other Disposition of intellectual property that is, in the reasonable judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of Borrower and its Subsidiaries, taken as a whole;

(b)         Dispositions of inventory, motor vehicles and other similar assets made in the ordinary course of business;

(c)         Dispositions of motor vehicles, equipment or real property to the extent that: (i) such property is exchanged for credit against the purchase price of similar replacement property; (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; or (iii) in the case of any Disposition by a Credit Party, the proceeds of such Disposition are promptly deposited into a Deposit Account subject to an Account Control Agreement;

(d)        Dispositions of property (i) by Borrower or any Restricted Subsidiary thereof to Borrower or to a wholly owned Subsidiary of Borrower that is a Restricted Subsidiary; provided that, if the transferor of such property is Borrower or a Subsidiary Guarantor, the transferee thereof must be Borrower or a Subsidiary Guarantor or promptly become a Subsidiary Guarantor, or (ii) by any Specified Subsidiary to the Borrower, any Restricted Subsidiary or any wholly owned Specified Subsidiary;

(e)         Dispositions permitted by Section 7.04(b)(ii), Section 7.04(b)(iii), Section 7.04(b)(v);

(f)          Dispositions of bad debt in the ordinary course of business;

(g)        (i) the unwinding of any Swap Contract; (ii) to the extent permitted by Section 7.06, Restricted Payments; and (iii) to the extent permitted by Section 7.02 and otherwise constituting Dispositions, Investments;

(h)         Dispositions of cash and Cash Equivalents;

(i)          Dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business;

(j)          any surrender or waiver of contract rights or the settlement, release or surrender of contract rights or other litigation claims in the ordinary course of business; and

(k)         in the case of Specified Subsidiaries, (i) Dispositions (A) in the ordinary course of business and (B) for a bona fide business purpose for fair market value and on an arm’s length basis and (ii) Dispositions that are not prohibited by the terms of any Permitted Katapult Debt Agreement applicable to such Specified Subsidiary with respect to property the fair market value of which does not exceed the greater of $25,000,000 and 5% of Consolidated Adjusted EBITDA in the aggregate for all such Dispositions and provided no Event of Default has occurred and is continuing at the time of such Dispostion;

provided that (i) any Disposition pursuant to any of the foregoing subsections of this Section 7.05 (other than Sections 7.05(d) and 7.05(k)(ii)) shall be for not less than fair market value unless otherwise agreed by Administrative Agent in its Administrative Discretion; and (ii) Borrower shall provide Administrative Agent with written notice of any Disposition made pursuant to Section 7.05(c)(ii) by the Borrower or any Subsidiary to extent such Disposition exceeds $5,000,000 in the aggregate.

SECTION 7.06.           RESTRICTED PAYMENTS.

Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:

(a)         so long as no Event of Default under Section 8.01(a), Section 8.01(f) or Section 8.01(g) shall have occurred and be continuing or would result therefrom, Borrower and any Subsidiary may make payments to Holdings or any other direct or indirect parent entity to permit Holdings or such other direct or indirect parent entity to pay: (x) in the event the Borrower files (or is included in) a consolidated, combined, unitary or similar type tax return with Holdings or such other parent entity, or is treated as a disregarded entity for any tax purposes, U.S. federal and state and local income taxes then due and payable pursuant to those returns in respect of the taxable income of the Borrower and any Subsidiary thereof, provided that the amount of such distributions shall not be greater in the aggregate than the amount of such taxes that would have been due and payable by the Borrower and its relevant Subsidiaries had the Borrower and its relevant Subsidiaries filed a hypothetical stand-alone consolidated, combined, unitary or similar type return with Borrower treated as the consolidated parent, (determined by taking into account any losses attributable to the Borrower and such Subsidiaries for prior taxable periods to the extent such losses would not have been used to reduce taxable income of the Borrower and such Subsidiaries) provided further, that such payments are actually used to pay such taxes and that any tax refunds received by Holdings or such other direct or indirect parent entity that are attributable to the Borrower or its Subsidiaries shall be promptly returned to the Borrower (collectively, “Tax Distributions”), and (y) franchise and excise taxes, and related fees and expenses, incurred in the ordinary course of business and required to be paid to maintain the corporate or other existence of any such direct or indirect parent entity; provided that, with respect to any Restricted Payment pursuant to this clause (a) on account of taxes attributable or in relation to a Specified Subsidiary, the Borrower shall receive, an amount equal to such Restricted Payment from the Specified Subsidiaries within thirty (30) days of the applicable Restricted Payment;

(b)         Borrower and any Subsidiary may declare and make dividend payments or other distributions with respect to its common Equity Interests payable solely in additional shares of its common Equity Interests (provided that such additional common Equity Interests do not constitute Disqualified Equity Interests);

(c)         Borrower may make Restricted Payments to Holdings for the purpose of paying Public Company Costs;

(d)        any Subsidiary of Borrower may declare and make dividends, distributions or other payments with respect to such Subsidiary’s Equity Interest to Borrower and any Credit Party that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such dividend or distribution is being made; provided, however, that, for the avoidance of doubt neither Borrower nor any Subsidiary may make a Restricted Payment to Holdings under this clause (d); and

(e)         any Specified Subsidiary may make Restricted Payments (i) to the Borrower, any Restricted Subsidiary or any wholly owned Specified Subsidiary or (ii) that are not prohibited by the terms of any Permitted Katapult Debt Agreement applicable to such Specified Subsidiary in an aggregate amount not to exceed the greater of $5,000,000 and 1% of Consolidated Adjusted EBITDA so long as no Event of Default has occurred and is continuing at the time of such Restricted Payment.

SECTION 7.07.          [RESERVED].

SECTION 7.08.           TRANSACTIONS WITH AFFILIATES.

Enter into any transaction of any kind with any Affiliate of Borrower, irrespective of whether in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to Borrower, any Restricted Subsidiary or any Specified Subsidiary, as applicable, as would be obtainable by such Person at the time in a comparable arm’s length transaction with a Person other than an Affiliate, provided that the foregoing restriction shall not apply to:

(a)         transactions (i) between or among Borrower and any Guarantor, (ii) between or among Guarantors, (iii) between or among Restricted Subsidiaries that are not Guarantors, or (iv) between or among wholly owned Specified Subsidiaries;

(b)         Restricted Payments permitted under Section 7.06;

(c)         Investments permitted by Sections 7.02(c), 7.02(f) or 7.02(m);

(d)        (i) Debt (including Guarantees) permitted by Section 7.03(a), 7.03(k) or 7.03(l) and (ii) in the case of Specified Subsidiaries, indebtedness (including guarantees) that would not be prohibited by the terms of any Permitted Katapult Debt Agreement applicable to such Specified Subsidiary in an aggregate principal amount not to exceed the greater of $2,500,000 and 0.5% of Consolidated Adjusted EBITDA;

(e)         Dispositions permitted by Section 7.05(e);

(f)          the payment of reasonable and customary fees and compensation paid to, and indemnities and reimbursements and employment and severance arrangements provided on behalf of, or for the benefit of, future, current or former officers, directors, employees or consultants of Borrower or Holdings, or any of Borrower’s Subsidiaries; provided that any such severance arrangements provided on behalf of officers, directors or senior management of Borrower or Holdings are or have been approved by the Compensation Committee of Borrower’s board of managers and are not otherwise prohibited by the Term Loan Documents;

(g)         payments or loans (or cancellation of loans) to employees, directors or consultants of Borrower or Holdings or any of Borrower’s Subsidiaries and employment agreements, stock option plans and other similar arrangements with such employees, directors or consultants that, in each case, that are reasonable, customary and approved by the board of managers (or any applicable committee of the board of managers) of Borrower (or, as applicable, the comparable governing body of any Subsidiary of Borrower) in good faith and are not otherwise prohibited by the Term Loan Documents;

(h)         payments to any future, current or former employee, director, officer or consultant of Borrower or Holdings or any of Borrower’s Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement; and any employment agreements, stock option plans and other compensatory arrangements (and any successor plans thereto) and any health, disability and similar insurance or benefit plans or supplemental executive retirement benefit plans or arrangements with any such employees, directors, officers or consultants that are, in each case, are reasonable and customary payments and are not otherwise prohibited by the Term Loan Documents;

(i)          intellectual property licenses entered into between (i) Borrower and any Subsidiary Guarantor or (ii) any Specified Subsidiaries, in each case, in the ordinary course of business;

(j)          transactions among any Credit Parties, any Restricted Subsidiaries and/or any other Subsidiaries in the ordinary course of business and consistent with past practice, including shared service, intercompany service, transition service and cost allocation arrangements and approved by the board of managers (or any applicable committee of the board of managers) of Borrower;

(k)         any transactions or agreements in either case that have been approved by the Administrative Agent in writing;

(l)          transactions contemplated by the Katapult Merger Agreement; and

(m)        existing arrangements and other transactions and arrangements with variable interest entities existing on the Closing Date and listed on Schedule 7.08.

SECTION 7.09.          BURDENSOME AGREEMENTS.

Enter into any Contractual Obligation (other than this Agreement or any other Term Loan Document) that: (a) limits, restricts, or imposes any condition on the ability: (i) of any Restricted Subsidiary of Borrower to make Restricted Payments to Borrower or any other Restricted Subsidiary or to otherwise transfer property to Borrower or any other Restricted Subsidiary; (ii) of any Restricted Subsidiary of Borrower to Guarantee the Debt of Borrower; (iii) of Borrower or any Restricted Subsidiary to make or repay loans or advances to any Credit Party or any other Restricted Subsidiary; and (iv) of Borrower or any Restricted Subsidiary thereof to create, incur, assume or suffer to exist Liens on property of such Person; provided that subclause (a)(iv) of this Section 7.09 shall not prohibit any negative pledge incurred or provided in favor of any holder of Debt permitted under Section 7.03(b) or 7.03(d), solely to the extent that any such negative pledge relates to the property financed by or the subject of such Debt; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person.

SECTION 7.10.          USE OF PROCEEDS.

(a)         Margin Stock. Use the proceeds of any Loans, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.

(b)        Sanctions. Use proceeds of any Loans (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

SECTION 7.11.           CERTAIN GOVERNMENTAL REGULATIONS.

Each Credit Party will not, and will not permit any Subsidiary or Related Party to, (a) be or become subject at any time to any Law, regulation, or list of any government agency (including the United States Office of Foreign Asset Control list) that prohibits or limits any Lender from making any loans or extension of credit (including the Loans ) to any Credit Party or from otherwise conducting business with any Credit Party, or (b) fail to provide documentary and other evidence of any Credit Party’s identity as may be requested by Administrative Agent or any Lender at any time to enable Administrative Agent or such Lender to verify any Credit Party’s identity or to comply with any applicable Law or regulation, including Section 326 of the Act.

SECTION 7.12.           AMENDMENT OF MATERIAL DOCUMENTS.

Each Credit Party will not, and will not permit any of Restricted Subsidiaries, and in the case of clause (e) below, any Specified Subsidiaries, to:

(a)         in the case of any Credit Party, modify or restate its name unless Administrative Agent receives notice of such change promptly, but in any event within fifteen (15) days’ after such change is effected, or reincorporate or reorganize under the laws of any jurisdiction, and Borrower shall deliver to Administrative Agent UCC financing statements and Collateral Documents as shall be required by Administrative Agent in its Administrative Discretion to continue, create, perfect and protect, as the case may be, a Lien in favor of Administrative Agent in all of the properties of such Person which constitute Collateral, together with such legal opinions confirming perfection, certificates and other documents as Administrative Agent shall require in its Administrative Discretion;

(b)        in the case of any Credit Party, amend, supplement modify or waive any of its rights, covenants or obligations under its Organizational Documents, other than amendments, modifications or waivers that could not reasonably be expected to adversely affect Administrative Agent or the Lenders, provided that Borrower shall deliver or cause to be delivered to Administrative Agent a copy of each such amendment, modification or waiver promptly after the execution and delivery thereof;

(c)        amend, restate, modify, supplement or waive any of its rights, covenants or obligations under, or any provision of, the Katapult Merger Agreement, if any such amendment, restatement, modification, supplement or waiver, individually or in the aggregate, could reasonably be expected to adversely affect the rights, benefits or interests of Administrative Agent or any of the Lenders under the Term Loan Documents;

(d)        in the case of any Debt (other than the Obligations), amend, restate, supplement or modify, or permit the amendment, restatement, supplement or modification of: (A) the payment terms (including any provisions regarding interest rates, principal or interest payment or prepayment amounts, mandatory prepayments, timing of payments, total principal amounts or similar or related terms and provisions) of or subordination provisions respecting such Debt (other than, with respect to payment terms, to make them less onerous on the Credit Parties); or (B) any other provision of such Debt, except to the extent that: (1) no Event of Default has occurred and is continuing at the time or results by virtue of any such amendment, modification or other alteration; or (2) such amendment, restatement, supplement or modification is not materially adverse to the Borrower, its Subsidiaries or the Lenders (or would adversely impact repayment of the Obligations).

(e)         in the case of any Debt, amend, restate, supplement or modify, or permit the amendment, restatement, supplement or modification of any agreement in relation thereto if such amendment, restatement, supplement or modification is materially adverse to the Borrower, its Subsidiaries, the Agent or the Lenders (or would adversely impact repayment of the Obligations).

