Form 8-K
8-K — Katapult Holdings, Inc.
Accession: 0000950103-26-008473
Filed: 2026-06-03
Period: 2026-06-02
CIK: 0001785424
SIC: 7359 (SERVICES-EQUIPMENT RENTAL & LEASING, NEC)
Item: Entry into a Material Definitive Agreement
Item: Financial Statements and Exhibits
Documents
8-K — dp247764_8k.htm (Primary)
EX-10.1 — EXHIBIT 10.1 (dp247764_ex1001.htm)
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8-K — FORM 8-K
8-K (Primary)
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2026-06-02
2026-06-02
0001785424
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2026-06-02
2026-06-02
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
June 2, 2026
KATAPULT HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware
001-39116
84-2704291
(State or other jurisdiction
of incorporation)
(Commission File Number)
(IRS Employer
Identification No.)
5360 Legacy Drive, Building 2
Plano, TX
75024
(Address of principal executive offices)
(Zip Code)
(833) 528-2785
(Registrant’s telephone number, including area code:)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
☐ Written communications pursuant
to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class
Trading Symbol(s)
Name of Each Exchange on
Which Registered
Common Stock, par value $0.0001 per share
KPLT
The Nasdaq Stock Market LLC
Redeemable Warrants
KPLTW
The Nasdaq Stock Market LLC
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry Into a Material Definitive Agreement.
On June 2, 2026, the Company entered into the Third
Amendment and Limited Waiver (the “Third Amendment”) to our Amended and Restated Loan and Security Agreement, dated as
of June 12, 2025 (as amended, amended and restated, supplemented, revised, or otherwise modified from time to time, including
pursuant to that certain Limited Waiver dated September 15, 2025 (the “First Limited Waiver”), that certain Limited
Waiver dated September 29, 2025 (the “Second Limited Waiver”), that certain Limited Waiver dated October 13, 2025 (the
“Third Limited Waiver”), that certain Limited Waiver dated October 20, 2025 (the “Fourth Limited Waiver”),
that certain Limited Waiver dated October 27, 2025 (the “Fifth Limited Waiver”), that certain Limited Waiver dated
October 29, 2025 (the “Sixth Limited Waiver”), that certain Limited Waiver and First Amendment to Amended and Restated
Loan and Security Agreement dated November 2, 2025 (the “First Amendment”), that certain Limited Waiver and Second
Amendment to Amended and Restated Loan and Security Agreement dated December 11, 2025 (the “Second Amendment”), that
certain Limited Waiver dated January 15, 2026 (the “Seventh Limited Waiver”), that certain Limited Waiver dated February
13, 2026 (the “Eighth Limited Waiver”), that certain Limited Waiver dated March 9, 2026 (the “Ninth Limited
Waiver”), that certain Limited Waiver dated April 15, 2026 (the “Tenth Limited Waiver”), that certain Limited
Waiver dated May 5, 2026 (the “Eleventh Limited Waiver”) and the Third Amendment, the “Loan Agreement”), by
and among the Katapult SPV-1 LLC, Katapult Group, Inc., the Company (each a “Credit Party” and, together, the
“Credit Parties”), Midtown Madison Management LLC, as administrative, payment and collateral agent and lender, and the
Lenders. The Third Amendment, among other things, amends the Loan Agreement to remove the Minimum
Trailing Net Three-Month Originations requirement and reduce the advance rate.
The foregoing description of
the Third Amendment does not purport to be complete, and is subject to and qualified in its entirety by reference to the full text of
the Third Amendment, which is attached as Exhibit 10.1 to this Current Report on Form 8-K, and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No.
Exhibit
10.1
Third Amendment
and Limited Waiver to Amended and Restated Loan and Security Agreement, dated as of June 2, 2026, by and among Katapult SPV-1 LLC,
Katapult Group, Inc, Katapult Holdings, Inc., Midtown Madison Management LLC and the lenders party thereto.
104
Cover Page Interactive Data File (embedded within the inline XBRL document)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: June 3, 2026
/s/ Orlando Zayas
Name: Orlando Zayas
Title: Chief Executive Officer
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: dp247764_ex1001.htm · Sequence: 2
Exhibit 10.1
THIRD
AMENDMENT AND LIMITED WAIVER TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This
THIRD AMENDMENT AND LIMITED WAIVER TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this
“Amendment”) is entered into this 2nd day of June, 2026, by and among KATAPULT SPV-1 LLC, a Delaware limited
liability company (“Borrower”), KATAPULT GROUP, INC, a Delaware corporation (“Holdings”),
KATAPULT HOLDINGS, INC., a Delaware corporation (“Parent Entity” and Borrower, Holdings and Parent Entity
together, collectively, the “Credit Parties”), each of the lenders party to the Loan Agreement (defined below)
(individually, each a “Lender” and collectively, the “Lenders”) and MIDTOWN MADISON MANAGEMENT
LLC, a Delaware limited liability company, as administrative, payment and collateral agent for itself, as a Lender, and for the
other Lenders (in such capacities, “Agent”).
Recitals
A. Borrower,
Holdings, Parent Entity, Lenders and Agent entered into that certain Amended and Restated Loan and Security Agreement, dated as of June
12, 2025 (as amended, amended and restated, supplemented, revised, or otherwise modified from time to time, including pursuant to that
certain Limited Waiver dated September 15, 2025, that certain Limited Waiver dated September 29, 2025, that certain Limited Waiver dated
October 13, 2025, that certain Limited Waiver dated October 20, 2025, that certain Limited Waiver dated October 27, 2025, that certain
Limited Waiver dated October 29, 2025, that certain Limited Waiver and First Amendment to Amended and Restated Loan and Security Agreement
dated November 2, 2025, that certain Limited Waiver and Second Amendment to Amended and Restated Loan and Security Agreement dated December
11, 2025, that certain Limited Waiver dated January 15, 2026, that certain Limited Waiver dated February 13, 2026, that certain Limited
Waiver dated March 9, 2026, that certain Limited Waiver dated April 15, 2026 and that certain Limited Waiver dated May 5, 2026, the “Loan
Agreement”);
B. One
or more Defaults or Events of Default under (and as defined in) the Loan Agreement exist and are continuing under the Loan Agreement,
as described further in Section 2 below and as a consequence, Agent and Lenders are entitled to the rights and remedies as a result thereof
under the Loan Agreement and other Loan Documents;
C. Borrower
has requested that Agent and Lenders (i) permanently waive such Defaults and/or Events of Default and (ii) amend the Loan Agreement as
set forth herein; and
D. Agent
and Lenders are willing to do so upon and subject to the terms and conditions of this Amendment and the compliance of the Credit Parties
and their Affiliates with the conditions set forth herein and the other provisions of this Amendment.
Now,
Therefore, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:
Agreement
1. Definitions. Capitalized
terms used but not defined in this Amendment shall have the meanings given to them in the Loan Agreement, as amended by this Amendment.
2. Existing
Default. The Credit Parties have failed to maintain the Minimum Trailing Three-Month Net Originations required by the
Loan Agreement and the other Loan Documents as of the last
Business Day of the calendar
month ended May 31, 2026, resulting in the occurrence of a Default and/or Event of Default under the Loan Agreement (and the other Loan
Documents) (the “Existing Default”).
3. Limited
Waiver.
3.1 The
Agent and the Lenders party hereto (constituting Requisite Lenders) hereby permanently waive the Existing Default (the “Limited
Waiver”). The Limited Waiver shall be effective on and at all times after the Amendment Effective Date.
3.2 Agent
and Lenders have not waived, and are not by this Agreement waiving, any other Default or Event of Default that may occur from events or
circumstances arising after the effectiveness of this Agreement, and Agent and Lenders have not agreed to waive any of their respective
rights or remedies concerning any Default or Event of Default (other than the Existing Default). Without limiting the foregoing, as of
the date hereof, Agent does not have actual knowledge of the continuation of any Event of Default other than the Existing Default. Each
of the Agent and each Lender party hereto reserves all of its respective rights and remedies set forth in, and subject to the terms of,
the Loan Agreement, the other Loan Documents and applicable Law.
4. No
Other Waiver, Ratification, Further Assurances and Consent.
4.1 Except
as specifically set forth in Section 3 hereof, nothing contained in this Amendment, or any other communication among Agent, Lenders,
Borrower or any other Credit Party on or prior to the date hereof in connection with this Amendment shall be construed as a standstill
or waiver by Agent or Lenders of any covenant or provision of the Loan Agreement, the other Loan Documents, this Amendment or any other
contract or instrument among any Credit Party, Agent and/or Lenders, or of any similar future transaction and the failure of Agent and/or
Lenders at any time or times hereafter to require strict performance by any Credit Party of any provision thereof shall not waive, affect
or diminish any right of Agent and/or Lenders to thereafter demand strict compliance therewith. Except as expressly set forth
herein, nothing contained in this Amendment shall directly or indirectly in any way whatsoever either: (i) impair, prejudice or otherwise
adversely affect Agent’s or any Lender’s right at any time to exercise any right, privilege or remedy in connection with the
Loan Agreement, as amended hereby, or any other Loan Documents, (ii) amend or alter any provision of the Loan Agreement or any other Loan
Documents or any other contract or instrument, or (iii) constitute any course of dealings or other basis for altering any obligation
of any Credit Party under the Loan Agreement or any other Loan Documents or any right, privilege or remedy of Agent or any Lender under
the Loan Agreement, any other Loan Documents or any other contract or instrument.
4.2 Each
of the Credit Parties ratifies and confirms that all of its respective obligations under the Loan Documents are in full force and effect
and are performable in accordance with their respective terms without setoff, defense, counter-claim or claims in recoupment. This
Amendment shall be construed in connection with and as part of the Loan Agreement and all terms, conditions, representations, warranties,
covenants and agreements set forth in the Loan Agreement, as amended hereby, and each other Loan Document are hereby ratified and confirmed
and shall remain in full force and effect (giving effect to the waiver granted hereunder).
4.3 The
Credit Parties and Agent agree that at any time and from time to time, upon the written request of the other, it will execute and deliver
such further documents and do such further acts and things as the other may reasonably request in order to effect the purposes of this
Amendment and the Loan Documents.
4.4 The Agent and the
Lenders hereby consent to the Parent Reorganization Transaction (as defined in the Loan Agreement, as amended hereby), including, without
limitation, (i) the designation of Katapult Midco (rather than Katapult Intermediate III) as the Payment Guarantor and Indemnity Guarantor
following the consummation of the Parent Reorganization Transaction, (ii) modifications to Schedule 5.6 of the Katapult Merger Agreement
reflecting the Parent Reorganization Transaction (as defined in the Loan Agreement, as amended hereby) and (iii) the incurrence by Katapult
Midco of the Permitted Hawthorn Debt in connection with the Parent Reorganization Transaction and the Katapult Merger Transaction, in
each case, on the terms and conditions set forth in the Loan Agreement, as amended hereby, and in the Katapult Merger Agreement after
giving effect to any modifications, amendments, consents or waivers thereto, other than those modifications, amendments, consents or
waivers that are adverse to the interests of the Agent and the Lenders in their capacities as such unless consented to by the Agent (such
consent not to be unreasonably withheld or delayed).
5. Amendments
to Loan Agreement.
5.1 Effective
as of the Amendment Effective Date, the Loan Agreement is hereby amended (a) to delete the stricken text (indicated textually in the same
manner as the following examples: stricken text and stricken
text) and (b) to add the double-underlined text (indicated textually in the same manner as the following examples: double-underlined
text and double-underlined text), in each case, as set forth
in the marked copy of the Loan Agreement, along with those certain exhibits, schedules and appendices to the Loan Agreement, attached
hereto as Exhibit A and made a part hereof for all purposes.
5.2 Effective
as of the Amendment Effective Date, Exhibit C (Form of Monthly Servicing Report/Lease Contract Multiple) to the Loan Agreement
is hereby replaced with the Form of Monthly Servicing Report/Lease Contract Multiple attached hereto as Exhibit C.
6. Conditions
Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment is conditioned upon the satisfaction
of the following conditions precedent (the date on which the conditions have been satisfied or waived in writing by Agent being the “Amendment
Effective Date”).
6.1 Agent
shall have received this Amendment, duly executed by each Credit Party, the Lenders and Agent.
6.2 Agent
shall have received such additional documents, instruments and information as Agent may have requested in writing at least two Business
Days prior to the date hereof.