SECTION 7.13.          DISQUALIFIED EQUITY INTERESTS

Each Credit Party will not, and will not permit any Restricted Subsidiary to, (a) issue any Disqualified Equity Interests except as permitted under Section 7.03, or (b) be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of any Equity Interests of Holdings, Borrower or any Restricted Subsidiary, except as permitted under Section 7.06.

SECTION 7.14.          [RESERVED].

SECTION 7.15.          FOREIGN SUBSIDIARIES

Create, form, own, or acquire, whether directly or indirectly, any Foreign Subsidiary after the Closing Date.

SECTION 7.16.          FINANCIAL COVENANTS

(a)           Minimum Interest Coverage Ratio. Fail to maintain, at any time following the Closing Date, as of the last day of any Fiscal Quarter of Holdings set forth below, an Interest Coverage Ratio equal to or greater than the ratio set forth opposite such Fiscal Quarter in the table immediately below:

(b)          Maximum Leverage Ratio. Fail to maintain, at any time following the Closing Date, as of the last day of any Fiscal Quarter of Holdings set forth below, a Leverage Ratio that is equal to or less than the ratio set forth opposite such Fiscal Quarter in the table immediately below:

(c)           Minimum Liquidity. Fail to maintain, at any time following the Closing Date, as of the end of any Fiscal Quarter of Holdings, Liquidity of Holdings and its Subsidiaries equal to or in excess of $100,000,000.00.

In the event there is a failure to comply with the financial covenant set forth in this Section 7.16(c), subject to the terms and conditions hereof, Holdings and its Subsidiaries shall have the right (the “Cure Right”), commencing on the first day after the applicable Fiscal Quarter with respect to which such failure occurred until the expiration of the tenth (10^th) Business Day subsequent to the end of such Fiscal Quarter (such period, the “Cure Period”), to receive cash contributions (funded with the proceeds of additional equity or Permitted Subordinated Debt in an aggregate amount equal to, but not greater than, the amount necessary to cure the breach of such financial covenant and to ensure pro forma compliance therewith in the immediately-following Fiscal Quarter (hereinafter, the “Cure Amount”), and upon the receipt by Holdings and/or any of its Subsidiaries of the cash proceeds thereof, such financial covenant shall then be recalculated giving effect to the following pro forma adjustments: (1) Liquidity shall be increased for the applicable Fiscal Quarter in question by an amount equal to the Cure Amount; and (2) if, after giving effect to the foregoing recalculations, Holdings and its Subsidiaries shall then be in compliance with the requirements of Section 7.16(c), Holdings shall be deemed to have been in compliance with such financial covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or Default or Event of Default of such financial covenant that had occurred shall be deemed not to have occurred for this purpose of the Agreement.  In the event that (i) no Default or Event of Default exists other than that arising due to failure of Holdings to comply with the financial covenant set forth in this Section 7.16(c), and (ii) Holdings shall have delivered to Administrative Agent and Lenders written notice of its intention to exercise the Cure Right (which notice shall be delivered no later than five (5) Business Days after the end of the Fiscal Quarter in question), which exercise if fully consummated would be sufficient in accordance with the terms hereof to cause Holdings and its Subsidiaries to be in compliance with the financial covenant as of the relevant date of determination, then from and following receipt by Administrative Agent and Lenders of any such notice and until the date that is the earlier of (x) the last day of the applicable Cure Period and (y) the date, if any, on which Holdings notifies Administrative Agent in writing that such Cure Right shall not be exercised, then neither Administrative Agent nor any Lender shall exercise any remedies set forth in Section 8 hereof during such period.  Notwithstanding anything herein to the contrary, in no event shall Holdings be permitted to exercise the Cure Right under this Section 7.16(c) (x) more than three (3) times in the aggregate prior to the Maturity Date or (y) more than one (1) time in any two consecutive Fiscal Quarters. The parties hereby acknowledge that this paragraph may not be relied on for purposes of calculating any financial ratios or other amounts in this Agreement (including any baskets or covenants or any calculation on a pro forma basis) other than as applicable to Section 7.16(c) and shall not result in any adjustment to any amounts other than the amount of Liquidity solely for the purposes of Section 7.16(c).

SECTION 7.17.           ACTIVITIES OF HOLDINGS.

Holdings will not engage in any operations, business or activity other than (a) owning the Equity Interests in Borrower, (b) maintaining its corporate existence including the issuance of Equity Interests, holding director and shareholder meetings, and entering into those agreements and arrangements incidental thereto and incurring and paying fees, costs and expenses relating to thereto, (c) participating in tax, accounting, corporate and other administrative activities or other activities incidental thereto as a member of the consolidated group of companies including the Credit Parties, (d) executing, delivering and the performance of rights and obligations under the Term Loan Documents, (e) the consummation of the transactions under the Katapult Merger Agreement, (f) making any restricted payment permitted by this agreement, (g) making capital contributions to the other Credit Parties, (h) executing, delivering and the performance of rights and obligations under any employment agreements and any documents related thereto, (i) making investments permitted under this agreement, (j) providing indemnification to its officers and directors in the ordinary course of business, (k) the holding of any cash and cash equivalents (but not owning or operating any other property other than as expressly permitted hereby), (l) the entry into and performance of its obligations with respect to contracts and other arrangements entered into in the ordinary course of business providing for indemnification to officers, managers, directors and employees, (m) performing the functions of, and customary or reasonable activities of, a public company, including but not limited to (i) filing of reports and other documents with the SEC and compliance with the requirements of a U.S. national securities exchange on which the Equity Interests of Holdings are listed, including maintenance of such listing, (ii) the conduct of annual and special meetings of the board of directors and shareholders of Holdings (iii) the engagement of auditors and other advisors in connection therewith and (iv) the payment of Public Company Costs, (o) any activities conducted in connection with the Katapult Merger Transaction, (p) any activities incidental to the foregoing or required to comply with applicable law, and (q) any action or transaction permitted hereunder.

ARTICLE 8
EVENTS OF DEFAULT AND REMEDIES

SECTION 8.01.           EVENTS OF DEFAULT

Each of the following shall constitute an event of default hereunder (each, an “Event of Default”):

(a)         Non Payment. Borrower or any other Credit Party fails to pay: (i) when and as required to be paid herein, any amount of principal of any Loan; (ii) within two (2) Business Days after the same becomes due, any interest on any Loan, or any fee due hereunder; or (iii) within three (3) Business Days after the same becomes due, any other amount payable hereunder or under any other Term Loan Document, in each case, after giving effect to any applicable grace period set forth in this Agreement or in any other Term Loan Document; or

(b)        Specific Covenants. (i) Any Group Party fails to: perform or observe any covenant or agreement contained in any of Sections 6.03(a)(i)-(iii), Section 6.05 (solely as to legal existence), Section 6.07, Section 6.08, Section 6.10, Section 6.11, Section 6.12, Section 6.13, Section 6.14 or Article 7; (ii) any Guarantor fails to perform or observe any term, covenant or agreement contained in its Guaranty; or (iii) any Group Party fails to perform or observe any covenant or agreement contained in any of Section 6.01, Section 6.02 or Section 6.03 (other than Section 6.03(a)(i)-(iii)) for fifteen (15) days; or

(c)         Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of Borrower or any other Group Party herein, in any other Term Loan Document or in any document delivered in connection herewith or therewith shall be incorrect or misleading when made or deemed made, and shall continue unremedied for a period of thirty (30) consecutive calendar days, unless the same cannot reasonably be cured within such thirty (30) day period; or

(d)        Other Defaults. Any Group Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a), Section 8.01(b), Section 8.01(c)) contained in any Term Loan Document on its part to be performed or observed and such failure continues for thirty (30) days after the earlier of (x) such Group Party’s knowledge of such failure or (y) such Group Party’s receipt of notice of such failure from Administrative Agent or any Lender; or

(e)         Cross-Default.

(i)           Material Debt. The Group Parties (A) fail to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise), in respect of any Debt (other than Debt hereunder) having an aggregate outstanding principal amount of not less than $10,000,000, and such failure continues after the applicable grace period, if any, or (B) fail to observe or perform any other covenant, agreement or condition relating to any such Debt, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause (after delivery of any notice if required and after giving effect to any waiver, amendment, cure or grace period), with the giving of notice if required, such Debt to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Debt to be made, prior to its stated maturity; provided that if any such failure to make any payment or observe or perform any covenant, agreement or condition (the “Subject Default”) is waived by the requisite holder(s) of such Debt such that the Subject Default is no longer continuing prior to the acceleration of the Loans hereunder, then no Event of Default shall exist under this clause (e) with respect to the Subject Default; or

(ii)          Swap Contract Default. There occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from: (A) any event of default under such Swap Contract as to which any Group Party is the Defaulting Party (as defined in such Swap Contract); or (B) any Termination Event (as so defined) under such Swap Contract as to which any Group Party is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by any Group Party as a result thereof is greater than $5,000,000 in the aggregate.

(f)         Insolvency Proceedings, Etc. With respect to any Group Party, (i) such Person institutes or consents to the institution of any proceeding under any Bankruptcy Law, or makes an assignment for the benefit of creditors; (ii) such Person applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; (iii) any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or (iv) any proceeding under any Bankruptcy Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for sixty (60) calendar days, or an order for relief is entered in any such proceeding; or

(g)         Inability to Pay Debts; Attachment. (i) Any Group Party becomes unable or admits in writing its inability or fails generally to pay its debts as they become due; or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within thirty days after its issue or levy; or

(h)         Judgments. There is entered against any Group Party: (i) one or more final, non-appealable judgments or orders for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding $5,000,000 in the aggregate (after giving effect to any independent third-party insurance coverage as to which the insurer has not denied coverage), or (ii) any one or more non-monetary final, non-appealable judgments that have resulted in, or could reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect (after giving effect to any independent third-party insurance coverage as to which the insurer has not denied coverage), and in either case: (A) enforcement proceedings are commenced by any creditor upon such judgment or order; or (B) there is a period of forty-five (45) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, is not in effect or such judgment or order is not discharged (or in the case of clause (i), complied with in accordance with its terms), provided, if such judgment or order provides for payment thereof to be made over time it shall not be an Event of Default hereunder unless not paid within 30 days of when due in accordance with the terms thereof; or

(i)         ERISA. One or more ERISA Events occur with respect to a Pension Plan or Multiemployer Plan which, individually or in the aggregate, result or could reasonably be expected to result in liability to the Group Parties in excess of $5,000,000 in the aggregate or which would reasonably likely result in a Material Adverse Effect; or

(j)          Invalidity of Term Loan Documents. Any Term Loan Document or any material provision thereof, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or Discharge of Secured Obligations, ceases to be in full force and effect; or any Credit Party contests in any manner the validity or enforceability of any Term Loan Document or any provision thereof; or any Credit Party denies that it has any or further liability or obligation under any Term Loan Document, or purports to revoke, terminate or rescind any Term Loan Document or any provision thereof; or

(k)         Liens. Any Lien purported to be created under any Collateral Document shall cease to be, or shall be asserted by any Credit Party not to be, a valid and perfected Lien on any Collateral, with the priority required by the applicable Collateral Document, except (A) as a result of the sale or other disposition of the applicable Collateral in a transaction permitted under the Term Loan Documents or (B) as a result of Administrative Agent’s failure to maintain possession of any stock certificates, promissory notes or other instruments delivered to it under the applicable Collateral Document; or

(l)          Material Adverse Effect. There occurs a Material Adverse Effect; or

(m)        Change of Control. There occurs a Change of Control; or

(n)        Investment Company Act. Any Group Party is required to register as an “investment company” under the Investment Company Act of 1940, as amended; or

(o)        Subordination Agreements. (i) The subordination provisions of any Permitted Subordination Agreement or other documents evidencing or governing any Permitted Subordinated Debt (the “Subordination Provisions”) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of any of the applicable Permitted Subordinated Debt; or (ii) any Credit Party, any Affiliate of any Credit Party, any holder of any of the applicable Permitted Subordinated Debt or any representative, agent or trustee on behalf of such holder shall, directly or indirectly, disavow, contest or challenge in any manner (A) the effectiveness, validity or enforceability of any of the Subordination Provisions, (B) that the Subordination Provisions exist for the benefit of Administrative Agent, the Lender or any of the other Secured Parties, or (C) that all payments of principal of or premium and interest on or other amounts on account of any of the applicable Permitted Subordinated Debt, or realized from the liquidation of any property of any Credit Party, shall be subject to any of the Subordination Provisions.

SECTION 8.02.          REMEDIES UPON EVENT OF DEFAULT.

(a)         Termination and Acceleration. If any Event of Default (other than an event described in Section 8.01(f) or Section 8.01(g)), occurs and is continuing, Administrative Agent shall, at the request of, or may, with the consent of, Required Lenders, take any or all of the following actions:

(i)            Termination of Commitments, Etc. Declare, by written notice to Borrower, the Commitments of each Lender to make Loans to be terminated, whereupon such Commitments and obligation shall be terminated;

(ii)           Acceleration of Obligations. Declare the Outstanding Legal Balance and all other Obligations payable hereunder or under any other Term Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Borrower; and

in the case of any event described in Section 8.01(f) or Section 8.01(g), the Commitments of each Lender to make Loans shall automatically terminate and the Outstanding Legal Balance and all other Obligations payable hereunder or under any other Term Loan Document shall automatically become due and payable, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Borrower.

(b)        Exercise of Rights and Remedies. Upon the occurrence and during the continuance of an Event of Default, Administrative Agent may, and at the request of the Required Lenders shall, exercise on behalf of itself and Lenders all rights and remedies available to it and Lenders under this Agreement all other Term Loan Documents and all of the rights and remedies of a secured party under the UCC or under other applicable Law, and all other legal or equitable rights which Administrative Agent, on behalf of itself and the Lenders, may be entitled to under any of the Term Loan Documents, and to issue notices of exclusive control under any or all Account Control Agreements, all of which rights shall be cumulative and shall be in addition to any other rights or remedies contained in this Agreement or any of the other Term Loan Documents, and none of which shall be exclusive. Without limiting the generality of the foregoing, each Credit Party hereby authorizes, directs, and empowers Administrative Agent (or any Person as may be designated by Administrative Agent in writing) to collect and receive all checks and drafts evidencing such payments and to endorse such checks or drafts in the name of such Credit Party and, upon such endorsements, to collect and receive the money therefor. The right to endorse checks and drafts granted pursuant to the preceding sentence is irrevocable by the Credit Parties until such time as the Discharge of Secured Obligations has occurred and this Agreement has terminated in accordance with Section 10.05, and the banks or banks paying such checks or drafts upon such endorsements, as well as the signers of the same, shall be as fully protected as though the checks or drafts had been endorsed by the Credit Parties.

SECTION 8.03.           APPLICATION OF PROCEEDS.

Notwithstanding anything to the contrary contained in this Agreement or any Credit Document, upon the occurrence and during the continuance of an Event of Default and after the acceleration of the principal amount of any of the Loans hereunder, any and all payments received by the Administrative Agent, including proceeds of Collateral, shall be applied:

(a)         first, to all fees, costs, indemnities, liabilities, obligations and expenses incurred by or owing to the Administrative Agent with respect to this Agreement, the other Loan Documents or the Collateral;

(b)         second, to all fees, premium (including the Prepayment Fee), costs, indemnities, liabilities, obligations and expenses incurred by or owing to any Lender with respect to this Agreement, the other Loan Documents or the Collateral;

(c)         third, to accrued and unpaid interest on the Obligations (including any interest which, but for the provisions of the Bankruptcy Code, would have accrued on such amounts);

(d)          fourth, to the principal amount of the Obligations;

(e)          fifth, to any other Debt or obligations of any Credit Party owing to the Administrative Agent, any Lender or any other Secured Party under the Loan Documents; and

(f)          sixth, to the Borrower or to whomever may be lawfully entitled to receive such balance or as a court of competent jurisdiction may direct.

In carrying out the foregoing, (x) amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category and (y) each of the Persons entitled to receive a payment in any particular category shall receive an amount equal to its pro rata share of amounts available to be applied pursuant thereto for such category.

ARTICLE 9
ADMINISTRATIVE AGENT

SECTION 9.01.           APPOINTMENT OF AUTHORIZATION OF ADMINISTRATIVE AGENT.

Each Lender hereby irrevocably appoints BP Commercial Funding Trust III, Series SPL-XIV to act on its behalf as Administrative Agent hereunder and under the other Term Loan Documents. Administrative Agent may, and each Lender authorizes Administrative Agent to, enter into all Term Loan Documents to which Administrative Agent is intended to be a party and accept all Collateral Documents, and take such actions on its behalf and to exercise such powers as are delegated to Administrative Agent by the terms hereof and thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article 9 are solely for the benefit of Administrative Agent and Lenders, and neither Borrower nor any other Credit Party shall have rights as a third party beneficiary of any of such provisions.

SECTION 9.02.          RIGHTS AS A LENDER.

If the Person serving as Administrative Agent hereunder is also a “Lender,” such Person shall have the same rights and powers in such capacity(ies) as any other Person in such capacity(ies) and may exercise the same as though it were not Administrative Agent. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Borrower or any Subsidiary or Affiliate of Borrower as if such Person were not Administrative Agent hereunder and without any duty to account therefor to any other Lender.

SECTION 9.03.          EXCULPATORY PROVISIONS.

Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Term Loan Documents. Without limiting the generality of the foregoing, Administrative Agent:

(a)         No Fiduciary Duties. Shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

(b)        No Obligations Regarding Certain Actions. Shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Term Loan Documents that Administrative Agent is required to exercise as directed in writing by Required Lenders (or such other number or percentage of Lenders as shall be expressly provided for herein or in any other Term Loan Documents, as applicable); provided that Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Administrative Agent to liability or that is contrary to any Term Loan Document or applicable Law; and

(c)         Disclosure Obligations. Shall not, except as expressly set forth herein and in the other Term Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity.

(d)        Limitation on Liability. Shall not be liable for any action taken or not taken by it: (i) with the consent or at the request of Required Lenders (or such other number or percentage of Lenders as shall be necessary, or as Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 8.02 and Section 10.01); or (ii) in the absence of its own gross negligence, fraud or willful misconduct in the performance of its duties under the terms of the Term Loan Documents. Administrative Agent shall be deemed not to have knowledge of any Default, unless and until Borrower, a Credit Party, or a Lender provides written notice to Administrative Agent describing such Default.

(e)         No Further Inquiry. Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into: (A) any statement, warranty or representation made in or in connection with this Agreement or any other Term Loan Document; (B) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith; (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default; (D) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Term Loan Document or any other agreement, instrument or document; or (E) the satisfaction of any condition set forth in Article 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Administrative Agent.

(f)          Other Transactions. Lenders acknowledge and agree that, in addition to the transaction contemplated by the Term Loan Documents, Administrative Agent may be engaged in a broad range of transactions (including transactions with the Credit Parties) that involve interests that differ from those of the Lenders. Nothing herein shall be construed as (i) in any way impairing the ability of Administrative Agent to engage in any such transaction or (ii) imposing any responsibilities, duties, obligations or liabilities on Administrative Agent hereunder as a result of its participation in any such transactions.

(g)         Indemnification. Each Lender, severally and not (i) jointly or (ii) jointly and severally, agrees to reimburse and indemnify and hold harmless Administrative Agent and its officers, directors, managers, members, equity owners, employees, attorneys and agents (to the extent not reimbursed by Borrower or any other Credit Party), ratably according to its respective Percentage Share in effect on the date on which indemnification is sought under this Section 9.03(g) (or, if indemnification is sought after the date upon which the Loans shall have been paid in full, ratably in accordance with its respective Percentage Share immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, advances, or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against Administrative Agent or any of its officers, directors, managers, members, equity owners, employees, attorneys or agents in any way relating to or arising out of this Agreement or any of the other Term Loan Documents or any action taken or omitted by Administrative Agent under this Agreement or any of the other Term Loan Documents; provided, however, that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, advances or disbursements to the extent resulting from Administrative Agent’s gross negligence, fraud or willful misconduct as determined by a court of competent jurisdiction on a final and non-appealable basis. The obligations of Lenders under this Section 9.03(g) shall survive the payment Discharge of Secured Obligations and the termination of this Agreement.

SECTION 9.04.           RELIANCE BY ADMINISTRATIVE AGENT.

Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of the Loan that by its terms must be fulfilled to the satisfaction of a specified Lender, Administrative Agent may presume that such condition is satisfactory to such Lender, unless Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Administrative Agent may consult with legal counsel (who may be counsel for Borrower), independent accountants and other experts it selects and shall not be liable for any action it takes or does not take in accordance with the advice of any such counsel, accountants or experts.

SECTION 9.05.           DELEGATION OF DUTIES.

Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Term Loan Document by or through any one or more sub agents it appoints. Administrative Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article 9 shall apply to any such sub agent and to the Related Parties of Administrative Agent and any such sub agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein, as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub agents except to the extent that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents, as determined by a court of competent jurisdiction in a final and non-appealable judgment.

SECTION 9.06.           RESIGNATION OF ADMINISTRATIVE AGENT.

(a)         Administrative Agent may at any time give notice of its resignation to the Lenders and Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with Borrower, to appoint a successor, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank with an office in New York, New York; provided, that no consultation of Borrower shall be required at any time after the occurrence and during the continuance of an Event of Default. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

(b)         If the Person serving as Administrative Agent is the subject of a proceeding under any Bankruptcy Law, the Required Lenders may, to the extent permitted by applicable Law, by notice in writing to Borrower and such Person remove such Person as Administrative Agent and, in consultation with Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.

(c)        With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Term Loan Documents (except that in the case of any collateral security held by Administrative Agent on behalf of the Lenders under any of the Term Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent, and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Term Loan Documents. The fees payable by Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Term Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.

SECTION 9.07.           NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.

(a)         Each Lender acknowledges that it has, independently and without reliance upon Administrative Agent, any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon Administrative Agent, any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Term Loan Document or any related agreement or any document furnished hereunder or thereunder.

(b)         Administrative Agent shall have no obligation whatsoever to any Lender or any other Person to assure that the Collateral covered by this Agreement or the other Term Loan Documents exists or is owned by Borrower or any other Credit Party or is cared for, protected or insured or has been encumbered or that the Liens granted to Administrative Agent, on behalf of the Secured Parties, pursuant hereto or thereto have been properly or sufficiently or lawfully created, perfected, protected, enforced or maintained or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Administrative Agent herein or in any of the other Term Loan Documents; it being understood and agreed that in respect of the Collateral covered by this Agreement or the other Term Loan Documents, or any act, omission or event related thereto, Administrative Agent may act in any manner it may deem appropriate, in its discretion, given Administrative Agent’s own interest in Collateral covered by this Agreement or the Term Loan Documents as one of the Lender, and Administrative Agent shall have no duty or liability whatsoever to any of the other Secured Parties; provided, that Administrative Agent shall exercise the same care which it would in dealing with loans for its own account.

(c)         Each Lender acknowledges that, in addition to the transactions contemplated by the Term Loan Documents, Administrative Agent may be engaged in other transactions with the Credit Parties and their Affiliates and each Lender hereby waives any conflict that may result from Administrative Agent acting as an administrative agent under other credit facilities with any of the Group Parties and/or any of their Affiliates.

SECTION 9.08.           AGENCY FOR PERFECTION

Each Lender hereby appoints Administrative Agent as agent for the purpose of perfecting its security interest, on behalf of all Secured Parties, in Collateral which, in accordance with Article 9 of the UCC in any applicable jurisdiction, can be perfected only by possession. Should any Secured Party (other than Administrative Agent) obtain possession of any such Collateral, such Secured Party shall hold such Collateral for purposes of perfecting a security interest therein for the benefit of the Secured Parties, notify Administrative Agent thereof and, promptly upon Administrative Agent’s request therefor, deliver such Collateral to Administrative Agent or otherwise act in respect thereof in accordance with Administrative Agent’s instructions.

SECTION 9.09.           ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Material Group Party, Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of Lenders and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of Lenders and Administrative Agent and their respective agents and counsel and all other amounts due Lenders and Administrative Agent under Section 2.03(c) and Section 10.04) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under Section 2.03(c) and Section 10.04. Nothing contained herein shall be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

SECTION 9.10.           GUARANTY MATTERS.

Each Lender hereby: (a) subject to the terms of this Section 9.10, irrevocably authorizes Administrative Agent, at its option and in its discretion, to release any Guarantor from its obligations under a Guaranty if such Person ceases to be Subsidiary of Borrower as a result of a transaction permitted hereunder; and (b) agrees that, upon request by Administrative Agent at any time, it will confirm in writing Administrative Agent’s authority to release any such Guarantor pursuant to this Section 9.10. Notwithstanding the foregoing, in the case of a Disposition, Restricted Payment or Investment of less than all of the Equity Interests of a Guarantor, a Guarantor shall not cease to be a Guarantor solely as a result of becoming a non-wholly owned Subsidiary as a result of such Disposition, Restricted Payment or Investment unless (i) the applicable transaction is entered into for a bona fide business purpose and, not for the primary purpose of causing the release of such Guarantor from its obligations under the Term Loan Documents, (ii) such Subsidiary shall become a bona fide joint venture with a Person that is not an Affiliate of a Credit Party and (iii) at the time of such release and immediately after giving effect thereto on a pro forma basis, the fair market value of such Subsidiary is deemed (and shall be deemed) to be an Investment (for the avoidance of doubt, after giving effect to the last sentence in the definition of “Investments” and pro forma effect to the applicable transaction(s) giving rise to the release) by the Borrower in such Subsidiary and such Investment is permitted by the Term Loan Documents.

SECTION 9.11.           COLLATERAL MATTERS.

(a)         Directions by Lenders. Each Lender hereby, irrevocably authorizes and directs Administrative Agent: (i) to enter into the Collateral Documents for the benefit of such Person; (ii) without the necessity of any notice to or further consent from any such Person from time to time prior to an Event of Default, to take any action with respect to any Collateral or Collateral Documents that may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to the Collateral Documents; (iii) to release any Lien on any property granted to or held by Administrative Agent under any Term Loan Document: (A) upon the Discharge of Secured Obligations; (B) that is sold or to be sold as part of or in connection with any Disposition by any Credit Party permitted hereunder or under any other Term Loan Document; (C) subject to Section 10.01, if approved, authorized or ratified in writing by Required Lenders; or (D) in connection with any foreclosure sale or other disposition of Collateral after the occurrence of an Event of Default; and (iv) to subordinate any Lien on any property granted to or held by Administrative Agent under any Term Loan Document to the holder of any Lien on such property that is permitted by this Agreement or any other Term Loan Document. Upon request by Administrative Agent at any time, each Lender will confirm in writing Administrative Agent’s authority to release or subordinate its interest or Liens in particular types or items of Collateral pursuant to this Section 9.11.