6.3 The
representations and warranties contained or incorporated herein shall be true and correct in all material respects (except to the extent
already qualified by materiality, in which case it shall be true and correct in all respects).
6.4 Agent
shall have received all fees, charges and expenses due and payable to Agent and Lenders on or prior to the Amendment Effective Date pursuant
to the Loan Documents.
6.5 Agent
and each Lender party hereto, by delivering its signature page to this Amendment, shall be deemed to have accepted or been satisfied with
(or waived) each condition set forth in this Section 6. The parties hereto hereby agree that notwithstanding any other provision
hereof, the Amendment Effective Date is June 2, 2026.
7. Representations
and Warranties. To induce Agent and Lenders to enter into this Amendment, each Credit Party hereby represents and warrants
to Agent and Lender as follows:
7.1 The
execution, delivery and performance of this Amendment by each Credit Party has been duly authorized by all requisite action of such parties;
7.2 Immediately
after giving effect to this Amendment (a) except with respect to the Existing Default, the representations and warranties contained
in the Loan Agreement, as amended hereby, are true, accurate and complete in all material respects as of the date hereof (except to the
extent such representations and warranties relate to an earlier date, in which case they are true and correct in all material respects
as of such date), (b) except with respect to the Existing Default, no Regulatory Trigger Event, Default Trigger Event, First Payment Default
Trigger Event, Default or Event of Default has occurred and is continuing, (c) each Credit Party is in good standing under the laws of
its jurisdiction of organization, and (d) since December 11, 2025, no amendment, modification or other change has been made to (i) the
articles of organization (or other applicable charter document), or (ii) the limited liability company agreement (or any other equivalent
governing agreement or document) of any Credit Party except those approved by Agent;
7.3 Each
Credit Party has all requisite power and authority to execute and deliver this Amendment and to perform its obligations under this Amendment,
the Loan Agreement, as amended hereby, and the other Loan Documents;
7.4 The
execution and delivery by the Credit Parties of this Amendment and the performance by the Credit Parties of their respective obligations
under the Loan Agreement, as amended hereby, and the other Loan Documents do not require any order, consent, approval, license, authorization
or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision
thereof, binding on any Credit Party, except as already have been obtained or made;
7.5 This
Amendment has been duly executed and delivered by each Credit Party and is the binding obligation of each Credit Party, enforceable against
each Credit Party in accordance with its terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization
or other similar law affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity
(whether in a proceeding at law or in equity); and
7.6 Each
Credit Party has reviewed this Amendment and acknowledges and agrees that it (a) understands fully the terms of this Amendment and the
consequences of the issuance hereof, (b) has been afforded an opportunity to have this Amendment reviewed by, and to discuss this Amendment
with, such attorneys and other Persons as it may wish, and (c) has entered into this Amendment of its own free will and accord and without
threat or duress. This Amendment and all information furnished to Agent and Lenders is made and furnished in good faith, for
value and valuable consideration. This Amendment has not been made or induced by any fraud, duress or undue influence exercised
by any Agent, any Lender or any other Person.
8. Miscellaneous.
8.1 Integration. This
Amendment and the Loan Agreement, as amended hereby, represent the entire agreement between the parties about this subject matter and
supersede prior negotiations or agreements. All prior agreements, understandings, representations, warranties and negotiations
between the parties about the subject matter of this Amendment and the Loan Agreement merge into this Amendment and the Loan Agreement,
as amended hereby.
8.2 Severability. If
any term or provision of this Amendment is adjudicated to be illegal, invalid or unenforceable under Applicable Law, such term or provision
shall be inapplicable to the extent of such illegality, invalidity or unenforceability without affecting the legality, validity or enforceability
of the remainder of this Amendment which shall be given effect so far as possible.
8.3 Successors
and Assigns. Subject to Section 12.2 of the Loan Agreement, this Amendment shall be binding upon and inure to the benefit
of the Credit Parties, Agent and Lenders and their respective successors and permitted assigns, except that the Credit Parties shall not
have the right to assign any rights hereunder or any interest herein without Agent’s and the Lender’s prior written consent.
8.4 WAIVER
OF JURY TRIAL. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE CHOICE OF LAW PROVISIONS SET FORTH IN THE LOAN AGREEMENT AND SHALL
BE SUBJECT TO ANY WAIVER OF JURY TRIAL AND NOTICE PROVISIONS SET FORTH IN THE LOAN AGREEMENT.
8.5 No
Oral Agreements. Neither this Amendment nor any provision hereof may be changed, waived, discharged, modified or terminated
orally, but only by an instrument in writing signed by the parties required to be a party thereto pursuant to the Loan Agreement.
8.6 Counterparts. This
Amendment may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one
and the same instrument. Signature pages delivered by facsimile or other electronic means shall have the same effect as manually
executed signature pages. The words “execution,” “executed,” “signed,” “signature,” and
words of like import in this Amendment shall be deemed to include electronic signatures, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature.
9. Release. BORROWER,
HOLDINGS AND PARENT ENTITY, AND EACH OF THEIR RESPECTIVE PREDECESSORS, SUCCESSORS, HEIRS, AND ASSIGNS (INDIVIDUALLY AND COLLECTIVELY,
“RELEASORS”) HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES AGENT AND EACH LENDER AND
THEIR RESPECTIVE PARENTS, DIVISIONS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, AND ASSIGNS, AND EACH OF ITS CURRENT AND FORMER DIRECTORS,
OFFICERS, SHAREHOLDERS, MEMBERS, MANAGERS, PARTNERS, ATTORNEYS, AGENTS, AND EMPLOYEES, AND EACH OF THEIR RESPECTIVE PREDECESSORS, SUCCESSORS,
HEIRS, AND ASSIGNS (INDIVIDUALLY AND COLLECTIVELY, THE “RELEASED PARTIES”) FROM ALL POSSIBLE CLAIMS, COUNTERCLAIMS,
DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES AND LIABILITIES WHATSOEVER, WHETHER KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED,
SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT OR CONDITIONAL, OR AT LAW OR IN EQUITY, IN ANY CASE ORIGINATING ON OR BEFORE THE DATE HEREOF
THAT ANY OF THE RELEASORS MAY NOW OR HEREAFTER HAVE AGAINST THE RELEASED PARTIES (OR ANY OF THEM), IF ANY, IRRESPECTIVE OF WHETHER ANY
SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, ARISING DIRECTLY OR INDIRECTLY FROM
THE LOAN AGREEMENT, THE LOAN DOCUMENTS, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN DOCUMENTS AND/OR NEGOTIATION FOR AND EXECUTION
OF THIS AMENDMENT OR THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR
RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, IN EACH CASE EXCLUDING FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT
(THE “RELEASED CLAIMS”). RELEASED CLAIMS SHALL NOT INCLUDE CLAIMS TO ENFORCE THIS AMENDMENT OR FOR BREACH
OF THIS AMENDMENT, IN EACH CASE MADE AFTER THE DATE HEREOF. EACH OF THE RELEASORS WAIVES THE BENEFITS OF ANY LAW,
WHICH MAY PROVIDE IN SUBSTANCE: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST
IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY IT MUST HAVE MATERIALLY AFFECTED ITS SETTLEMENT WITH THE DEBTOR.”
EACH OF THE RELEASORS UNDERSTANDS THAT THE FACTS WHICH IT BELIEVES TO BE TRUE AT THE TIME OF MAKING THE RELEASE PROVIDED FOR HEREIN MAY
LATER TURN OUT TO BE DIFFERENT THAN IT NOW BELIEVES, AND THAT INFORMATION WHICH IS NOT NOW KNOWN OR SUSPECTED MAY LATER BE DISCOVERED. EACH
OF THE RELEASORS ACCEPTS THIS POSSIBILITY, AND EACH OF THEM ASSUMES THE RISK OF THE FACTS TURNING OUT TO BE DIFFERENT AND NEW INFORMATION
BEING DISCOVERED; AND EACH OF THEM FURTHER AGREES THAT THE RELEASE PROVIDED FOR HEREIN SHALL IN ALL RESPECTS CONTINUE TO BE EFFECTIVE
AND NOT SUBJECT TO TERMINATION OR RESCISSION BECAUSE OF ANY DIFFERENCE IN SUCH FACTS OR ANY NEW INFORMATION. RELEASORS AGREE
THAT (I) THE COMMENCEMENT OF ANY LITIGATION OR LEGAL PROCEEDINGS BY
ANY RELEASOR AGAINST ANY RELEASED
PARTY WITH RESPECT TO ANY CLAIMS, COUNTERCLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES AND LIABILITIES RELEASED
HEREBY, PURPORTED TO BE RELEASED HEREBY OR ARISING ON OR BEFORE THE DATE HEREOF, AND/OR (II) THE COMMENCEMENT OF ANY CLAIM, INITIATION
OR COMMENCEMENT OF ANY CLAIM OR PROCEEDING BY ANY RELEASOR WHICH ALLEGES THAT THE RELEASE HEREIN IS INVALID OR UNENFORCEABLE IN ANY RESPECT,
SHALL, IN EACH CASE, CONSTITUTE AN IMMEDIATE EVENT OF DEFAULT.
[Signature pages follow.]
IN WITNESS WHEREOF,
this Amendment is being executed as of the date first written above.
BORROWER:
KATAPULT SPV-1 LLC
By:
/s/ Orlando Zayas
Name:
Orlando Zayas
Title:
Chief Executive Officer
HOLDINGS:
KATAPULT GROUP, INC.
By:
/s/ Orlando Zayas
Name:
Orlando Zayas
Title:
Chief Executive Officer
PARENT ENTITY:
KATAPULT Holdings, Inc.
By:
/s/ Orlando Zayas
Name:
Orlando Zayas
Title:
Chief Executive Officer
[Signature Page to Third Amendment and
Limited Waiver to Amended and Restated Loan and Security Agreement]
AGENT:
MIDTOWN MADISON MANAGEMENT LLC
By:
/s/ David Aidi
Name:
David Aidi
Title:
Authorized Signatory
[Signature Page to Third Amendment and
Limited Waiver to Amended and Restated Loan and Security Agreement]
CLASS A-1 LENDERS:
BLUE OWL ASSET Income Fund IV LP
By:
/s/ David Aidi
Name:
David Aidi
Title:
Authorized Signatory
BLUE OWL ASSET Income Fund (Cayman) IV LP
By:
/s/ David Aidi
Name:
David Aidi
Title:
Authorized Signatory
BLUE OWL Asset Income Fund V LP
By:
/s/ David Aidi
Name:
David Aidi
Title:
Authorized Signatory
BLUE OWL Asset Income Fund (Cayman) V LP
By:
/s/ David Aidi
Name:
David Aidi
Title:
Authorized Signatory
[Signature Page to Third Amendment and
Limited Waiver to Amended and Restated Loan and Security Agreement]
CLASS A-2 LENDERS:
BLUE OWL Asset Income Fund V LP
By:
/s/ David Aidi
Name:
David Aidi
Title:
Authorized Signatory
[Signature Page to Third Amendment and
Limited Waiver to Amended and Restated Loan and Security Agreement]
EXHIBIT A
Amended Loan Agreement
[See attached.]
[Exhibit A to Third Amendment and Limited
Waiver to Amended and Restated Loan and Security Agreement]
Exhibit A to SecondThird
Amendment and Limited Waiver to Amended and Restated Loan and Security Agreement
$110,000,000 SENIOR SECURED REVOLVING LOAN
FACILITY
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
among
KATAPULT SPV-1 LLC,
as Borrower,
and
KATAPULT GROUP, INC.,
as Holdings
and
Katapult
Holdings, Inc.,
as Parent Entity
and
MIDTOWN MADISON MANAGEMENT LLC
as Agent
and
THE FINANCIAL INSTITUTIONS PARTY HERETO FROM
TIME TO TIME
as Lenders
Dated as of
June 12, 2025
TABLE OF CONTENTS
Page
I.
DEFINITIONS
1
1.1
General Terms
1
II.
LOAN, PAYMENTS, INTEREST AND COLLATERAL
3231
2.1
The Revolving Loan Advances
3231
2.2
Interest on the Loan
3534
2.3
Loan Collections; Repayment.
3534
2.4
Promise to Pay; Manner of Payment.