(b)         Certain Actions by Administrative Agent. Subject to Section 9.11(a)(iii) and Section 9.11(a)(iv), Administrative Agent shall (and is hereby irrevocably authorized by each Lender to) execute such documents as may be necessary to evidence the release or subordination of Liens granted to Administrative Agent herein or pursuant hereto upon the applicable Collateral; provided that: (i) Administrative Agent shall not be required to execute any such document on terms that, in Administrative Agent’s opinion, would expose Administrative Agent to or create any liability or entail any consequence other than the release or subordination of such Liens without recourse or warranty; and (ii) such release or subordination shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of Borrower or any other Credit Party in respect of) all interests retained by Borrower or any other Credit Party, including the proceeds of the sale, all of which shall continue to constitute part of the Collateral. In the event of any sale or transfer of Collateral, or any foreclosure with respect to any of the Collateral, Administrative Agent shall be authorized to deduct all expenses reasonably incurred by Administrative Agent from the proceeds of any such sale, transfer or foreclosure.

(c)         No Obligations Regarding Certain Actions. Administrative Agent shall have no obligation whatsoever to any Lender or any other Person to assure that the Collateral exists or is owned by Borrower or any other Credit Party or is cared for, protected or insured or that the Liens granted to Administrative Agent herein or in any of the Collateral Documents or pursuant hereto or thereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to Administrative Agent in this Section 9.11 or in any of the Collateral Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, Administrative Agent may act in any manner it may deem appropriate, in its sole discretion, given Administrative Agent’s own interest in the Collateral as one of the Lenders.

(d)         Appointment of Lenders as Agents. Each Lender hereby appoints each other such Person as agent for the purpose of perfecting Administrative Agent’s or such Person’s security interest in assets that, in accordance with Article 9 or Division 9 (as applicable) of the UCC, can be perfected only by possession. Should any such Person (other than Administrative Agent) obtain possession of any such Collateral, such Person shall notify Administrative Agent thereof, and, promptly upon Administrative Agent’s request therefor, shall deliver such Collateral to Administrative Agent or in accordance with Administrative Agent’s instructions.

(e)         Credit Bidding. The Lenders irrevocably authorize Administrative Agent, at any time upon the direction of the Required Lenders, to credit bid all or any portion of the Obligations in any foreclosure sale relating to the Collateral. Each Lender agrees that, except as otherwise provided in any Term Loan Documents or with the written consent of Administrative Agent and Required Lenders, it will not take any Enforcement Action, accelerate Obligations under any Term Loan Documents, or exercise any right that it might otherwise have under applicable Laws to credit bid at foreclosure sales, UCC sales or other similar dispositions of Collateral.

SECTION 9.12.          RECOVERY OF ERRONEOUS PAYMENTS.

Without limitation of any other provision in this Agreement, if at any time Administrative Agent makes a payment hereunder in error to any Lender, whether or not in respect of an Obligation due and owing by Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each Lender receiving a Rescindable Amount severally agrees to repay to Administrative Agent forthwith on demand the Rescindable Amount received by such Lender in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. Each Lender irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another) or similar defense to its obligation to return any Rescindable Amount. Administrative Agent shall inform each Lender promptly upon determining that any payment made to such Lender comprised, in whole or in part, a Rescindable Amount.

SECTION 9.13.           CERTAIN ERISA MATTERS.

(a)         Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least one of the following is and will be true.

(i)            such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments or this Agreement;

(ii)          the prohibited transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable so as to exempt from the prohibitions of Section 406 of ERISA and Section 4975 of the Code such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement;

(iii)          (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84- 14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement; or

(iv)          such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

(b)         In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Term Loan Document or any documents related hereto or thereto).

ARTICLE 10
GENERAL PROVISIONS

SECTION 10.01.        AMENDMENTS, ETC.

No amendment, modification or waiver of any provision of this Agreement or any other Term Loan Document, and no consent to any departure by Borrower or any other Credit Party therefrom, shall be effective unless in writing signed by Required Lenders (or Administrative Agent at the written request of Required Lenders) and Borrower or the applicable Credit Party, as the case may be, with receipt acknowledged by Administrative Agent, and each such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no such amendment, modification, waiver or consent shall:

(a)         Matters Involving Each Lender. Unless in writing and signed by Borrower, with receipt acknowledged by Administrative Agent, do any of the following:

(i)            increase, or extend the expiry of, the Commitment of any Lender without the written consent of such Lender (it being understood that a waiver of any condition precedent set forth in Article IV or the waiver of any Default or Event of Default shall not constitute an extension or increase of any Commitments of any Lender) (or reinstate any such Commitments to the extent terminated pursuant to Section 2.01(a)(ii), 2.01(b)(ii) or 8.02); or

(ii)           change the stated maturity date or postpone or delay any date fixed by this Agreement or any other Term Loan Document for any payment of principal, interest, fees (including, without limitation, any Prepayment Fee) or other amounts due to any Lender hereunder or under any other Term Loan Document, or reduce the amount due to any Lender on any such date, in each case without the prior written consent of such Lender; or

(iii)          reduce the principal of, or the rate of interest specified herein on, any Loan or other amounts payable to any Lender hereunder or under any other Term Loan Document, in each case without the prior written consent of such Lender; or

(iv)          waive any obligation of Borrower to pay interest at the Default Rate on the Outstanding Legal Balance with respect to Loans of any Lender, without the prior written consent of such Lender;

(v)           amend Section 2.06, Section 2.07, Section 2.11, or Section 8.03 or any other provision in this Agreement or any other Term Loan Document with respect to pro rata sharing provisions or the applicable of payment or proceeds, without the prior written consent of each affected Lender;

(vi)          amend any provision herein providing for consent or other action by Lenders effected thereby, without the prior written consent of such Lenders;

(vii)        amend any provision herein or in any other Term Loan Document in a manner which, by its terms, adversely and disproportionally affects any Lender relative to any other Lender without the prior written consent of such affected Lender.

(b)        Matters Involving All Lenders. Unless in writing and signed by all Lenders and Borrower, with receipt acknowledged by Administrative Agent, do any of the following:

(i)            amend this Section 10.01, or Section 2.11, or any provision herein providing for consent or other action by all Lenders; or

(ii)           release all or substantially all of the Collateral, or amend the definition of the obligations secured by any of the Collateral Documents; or

(iii)          release or terminate any of the Guaranties except as otherwise expressly provided herein; or

(iv)          (x) subordinate by payment, Lien subordination or otherwise, the Obligations or the Liens on the Collateral established by any Term Loan Document, to any other Debt and (z) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under any Term Loan Document; or

(v)           amend the definition of “Required Lenders” or “Non-Consenting Lenders” contained in Section 1.01, or any definition therein; or

(vi)         amend the definition of “Initial Term Loan Percentage Share”, “DDTL Percentage Share” or “Percentage Share” contained in Section 1.01, or any definition therein; or

(vii)        amend any provision of Section 7.03 (Debt) that would permit Borrower to incur additional Debt not otherwise permitted thereunder.

(c)         Matters Involving Required Lenders. No such waiver, amendment or consent to any representation, warranty, covenant, Event of Default or other provision of any Term Loan Document shall be effective for purposes of Section 4.01 with respect to the making of Initial Term Loan on the Closing Date unless in writing and signed by Required Lenders and Borrower, with receipt acknowledged by Administrative Agent.

provided that no amendment, waiver or consent shall, unless in writing and signed by Administrative Agent in addition to such Lenders as are otherwise required by this Section 10.01, affect the rights or duties of Administrative Agent under this Agreement or any other Term Loan Document.

SECTION 10.02.        NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATIONS.

(a)         Notices Generally. Except as provided in Section 10.02(b), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail, sent by telefacsimile transmission or sent by approved electronic communication in accordance with Section 10.02(b), as follows:

(i)            if to Borrower, any Guarantor or Administrative Agent, to its respective address or e mail address specified for such Person on Schedule 10.02; and

(ii)           if to any Lender, to its respective address, telefacsimile number or e mail address specified in its Administrative Detail Form.

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received, and notices sent by telefacsimile transmission or by means of approved electronic communication shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient); provided that notices delivered through electronic communications to the extent provided by Section 10.02(b) shall be effective as provided in such Section 10.02(b).

(b)        Electronic Communications. Each Lender agrees that notices and other communications to it hereunder may be delivered or furnished by electronic communication (including e mail and Internet or intranet websites) pursuant to procedures approved by Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant to Article 2 if such Lender has notified Administrative Agent that it is incapable of receiving notices under Article 2 by electronic communication; provided further that, as of the date hereof, each Lender who is a party hereto confirms that it is capable of receiving notices under Article 2 by electronic communication. In furtherance of the foregoing, each Lender hereby agrees to notify Administrative Agent in writing, on or before the date such Lender becomes a party to this Agreement, of such Lender’s e mail address to which a notice may be sent (and from time to time thereafter to ensure that Administrative Agent has on record an effective e mail address for such Lender). Each of Administrative Agent and Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by means of electronic communication pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

Unless Administrative Agent otherwise prescribes: (A) notices and other communications sent to an e mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e mail or other written acknowledgement); provided that, if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient; and (B) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (A) of notification that such notice or communication is available and identifying the website address therefor.

(c)         Change of Address, Etc. Borrower and Administrative Agent may change their respective address(es) telefacsimile number(s) or e mail address(es) for notices and other communications hereunder by notice to the other parties hereto. Each Lender may change its address(es), telefacsimile number(s) or e mail address(es) for notices and other communications hereunder by notice to Borrower and Administrative Agent.

(d)        Reliance by Administrative Agent and Lenders. Administrative Agent and each Lender shall be entitled to rely and act upon any notices purportedly given by or on behalf of Borrower even if: (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein; or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Borrower shall indemnify Administrative Agent and each Lender and their respective Related Parties from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of Borrower.

(e)        Platform. Borrower hereby acknowledges that: (i) Administrative Agent may make available to Lenders Specified Materials by posting some or all of the Specified Materials on an Electronic Platform; (ii) the distribution of materials and information through an electronic medium is secure and that there are confidentiality and other risks associated with any such distribution, the Electronic Platform is provided and used on an “AS IS,” “AS AVAILABLE” basis; and (iii) neither Administrative Agent nor any of its Affiliates warrants the accuracy, completeness, timeliness, sufficiency or sequencing of the Specified Materials posted on the Electronic Platform. ADMINISTRATIVE AGENT, ON BEHALF OF ITSELF AND ITS AFFILIATES, EXPRESSLY AND SPECIFICALLY DISCLAIMS, WITH RESPECT TO THE ELECTRONIC PLATFORM, DELAYS IN POSTING OR DELIVERY, OR PROBLEMS ACCESSING THE SPECIFIED MATERIALS POSTED ON THE ELECTRONIC PLATFORM, AND ANY LIABILITY FOR ANY LOSSES, COSTS, EXPENSES OR LIABILITIES THAT MAY BE SUFFERED OR INCURRED IN CONNECTION WITH THE ELECTRONIC PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES IN CONNECTION WITH THE ELECTRONIC PLATFORM.

Each Lender hereby agrees that notice to it in accordance with Section 10.02(a)(ii) specifying that any Specified Materials have been posted to the Electronic Platform shall, for purposes of this Agreement, constitute effective delivery to such Lender of such Specified Materials.

EACH LENDER: (1) ACKNOWLEDGES THAT THE SPECIFIED MATERIALS, INCLUDING INFORMATION FURNISHED TO IT BY ANY CREDIT PARTY OR ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THE TERM LOAN DOCUMENTS, MAY INCLUDE MATERIAL, NON PUBLIC INFORMATION CONCERNING THE CREDIT PARTIES AND THEIR RESPECTIVE SUBSIDIARIES OR AFFILIATES OR THEIR RESPECTIVE SECURITIES; AND (2) CONFIRMS THAT: (I) IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL, NON PUBLIC INFORMATION; (II) IT WILL HANDLE SUCH MATERIAL, NON PUBLIC INFORMATION IN ACCORDANCE WITH SUCH PROCEDURES AND APPLICABLE LAWS, INCLUDING FEDERAL AND STATE SECURITIES LAWS; AND (III) IT HAS IDENTIFIED IN ITS ADMINISTRATIVE DETAIL FORM A CONTACT PERSON WHO MAY RECEIVE SPECIFIED MATERIALS THAT MAY CONTAIN MATERIAL, NON PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAWS.

SECTION 10.03.        NO WAIVER; CUMULATIVE REMEDIES.

No failure by Administrative Agent or any Lender to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; no single or partial exercise of any right, remedy, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.

SECTION 10.04.        EXPENSES; INDEMNITY; DAMAGE WAIVER.

(a)         Costs and Expenses. The Credit Parties shall pay: (i) all reasonable and documented out-of-pocket costs and expenses incurred by Administrative Agent, the Lenders and their Affiliates (including the reasonable and documented fees, charges and disbursements of Holland & Knight LLP as counsel for the Administrative Agent and Willkie Farr & Gallagher LLP), in connection with the syndication of the credit facilities provided for herein, the examination, review, due diligence investigation, preparation, negotiation, documentation, execution, delivery and administration of this Agreement and the other Term Loan Documents or any amendments, modifications, supplements, consents or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) or any subsequent closings or other transactions pursuant to the terms hereof or thereof; (ii) all reasonable and documented out of pocket costs and expenses incurred by Administrative Agent, the Lenders and its respective Affiliates in connection with external compliance, management system and other audit fees and expenses, all reasonable and documented third party collateral and portfolio management fees and expenses, all reasonable and documented out of-pocket costs and expenses incurred for credit investigations, and all reasonable out of pocket costs and expenses incurred for visits and inspections under Section 6.10; (iii) all reasonable and documented out-of-pocket costs and expenses incurred by Administrative Agent and its respective Affiliates in connection with the administration of the Loans, including, without limitation, wire transfer fees and reasonable and documented travel and other expenses incurred under Section 6.10; (iv) all reasonable and documented out-of-pocket costs and expenses of Administrative Agent and its Affiliates in connection with the creation, perfection and maintenance of the Liens contemplated by the Term Loan Documents and in connection with periodic public record searches conducted by Administrative Agent in its Administrative Discretion (including, without limitation, title investigations, UCC searches, judgment, pending litigation and tax lien searches and searches of applicable corporate, limited liability, partnership and related records concerning the continued existence, organization and good standing of the Credit Parties); (v) all reasonable and documented out-of-pocket costs, fees and expenses of any financial institution providing services associated with any Deposit Account of the Credit Parties; and (vi) all reasonable and documented out-of-pocket expenses incurred by Administrative Agent or any Lender (including the reasonable and documented fees, charges and disbursements of outside counsel for Administrative Agent and/or any of the Lenders), in connection with the interpretation, enforcement or protection of its rights and remedies: (A) in connection with this Agreement and the other Term Loan Documents, including its rights under this Section 10.04; (B) in connection with the Loans made hereunder, including all reasonable and documented such out of pocket expenses incurred during any workout, restructuring, bankruptcy or other insolvency or enforcement proceeding (or negotiations in connection with the foregoing whether or not the transactions contemplated thereby shall be consummated) in respect of such Loans; and (C) in connection with protecting, storing, insuring, handling, maintaining or selling any Collateral.

(b)        Indemnification by Borrower and the other Credit Parties. Borrower and the other Credit Parties party hereto shall indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and expenses (including the reasonable fees, charges and disbursements of outside counsel for Administrative Agent and its Related Parties and one outside counsel for the Lenders and their Related Parties taken a whole and, if necessary, one local counsel in each relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and special counsel for each relevant specialty (and, in the case of an actual conflict of interest, where the party affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for each such affected person and, if necessary, one local counsel in each relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and special counsel for each relevant specialty)) incurred by any Indemnitee or asserted against any Indemnitee by any third party arising out of, in connection with, or as a result of any actual or prospective claim, litigation, investigation or proceeding relating to: (i) the execution or delivery of this Agreement, any other Term Loan Document or any document contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby; (ii) any Loan or the use or proposed use of the proceeds therefrom; or (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by Borrower, any Subsidiary thereof or any other Credit Party, or any Environmental Claim or Environmental Liability related in any way to Borrower, any Subsidiary thereof or any other Credit Party; in all cases, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower or any Subsidiary thereof, and regardless of whether any Indemnitee is a party thereto, and whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses resulted from the gross negligence, fraud, willful misconduct or breach of an express obligation under the Term Loan Documents of such Indemnitee in the performance of its respective duties under the Term Loan Documents as determined by a final non-appealable judgment of a court of competent jurisdiction; provided further that such indemnity shall not be available in connection with any action by one Indemnitee against another Indemnitee unrelated to actions or omissions of Borrower or any other Credit Party or Subsidiary.

(c)         Reimbursement by Lenders. If Borrower for any reason fails to pay when due any amount that it is required to pay under Section 10.04(a) or Section 10.04(b) to Administrative Agent (or any sub-agent thereof) or any Related Party of Administrative Agent, each Lender severally agrees to pay to Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s pro rata share (in accordance with its Percentage Share) (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Administrative Agent (or any such sub-agent) or any Related Party of Administrative Agent acting for Administrative Agent (or any such sub-agent) in connection with such capacity.

(d)         Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, each Credit Party shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Term Loan Document or any document contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee referred to in Section 10.04(b) shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Term Loan Documents or the transactions contemplated hereby or thereby.

(e)         Payments. All amounts due under this Section 10.04 shall be payable not later than fifteen (15) Business Days after demand therefor.

(f)          Survival. The agreements in this Section 10.04 shall survive the resignation of Administrative Agent, the replacement of any Lender, and the Discharge of Secured Obligations.

SECTION 10.05.        MARSHALLING; PAYMENTS SET ASIDE; RELEASES UPON DISCHARGE OF SECURED OBLIGATIONS

(a)         Neither Administrative Agent nor any Lender shall be under any obligation to marshal any asset in favor of Borrower or any other Person or against or in payment of any or all of the Obligations. To the extent that any payment by or on behalf of Borrower or any other Credit Party is made to Administrative Agent or any Lender, or Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Administrative Agent or any Lender in such Person’s discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Bankruptcy Law or otherwise, then: (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred; and (b) each Lender severally agrees to pay to Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by Administrative Agent plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate. The obligations of each Lender under clause (b) of the preceding sentence shall survive the Discharge of Secured Obligations and the termination of this Agreement.

(b)         Subject to Section 10.04 and all other provisions of this Agreement and any other Term Loan Document that survive the Discharge of Secured Obligations in accordance with their terms, this Agreement shall continue in full force and effect until the Discharge of Secured Obligations has occurred. If the Discharge of Secured Obligations has occurred (without giving effect to the proviso therein) and if, at such time, any Specified Claim exists, then Credit Parties and Administrative Agent shall in good faith negotiate a Transaction Termination Collateral Package Event in respect of such Specified Claim and upon consummation of such Transaction Termination Collateral Package Event, the Discharge of Secured Obligations shall occur. Upon the occurrence of the Discharge of Secured Obligations, the Collateral shall be released from the Liens created by the Collateral Documents, and, subject to Section 10.04 and all other provisions of this Agreement and any other Term Loan Document that survive the Discharge of Secured Obligations in accordance with their terms, all Obligations (other than those expressly stated to survive such termination) of Borrower and each other Credit Party hereunder or under any other Term Loan Document (as applicable) shall terminate, all without delivery of any instrument or any further action by any party, and all rights to any Collateral shall revert to Borrower and the other Credit Parties, all without recourse to or representation or warranty by Administrative Agent or any Lender, At the reasonable request of Borrower in connection with any such termination, Administrative Agent shall deliver to Borrower, at the sole expense of Borrower and the other Credit Parties, any Collateral held by the Lender pursuant to the Collateral Documents, and shall execute and deliver to Borrower, at the sole expense of Borrower and the other Credit Parties, such documents as Borrower shall reasonably request to evidence such release and termination, all without recourse to or representation or warranty by Administrative Agent and Lender.

SECTION 10.06.        SUCCESSORS AND ASSIGNS.

(a)         Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither Borrower nor any other Credit Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except: (i) to an Eligible Assignee in accordance with the provisions of subsection (b) of this Section 10.06; (ii) by way of participation in accordance with the provisions of subsection (d) of this Section 10.06; or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section 10.06 (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section 10.06 and, to the extent expressly contemplated hereby, the Related Parties of each of Administrative Agent and each Lender) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b)         Assignments by any Lender. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights (but not its obligations) under this Agreement, including all or a portion of its Commitment(s) and the Loans at the time owing to it; provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment(s) and Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender, the aggregate amount of the Commitment(s) (which for this purpose includes Loans outstanding thereunder) or, if any Commitment is not then in effect, the aggregate outstanding principal balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to Administrative Agent or, if a “trade date” is specified in the Assignment and Assumption, as of such trade date, shall not be less than $1,000,000.00 unless Administrative Agent otherwise consents in its sole discretion; (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights (and, solely with respect to an assignment to an Affiliate of a Lender, the assigning Lender’s obligations) under this Agreement with respect to the Loans or the Commitment assigned; (iii) any assignment of a Commitment must be approved by Administrative Agent, unless the Person that is the proposed assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); (iv) the Eligible Assignee, if it is not then a Lender, shall deliver to Administrative Agent an Administrative Detail Form; and (v) the parties to each assignment shall execute and deliver to Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500.00; provided that Administrative Agent hereby waives such processing and recordation fee in connection with any assignment effected pursuant to Section 3.04(a); and (vi) no assignment to an Eligible Assignee shall require the prior written consent of Borrower. Subject to acceptance and recording thereof by Administrative Agent pursuant to subsection (c) of this Section 10.06, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights (and, solely with respect to an assignment to an Affiliate of a Lender, the obligations) of Lender under this Agreement, and the assigning Lender thereunder shall not be released from its obligations under this Agreement; provided, however, that, in the case of an Assignment and Assumption between an assigning Lender and an Affiliate of a Lender, the assigning Lender shall be released from its obligations under this Agreement to the extent of the interest assigned by such Assignment and Assumption (and, in the case of an Assignment and Assumption between an assigning Lender and an Affiliate of a Lender covering all of such assigning Lender’s rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Section 3.01, Section 3.02 and Section 10.04 with respect to facts and circumstances occurring prior to the effective date of such Assignment and Assumption. Upon request, Borrower shall execute and deliver Notes to the assignee Lender. Any assignment or transfer by a Lender of its rights under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights in accordance with subsection (d) of this Section 10.06. For the avoidance of doubt if a Lender has more than one Commitment and elects to assign all or a portion of a Commitment, such Lender shall not be required to assign any portion of any other Commitment it holds.

(c)         Register. Administrative Agent, acting solely for this purpose as an agent of Borrower, shall maintain at Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”), which meets the requirements of U.S. Treasury Regulation § 5f.103-1(c). The entries in the Register shall be conclusive, and Borrower, Administrative Agent and Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of all rights under this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by each of Borrower and Lenders, at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or substantive change to the Term Loan Documents is pending, any Lender wishing to consult with other Lenders in connection therewith may request and receive from Administrative Agent a copy of the Register.

(d)        Participations. Any Lender may at any time, without the consent of, or notice to, Borrower or Administrative Agent, sell participations to any Participant in all or a portion of such Person’s rights (but, except with respect to a Participant that is an Affiliate of a Lender, not obligations) under this Agreement (including all or a portion of its Commitment(s) and/or the Loans owing to it); provided, that, so long as no Event of Default exists, no such sale of participations to a Person that is a Competitor or DQ Lender; provided that: (i) such Person’s obligations under this Agreement shall remain unchanged; (ii) such Person shall remain solely responsible to the other parties hereto for the performance of such obligations; and (iii) Borrower, Administrative Agent and Lenders shall continue to deal solely and directly with such Person in connection with such Person’s rights and obligations under this Agreement. Any document pursuant to which a Lender sells such a participation shall provide that such Person shall retain the sole right to enforce this Agreement and the other Term Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement and the other Term Loan Documents; provided that such document may provide that such Person will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section 10.06, Borrower agrees that each Participant shall be entitled to the benefits of Section 3.01, Section 3.02 and Section 3.03 to the same extent as if it were a Lender hereunder and had acquired its interest by assignment pursuant to subsection (b) of this Section 10.06. To the extent permitted by Law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, as long as such Participant agrees to be subject to Section 2.11 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the obligations under this Agreement and the Loans (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the participant register (including the identity of any Participant or any information relating to a Participant’s interest in any Loans) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the Untitled States Treasury Regulations. The entries in each such participant register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the participant register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a register of Participants.

(e)         Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.02 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of Borrower, to comply with Section 3.01(f) as though it were a Lender.

(f)         Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

SECTION 10.07.        TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.

Administrative Agent and each Lender each agrees to maintain the confidentiality of the Information by exercising the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information in the ordinary course of business in accordance with its customary practices, except that Information (as defined below) may be disclosed: (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, trustees, partners, owners, employees, agents, advisors, attorneys, representatives and financing sources (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and accepts receipt of such Information subject to a duty of confidentiality); (b) to the extent requested by any regulatory authority, purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners); (c) to the extent required by applicable Laws or regulations or by any investigative process, subpoena or similar legal process; (d) to any other party hereto; (e) to any Person that provides statistical analysis and/or information services to Administrative Agent or Lenders (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and accepts receipt of such Information subject to a duty of confidentiality); (f) in connection with the exercise of any remedies hereunder or under any other Term Loan Document or any action or proceeding relating to this Agreement or any other Term Loan Document or the interpretation, preservation or enforcement of rights hereunder or thereunder; (g) to: (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement; or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to any Credit Party; provided that, in each case of this clause (g)(i) and (ii), the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and will accept receipt of such Information subject to a duty of confidentiality; (h) to any other Person with the consent of Borrower; or (i) to the extent such Information: (i) becomes publicly available other than as a result of a breach of this Section 10.07; or (ii) becomes available to Administrative Agent, any Lender or any of their respective Affiliates on a non-confidential basis from a source other than Borrower or any Subsidiary thereof and not in contravention of this Section 10.07. For purposes of this Section 10.07, “Information” means all information (including financial information) received from the Credit Parties relating to the Credit Parties or any of their respective businesses and constituting financial information or other any other information marked as “CONFIDENTIAL” when furnished, other than any such information whatsoever that is available to Administrative Agent or any Lender on a nonconfidential basis, and not in contravention of this Section 10.07, prior to disclosure by the Credit Parties thereof. Any Person required to maintain the confidentiality of Information as provided in this Section 10.07 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information in the ordinary course of business in accordance with its customary practices. Notwithstanding the foregoing, the Credit Parties hereby agree that Administrative Agent, Lenders or any of their respective Affiliates may (i) disclose a general description of transactions arising under the Term Loan Documents for advertising, marketing or other similar purposes and (ii) use the Credit Parties’ name, logo or other indicia germane to such party in connection with such advertising, marketing or other similar purposes.