3635
2.5
Voluntary Prepayments
3938
2.6
Mandatory Prepayments
39
2.7
Payments by Agent; Protective Advances
40
2.8
Grant of Security Interest; Collateral
4140
2.9
Collateral Administration
4241
2.10
Power of Attorney
4443
2.11
Deposit of Release Price or Substitution of Eligible Lease
4443
2.12
Collection Account and Collateral Account
4544
2.13
Registration Rights
4645
III.
FEES AND OTHER CHARGES
4645
3.1
Computation of Fees; Lawful Limits
4645
3.2
Default Rate of Interest
46
3.3
Increased Costs; Capital Adequacy
4746
3.4
Administration Fee
4847
3.5
[Reserved].
4847
3.6
Additional Interest.
4847
IV.
CONDITIONS PRECEDENT
4948
4.1
Conditions to Closing
4948
4.2
Conditions to Initial Revolving Advances and Subsequent Revolving Advances
5150
V.
REPRESENTATIONS AND WARRANTIES
5251
5.1
Organization and Authority
5251
5.2
Loan Documents
5251
5.3
Requisite Stockholder Approval
5352
5.4
Subsidiaries, Capitalization and Ownership Interests
5352
5.5
Properties
5453
5.6
Other Agreements
5453
5.7
Litigation
5453
5.8
Tax Returns; Taxes
5453
5.9
Financial Statements and Reports
54
i
5.10
Compliance with Law
5554
5.11
Intellectual Property
5554
5.12
Licenses and Permits; Labor
55
5.13
No Default; Solvency
5655
5.14
Disclosure
5655
5.15
Existing Indebtedness; Investments, Guarantees and Certain Contracts
5655
5.16
Affiliated Agreements
5655
5.17
Insurance
56
5.18
Names; Location of Offices, Records and Collateral; Deposit Accounts and Investment Property
5756
5.19
Non-Subordination
5756
5.20
Leases
5756
5.21
Servicing
5756
5.22
Legal Investments; Use of Proceeds
57
5.23
Broker’s or Finder’s Commissions
5857
5.24
Anti-Terrorism; OFAC
58
5.25
Survival
5958
VI.
AFFIRMATIVE COVENANTS
5958
6.1
Financial Statements, Reports and Other Information
5958
6.2
Payment of Obligations
6261
6.3
Conduct of Business and Maintenance of Existence and Assets
62
6.4
Compliance with Legal and Other Obligations
6362
6.5
Insurance
6362
6.6
True Books
63
6.7
Inspection; Periodic Audits; Quarterly Review
6463
6.8
Further Assurances; Post Closing
6463
6.9
Payment of Indebtedness
6564
6.10
Other Liens
6564
6.11
Use of Proceeds
6564
6.12
Collateral Documents; Security Interest in Collateral
6564
6.13
Servicing Agreement; Backup Servicer
6665
6.14
[RESERVED]
66
6.15
Collections; Deposit Accounts
66
6.16
Right of First Refusal
67
6.17
Requisite Special Stockholder Meeting Items.
6968
6.18
Board of Directors; Observer Rights.
6968
6.19
Financial Covenants.
7069
6.20
[Reserved].
7169
6.21
Federal Securities Laws.
7169
6.22
Government Receivables.
7169
VII.
NEGATIVE COVENANTS
7169
7.1
Indebtedness
7170
7.2
Liens
7170
ii
7.3
Investments; Investment Property; New Facilities or Collateral; Subsidiaries
7170
7.4
Dividends; Redemptions; Equity; Compensation
7271
7.5
Transactions with Affiliates
7372
7.6
Charter Documents; Fiscal Year; Dissolution; Use of Proceeds; Insurance Policies; Disposition of Collateral; Trade Names
7472
7.7
Transfer of Collateral; Amendment of Pledged Leases
7473
7.8
Contingent Obligations and Risks
7574
7.9
Truth of Statements
7574
7.10
Modifications of Agreements
7574
7.11
Anti-Terrorism; OFAC
7674
7.12
Deposit Accounts and Payment Instructions
7674
7.13
Servicing Agreement
7675
7.14
ERISA.
7776
7.15
Restrictive Agreements.
7776
7.16
Sale and Leaseback Transactions.
7776
7.17
Hedging Transactions.
7776
7.18
Loans.
7876
7.19
Borrower Purpose.
7876
VIII.
EVENTS OF DEFAULT
7876
IX.
RIGHTS AND REMEDIES AFTER DEFAULT
8180
9.1
Rights and Remedies
8180
9.2
Application of Proceeds
8281
9.3
Rights to Appoint Receiver
8381
9.4
Attorney-in-Fact
8381
9.5
Rights and Remedies not Exclusive
8382
X.
WAIVERS AND JUDICIAL PROCEEDINGS
8382
10.1
Waivers
8382
10.2
Delay; No Waiver of Defaults
8382
10.3
Jury Waiver
8482
10.4
Amendment and Waivers
8583
XI.
EFFECTIVE DATE AND TERMINATION
8685
11.1
Effectiveness and Termination
8685
11.2
Survival
8785
XII.
MISCELLANEOUS
8786
12.1
Governing Law; Jurisdiction; Service of Process; Venue
8786
12.2
Successors and Assigns; Assignments and Participations
8887
12.3
Application of Payments
9290
12.4
Indemnity
9291
12.5
Notice
9392
iii
12.6
Severability; Captions; Counterparts; Facsimile Signatures
9392
12.7
Expenses
9392
12.8
Entire Agreement
9493
12.9
Approvals and Duties
9593
12.10
Publicity
9594
12.11
Release of Collateral
9896
12.12
Treatment of Fees
9897
12.13
Release; Cooperation
9897
12.14
Amendment and Restatement; Acknowledgements; No Termination; Reaffirmations; References; Conditional Waiver.
9998
XIII.
AGENT PROVISIONS; SETTLEMENT
10099
13.1
Agent
10099
13.2
Lender Consent
105104
13.3
Set-off and Sharing of Payments
106104
13.4
Disbursement of Funds
106105
13.5
Settlements; Payments; and Information
107106
13.6
Dissemination of Information
109108
13.7
Non-Funding Lender
109108
13.8
Taxes
110109
13.9
Patriot Act
115114
iv
EXHIBITS
Exhibit A
Borrowing Base Certificate
Exhibit B-1
Form of Revolving Note
Exhibit B-2
[Reserved]
Exhibit C
Form of Monthly Servicing Report/Lease Contract Multiple
Exhibit D
Form of Portfolio Documents
Exhibit E
Underwriting Guidelines
Exhibit F
Form of Request for Revolving Advance
Exhibit G
Servicing Policy
Exhibit H
Performance Covenant Tables
Exhibit I
Permitted Holders
Exhibit J
Approved States
Exhibit K
Form of Merger Agreement
Exhibit L
Registration Rights
Exhibit M
Allocation of Warrants
SCHEDULES
Schedule A
Wiring Instructions
Schedule B
Commitments
Schedule 5.4
Managers, Managing Members and Directors of each Credit Party
Schedule 5.11
Intellectual Property
Schedule 5.16
Affiliate Agreements
Schedule 5.17
Insurance
Schedule 5.18A
Names
Schedule 5.18B
Location of Offices, Records and Collateral
Schedule 5.18C
Deposit Accounts and Investment Property
Schedule 6.8
Further Assurances and Post Closing Deliverables
Schedule 7.1
Permitted Indebtedness
Schedule 7.13(b)
Approved Sub-Servicers
v
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT (the “Agreement”) dated as of June 12, 2025, is entered into by and among KATAPULT
SPV-1 LLC, a Delaware limited liability company (“Borrower”), KATAPULT GROUP, INC, a Delaware corporation
(“Holdings”), Katapult Holdings, Inc., a Delaware corporation
(“Parent Entity”), each of the lenders from time to time party hereto (individually each a “Lender”
and collectively the “Lenders”) and MIDTOWN MADISON MANAGEMENT LLC, a Delaware limited liability company,
as administrative, payment and collateral agent for itself, as a Lender, and for the other Lenders (in such capacities, “Agent”).
WHEREAS, pursuant to
the Purchase and Sale Agreement, the Borrower has purchased, and will continue to purchase, from Holdings all of its rights, title and
interest in and to the Collateral, including, but not limited to, the Pledged Leases which were originated by Holdings and the Inventory
related thereto;
WHEREAS, Borrower,
Holdings, Parent Entity, the Lenders and Agent are parties to that certain Loan and Security Agreement, dated as of the Original Closing
Date (as defined herein) (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Original
Loan Agreement”), pursuant to which the Lenders thereunder made available to Borrower a senior secured revolving credit
facility and a senior secured term loan facility;
WHEREAS, the parties
hereto desire to amend and restate the Original Loan Agreement in its entirety into this Agreement, on and subject to the terms and conditions
set forth herein, in order to, among other things, make the Loans available to Borrower hereunder; and
WHEREAS, Borrower granted
Agent, for the benefit of itself and the other Lenders, a first priority lien on and security interest in the Collateral to secure the
Original Loan Agreement Obligations.
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which hereby are acknowledged,
Borrower, Agent and Lenders hereby agree as follows:
I. DEFINITIONS
1.1 General
Terms
For purposes of the Loan Documents
and all Annexes thereto, in addition to the definitions above and elsewhere in this Agreement or the other Loan Documents, the terms listed
in this Article I shall have the meanings given such terms in this Article I. All capitalized terms used
which are not specifically defined shall have the meanings provided in Article 9 of the UCC in effect on the date hereof to the extent
the same are used or defined therein. Unless otherwise specified, if a provision of this Agreement or any other Loan Document
requires the consent of or approval of Agent or any Lender, such consent or approval shall be in Agent’s or such Lender’s
sole discretion. Unless otherwise specified herein, this Agreement and any agreement or contract referred to herein shall mean such agreement
as modified, amended or supplemented from time to
1
time. Unless otherwise specified, as
used in the Loan Documents or in any certificate, report, instrument or other document made or delivered pursuant to any of the Loan Documents,
all accounting terms not defined in this Article I or elsewhere in this Agreement shall have the meanings given to such terms
in and shall be interpreted in accordance with GAAP. Unless otherwise specified herein, the words “hereof,” “herein”
and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not
to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.
“Account Lessee”
shall mean any Person that is an obligor in respect of any Lease.
“Additional Interest”
shall have the meaning set forth in Section 3.6(b).
“Additional Payment
Date” shall have the meaning assigned to it in Section 2.4(a) hereof.
“Adjusted Current
Lease Balance” shall mean for each Lease, (a) if the ratio of the Original Net Lease Cost to Lease Cost is equal to or greater
than ninety percent (90%), the Current Lease Balance, and (b) if the ratio of the Original Net Lease Cost to Lease Cost is less than ninety
percent (90%), the lesser of (i) the Original Net Lease Cost and (ii) the Current Lease Balance.
“Adjusted Term SOFR”
means, as of any date of determination, the rate per annum equal to (a) the Term SOFR Rate as of such date plus (b) a
percentage per annum equal to 0.10%; provided if, as of any date of determination, “Adjusted Term SOFR” as determined
in the manner as set forth above is less than three percent (3.00%), “Adjusted Term SOFR” for such date shall be deemed to
be three percent (3.00%) for purposes of this Agreement.
“Administration Fee”
shall have the meaning set forth in Section 3.4.
“Advance”
shall mean any borrowing under and advance of the Loan, including, but not limited to, each Revolving Advance and any Protective Advance. Any
amounts paid by Agent on behalf of Borrower under any Loan Document shall be an Advance for purposes of this Agreement.
“Advance Rate”
shall mean, as of any date of determination, so long as no Advance Rate Trigger Event, Default or Event
of Default exists, ninetyeighty-five percent (90.0085.00%).
Notwithstanding
the foregoing, if any Advance Rate Trigger Event has occurred, the Advance Rate shall be immediately reduced by five percent (5%); provided,
that if, following any such Advance Rate Trigger Event, there occurs three (3) consecutive calendar months in which such Advance Rate
Trigger Event no longer exists and no other Advance Rate Trigger Event, Default or Event of Default has occurred, then the Advance Rate
shall be increased by five percent 5%.