SECTION 10.08.        RIGHT OF SETOFF.

If an Event of Default shall have occurred and be continuing, each Lender and their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender to or for the credit or the account of Borrower or any other Credit Party against any and all of the Obligations to such Lender or such Affiliate, irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Term Loan Document and although such obligations of Borrower or such Credit Party may be contingent or unmatured or are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such obligations. The rights of each Lender and its Affiliates under this Section 10.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender or its Affiliates may have. Each Lender agrees to notify Borrower and Administrative Agent promptly in writing after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application. NOTWITHSTANDING THE FOREGOING, NO LENDER SHALL EXERCISE, OR ATTEMPT TO EXERCISE, ANY RIGHT OF SET-OFF, BANKER’S LIEN, OR THE LIKE, AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY OF BORROWER OR ANY SUBSIDIARY THEREOF HELD OR MAINTAINED BY SUCH LENDER WITHOUT THE PRIOR WRITTEN CONSENT OF ADMINISTRATIVE AGENT.

SECTION 10.09.        INTEREST RATE LIMITATION.

Notwithstanding anything to the contrary contained in any Term Loan Document, the interest paid or agreed to be paid under the Term Loan Documents shall not exceed the Maximum Rate. If Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to Borrower. In determining whether the interest contracted for, charged, or received by Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law: (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

SECTION 10.10.        COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION.

(a)         Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Term Loan Documents, and any separate letter agreements with respect to fees payable to Administrative Agent, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by Administrative Agent and when Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement.

(b)        Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state Laws based on the Uniform Electronic Transactions Act.

SECTION 10.11.        SURVIVAL OF REPRESENTATIONS AND WARRANTIES.

All representations and warranties made herein and in any other Term Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by Administrative Agent and each Lender, regardless of any investigation made by Administrative Agent or any Lender or on their behalf, and shall continue in full force and effect as long as the Discharge of Secured Obligations has not occurred.

SECTION 10.12.        SEVERABILITY.

If any provision of this Agreement or the other Term Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Term Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

SECTION 10.13.        USA PATRIOT ACT NOTICE.

Each Lender that is subject to the Act and Administrative Agent (for itself and not on behalf of any Lender) hereby notify Borrower that, pursuant to the requirements of the Act, they are each required to obtain, verify and record information that identifies Borrower and each other Credit Party, which information includes the name and address of Borrower and each other Credit Party and other information that will allow such Lender or Administrative Agent, as applicable, to identify Borrower and each other Credit Party in accordance with the Act.

SECTION 10.14.        GUARANTY BY HOLDINGS.

(a)         Guaranty. Holdings (in such capacity, the “Initial Guarantor”) unconditionally and irrevocably guarantees to Administrative Agent and the other Secured Parties the full and prompt payment when due (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise) and performance of the Obligations (the “Guaranteed Obligations”). The Guaranteed Obligations include interest that, but for a proceeding under any Bankruptcy Law, would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against Borrower for such interest in any such proceeding.

(b)        Separate Obligation. The Initial Guarantor acknowledges and agrees that: (i) the Guaranteed Obligations are separate and distinct from any Debt arising under or in connection with any other document, including under any provision of this Agreement other than this Section 10.14, executed at any time by the Initial Guarantor in favor of Administrative Agent or any Lender; and (ii) the Initial Guarantor shall pay and perform all of the Guaranteed Obligations as required under this Section 10.14, and Administrative Agent and Lenders may enforce any and all of their respective rights and remedies hereunder, without regard to any other document, including any provision of this Agreement other than this Section 10.14, at any time executed by the Initial Guarantor in favor of Administrative Agent or any Lenders, irrespective of whether any such other document, or any provision thereof or hereof, shall for any reason become unenforceable or any of the Debt thereunder shall have been discharged, whether by performance, avoidance or otherwise. The Initial Guarantor acknowledges that, in providing benefits to Borrower, Administrative Agent and Lenders are relying upon the enforceability of this Section 10.14 and the Guaranteed Obligations as separate and distinct Debt of the Initial Guarantor, and the Initial Guarantor agrees that Administrative Agent and Lenders would be denied the full benefit of their bargain if at any time this Section 10.14 or the Guaranteed Obligations were treated any differently. The fact that the guaranty is set forth in this Agreement rather than in a separate guaranty document is for the convenience of Borrower and Initial Guarantor and shall in no way impair or adversely affect the rights or benefits of Administrative Agent and Lenders under this Section 10.14. The Initial Guarantor agrees to execute and deliver a separate document, promptly upon request at any time of Administrative Agent or any Lender, evidencing the Initial Guarantor’s obligations under this Section 10.14. Upon the occurrence of any Event of Default, a separate action or actions may be brought against the Initial Guarantor, whether or not Borrower, any other Initial Guarantor or any other Person is joined therein or a separate action or actions are brought against Borrower, any such other Initial Guarantor or any such other Person.

(c)         Limitation of Guaranty. To the extent that any court of competent jurisdiction shall impose by final judgment under applicable Law (including the Uniform Fraudulent Transfer Act and Sections 544 and 548 of the Bankruptcy Code) any limitations on the amount of the Initial Guarantor’s liability with respect to the Guaranteed Obligations that Administrative Agent or any Lender can enforce under this Section 10.14, Administrative Agent and Lenders by their acceptance hereof accept such limitation on the amount of the Initial Guarantor’s liability hereunder to the extent needed to make this Section 10.14 fully enforceable and nonavoidable.

(d)       Liability of Initial Guarantor. The liability of the Initial Guarantor under this Section 10.14 shall be irrevocable, absolute, independent and unconditional, and shall not be affected by any circumstance that might constitute a discharge of a surety or guarantor other than the payment and performance in full of all Guaranteed Obligations (other than unasserted contingent payment obligations which by their terms are expressly stated to survive termination of this Agreement). In furtherance of the foregoing and without limiting the generality thereof, the Initial Guarantor agrees as follows:

(i)            the Initial Guarantor’s liability hereunder shall be the immediate, direct, and primary obligation of the Initial Guarantor and shall not be contingent upon Administrative Agent’s or any Lender’s exercise or enforcement of any remedy it may have against Borrower or any other Person, or against any collateral or other security for any Guaranteed Obligations;

(ii)           this Guaranty is a guaranty of payment when due and not merely of collectability;

(iii)          [reserved];

(iv)          the Initial Guarantor’s payment of a portion, but not all, of the Guaranteed Obligations shall in no way limit, affect, modify or abridge the Initial Guarantor’s liability for any portion of the Guaranteed Obligations remaining unsatisfied; and

(v)           the Initial Guarantor’s liability with respect to the Guaranteed Obligations shall remain in full force and effect without regard to, and shall not be impaired or affected by, nor shall the Initial Guarantor be exonerated or discharged by, any of the following events:

(A)          any proceeding under any Bankruptcy Law;

(B)          any limitation, discharge, or cessation of the liability of Borrower or any other Person for any Guaranteed Obligations due to any statute, regulation or rule of law, or any invalidity or unenforceability in whole or in part of any of the Guaranteed Obligations or the Term Loan Documents;

(C)          any merger, acquisition, consolidation or change in structure of any other guarantor or Person, or any sale, lease, transfer or other disposition of any or all of the assets or shares of Borrower or any other Person;

(D)          any assignment or other transfer, in whole or in part, of Administrative Agent’s or any Lender’s interests in and rights under this Agreement (including this Section 10.14) or the other Term Loan Documents;

(E)           any claim, defense, counterclaim or setoff, other than that of prior performance, that Borrower, the Initial Guarantor, any other Guarantor or any other Person may have or assert, including any defense of incapacity or lack of corporate or other authority to execute any of the Term Loan Documents;

(F)           Administrative Agent’s or any Lenders’ amendment, modification, renewal, extension, cancellation or surrender of any Term Loan Document or any Guaranteed Obligations;

(G)           Administrative Agent’s or any Lender’s exercise or non-exercise of any power, right or remedy with respect to any Guaranteed Obligations or any collateral;

(H)          Administrative Agent’s or any Lender’s vote, claim, distribution, election, acceptance, action or inaction in any proceeding under any Bankruptcy Law; or

(I)           any other guaranty, whether by the Initial Guarantor or any other Person, of all or any part of the Guaranteed Obligations or any other indebtedness, obligations or liabilities of Borrower to Administrative Agent or any Lender.

(e)         Consents of Initial Guarantor. The Initial Guarantor hereby unconditionally consents and agrees that, without notice to or further assent from the Initial Guarantor:

(i)           the principal amount of the Guaranteed Obligations may be increased or decreased and additional indebtedness or obligations of Borrower under the Term Loan Documents may be incurred and the time, manner, place or terms of any payment under any Term Loan Document may be extended or changed, by one or more amendments, modifications, renewals or extensions of any Term Loan Document or otherwise;

(ii)           the time for Borrower’s (or any other Person’s) performance of or compliance with any term, covenant or agreement on its part to be performed or observed under any Term Loan Document may be extended, or such performance or compliance waived, or failure in or departure from such performance or compliance consented to, all in such manner and upon such terms as Administrative Agent and Lenders (as applicable under the relevant Term Loan Documents) may deem proper;

(iii)          Administrative Agent and Lenders may request and accept other guaranties and may take and hold security as collateral for the Guaranteed Obligations, and may, from time to time, in whole or in part, exchange, sell, surrender, release, subordinate, modify, waive, rescind, compromise or extend such other guaranties or security and may permit or consent to any such action or the result of any such action, and may apply such security and direct the order or manner of sale thereof; and

(iv)          Administrative Agent or Lenders may exercise, or waive or otherwise refrain from exercising, any other right, remedy, power or privilege even if the exercise thereof affects or eliminates any right of subrogation or any other right of the Initial Guarantor against Borrower.

(f)          Initial Guarantor’s Waivers. The Initial Guarantor waives and agrees not to assert:

(i)            any right to require Administrative Agent or any Lender to proceed against Borrower, any other Guarantor or any other Person, or to pursue any other right, remedy, power or privilege of Administrative Agent or any Lender whatsoever;

(ii)           any defense arising by reason of any lack of corporate or other authority or any other defense of Borrower, such Guarantor or any other Person;

(iii)          any rights to set-offs and counterclaims;

(iv)          without limiting the generality of the foregoing, to the fullest extent permitted by Law, any defenses or benefits that may be derived from or afforded by applicable Law limiting the liability of or exonerating guarantors or sureties, or that may conflict with the terms of this Section 10.14; and

(v)           any and all notice of the acceptance of this guaranty, and any and all notice of the creation, renewal, modification, extension or accrual of the Guaranteed Obligations, or the reliance by Administrative Agent and Lenders upon this Guaranty, or the exercise of any right, power or privilege hereunder. The Guaranteed Obligations shall conclusively be deemed to have been created, contracted, incurred and permitted to exist in reliance upon this Guaranty. The Initial Guarantor waives promptness, diligence, presentment, protest, demand for payment, notice of default, dishonor or nonpayment and all other notices to or upon Borrower, each Guarantor or any other Person with respect to the Guaranteed Obligations.

(g)        Financial Condition of Borrower. No Initial Guarantor shall have any right to require Administrative Agent or any Lender to obtain or disclose any information with respect to: the financial condition or character of Borrower or the ability of Borrower to pay and perform the Guaranteed Obligations; the Guaranteed Obligations; any collateral or other security for any or all of the Guaranteed Obligations; the existence or nonexistence of any other guarantees of all or any part of the Guaranteed Obligations; any action or inaction on the part of Administrative Agent or any Lender or any other Person; or any other matter, fact or occurrence whatsoever. The Initial Guarantor hereby acknowledges that it has undertaken its own independent investigation of the financial condition of Borrower and all other matters pertaining to this Guaranty and further acknowledges that it is not relying in any manner upon any representation or statement of Administrative Agent or any Lender with respect thereto.

(h)        Subrogation. Until the Discharge of Secured Obligations, the Initial Guarantor shall not directly or indirectly exercise: (i) any rights that it may acquire by way of subrogation under this Section 10.14, by any payment hereunder or otherwise; (ii) any rights of contribution, indemnification, reimbursement or similar suretyship claims arising out of this Section 10.14; or (iii) any other right that it might otherwise have or acquire (in any way whatsoever) that could entitle it at any time to share or participate in any right, remedy or security of Administrative Agent or any other Secured Party as against Borrower or other Guarantors or any other Person, whether in connection with this Section 10.14, any of the other Term Loan Documents or otherwise. If any amount shall be paid to the Initial Guarantor on account of the foregoing rights at any time when all the Guaranteed Obligations shall not have been paid in full, such amount shall be held in trust for the benefit of Administrative Agent and the Secured Parties and shall forthwith be paid to Administrative Agent to be credited and applied to the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of the Term Loan Documents.