“Advance
Rate Trigger Event” shall mean the occurrence of any of the following events with respect to the portfolio
of Pledged Leases securing the Loan, in each case, to be tested as of the last day of each calendar month:
(a) The
Charge-off Percentage Ratio for any Vintage Pool exceeds the Advance Rate Trigger Charge-off Percentage Ratio for the corresponding thirty
(30) day period set forth on Exhibit H-4 since the first payment date for each Lease within
2
each such Vintage Pool. For the avoidance
of doubt, the first thirty day period following the origination date for each Lease within each Vintage Pool shall be Period 1 and the
final thirty day period shall be Period 13; or
(b) The
Cumulative Cash Collection Percentage Ratio for any Vintage Pool is less than the Advance Rate Trigger Cumulative Cash Collection Percentage
Ratio for the corresponding thirty (30) day period set forth on Exhibit H-3 since the first payment date for each Lease within each such
Vintage Pool. For the avoidance of doubt, the first thirty day period following the origination date for each Lease within each Vintage
Pool shall be Period 1 and the final thirty day period shall be Period 13; or
(c)
The average First Payment Default Ratio for
the three most recent Vintage Pools (excluding the Vintage Pool originated during the month ending on the date of determination (i.e.
as of end of December 2025, excluding the December 2025 Vintage Pool)) exceeds the Advance Rate Trigger First Payment Default Ratio (Trailing
Three Months T+30) ratio set forth on Exhibit H-2; or
(d)
The First Payment Default Ratio for any Vintage
Pool within the three most recent Vintage Pools (excluding the Vintage Pool originated during the month ending on the date of determination
(i.e. as of end of December 2025, excluding the December 2025 Vintage Pool)) exceeds the Advance Rate Trigger First Payment Default Ratio
(T+30) ratio set forth on Exhibit H-1.
“Advensus”
means Nearshore Call Center Services LTD, dba Advensus, a British Virgin Islands corporation.
“Affiliate”
or “affiliate” shall mean, as to any Person, any other Person (a) that, directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with, such Person, (b) who is a director or officer (i) of such
Person, (ii) of any Subsidiary of such Person, or (iii) of any Person described in clause (a) above with respect to such Person. For
purposes of this definition, the term “control” (and the correlative terms, “controlled by” and “under common
control with”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies, whether through the ability to exercise voting power, by contract or otherwise, provided, that following the Katapult
Merger Transaction, except for purposes of Section 7.5, (i) Katapult Intermediate Holdings I, LLC and its Subsidiaries, and (ii) Katapult
Intermediate Holdings II, LLC and its Subsidiaries shall not be deemed to be Affiliates of Katapult Intermediate III and its Subsidiaries.
“Agent”
shall have the meaning assigned to it in the introductory paragraph hereof.
“Agent Advance”
shall have the meaning assigned to it in Section 13.4.
“Agreement”
shall have the meaning assigned to it in the introductory paragraph hereof.
“Allocation Notice”
shall have the meaning assigned to it in Section 2.12(b).
“Amortized Lease
Cost” shall mean, for any Lease and as of any date of determination, the product of (i) the cumulative payments received to
date (excluding upfront payments, application fees and/or merchant discounts) related to such Lease and (ii) the quotient of (x) one and
(y) the Lease Contract Multiple of such Lease.
3
“Applicable Rate”
shall mean the interest rates applicable from time to time under this Agreement.
“Applicable Law”
shall mean any and all federal, state, local and/or applicable foreign statutes, ordinances, rules, regulations, court orders and decrees,
administrative orders and decrees, and other legal requirements of any and every conceivable type applicable to the Loan, the Loan Documents,
Borrower, Guarantors or the Collateral or any portion thereof, including, but not limited to, in each case, as applicable, Credit Protection
Laws, credit disclosure laws and regulations, the Fair Labor Standards Act, and all state and federal usury laws.
“Approved Fund”
means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions
of credit in the ordinary course of its business and (a) that is administered or managed by (i) a Lender, (ii) an Affiliate of a Lender
or (iii) an entity or an Affiliate of an entity that administers or manages a Lender or (b) is a Person (other than a natural person)
primarily engaged in the making of commercial loans having total assets in excess of $500,000,000.
“Approved State”
shall mean a state listed on Exhibit J attached hereto.
“Availability”
shall mean, at any date of determination, the lesser of (a) the Borrowing Base or (b) the aggregate of the Revolving Loan Commitments,
minus, in each case, the aggregate principal balance of the outstanding Revolving Advances.
“Available Amounts”
shall mean, as of any Payment Date, the sum of (a) all payments, including all Scheduled Payments, any prepayments, fees or other amounts
collected from or on behalf of the Account Lessees on the Pledged Leases during the related Due Period, (b) all liquidation proceeds from
the sale or disposition of any Pledged Lease and/or any property related thereto during the related Due Period, whether to a third party
purchaser or an Affiliate of the Borrower, (c) any amount received by the Borrower or the Servicer related to a payment from the Guarantors
regarding any Guaranty since the most recent Payment Date, (d) all other proceeds of the Collateral received by the Borrower or Servicer
during the Due Period, including, but not limited to, judgment awards or settlements, late charges and other income collected from any
source arising in connection with the Collateral and (e) all interest earned on the amounts on deposit in the Collection Account since
the previous Payment Date.
“Backup Servicer”
shall mean Vervent Inc. (as successor to First Associates Loan Servicing, LLC), or such other Person designated and engaged by the Agent
and, prior to the occurrence of an Event of Default, approved by the Borrower to succeed Vervent Inc. as Backup Servicer to perform the
duties described in Section 6.13 hereunder and such other duties as may be agreed to by such Person, all in accordance with the terms,
provisions, and conditions a Backup Servicing Agreement.
“Backup Servicer
Fee” shall mean any fee payable monthly by Borrower to a Backup Servicer, such fee, including, without limitation, fees for
verification services, to be as specified in the applicable Backup Servicing Agreement.
“Backup Servicing
Agreement” shall mean that any Backup Servicing Agreement, dated as of May 14, 2019, by and among Agent, Borrower and Backup
Servicer regarding the provision
4
of certain services by the Backup Servicer with
respect to the Leases, as the same may be amended, including pursuant to that certain Amendment No. 1 to Backup Servicing Agreement dated
as of the Closing Date (the “Amendment No. 1 to Backup Servicing Agreement”), modified, supplemented, restated, replaced
or renewed in writing from time to time.
“Bankruptcy Code”
shall mean Title 11 of the United States Code, 11 U.S.C. §§ 101 et. seq., as amended from time to time.
“Borrower”
shall have the meaning assigned to it in the introductory paragraph hereof.
“Borrowing Base”
shall mean the (a) product of (i) the Advance Rate multiplied by (ii) the aggregate sum of the Adjusted Current Lease Balance for all
Eligible Leases pledged as Collateral hereunder.
“Borrowing Base Certificate”
shall mean a Borrowing Base Certificate substantially in the form of Exhibit A hereto.
“BRG” shall
mean Berkeley Research Group, LLC.
“Business Day”
shall mean any day that is not a Saturday, Sunday or other day on which (a) commercial banks in New York City are authorized or required
by law to remain closed, or (b) with respect to the Term SOFR Rate, 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.
“Calculated Rate”
shall have the meaning assigned to it in Section 2.2(a) hereof.
“Cash Equivalents”:
(a) securities with maturities of twelve (12) months or less from the date of acquisition or acceptance which are issued or fully
guaranteed or insured by the United States, or any agency or instrumentality thereof, (b) bankers’ acceptances, certificates
of deposit and eurodollar time deposits with maturities of nine (9) months or less from the date of acquisition and overnight bank deposits,
in each case, of any Lender or of any international or national commercial bank with commercial paper rated, on the day of such purchase,
at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody’s, (c) commercial paper
or any other short term, liquid investment having a rating, on the date of purchase, of at least A-1 or the equivalent thereof by
S&P or at least P-1 or the equivalent thereof by Moody’s and that matures or resets not more than nine (9) months after
the date of acquisition, (d) investments in money market funds and (e) investments in mutual funds or other pooled investment vehicles,
in each case acceptable to the Agent in its sole discretion, the assets of which consist solely of the foregoing.
“Change in Law”
shall mean (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any
Lender (or, for purposes of Section 3.3 by any lending office of such Lender or by such holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement;
5
provided that notwithstanding anything herein
to the contrary, all requests, rules, guidelines or directives concerning liquidity and capital adequacy issued by any Governmental Authority
(x) under or in connection with the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as amended
to the date hereof and from time to time hereafter, and any successor statute and (y) in connection with the implementation of the recommendations
of the Bank for International Settlements or the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or
similar authority), shall be a “Change in Law” regardless of the date adopted, issued, promulgated or implemented.
“Change of Control”
shall mean the occurrence of any of the following:
(i) except
as may occur pursuant to the Katapult Merger Transaction or during the pendency of a Parent Reorganization Transaction, any “person”
or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934) (but excluding any
(a) employee benefit plan of such person or its subsidiaries, (b) any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan and/or (c) any Permitted Holder and/or “group” of Permitted Holders) becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire
(such right, an “option right”), whether such right is exercisable immediately or only after the passage of time, in
each case other than such right such person or group has during the pendency, but prior to the consummation, of an equity sale, merger,
recapitalization or other form of transaction pursuant to which the Equity Interests of the Parent Entity is committed, or intended, to
be sold or otherwise transferred to such person or group), directly or indirectly, of 35% or more of the equity securities of the Parent
Entity entitled to vote for members of the board of directors or equivalent governing body of the Parent Entity on a fully-diluted basis
(and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or
(ii) [reserved];
or
(iii) Parent
Entity at any time for any reason ceases to own (a) prior to the consummation of the Katapult Merger Transaction and except as may occur
pursuant to the Katapult Merger Transaction or during the pendency of a Parent Reorganization Transaction, 100% of the issued and outstanding
Equity Interests of Holdings (as the same may be adjusted for any combination, recapitalization or reclassification into a greater or
smaller number of shares or units), free and clear of all Liens, rights, options, warrants or other similar agreements or understandings
other than in favor of Agent, Lenders or their Affiliates or (b) following the consummation of the Katapult Merger Transaction, 100% of
the issued and outstanding Equity Interests of Katapult Intermediate Holdings, LLC (as the same may be adjusted for any combination, recapitalization
or reclassification into a greater or smaller number of shares or units); or
(iv) following
the Katapult Merger Transaction, Katapult Intermediate Holdings, LLC at any time for any reason ceases to own 100% of the issued and outstanding
Equity Interests of Katapult Intermediate III (as the same may be adjusted for
6
any combination, recapitalization or
reclassification into a greater or smaller number of shares or units); or
(v) following
the Katapult Merger Transaction, Katapult Intermediate III at any time for any reason ceases to own 100% of the issued and outstanding
Equity Interests of Katapult Midco (as the same may be adjusted for any combination, recapitalization or reclassification into a greater
or smaller number of shares or units); or
(vi) (v)
following the Katapult Merger Transaction, Katapult Intermediate IIIMidco
at any time for any reason ceases to own 100% of the issued and outstanding Equity Interests of Holdings (as the same may be adjusted
for any combination, recapitalization or reclassification into a greater or smaller number of shares or units), free and clear of all
Liens, rights, options, warrants or other similar agreements or understandings other than (x) in favor of Agent, Lenders or their Affiliates
or (y) such Liens, rights, options, warrants or other similar agreements or understandings that are subordinated to the rights of the
Agent and the Lenders under the Loan Documents pursuant to a written agreement in form and substance reasonably satisfactory to Agent;
or
(vii) (vi)
Holdings at any time for any reason ceases to own 100% of the issued and outstanding Equity Interests of Borrower (as
the same may be adjusted for any combination, recapitalization or reclassification into a greater or smaller number of shares or units),
free and clear of all Liens, rights, options, warrants or other similar agreements or understandings other than in favor of Agent, Lenders
or their Affiliates; or
(viii) (vii)
the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation),
in one or more series of related transactions, of all or substantially all of the assets of the Parent Entity and the assets of its Subsidiaries
taken as a whole to any “person” (as that term is defined in Section 13(d)(3) of the Exchange Act) (other than to the Parent
Entity or its Subsidiaries).
“Charged-off Lease”
shall mean (a) any Pledged Lease for which any portion of a Scheduled Payment (without giving effect to any modifications of such
Pledged Lease after the date such Pledged Lease was first pledged hereunder or under any other Loan Document) is delinquent more than
ninety (90) days, (b) with respect to which Servicer or Borrower shall have reasonably determined in good faith that the related Account
Lessee will not resume making Scheduled Payments, (c) unless otherwise approved by Agent in writing in its sole discretion, the related
Account Lessee shall have become the subject of a proceeding under a Debtor Relief Law and Servicer or Borrower shall have been notified
thereof or (d) that has been specifically and separately reserved against by Borrower or deemed charged-off or non-collectible by Borrower
or Servicer.