(i)          Subordination. All payments on account of all indebtedness, liabilities and other obligations of Borrower to the Initial Guarantor, whether now existing or hereafter arising, and whether due or to become due, absolute or contingent, liquidated or unliquidated, determined or undetermined (the “Initial Guarantor Subordinated Debt”) shall be subject, subordinate and junior in right of payment and exercise of remedies, to the extent and in the manner set forth herein, to the prior payment in full in cash or cash equivalents of the Guaranteed Obligations. So long as the Discharge of Secured Obligations has not occurred, the Initial Guarantor shall not accept or receive any payment or distribution by or on behalf of Borrower or any other Initial Guarantor, directly or indirectly, or assets of Borrower or any other Initial Guarantor, of any kind or character, whether in cash, property or securities, including on account of the purchase, redemption or other acquisition of Initial Guarantor Subordinated Debt, as a result of any collection, sale or other disposition of collateral, or by setoff, exchange or in any other manner, for or on account of the Initial Guarantor Subordinated Debt (“Initial Guarantor Subordinated Debt Payments”), except that, so long as no Event of Default has occurred and is continuing, the Initial Guarantor shall be entitled to accept and receive payments on its Initial Guarantor Subordinated Debt, in accordance with past business practices of the Initial Guarantor and Borrower (or any other applicable Initial Guarantor) and not in contravention of any Law or the terms of the Term Loan Documents.

If the Initial Guarantor Subordinated Debt Payments shall be received in contravention of this Section 10.14, the Initial Guarantor Subordinated Debt Payments shall be held in trust for the benefit of Administrative Agent and the Secured Parties and shall be paid over or delivered to Administrative Agent for application to the payment in full in cash or cash equivalents of all Guaranteed Obligations remaining unpaid to the extent necessary to give effect to this Section 10.14 after giving effect to any concurrent payments or distributions to Administrative Agent and Lenders in respect of the Guaranteed Obligations.

(j)          Continuing Guaranty. This Guaranty is a continuing guaranty and agreement of subordination and shall continue in effect and be binding upon the Initial Guarantor until the Discharge of Secured Obligations, and the Initial Guarantor expressly acknowledges that this guaranty shall remain in full force and effect notwithstanding that there may be periods in which no Guaranteed Obligations exist. This Guaranty shall continue in effect and be binding upon the Initial Guarantor until actual receipt by Administrative Agent of written notice from the Initial Guarantor of its intention to discontinue this Guaranty as to future transactions (which notice shall not be effective until noon on the day that is five (5) Business Days following such receipt); provided that no revocation or termination of this guaranty shall affect in any way any rights of Administrative Agent, or any Lender hereunder with respect to any Guaranteed Obligations arising or outstanding on the date of receipt of such notice, including any subsequent continuation, extension, or renewal thereof, or change in the terms or conditions thereof, or any Guaranteed Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any Lender in existence as of the date of such revocation (collectively, “Existing Guaranteed Obligations”), and the sole effect of such notice shall be to exclude from this Guaranty the Guaranteed Obligations thereafter arising which are unconnected to any Existing Guaranteed Obligations.

(k)         Reinstatement. This Guaranty shall continue to be effective or shall be reinstated and revived, as the case may be, if, for any reason, any payment of any portion of the Guaranteed Obligations (including a payment effected through exercise of a right of setoff) by or on behalf of Borrower (or receipt of any proceeds of collateral) shall be rescinded, invalidated, declared to be fraudulent or preferential, set aside, voided or otherwise required to be repaid to Borrower, its estate, trustee, receiver or any other Person (including under any Bankruptcy Law), or must otherwise be restored by Administrative Agent or any Lender, whether as a result of proceedings under any Bankruptcy Law or otherwise. All losses, damages, costs and expenses that Administrative Agent, or any Lender may suffer or incur as a result of any voided or otherwise set aside payments shall be specifically covered by the indemnity in favor of Administrative Agent and Lender contained in Section 10.04.

(l)         Substantial Benefits. The Loans provided to or for the benefit of Borrower hereunder by Lenders have been and are to be contemporaneously used for the benefit of Borrower and the Initial Guarantor. It is the position, intent and expectation of the parties that Borrower and the Initial Guarantor have derived and will derive significant and substantial benefits from the Loans to be made available by Lenders under the Term Loan Documents. The Initial Guarantor has received at least “reasonably equivalent value” (as such phrase is used in Section 548 of the Bankruptcy Code, and in comparable provisions of other applicable Law) and more than sufficient consideration to support its obligations hereunder in respect of the Guaranteed Obligations. Immediately prior to and after and giving effect to the incurrence of the Initial Guarantor’s obligations under this Guaranty, the Initial Guarantor will be Solvent.

(m)        Knowing and Explicit Waivers. The Initial Guarantor acknowledges that it either has obtained the advice of legal counsel or has had the opportunity to obtain such advice in connection with the terms and provisions of this Section 10.14. The Initial Guarantor acknowledges and agrees that each of the waivers and consents set forth herein is made with full knowledge of its significance and consequences, that all such waivers and consents herein are explicit and knowing and that the Initial Guarantor expects such waivers and consents to be fully enforceable.

(n)         Collect on Initial Guarantor Subordinated Debt. If, while the Initial Guarantor Subordinated Debt is outstanding, any proceeding under any Bankruptcy Law is commenced by or against Borrower or its property, Administrative Agent, when so instructed by Required Lenders, is hereby irrevocably authorized and empowered (in the name of Lenders or in the name of the Initial Guarantor or otherwise), but shall have no obligation, to demand, sue for, collect and receive every payment or distribution in respect of all Initial Guarantor Subordinated Debt and give acquittances therefor and to file claims and proofs of claim and take such other action (including voting the Initial Guarantor Subordinated Debt) as it may deem necessary or advisable for the exercise or enforcement of any of the rights or interests of Administrative Agent and Lenders; and the Initial Guarantor shall promptly take such action as Administrative Agent (on instruction from Required Lenders) may reasonably request: (A) to collect the Initial Guarantor Subordinated Debt for the account of the Lenders and to file appropriate claims or proofs of claim in respect of the Initial Guarantor Subordinated Debt; (B) to execute and deliver to Administrative Agent such powers of attorney, assignments and other instruments as it may request to enable it to enforce any and all claims with respect to the Initial Guarantor Subordinated Debt; and (C) to collect and receive any and all Initial Guarantor Subordinated Debt Payments.

(o)        Keepwell. Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Credit Party to honor all of its obligations under this Section 10.14 or any other Guaranty now or hereafter executed by such Qualified ECP Guarantor in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 10.14 or such other Guaranty for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.14, or otherwise under a Guaranty, voidable under applicable Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 10.14, or otherwise under a Guaranty, shall remain in full force and effect, until all of the Obligations shall have been paid in full and the Lenders’ commitments to make Loans and/or extend credit to or for the benefit of Borrower shall have terminated or expired. Each Qualified ECP Guarantor intends that this Section 10.14(o) constitute, and this Section 10.14(o) shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Credit Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

SECTION 10.15.        TIME OF THE ESSENCE.

Time is of the essence of the Term Loan Documents.

SECTION 10.16.        GOVERNING LAW; JURISDICTION; ETC.

(a)         GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,

(b)        SUBMISSION TO JURISDICTION. BORROWER AND EACH OTHER CREDIT PARTY PARTY HERETO EACH IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF ANY UNITED STATES FEDERAL COURT SITTING IN OR WITH DIRECT OR INDIRECT JURISDICTION OVER THE SOUTHERN DISTRICT OF NEW YORK OR ANY NEW YORK STATE OR SUPERIOR COURT SITTING IN NEW YORK, NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER TERM LOAN DOCUMENT TO WHICH EACH IS A PARTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURTS OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURTS. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE. NOTHING IN THIS AGREEMENT OR IN ANY OTHER TERM LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER TERM LOAN DOCUMENT AGAINST ANY CREDIT PARTY OR ANY OF ITS PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTION.

(c)       WAIVER OF VENUE. BORROWER AND EACH OTHER CREDIT PARTY PARTY HERETO EACH IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER TERM LOAN DOCUMENT IN ANY COURT REFERRED TO IN SUBSECTION (b) OF THIS SECTION 10.16. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d)        SERVICE OF PROCESS. BORROWER AND EACH OTHER CREDIT PARTY PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS ON IT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO ITS ADDRESS SET FORTH ON SCHEDULE 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

SECTION 10.17.        WAIVER OF RIGHT TO JURY TRIAL.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM. EACH OF THE PARTIES HERETO REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL ON SUCH MATTERS. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

SECTION 10.18.        LIMITED LIABILITY.

It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by BasePoint Capital II, LLC (“Administrator”), not individually or personally but solely as administrator of BP Commercial Funding Trust III, Series SPL-XIV, in its capacity as Administrative Agent and Lender, in the exercise of the powers and authority conferred and vested in it under that certain Trust Agreement, dated as of February 27, 2023, and Series Trust Supplement No. 14 thereto, dated as of February 4, 2025 (collectively, as amended, supplemented or modified from time to time), (b) any representations, undertakings and agreements herein made on the part of BP Commercial Funding Trust III, Series SPL-XIV, in its capacity as Administrative Agent and/or Lender, are made and intended not as personal representations, undertakings and agreements by Administrator but is made and intended for the purpose of binding only BP Commercial Funding Trust III, Series SPL-XIV, in its capacity as Administrative Agent and Lender, as the case may be, (c) nothing herein contained shall be construed as creating any liability on Administrator, individually or personally, to perform any covenant either express or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and any person or entity claiming by, through or under the parties hereto, and (d) under no circumstances shall Administrator be personally liable for the payment of any indebtedness or expenses of BP Commercial Funding Trust III, Series SPL-XIV, in its capacity as Administrative Agent or Lender, hereto or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by BP Commercial Funding Trust III, Series SPL-XIV, in its capacity as Administrative Agent or Lender, under this Agreement or the other related documents or otherwise.

SECTION 10.19.        LENDER NOT A FIDUCIARY OR PRINCIPAL.

The relationship between Borrower and each Lender hereunder is solely that of debtor and creditor, and no Lender has any fiduciary, principal and agent, or other special relationship with Borrower, and no term or provision of any of the Term Loan Documents shall be construed so as to deem the relationship between Borrower, on the one hand, and a Lender, on the other hand, to be other than that of debtor and creditor.

SECTION 10.20.        NOT A SECURITY.

Each party hereto hereby represents and warrants to the other parties that (a) such party does not consider the rights and obligations under this Agreement, the Notes, if any, or any other Term Loan Document to constitute the “purchase” or “sale” of a “security” within the meaning of the Securities Act of 1933, the Securities Exchange Act of 1934 or Rule l0b-5 promulgated thereunder, the Trust Indenture Act of 1939, or any other applicable securities statute or law, as amended and in effect from time to time, or any rule or regulation under any of the foregoing, (b) such party has no expectation that it will derive profits from the efforts of the other parties or any third party in respect of the rights and obligations under this Agreement, the Notes, if any, or any other Term Loan Document, and (c) this Agreement, the Notes, if any, and the other Term Loan Documents merely constitute a commercial transaction by such party with the other party and do not represent an “investment” (as that term is commonly understood) in the other party.

SECTION 10.21.        INDEPENDENCE OF COVENANTS.

Each covenant contained in this Agreement shall be construed (absent express provision to the contrary) as being independent of each other covenant contained in this Agreement, so that compliance with one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant.

[SIGNATURE PAGES FOLLOW.]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

[Signature Page to Term Loan Agreement]

[Signature Page to Term Loan Agreement]

[Signature Page to Term Loan Agreement]

LENDERS:

[Signature Page to Term Loan Agreement] 

LENDER:

[Signature Page to Term Loan Agreement] 

LENDER:

[Signature Page to Term Loan Agreement]

SCHEDULE A

KATAPULT SUBSIDIARIES

EXHIBIT 1

FINANCIAL COVENANT DEFINITIONS

“Consolidated Adjusted EBITDA” means, as of any date of determination, for any period, the sum of the following determined on a consolidated basis, without duplication, for Holdings and its Subsidiaries in accordance with GAAP:

(a)           Consolidated Net Income for such period; plus

(b)          the sum of the following, without duplication, to the extent deducted in determining Consolidated Net Income for such period: (i) income and franchise Taxes; (ii) Consolidated Interest Expense; and (iii) amortization, depreciation and other non-cash charges (except to the extent that such non-cash charges are reserved for cash charges to be taken in the future); plus

(c)           [reserved]; plus

(d)           to the extent deducted in determining Consolidated Net Income for such period, Tax Distributions for such period; plus

(e)           any expenses incurred from the sale or liquidation of discontinued or closed stores, including relocation expenses and remodeling expenses and expenses related to the opening, curtailment and/or consolidation of facilities (including, without limitation, retail stores and fulfillment centers); provided, however, that the amount to be added back pursuant to this clause (e) may not exceed 20% of Consolidated Adjusted EBITDA for any measurement period (without giving effect to the add-backs pursuant to this clause (e)); plus

(f)            any extraordinary, unusual or non-recurring loss, cost or expense that are agreed in writing by the Required Lenders; plus

(g)          restructuring and transition expenses, costs or charges, all as determined on a consolidated basis for Borrower and its Subsidiaries for such period, which for the avoidance of doubt shall include severance payments and costs, relocation costs, systems establishment costs, integration costs, signing costs, retention bonuses and contract termination costs; provided, that the amount to be added back pursuant to this clause (g) may not exceed 20% of Consolidated Adjusted EBITDA for any measurement period (without giving effect to the add-back pursuant to this clause (g); plus

(h)          loss of on-lease and off-lease inventory, physical damage to stores, infrastructure, capital assets and other assets of the business and loss of revenue, in each case, (1) to the extent reasonably identifiable by the Borrower as having resulted from significant weather events or other natural disasters in areas that have been declared a federal disaster or otherwise qualify for federal emergency assistance, (2) to the extent occurring within twelve (12) months after the occurrence of such significant weather event or natural disaster, and (3) net of all related insurance proceeds received related thereto (including, without limitation, all business interruption insurance and casualty insurance), all as determined on a consolidated basis for Borrower and its Subsidiaries for such period; plus

(i)            without duplication, and notwithstanding any cap or limitation herein, all costs, expenses, charges, losses, reserves and accruals (whether or not capitalized) arising from or in connection with the Katapult Merger Transaction (including severance, retention, restructuring, integration, transition, and transaction and financing costs), and all purchase accounting adjustments related thereto, as determined by Borrower in good faith; minus

(j)            the sum of the following, without duplication, to the extent any of the following increase Consolidated Net Income for such period: (i) interest income (ii) any extraordinary gains; and (iii) non-cash gains or non-cash items increasing Consolidated Net Income.