“Charge-off Percentage
Ratio” shall mean, with respect to any Vintage Pool, the percentage equivalent to a fraction, (a) the numerator of which is
the aggregate Lease Cost of such Lease related to such Vintage Pool that have become and remain Charged-off Leases and (b) the denominator
of which is the aggregate Lease Cost of the Pledged Leases in such Vintage Pool.
7
“Charter and Good
Standing Documents” shall mean, for the applicable Person, (i) a copy of the certificate of incorporation, certificate
of formation, statutory certificate of trust or other applicable charter document certified as of a date not more than five (5) Business
Days before the Closing Date by the applicable Governmental Authority of the jurisdiction of incorporation of such Person, (ii) a
copy of the bylaws, operating agreement, trust agreement or other applicable organizational document certified as of the Closing Date
by the corporate secretary or assistant secretary of such Person, (iii) an original certificate of good standing as of a date not
more than five (5) Business Days before the Closing Date issued by the applicable Governmental Authority of the jurisdiction of incorporation
of such Person and of every other jurisdiction in which such Person is otherwise required to be in good standing, and (iv) copies
of the resolutions of the Board of Directors (or other applicable governing body) and, if required, stockholders or other equity owners
authorizing the execution, delivery and performance of the Loan Documents to which such Person, as applicable, is a party, certified by
an authorized officer of such Person as of the Closing Date.
“Claims”
shall mean any and all liabilities, obligations, losses, damages, penalties, claims, actions, litigation, proceedings, investigations,
judgments, suits, fees, costs, expenses, charges, advances and disbursements of any kind (including, without limitation, fees, costs,
expenses and charges of counsel (including in-house counsel)).
“Class A Lender”
shall mean each Lender having a Revolving Loan Commitment or holding Revolving Advances.
“Class A Obligations”
shall mean all Obligations owed to the Class A Lenders in respect of the Revolving Advances.
“Class A-1 Lender”
shall mean each Lender having a Class A-1 Revolving Loan Commitment or holding Class A-1 Revolving Advances.
“Class A-1 Obligations”
shall mean all Obligations owed to the Class A-1 Lenders in respect of the Class A-1 Revolving Advances.
“Class A-1 Revolving
Advance” or “Class A-1 Revolving Loan Advance” shall have the meaning assigned to it in Section 2.1
hereof.
“Class A-1 Revolving
Loan Commitment” shall mean the commitment of a Class A Lender to make or otherwise fund Class A-1 Revolving Loan Advances and
“Class A-1 Revolving Loan Commitments” shall mean such commitments of all Lenders to fund Class A-1 Revolving Loan
Advances in the aggregate. The amount of each Lender’s Class A-1 Revolving Loan Commitment, if any, is set forth on Schedule
B attached hereto, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount
of the Class A-1 Revolving Loan Commitments as of the First Amendment Effective Date is $90,000,000.00.
“Class A-2 Lender”
shall mean each Lender having a Class A-2 Revolving Loan Commitment or holding Class A-2 Revolving Advances.
“Class A-2 Obligations”
shall mean all Obligations owed to the Class A-2 Lenders in respect of the Class A-2 Revolving Advances.
8
“Class A-2 Revolving
Advance” or “Class A-2 Revolving Loan Advance” shall have the meaning assigned to it in Section 2.1
hereof.
“Class A-2 Revolving
Loan Commitments” shall mean the commitment of a Class A Lender to make or otherwise fund Class A-2 Revolving Loan Advances
and “Class A-2 Revolving Loan Commitments” shall mean such commitments of all Lenders to fund Class A-2 Revolving Loan
Advances in the aggregate. The amount of each Lender’s Class A-2 Revolving Loan Commitment, if any, is set forth on Schedule
B attached hereto, subject to any adjustment or reduction pursuant to the terms and conditions hereof. The aggregate amount
of the Class A-2 Revolving Loan Commitments as of the First Amendment Effective Date is $20,000,000.00.
“Closing”
shall mean the satisfaction, or written waiver by Agent and the Lenders, of all of the conditions precedent set forth in this Agreement
required to be satisfied prior to the consummation of the transactions contemplated hereby.
“Closing Date”
shall mean the date of this Agreement.
“Code”
shall mean the Internal Revenue Code of 1986, as amended, and all rules and regulations promulgated thereunder.
“Collateral”
shall mean, collectively and each individually, all collateral and/or security granted and/or securities pledged to Agent for the benefit
of itself and the other Lenders, by Borrower pursuant to the Loan Documents including, without limitation, the items set forth in Section 2.8
of this Agreement.
“Collateral Assignment
of Purchase Agreement” shall mean that certain Collateral Assignment of Purchase and Sale Agreement, dated on or about the Original
Closing Date, executed by Borrower in favor of Agent and agreed to and acknowledged by Holdings, as the same may be amended, restated
or modified from time to time.
“Collateral Account”
shall mean, individually and collectively, (a) that certain deposit account of Agent at Collateral Account Bank with account number 80016919635
or (b) following the occurrence and during the continuance of an Event of Default, such other deposit account as designated from time
to time by Agent in a written notice to Borrower and Servicer.
“Collateral Account
Bank” shall mean J.P. Morgan Chase Bank, N.A. or such other bank where the Collateral Account is being held from time to time
in accordance with the terms of this Agreement.
“Collection Account”
shall mean, individually and collectively, (a) that certain deposit account of Borrower at Collection Account Bank with account number
4023920515 or (b) following the occurrence and during the continuance of an Event of Default, such other deposit account as designated
from time to time by Agent in a written notice to Borrower and Servicer.
“Collection Account
Bank” shall mean Wells Fargo Bank, National Association or such other bank where the Collection Account is being held from time
to time in accordance with the terms of this Agreement.
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“Collection Account
Control Agreement” shall mean any full dominion account control agreement by and among Agent, Borrower and Collection Account
Bank, which pledges a Collection Account and all funds and sums contained therein to Agent, for the benefit of the Lenders, and provides
for a standing instruction for Collection Account Bank to automatically transfer funds therein to the Collateral Account via wire transfer
two (2) Business Days prior to each Payment Date, as the same may be amended, modified, supplemented, restated, replaced or renewed in
writing from time to time.
“Common Stock”
means the common stock of Parent Entity, par value $0.0001 per share.
“Contingent Obligations”
shall mean, as to any Person, any obligation of such Person guaranteeing or intending to guaranty any Indebtedness, leases, dividends
or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any
manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (a) to
purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds
(i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary
obligation, or (d) otherwise to assure or to hold harmless the owner of such primary obligation against loss in respect thereof, provided,
however, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection
in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated
or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
“Contract Right”
shall mean any right of Borrower to payment under a contract for the sale or lease of goods or the rendering of services, which right
is at the time not yet earned by performance.
“Credit Card Account”
shall mean an arrangement whereby an Account Lessee makes Scheduled Payments under a Lease via pre-authorized debit or charge to a Major
Credit Card.
“Credit Party”
shall mean individually, Borrower and each Guarantor and “Credit Parties” shall mean, collectively, the Borrower and
Guarantors. For the avoidance of doubt, from and after a Parent Reorganization Transaction, the Parent Entity shall not be
a Credit Party for purposes of this Agreement or any other Loan Document.
“Credit Protection
Laws” shall mean all federal, state and local laws in respect of the business of extending credit to borrowers, including without
limitation, the Truth in Lending Act (and Regulation M promulgated thereunder), Equal Credit Opportunity Act, Fair Credit Reporting Act,
Fair Debt Collection Practices Act, Gramm-Leach-Bliley Financial Privacy Act, Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended, all rules and regulations issued by the Consumer Financial Protection Bureau, Dodd–Frank Wall Street Reform
and Consumer Protection Act, anti-discrimination and fair lending laws, laws relating to servicing
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procedures or maximum charges and rates of interest,
and other similar laws, each to the extent applicable, and all applicable regulations in respect of any of the foregoing.
“Cumulative Cash
Collection Percentage Ratio” shall mean, with respect to any Vintage Pool, the percentage equivalent to a fraction, the numerator
of which is the sum of all payments (including prepayments and application and/or other upfront payments, but excluding any sales tax
payments) collected from or on behalf of the Account Lessees on each Pledged Lease in such Vintage Pool since the date that such Pledged
Lease was originated and the denominator of which is the sum of the Lease Costs (as determined for each Pledged Lease as of the date such
Pledged Lease was originated) of each Pledged Lease with respect to such Vintage Pool.
“Current Lease Balance”
shall mean, for any Lease and as of any date of determination (i) the Lease Cost less (ii) the Amortized Lease Cost of such Lease at such
time.
“Debtor Relief Law”
shall mean, collectively, the Bankruptcy Code and all other United States or foreign applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws from time to time in effect affecting
the rights of creditors generally, as amended from time to time.
“Default”
shall mean any event, fact, circumstance or condition that, with the giving of applicable notice or passage of time, if any, or both,
would constitute or be or result in an Event of Default.
“Default Rate”
shall have the meaning assigned to it in Section 3.2 hereof.
“Default Trigger
Event” shall mean the occurrence of any of the following events with respect to the portfolio of Pledged Leases securing the
Loan, in each case, to be tested as of the last day of each calendar month:
(a) The
Charge-off Percentage Ratio for any Vintage Pool exceeds the Charge-off Trigger Percentage Ratio for the corresponding month set forth
on Exhibit H-4 since the first payment date for each Lease within each such Vintage Pool. For the avoidance of doubt, the first thirty
day period following the origination date for each Lease within each Vintage Pool shall be Period 1 and the final thirty day period shall
be Period 13; or
(b) The
Cumulative Cash Collection Percentage Ratio for any Vintage Pool is less than the Default Trigger Cumulative Cash Collection Percentage
Ratio for the corresponding month set forth on Exhibit H-3 since the first payment date for each Lease within each such Vintage
Pool. For the avoidance of doubt, the first thirty day period following the origination date for each Lease within each Vintage Pool shall
be Period 1 and the final thirty day period shall be Period 13.
“Defaulted Lease”
shall mean (a) any Pledged Lease for which any portion of a Scheduled Payment (without giving effect to any modifications of such
Pledged Lease after the date such Pledged Lease was first pledged hereunder or under any other Loan Document) is delinquent more than
sixty (60) days, (b) with respect to which Servicer or Borrower shall have reasonably
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determined in good faith that the related Account
Lessee will not resume making Scheduled Payments, (c) unless otherwise approved by Agent in writing in its sole discretion, the related
Account Lessee shall have become the subject of a proceeding under a Debtor Relief Law and Servicer or Borrower shall have been notified
thereof or (d) that has been specifically and separately reserved against by Borrower or deemed charged-off or non-collectible by Borrower
or Servicer.
“Defective Lease”
shall mean any Pledged Lease with an uncured breach of any representation or warranty of Borrower or that Holdings made under the Purchase
and Sale Agreement.
“Deposit Account”
shall mean, individually and collectively, any bank or other depository accounts of Borrower (or if referring to another Person, such
other Person’s).
“Designee”
shall have the meaning assigned to it in Section 6.18 hereof.
“Division”
shall mean, with respect to any Person which is an entity, the division of such Person into two (2) or more separate such Persons, with
the dividing Person either continuing or terminating its existence as part of such division, including as contemplated under Section 18-217
of the Delaware Limited Liability Act for limited liability companies formed under Delaware law, or any analogous action taken pursuant
to any other Applicable Law with respect to any corporation, limited liability company, partnership or other entity. The word
“Divide,” when capitalized, shall have a correlative meaning.
“Dollars”
and “$” shall mean lawful money of the United States of America.
“Due Period”
shall mean with respect to any Payment Date, (x) with respect to the accrual of interest (including Additional Interest), the period of
time beginning on the most recently preceding Payment Date through and including the day immediately preceding such Payment Date and (y)
with respect to the accrual of any other amounts hereunder (including the determination of Available Amounts available for application
on any Payment Date), the period of time beginning on the date immediately following the second most recent Reporting Date through and
including the Reporting Date for such Payment Date.
“Eligible Leases”
shall mean those Leases that meet, as of any date of determination, all of the following requirements:
(i) such
Lease has a Lease Term of no more than eighteen (18) months;
(ii) such
Lease has a Current Lease Balance of not more than $5,000; provided that the aggregate amount of Eligible Leases that have a Current Lease
Balance of greater than $3,500 shall not exceed 10% of the aggregate sum of the Adjusted Current Lease Balance for all Eligible Leases
pledged as Collateral hereunder at any time;
(iii) payments
under such Lease are due in Dollars and the Portfolio Documents do not permit the currency in which such Lease is payable to be changed,
and all previous payments have been made by the related Account Lessee and not by Holdings, Borrower or any Affiliate thereof;
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(iv) payments
in respect of such Lease shall be due and payable weekly, bi-weekly, monthly or semi-monthly in equal installments;
(v) such
Lease and all related Portfolio Documents shall be in full force and effect and shall represent a legal, or valid and binding and absolute
and unconditional payment obligation of the applicable Account Lessee enforceable against such Account Lessee in accordance with its terms
for the amount outstanding thereof without any right of rescission, offset, counterclaim or defense, except to the extent that enforceability
may be limited by Debtor Relief Laws and general principles of equity, and is not contingent in any respect for any reason (provided that
a Lease shall not be excluded (or determined not to be an Eligible Lease) solely pursuant to this clause (v) if any failure to meet the
criteria in this clause (v) relates solely to (A) funding status as described in clause (xxiv) below and/or (B) delivery status, if in
the case of this clause (B), such Lease otherwise meets the applicable requirements of clause (xxxv) below;
(vi) to
Borrower’s knowledge after due inquiry, the applicable Account Lessee is not the subject of any proceeding under any Debtor Relief
Law;
(vii) such
Lease is not a Defaulted Lease;
(viii) such
Lease would not cause the percentage of Eligible Leases for which the Account Lessee thereon nor any guarantor thereof is an employee,
officer, director or Affiliate of, Holdings or Borrower to exceed 1% of Eligible Leases;
(ix) Holdings
or Borrower shall not be engaged in any adverse litigation with the applicable Account Lessee in respect of such Lease;
(x) such
Lease shall have been originated, documented and closed in accordance with the Underwriting Guidelines in all material respects and such
Lease and related Portfolio Documents shall not have been modified from their original terms in any material respect;
(xi) the
applicable Account Lessee’s Lease application and the Portfolio Documents evidencing such Lease shall have been delivered to Agent
or Backup Servicer in accordance with Section 2.9 hereof and the related Verification Certificate shall not have any exceptions noted
by the Backup Servicer;
(xii) such
Lease shall comply in all material respects with all Applicable Laws and all statutory or other applicable cancellation or rescission
periods related thereto have expired;
(xiii) to
Borrower’s knowledge, all amounts and information in respect of such Lease or furnished to Agent in connection therewith shall be
true and correct and undisputed by the Account Lessee thereon or any guarantor thereof;
(xiv) such
Lease shall not be a renewal, amendment, modification, waiver or extension of any Defective Lease or Defaulted Lease that was previously
substituted with an Eligible Lease, except as otherwise approved in writing by Agent;
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(xv) neither
Borrower nor Holdings shall have made a Material Modification with respect to such Lease without the consent of Agent;
(xvi) such
Lease shall not be evidenced by a judgment or have been reduced to judgment;
(xvii) such
Lease shall not be a revolving line of credit;
(xviii) such
Lease shall not have been specifically and separately reserved against by Borrower or Holdings (except for loss provisions that Borrower
or Holdings makes as part of its policies in accordance with GAAP), have been the subject of fraud of any kind or deemed charged-off or
non-collectible by Holdings, Borrower or Servicer in accordance with standard servicing procedures;
(xix) the
form of Portfolio Documents relating to such Lease shall be (i) substantially in the form of the Portfolio Documents in use by Holdings
or Borrower as of the Closing Date, (ii) substantially in the form attached hereto as Exhibit D or (iii) otherwise in form and
content acceptable to Agent in its sole discretion and approved in advance by Agent in writing, in each case, except as may be required
by Applicable Law;
(xx) following
the sale of such Lease to Borrower, such Lease shall be 100% owned by Borrower and no other Person (other than Borrower and Agent) owns
or claims any legal or beneficial interest therein;
(xxi) the
Lease and all other Portfolio Documents requiring the signature of an Account Lessee was signed with a digital or electronic signature
that complies with the Uniform Electronic Transaction Act or, as applicable to the jurisdiction governing such Lease, the Electronic Signatures
in Global and National Commerce Act (E-Sign Act), including all consumer consent and other applicable provisions thereof;
(xxii) such
Lease represents the undisputed, bona fide transaction created by Holdings in the ordinary course of Holdings’ business and completed
in accordance with the terms and provisions contained in the related Portfolio Documents;
(xxiii) the
Account Lessee thereunder is a resident of the United States and/or its territories;
(xxiv) such
Lease and the Inventory related to such Lease has been absolutely sold, transferred and conveyed by Holdings to Borrower and purchased
and accepted by Borrower from Holdings, pursuant to the Purchase and Sale Agreement and, after giving effect to such sale, transfer and
conveyance, such Lease shall be 100% owned by Borrower and no other Person (other than Borrower and Agent) owns or claims any legal or
beneficial interest therein (provided that, to the extent the Inventory has not yet transferred to Holdings or the Borrower because any
such Lease was originated on a Saturday, Sunday or other non-Business Day and therefore was not funded until the following Monday, Tuesday
or Wednesday, such Lease shall still be an Eligible Lease so long as (A) it meets the other relevant criteria of this definition and (B)
such Lease transaction shall have been (or will be) funded by the Borrower or an Affiliate thereof on or prior to the Wednesday immediately
following such Saturday, Sunday or non-Business Day (unless such
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Wednesday is a non-Business Day, in
which case such funding shall have been made by the next Business Day);
(xxv) except
as specifically addressed in clause (xxiv) above and/or clause (xxxv) below, no facts, events or occurrences exist that, in any way, impair
the validity or enforcement thereof or tend to reduce the amount payable thereunder from the amount of the Lease shown on any schedule,
or on all contracts, invoices or statements delivered to Agent with respect thereto;
(xxvi) all
Account Lessees in connection with such Lease were of sufficient age to have the legal capacity to contract at the time any contract or
other document giving rise to the Lease was executed and generally have the ability to pay their debts as they become due;
(xxvii)
no proceedings or actions are pending, in existence or are, to Borrower’s knowledge, threatened against any Account Lessee with
respect to such Lease could reasonably be expected to materially impair such Account Lessee’s ability to perform its obligations
under the applicable Lease, provided, that Borrower shall have no obligation to make any inquiry of any Account Lessee regarding the same;
(xxviii)
such Lease and the Collateral related to such Lease have not been assigned or pledged to any Person other than Agent, for the benefit
of itself and the other Lenders;
(xxix)
except as would not result in a failure to satisfy the requirements set forth in clause (xiv) above no instrument of release or waiver
has been executed in connection with any Portfolio Document with respect to such Lease, and the Account Lessee in respect of such Lease
has not been released from its obligations thereunder, in whole or in part, and no action has been taken by the Borrower to release any
collateral from the Portfolio Documents with respect to such Lease;
(xxx) the
Account Lessee related to such Lease does not reside in a state for which a Regulatory Trigger Event has occurred and is continuing;
(xxxi) such
Lease is not a Defective Lease;
(xxxii) no
buyout or repurchase option with respect to such Lease or the Inventory that is the subject of such Lease has been exercised by the Account
Lessee related to such Lease;
(xxxiii)
the goods that are the subject of such Lease shall consist solely of Inventory and related items;
(xxxiv)
the Lease Contract Multiple with respect to such Lease is not less than 1.7x;
(xxxv) such
Lease is for the leasing of goods (a) that, if the applicable merchant provides expected delivery date information, such expected delivery
date is occurring or has passed as of such date of determination (or, if such delivery date is not occurring or has not passed as of such
date of determination, such Lease is not a Lease that would cause Eligible Leases pledged as Collateral for which such expected date of
delivery is not yet occurring or has not passed (as of such date of determination) to exceed four percent (4%) (as determined
15
on the basis of the aggregate Current
Lease Balances of the Eligible Leases pledged as Collateral)), and at the time of such expected delivery were (or will be) new and in
good working order, and for which there are no outstanding disputes or (b) for which the applicable merchant does not provide expected
delivery date information and for which there are no outstanding disputes;
(xxxvi)
the goods which are the subject of such Lease have not been (i) returned to Borrower by the Account Lessee, (ii) repossessed by Borrower,
or (iii) acquired by the Account Lessee by exercising any option to acquire said goods;
(xxxvii) such
Lease is not a Lease that would cause (a) the Eligible Leases pledged as Collateral with Account Lessees who resided in any single State
at the time of the origination of such Lease to exceed thirty percent (30%) (as determined on the basis of the aggregate Current Lease
Balances of the Eligible Leases pledged as Collateral) or (b) the Eligible Leases pledged as Collateral with Account Lessees who resided
at the time of the origination of such Lease in all of the four (4) States with the highest aggregate Current Lease Balances of the Eligible
Leases pledged as Collateral to exceed fifty-five percent (55%) (as determined on the basis of the aggregate Current Lease Balances and
the Eligible Leases pledged as Collateral);
(xxxviii)
such Lease is not a Lease that would cause Eligible Leases pledged as Collateral originated through (i) the Wayfair Inc. direct retail
partnership to exceed forty percent (40%) or (ii) any other single retail partnership of Borrower, Holdings or (x) prior to
a Parent Reorganization Transaction, Parent Entity and (y) following a Parent Reorganization Transaction, Katapult Intermediate
IIIMidco to exceed, unless otherwise approved by the
Agent in writing, twenty-five percent (25%) (in each case, as determined on the basis of the aggregate Current Lease Balances of the Eligible
Leases pledged as Collateral);
(xxxix)
such Lease is not a Lease that would cause the quotient of Original Net Lease Cost to Lease Cost or all Eligible Leases to be less than
95%.
(xl) such
Lease is not a Lease that would cause Eligible Leases pledged as Collateral that constitute Unmatured Defaulted Leases to exceed twelve
percent (12%) (as determined on the basis of the aggregate Current Lease Balances of the Eligible Leases pledged as Collateral);
(xli) such
Lease is not a Lease that would cause the average Current Lease Balance of all Eligible Leases to exceed $1,200;
(xlii) such
Lease shall have been originated in an Approved State.
“Equity Interests”
shall mean, with respect to any Person, its equity ownership interests, its common stock and any other capital stock or other equity ownership
units of such Person authorized from time to time, and any other shares, options, interests, participations or other equivalents (however
designated) of or in such Person, whether voting or nonvoting, including, without limitation, common stock, options, warrants, preferred
stock, phantom stock, membership units (common or preferred), stock appreciation rights, membership unit appreciation rights,
16
convertible notes or debentures, stock purchase
rights, membership unit purchase rights and all securities convertible, exercisable or exchangeable, in whole or in part, into any one
or more of the foregoing.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder.
“ERISA Affiliate”
shall mean, with respect to any Person, any trade or business (whether or not incorporated) which is treated as a single employer with
such Person under Section 414 of the Code or Section 4001 of ERISA.
“Event of Default”
shall mean the occurrence of any event set forth in Article VIII.
“Exit Additional
Interest” shall have the meaning assigned to it in Section 3.6(c) hereof.
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended.
“Excluded Deposit
Account” shall mean (i) deposit accounts or trust accounts specifically and exclusively used for payroll, payroll taxes, deferred
compensation and other employee wage and benefit payments to or for the direct benefit of a Credit Party’s employees, and (ii) escrow
accounts and other accounts holding funds for third parties, including that certain account maintained in the name of Holdings at Silicon
Valley Bank having account number 3302893366 so long as it is maintained for the benefit of Holdings’ landlord with respect to the
real property located at 27 West 24th Street, Suite 1101, New York, NY 10010.
“Excluded Taxes”
shall have the meaning assigned to it in Section 13.8(a) hereof.
“Fair Valuation”
shall mean the determination of the value of the consolidated assets of a Person on the basis of the amount which may be realized by a
willing seller within a reasonable time through collection or sale of such assets at market value on a going concern basis to an interested
buyer who is willing to purchase under ordinary selling conditions in an arm’s length transaction.