“Consolidated Interest Expense” means, for any period, the total cash interest expense (including, without limitation, interest expense attributable to Capital Lease obligations and all net payment obligations pursuant to Swap Contracts) of Holdings and its Subsidiaries for such period, calculated on a consolidated basis for such period in accordance with GAAP.

“Consolidated Net Income” means, for any period, the sum of net income (or loss) after taxes for such period of Holdings and its Subsidiaries on a consolidated basis determined in accordance with GAAP, but excluding:

(a)           any income of any Person if such Person is not a Subsidiary of Holdings, except that Holdings’ direct or indirect equity in the net income of any Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to Holdings or a Subsidiary of Holdings as a dividend or other distribution;

(b)           the income of any Subsidiary of Holdings to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of that income is prohibited by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Subsidiary of Holdings; and

(c)           amortization, depreciation or any other non-cash charge or loss, including those resulting from any amortization, write-up, write-down or write-off of goodwill, any non-cash income (loss) attributable to deferred compensation plans or trusts, any gains or non-cash losses from the sale or liquidation of discontinued operations and any extraordinary, unusual or non-recurring loss, cost or expense that Administrative Agent approves to be excluded in its Administrative Discretion.

“Interest Coverage Ratio” means, for any Fiscal Quarter of Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP, the ratio of (a) Consolidated Adjusted EBITDA for the twelve (12) month period ending on the last day of such Fiscal Quarter to (b) Consolidated Interest Expense for the twelve (12) month period ending on the last day of such Fiscal Quarter provided that, for purposes of this definition, “Consolidated Interest Expense” shall include payments of preferred dividends by Holdings and its Subsidiaries, or distributions by Holdings and its Subsidiaries to a direct or indirect parent, for the purpose of funding the payment of preferred dividends or any other payment obligation of such direct or indirect parent of Holdings and its Subsidiaries for such period; provided, further, that any such preferred dividends (or distributions to fund the payment thereof without duplication) shall be excluded from Consolidated Interest Expense to the extent such preferred dividends accrued, were declared and paid prior to the Closing Date.

“Leverage Ratio” means, for any Fiscal Quarter of Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP, the ratio of (a) the aggregate outstanding amount of Debt of Holdings and its Subsidiaries described in clauses (a) (including purchase money debt), (b) and (d) of the definition thereof (in the case of clause (d), only to the extent not paid after three (3) Business Days of becoming due and payable) less Liquidity, in each case, as of the last day of such Fiscal Quarter to (b) Consolidated Adjusted EBITDA for the twelve (12) month period ending on the last day of such Fiscal Quarter.

“Liquidity” means, as of any date of determination, without duplication, unrestricted (as determined in accordance with GAAP) and unencumbered (other than encumbrances constituting Permitted Cash Liens) Cash and Cash Equivalents of Holdings and its Subsidiaries as of such date (including all Cash and Cash Equivalents in any deposit accounts and securities accounts of such Person and its Subsidiaries satisfying the foregoing requirements).

“Permitted Cash Liens” means any of the following:

(a)           any Lien created under any Term Loan Document;

(b)           any Lien arising in connection with any Permitted Katapult Debt Agreement;

(c)           any Lien arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set off or similar rights and remedies as to deposit accounts or securities accounts or other funds maintained with a creditor depository institution; provided that: (i) such deposit account or securities account is not a dedicated cash collateral account and is not subject to restrictions against access by any of Holdings or any of its Subsidiaries in excess of those set forth by regulations promulgated by the Board of Governors of the Federal Reserve System of the United States; and (ii) such deposit account or securities account is not intended by any of Borrower or any of its Subsidiaries to provide collateral to the depository institution; or

(d)          any customary banker’s Liens in favor of banking institutions (including the right of setoff) encumbering deposit accounts or securities accounts maintained at such banking institutions by any of Holdings or any of its Subsidiaries that are within the general parameters in the banking industry or arising pursuant to such banking institution’s general terms and conditions.

EXHIBIT A

FORM OF ASSIGNMENT AND ASSUMPTION

ASSIGNMENT AGREEMENT

THIS ASSIGNMENT AGREEMENT, dated as of the date set forth at the top of Attachment 1 hereto, by and between:

(1)             The financial institution designated under item A of Attachment 1 hereto as the Assignor Lender (“Assignor Lender”); and

(2)             The financial institution designated under item B of Attachment 1 hereto as the Assignee Lender (“Assignee Lender”).

RECITALS

A.              Assignor Lender is one of the Lenders which is a party to the Term Loan Agreement, dated as of August 11, 2026 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Term Loan Agreement”), by and among Katapult Intermediate Holdings, LLC, a Delaware limited liability company (“Borrower”); Katapult Holdings, Inc., a Delaware corporation, (“Holdings”), the Subsidiary Guarantors from time to time party thereto, the Lenders from time to time party thereto, and BP Commercial Funding Trust III, Series SPL-XIV, a statutory series of BP Commercial Funding Trust III, a Delaware statutory trust, for itself and for no other series of BP Commercial Funding Trust III, as Administrative Agent (the “Administrative Agent”).

B.              Assignor Lender wishes to sell, and Assignee Lender wishes to purchase, all or a portion of Assignor Lender’s rights under the Term Loan Agreement pursuant to Section 10.06(b) of the Term Loan Agreement.

AGREEMENT

Now, therefore, the parties hereto hereby agree as follows:

1.               Definitions. Except as otherwise defined in this Assignment Agreement, all capitalized terms used herein and defined in the Term Loan Agreement have the respective meanings given to those terms in the Term Loan Agreement, unless otherwise specified.

2.               Sale and Assignment. On the terms and subject to the conditions of this Assignment Agreement, Assignor Lender hereby (i) agrees to sell, assign and delegate to Assignee Lender and Assignee Lender hereby agrees to purchase, accept and assume the rights, obligations and duties of a Lender under the Term Loan Agreement and the other Term Loan Documents having Percentage Shares as set forth under Column 1 opposite Assignee Lender’s name on Attachment 1 hereto. Such sale, assignment and delegation shall become effective on the date designated in Attachment 1 hereto (the “Assignment Effective Date”), which date shall be, unless Administrative Agent shall otherwise consent, at least five (5) Business Days after the date following the date counterparts of this Assignment Agreement are delivered to Administrative Agent in accordance with Section 3 hereof.

3.               Assignment Effective Notice. Upon (a) receipt by Administrative Agent of counterparts of this Assignment Agreement (to each of which is attached a fully completed Attachment 1), each of which has been executed by Assignor Lender and Assignee Lender (and, to the extent required by Section 10.06(b) of the Term Loan Agreement, by Borrower and Administrative Agent) and (b) payment to Administrative Agent of the recordation and processing fee specified in Section 10.06(b) of the Term Loan Agreement by Assignor Lender, Administrative Agent will transmit to Borrower, Assignor Lender and Assignee Lender an Assignment Effective Notice substantially in the form of Attachment 2 hereto, fully completed (an “Assignment Effective Notice”).

4.               Assignment Effective Date. At or before 12:00 noon (local time of Assignor Lender) on the Assignment Effective Date, Assignee Lender shall pay to Assignor Lender, in immediately available or same day funds, an amount equal to the purchase price, as agreed between Assignor Lender and Assignee Lender (the “Purchase Price”), for the Loans and corresponding Percentage Shares purchased by Assignee Lender hereunder. Effective upon receipt by Assignor Lender of the Purchase Price payable by Assignee Lender, the sale, assignment and delegation to Assignee Lender of such Loans and corresponding Percentage Shares as described in Section 2 hereof shall become effective.

5.               Payments After the Assignment Effective Date. Assignor Lender and Assignee Lender hereby agree that Administrative Agent shall, and hereby authorize and direct Administrative Agent to, allocate amounts payable under the Term Loan Agreement and the other Term Loan Documents as follows:

(a)             All principal payments made after the Assignment Effective Date with respect to the Percentage Shares assigned to Assignee Lender pursuant to this Assignment Agreement shall be payable to Assignee Lender.

(b)             All interest, fees and other amounts accrued after the Assignment Effective Date with respect to the Percentage Shares assigned to Assignee Lender pursuant to this Assignment Agreement shall be payable to Assignee Lender.

Assignor Lender and Assignee Lender shall make any separate arrangements between themselves which they deem appropriate with respect to payments between them of amounts paid under the Term Loan Documents on account of the Percentage Shares assigned to Assignee Lender, and neither Administrative Agent nor Borrower shall have any responsibility to effect or carry out such separate arrangements.

6.               Delivery of Notes. On or prior to the Assignment Effective Date, Assignor Lender will deliver to Administrative Agent the Notes (if any) payable to Assignor Lender. On or prior to the Assignment Effective Date, if requested in writing at least one (1) Business Day prior to the Assignment Effective Date, Borrower will deliver to Administrative Agent new Notes for Assignee Lender and Assignor Lender, in each case in principal amounts reflecting, in accordance with the Term Loan Agreement, their respective Percentage Shares. As provided in Section 10.06(b) of the Term Loan Agreement, each such new Note shall be dated the Closing Date. Promptly after the Assignment Effective Date, if new Notes are requested Administrative Agent will send to each of Assignor Lender and Assignee Lender, as applicable, its new Notes and, if applicable, will send to Borrower the superseded Notes payable to Assignor Lender, marked “Cancelled and Replaced.”

7.               Delivery of Copies of Term Loan Documents. Concurrently with the execution and delivery hereof, Assignor Lender will provide to Assignee Lender (if it is not already a Lender party to the Term Loan Agreement) conformed copies of all documents delivered to Assignor Lender on or prior to the Closing Date in satisfaction of the conditions precedent set forth in the Term Loan Agreement.

8.               Further Assurances. Each of the parties to this Assignment Agreement agrees that at any time and from time to time upon the written request of any other party, it will execute and deliver such further documents and do such further acts and things as such other party may reasonably request in order to effect the purposes of this Assignment Agreement.

9.               Further Representations, Warranties and Covenants. Assignor Lender and Assignee Lender further represent and warrant to and covenant with each other, Administrative Agent and the Lenders as follows:

(a)             Other than the representation and warranty that it is the legal and beneficial owner of the interest being assigned hereby free and clear of any adverse claim, Assignor Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Term Loan Agreement or the other Term Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Term Loan Agreement or the other Term Loan Documents furnished.

(b)             Assignor Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of Borrower or any of its obligations under the Term Loan Agreement or any other Term Loan Documents.

(c)             Assignee Lender confirms that it has received a copy of the Term Loan Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment Agreement.

(d)             Assignee Lender will, independently and without reliance upon Administrative Agent, Assignor Lender or any other Lender and based upon such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Term Loan Agreement and the other Term Loan Documents.

(e)             Assignee Lender appoints and authorizes Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers under the Term Loan Agreement and the other Term Loan Documents as Administrative Agent is authorized to exercise by the terms thereof, together with such powers as are reasonably incidental thereto, all in accordance with the Term Loan Agreement.

(f)              Assignee Lender agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Term Loan Agreement and the other Term Loan Documents are required to be performed by it as a Lender.

(g)             Attachment 1 hereto sets forth administrative information with respect to Assignee Lender.

10.             Effect of this Assignment Agreement. On and after the Assignment Effective Date, (a) Assignee Lender shall be a Lender with Percentage Shares equal to that set forth under Column 2 opposite Assignee Lender’s name on Attachment 1 hereto and shall have the rights, duties and obligations of such a Lender under the Term Loan Agreement and the other Term Loan Documents and (b) Assignor Lender shall be a Lender with Percentage Shares equal to that set forth under Column 2 opposite Assignor Lender’s name on Attachment 1 hereto, and shall have the rights, duties and obligations of such a Lender under the Term Loan Agreement and the other Term Loan Documents or, if the Percentage Share of Assignor Lender has been reduced to 0%, Assignor Lender shall cease to be a Lender and shall have no further obligation to make any Loans.

11.             Miscellaneous. This Assignment Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. Section headings in this Assignment Agreement are for convenience of reference only and are not part of the substance hereof.

[signature page to follow]

IN WITNESS WHEREOF, the parties hereto have caused this Assignment Agreement to be executed by their respective duly authorized officers as of the date set forth in Attachment 1 hereto.

ATTACHMENT 1

TO ASSIGNMENT AGREEMENT
NAMES, ADDRESSES, AND PERCENTAGE
SHARES OF ASSIGNOR LENDER AND ASSIGNEE LENDER
AND ASSIGNMENT EFFECTIVE DATE

_________________ ____, 20___

¹ To be expressed by a percentage rounded to the eighth digit to the right of the decimal point.

² Percentage Share of Term Loans, as applicable to be sold by Assignor Lender and purchased by Assignee Lender pursuant to this Assignment Agreement.