“FATCA”
shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively
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.
“First Amendment”
means that certain Limited Waiver and First Amendment to Amended and Restated Loan and Secured Agreement dated
as of November 2, 2025 by and among the Borrower, Holdings, the Parent Entity, the Agent and the Lenders.
“First Amendment
Effective Date” shall have the meaning ascribed to the term “Limited Waiver Effective Date” in the First Amendment.
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“First Payment Default
Ratio” shall mean, with respect to any Vintage Pool as of the date on which all Leases in such Vintage Pool have had their first
Scheduled Payment date occur and, subsequently, thirty (30) calendar days have elapsed, the percentage equivalent of the fraction (a)
whose numerator is the number of Pledged Leases comprising such Vintage Pool whose first Scheduled Payment (excluding any Scheduled Payment
that was due on the date of origination of a Lease) was thirty (30) calendar days delinquent and (b) whose denominator is the number of
all Pledged Leases comprising such Vintage Pool for which, as of the date of determination, have had their first Scheduled Payment date
occur and, subsequently, thirty (30) calendar days have elapsed.
“First Payment Default
Trigger Event” shall mean the occurrence of any of the following events with respect to the portfolio of Pledged Leases securing
the Loan, in each case, to be tested as of the last day of each calendar month:
(a) The
average First Payment Default Ratio for the three most recent Vintage Pools (excluding the Vintage Pool originated during the month ending
on the date of determination (i.e. as of end of December 2025, excluding the December 2025 Vintage Pool)) exceeds the Default Trigger
First Payment Default Ratio (Trailing Three Months T+30) set forth on Exhibit H-2; or
(b) The
First Payment Default Ratio for any Vintage Pool (excluding the Vintage Pool originated during the month ending on the date of determination
(i.e. as of end of December 2025, excluding the December 2025 Vintage Pool)) exceeds the Default Trigger First Payment Default Ratio (T+30)
ratio set forth on Exhibit H-1.
“GAAP”
shall mean generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States,
that are applicable to the circumstances as of the date of determination, consistently applied.
“Governmental Authority”
shall mean any federal, state, municipal, national, local or other governmental department, court, commission, board, bureau, agency or
instrumentality or political subdivision thereof, or any entity or officer exercising executive, legislative or judicial, 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.
“Guarantor”
shall mean, at any time, collectively and each individually, all guarantors of the Obligations or any part thereof at such time, including,
without limitation, the Payment Guarantors and the Indemnity Guarantors.
“Guaranty”
shall mean, collectively and each individually, all guarantees executed by any Guarantors, including, but not limited to, the Payment
Guaranty and the Indemnity Guaranty.
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“Hawthorn Side Letter”
shall have the meaning set forth in the Katapult Merger Agreement.
“Hedging Transaction”
of any Person shall mean (a) any transaction (including an agreement with respect to any such transaction) now existing or hereafter entered
into by such Person that is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option,
equity or equity index swap or option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction,
collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, spot transaction, credit protection
transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction,
reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, or any other similar transaction (including
any option with respect to any of these transactions) or any combination thereof, 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, which 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 (any such master agreement, together with any
related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Holdings”
shall have the meaning assigned to it in the introductory paragraph hereof.
“Indebtedness”
of any Person shall mean, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily
paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services, (f) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any
Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed (in which case non-recourse
Indebtedness, for the purpose of this clause (f), shall be limited to the fair market value of the property subject to such Lien),
(g) all Guaranties or other Contingent Obligations by such Person of Indebtedness of others, (h) all capital lease obligations of such
Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of
guaranty, and (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner)
to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.
“Indemnified Persons”
shall have the meaning assigned to it in Section 12.4 hereof.
“Indemnified Taxes”
shall have the meaning assigned to it in Section 13.8(a) hereof.
“Indemnity Guarantor”
shall mean each of (x) prior to a Parent Reorganization Transaction, Parent Entity, (y) following a Parent Reorganization Transaction,
Katapult Intermediate IIIMidco
19
and (z) at all times Holdings and each other Person
party to the Indemnity Guaranty from time to time.
“Indemnity Guaranty”
shall mean each Indemnity Guaranty, dated as of the Original Closing Date, made by each Indemnity Guarantor in favor of Agent, as amended
from time to time. From and after a Parent Reorganization Transaction, the Parent Entity shall have no obligations under the
Indemnity Guaranty.
“Ineligible Lease”
shall mean any Lease that fails at any time to meet all of the criteria set forth in the definition of “Eligible Lease” set
forth herein.
“Ineligible Transferee”
shall have the meaning assigned to it in Section 12.2(a) hereof.
“Insured Event”
shall have the meaning assigned to it in Section 12.4 hereof.
“Inventory”
shall mean furniture, household furnishings, appliances, consumer electronics (including cell phones), fitness equipment, tools and/or
other moveable but non-perishable goods, together with accessories related thereto.
“Katapult Intermediate
III” means Katapult Intermediate Holdings III, LLC, a Delaware limited liability company.
“Katapult Merger
Agreement” means that certain Agreement and Plan of Merger dated as of December 11, 2025, by and among Parent Entity, Katapult
Merger Sub 1, Inc., Katapult Merger Sub 2, LLC, CCF Holdings LLC and Aaron’s Intermediate Holdco, Inc., substantially in the form
of the attached Exhibit K, after giving effect to any modifications, amendments, consents or waivers thereto, other than those
modifications, amendments, consents or waivers that are adverse to the interests of the Agent or any Lender in their capacities as such
unless consented to by the Agent (such consent not to be unreasonably withheld or delayed).
“Katapult Merger
Transaction” means the consummation of and the satisfaction of all conditions precedent to the merger of newly formed Subsidiaries
of Parent Entity to be formed in connection with such merger with and into each of (a) Aaron’s Intermediate Holdco, Inc. and (b)
CCF Holdings LLC and any related restructuring and other transactions as contemplated by, or entered into in connection with, the Katapult
Merger Agreement.
“Katapult
Midco” means Katapult Midco LLC, a Delaware limited liability company.
“Key Man Trigger
Event” shall mean the failure of Derek Medlin to be the president of Holdings, unless a successor president approved by the
Agent is appointed within ninety (90) days thereafter.
“Lease Contract Multiple”
shall mean, for each Pledged Lease, quotient of (a) the aggregate dollar amount of the scheduled payments (excluding upfront payments,
application fees, and/or merchant discounts) owed by an Account Lessee over the term of such Pledged Lease and (b) the Lease Cost of such
Pledged Lease.
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“Lease Cost”
shall mean, for any Pledged Lease, the total purchase price paid (excluding any delivery, installation and warranty costs charged to the
applicable Account Lessee) by Holdings to purchase the Inventory that is the subject of such Pledged Lease at the origination of such
Pledged Lease.
“Lease Term”
shall mean, with respect to any Pledged Lease, the original term of the Lease to expiration calculated in calendar months.
“Leases”
shall mean all rights to payment (including, without limitation, the Scheduled Payments) owing by an Account Lessee in respect of a lease
or leases, lease-to-own or other financial accommodations made or extended by Borrower (or a predecessor in interest, including, without
limitation, Holdings) to or for the benefit of such Account Lessee in connection with the purchase of Inventory. Any such Lease
shall include, without limitation, all rights (including payment rights and enforcement rights), claims and entitlements under or pursuant
to all related Portfolio Documents in respect thereof, and all supporting obligations in connection therewith.
“Lender”
and “Lenders” shall have the meanings assigned to them in the introductory paragraph hereof.
“Lender Addition
Agreement” shall have the meaning assigned to it in Section 12.2(a) hereof.
“Lending Office”
shall mean the office or offices of any Lender set forth opposite its name on the signature page hereto, as updated from time to time.
“Lien”
shall mean any mortgage, deed of trust, deed to secure debt, or pledge, security interest, encumbrance, lien or charge of any kind (including
any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof),
or any other arrangement pursuant to which title to the property is retained by or vested in some other Person for security purposes.
“Liquidity”
shall mean, as of any date of determination, the sum of the amount of (x) unrestricted cash and Cash Equivalents on hand of (i)
prior to the consummation of the Katapult Merger Transaction, Parent Entity and its Subsidiaries and
(ii) following the consummation of the Katapult Merger Transaction, Katapult Midco and its Subsidiaries, in each case as of such
date and (y) cash held in the Marqeta Account as of such date.
“Loan”
shall mean, collectively, each Revolving Advance made by Lenders to the Borrower, any Protective Advances or other Advances by Agent or
Lenders pursuant to the terms hereof, and all Obligations related thereto.
“Loan Documents”
shall mean, collectively and each individually, this Agreement, the Notes, the Security Documents, each Servicing Agreement, the Backup
Servicing Agreement, the Borrowing Base Certificate, the Collection Account Control Agreement, any other blocked account agreement or
account control agreement and all other agreements, documents, instruments and certificates heretofore or hereafter executed or delivered
to Agent and/or Lenders in connection with any of the foregoing or the Loan, as the same may be amended, modified or supplemented from
time to time.
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“Major Credit Card”
shall mean a bank card issued by any VISA USA, Inc., MasterCard International Incorporated, American Express Company or Discover Bank.
“Marqeta Account”
shall mean a bank account of Marqeta Inc. or one of its Affiliates (collectively, “Marqeta”) into which Parent Entity
makes payments to satisfy Parent Entity’s minimum balance obligation and to fund additional amounts to purchase Inventory leased
under virtual “KPay” Leases, in each pursuant to or in connection with Parent Entity’s virtual credit card program with
Marqeta.
“Material Agreements”
shall mean (a) all instruments, agreements, indentures or notes governing the terms of any Indebtedness, (b) the Purchase and Sale Agreement,
(c) the Servicing Agreement and (d) all other agreements, documents, contracts, indentures and instruments (x) involving the performance
of services, delivery of goods or materials, or payments by or to the applicable Person of an amount or value in excess of $500,000 in
the aggregate per year for agreements of Borrower and $1,000,000 in the aggregate per year for agreements of any other Credit Party, other
than (i) leases of real property, (ii) merchant service agreements, (iii) payment processing agreements, (iv) professional service contract,
(v) service agreements (including with respect to software and other information technology), (vi) advertising, promotional and/or marketing
agreements and (vii) employment agreements or (y) of which a default, breach or termination could reasonably be expected to result in
a Material Adverse Effect.
“Material Adverse
Effect” shall mean any event, condition, obligation, liability or circumstance or set of events, conditions, obligations, liabilities
or circumstances or any change(s) which:
(i) has
had or reasonably could be expected to have a material adverse effect upon or change in (a) the legality, validity or enforceability of
any Loan Document, (b) the perfection or priority of any Lien granted to Agent or any Lender under any of the Security Documents or (c)
the value, validity, enforceability or collectability of a material portion of the Pledged Leases or any of the other Collateral;
(ii) has
been or reasonably could be expected to be material and adverse to the value of the business, operations, properties, assets, liabilities
or financial condition of any Credit Party; or
(iii) has
materially impaired or reasonably could be expected to materially impair the ability of the Credit Parties to perform any of the Obligations
or their obligations under the Loan Documents.
“Material Modification”
means any modification of a Lease that would (a) forgive any scheduled repayment, (b) reduce the interest rate, (c) reduce the Current
Lease Balance of the Lease or (d) be materially adverse to Agent and/or Lenders.
“Maturity Date”
shall mean December 4, 2026.
“Maximum Revolving
Loan Amount” shall mean at any time the aggregate amount of the Revolving Loan Commitments held by all Lenders at such time.
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“Maximum Rate”
shall mean the highest lawful and non-usurious rate of interest applicable to the Loan, that at any time or from time to time may be contracted
for, taken, reserved, charged, or received on the Loan and the Obligations under the laws of the United States and the laws of such states
as may be applicable thereto, that are in effect or, to the extent allowed by such laws, that may be hereafter in effect and that allow
a higher maximum nonusurious and lawful interest rate than would any Applicable Laws now allow.
“Maximum Warrant
Shares” shall mean the “Maximum Warrant Shares” under and as defined in the Closing Date Warrants.
“Minimum
Trailing Three-Month Net Originations” shall mean the difference between (i) the aggregate Lease Cost (as of
the origination date of such Leases) of all newly originated Leases in the immediately trailing three calendar month period and (ii) the
aggregate Lease Cost (as of the origination date of such Leases) of all Leases that have been cancelled and/or refunded (in part or in
whole) in the immediately trailing three calendar month period.
“Minimum Utilization
Additional Interest” shall have the meaning set forth in Section 3.6 hereof.
“Minimum Utilization
Ratio” shall mean fifty percent (50%).
“Monthly Servicing
Report” shall mean each monthly report prepared by the Servicer in accordance with the Servicing Agreement substantially in
the form of Exhibit C attached hereto.
“Non-Consenting Lender”
shall have the meaning assigned to it in Section 10.4(d).
“Non-Funding Lender”
shall have the meaning assigned to it in Section 13.7.
“Note(s)”
shall mean, individually and collectively, any Notes payable to the order of the Agent, for the benefit of Lenders, or payable to a Lender,
executed by Borrower evidencing the Loan, as the same may be amended, modified, supplemented and/or restated from time to time.
“Obligations”
shall mean, without duplication, all present and future obligations, Indebtedness and liabilities of Borrower to Agent and Lenders at
any time and from time to time of every kind, nature and description, direct or indirect, secured or unsecured, joint and several, absolute
or contingent, due or to become due, matured or unmatured, now existing or hereafter arising, contractual or tortious, liquidated or unliquidated,
under any of the Loan Documents or otherwise relating to this Agreement, any Notes and/or the Loan, including, without limitation, principal,
interest, all applicable fees, charges and expenses and/or all amounts paid or advanced by Agent or a Lender on behalf of or for the benefit
of Borrower for any reason at any time, and including, in each case, obligations of performance as well as obligations of payment and
interest that accrue after the commencement of any proceeding under any Debtor Relief Law by or against Borrower.
“OFAC”
shall mean the U.S. Department of Treasury’s Office of Foreign Asset Control.
“Original Closing
Date” shall mean May 14, 2019.
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“Original Loan Agreement” shall
have the meaning assigned to it in the recitals hereof.
“Original Net Lease
Cost” shall mean, for each Lease, the difference between (a) the total retail price charged to the Account Lessee (including
any delivery, installation and warranty costs) related to such Lease and (b) any upfront Account Lessee payments (including, but not limited
to, application fees), and merchant discounts associated with such Lease.
“Other Lender”
shall have the meaning assigned to it in Section 13.7 hereof.
“Other Taxes”
shall have the meaning assigned to it in Section 13.8(b) hereof.
“PAC” shall
mean an arrangement whereby an Account Lessee makes Scheduled Payments under a Pledged Lease via pre-authorized debit.
“Parent Entity”
shall have the meaning assigned to it in the introductory paragraph hereof.
“Parent Reorganization
Transaction” shall mean the contribution by Parent Entity of 100% of the Equity Interests of Holdings to Katapult Intermediate
IIIMidco, so long as, substantially contemporaneously
therewith (i) Katapult Intermediate IIIMidco
shall have executed a joinder, in a form reasonably acceptable to Agent, to this Agreement, the Payment Guaranty, the Indemnity Guaranty
or another guaranty and security agreement(s) reasonably satisfactory to the Agent and (ii) delivers to Agent any new certificate issued
(if any) to evidence the contributed Equity Interests of Holdings.
“Participant”
shall have the meaning assigned to it in Section 12.2(b) hereof.
“Patriot Act”
shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
P.L. 107-56, as amended.
“Payment Date”
shall mean any Scheduled Payment Date or Additional Payment Date, as context requires.
“Payment Guarantor”
shall mean each of (x) prior to a Parent Reorganization Transaction, Parent Entity, (y) following a Parent Reorganization Transaction,
Katapult Intermediate IIIMidco
and (z) at all times, Holdings, each subsidiary of Holdings (other than Borrower) and each other Person party to the Payment Guaranty
from time to time.
“Payment Guaranty”
shall mean that certain Corporate Guaranty and Security Agreement dated as of the Original Closing Date made by Holdings, Parent Entity
and each subsidiary of Holdings (other than Borrower) from time to time party thereto, in favor of Agent, as amended from time to time. From
and after a Parent Reorganization Transaction, the Parent Entity shall have no obligations under the Payment Guaranty.
“Permit”
shall mean collectively all licenses, leases, powers, permits, franchises, certificates, authorizations and approvals.
“Permitted Discretion”
shall mean a determination or judgment made in good faith in the exercise of reasonable (from the perspective of a secured lender) credit
or business judgment.
24
“Permitted Holder”
shall mean (i) any “Permitted Holder” set forth on Exhibit I as of the Closing Date and their respective Affiliates (including
any affiliated advisors and their managed funds and accounts), (ii) Blue Owl Alternative Credit Advisors and its Affiliates (including
any affiliated advisors and their managed funds and accounts) and Atalaya Capital Management and its Affiliates (including any affiliated
advisors and their managed funds and accounts) (iii) Hawthorn Horizon Credit Fund, LLC, HHCF Series 21 Sub, LLC and their respective Affiliates
(including any affiliated advisors and their managed funds and accounts), (iv) IQV Holdco, LLC and its Affiliates and (v) KMJ Group Holdings,
LLC and its Affiliates.
“Permitted Indebtedness”
shall mean: (a) the Obligations; (b) existing Indebtedness listed on Schedule 7.1 hereof; (c) Indebtedness consisting of Permitted Loans
made by one or more Credit Parties to any other Credit Party; (d) interest rate hedges that are entered into by Credit Parties to hedge
their risks with respect to outstanding Indebtedness of Credit Parties and not for speculative or investment purposes; (e) trade debt
incurred in the ordinary course of business; (f) Indebtedness consisting of financing of insurance premiums in respect of insurance policies
owned by a Credit Party in the ordinary course of business (the Indebtedness under this clause (f), “Permitted Insurance Premium
Indebtedness”); (g) Guaranties by, or other Contingent Obligations of, any Credit Party of Permitted Indebtedness of another
Credit Party and (h) any Indebtedness incurred by Katapult Intermediate IIIMidco
in connection with a Parent Reorganization Transaction and the consummation of the Katapult Merger Agreement pursuant to the Hawthorn
Side Letter or any debt facility documents described in the Hawthorn Side Letter, solely to the extent that such Indebtedness is subordinated
to the rights of the Agent and the Lenders under the Loan Documents pursuant to a written agreement in form and substance reasonably satisfactory
to Agent (the “Permitted Hawthorn Debt”).
“Permitted Liens”
shall mean Liens of Borrower permitted under Section 7.2 hereof.
“Permitted Loan”
shall mean, with respect to any Credit Party, an intercompany loan owed by such Credit Party to another Credit Party, which intercompany
loan is unsecured and subject to a subordination agreement substantially in form and substance satisfactory to Agent in its Permitted
Discretion.
“Person”
shall mean an individual, a partnership, a corporation, a limited liability company, a business trust, a joint stock company, a trust,
an unincorporated association, a joint venture, a Governmental Authority or any other entity of whatever nature.
“Pledge Agreement”
shall mean that certain Pledge Agreement made by Holdings in favor of Agent, as the same may be amended, modified, supplemented and/or
restated from time to time.
“Pledged Leases”
shall mean each Lease pledged as Collateral hereunder in accordance with Section 2.8 hereof or any other Loan Document. For the
avoidance of doubt, the term “Pledged Leases” shall not include any Third Party Serviced Lease.
“Portfolio Documents”
shall mean, collectively, any Lease or contract, and any other agreement or document executed and delivered by an Account Lessee in connection
with such Lease to or for the benefit of Holdings or any subsequent transferee thereof, including renewals, extensions, modifications
and amendments thereof.
25
“Prepayment Date”
shall mean (i) the date of prepayment of Revolving Advances pursuant to Section 2.5(b), and (ii) or the date of any prepayment
of the Loans pursuant to Section 2.6(a) or Section 2.6(b), as applicable.
“Pro Rata Share”
shall mean, (a) with respect to any Lender as to all Lenders holding Revolving Loan Commitments or Revolving Advances, the percentage
obtained by dividing (i) the aggregate amount of the Revolving Loan Advances outstanding made by such Lender by (ii) the aggregate amount
of all the Revolving Loan Advances outstanding, as such percentage may be adjusted by assignments as permitted hereunder; provided, however,
that if no Revolving Loan Advances are outstanding, then the percentage shall be obtained by dividing (i) the sum of the Revolving Loan
Commitment each held by such Lender by (ii) the sum of the aggregate amount of all of the Revolving Loan Commitments, (b) with respect
to any Lender as to all Lenders holding Class A-1 Revolving Loan Commitments or Class A-1 Revolving Advances, the percentage obtained
by dividing (i) the aggregate amount of the Class A-1 Revolving Loan Advances outstanding made by such Lender by (ii) the aggregate amount
of all the Class A-1 Revolving Loan Advances outstanding, as such percentage may be adjusted by assignments as permitted hereunder; provided,
however, that if no Class A-1 Revolving Loan Advances are outstanding, then the percentage shall be obtained by dividing (i) the sum of
the Class A-1 Revolving Loan Commitment each held by such Lender by (ii) the sum of the aggregate amount of all of the Class A-1 Revolving
Loan Commitments, and (c) with respect to any Lender as to all Lenders holding Class A-2 Revolving Loan Commitments or Class A-2 Revolving
Advances, the percentage obtained by dividing (i) the aggregate amount of the Class A-2 Revolving Loan Advances outstanding made by such
Lender by (ii) the aggregate amount of all the Class A-2 Revolving Loan Advances outstanding, as such percentage may be adjusted by assignments
as permitted hereunder; provided, however, that if no Class A-2 Revolving Loan Advances are outstanding, then the percentage shall be
obtained by dividing (i) the sum of the Class A-2 Revolving Loan Commitment each held by such Lender by (ii) the sum of the aggregate
amount of all of the Class A-2 Revolving Loan Commitments. The terms “Pro Rata Basis” when capitalized, shall have a correlative
meaning.
“Protective Advance”
shall have the meaning assigned to it Section 2.7(b).
“Purchase and Sale
Agreement” shall mean that certain Master Purchase and Sale Agreement, dated as of the Original Closing Date, by and between
Holdings, as seller of the Pledged Leases, and Borrower, as purchaser of the Pledged Leases, as the same may be amended, modified, supplemented,
restated, replaced or renewed in writing from time to time.
“Receipt”
shall have the meaning assigned to it in Section 12.5 hereof.
“Register”
shall have the meaning assigned to it in Section 12.2(c) hereof.
“Regulatory Trigger
Event” shall mean (x) a “Level One Regulatory Trigger Event” which shall mean, the commencement by any Governmental
Authority of any formal inquiry or investigation (which for the avoidance of doubt excludes any Routine Inquiry), legal action or proceeding,
against (i) any of Borrower, Holdings, Servicer, any third party that has been engaged by Servicer as a sub-servicer or any of Borrower’s
Affiliates challenging its authority to originate, hold, own, service, collect, pledge or enforce any Pledged Lease with respect to the
residents of
26
any state, or otherwise alleging any non-compliance
by any of Borrower, Holdings, Servicer, any third party that has been engaged by Servicer as a sub-servicer or any of Borrower’s
Affiliates with such state’s Applicable Laws related to originating, holding, collecting, pledging, servicing or enforcing such
Pledged Leases or otherwise related to such Pledged Leases; (ii) any of Borrower, Holdings, Servicer, any third party that has been engaged
by Servicer or as a sub-servicer or any of Borrower’s Affiliates, relating to the operation of its business; or (iii) the consumer
leasing industry or consumer retail installment contract industry or any member of such industries, which the Agent, in its Permitted
Discretion, believes would have a material adverse effect on either of such industries, as a whole, which inquiry, investigation, legal
action or proceeding is not released or terminated in a manner acceptable to Agent in its Permitted Discretion within forty-five (45)
calendar days of commencement thereof or (y) a “Level Two Regulatory Trigger Event” which shall mean the issuance or entering
of any stay, order, judgment, cease and desist order, injunction, temporary restraining order, or other judicial or non-judicial sanction,
order or ruling against any of Borrower, Holdings, Servicer, any third party that has been engaged by Servicer as a sub-servicer or any
of Borrower’s Affiliates related in any way to the originating, holding, collecting, pledging, servicing or enforcing of any Pledged
Leases or rendering the Purchase and Sale Agreement or Portfolio Documents unenforceable in such state; provided, that, in each
case, upon the favorable resolution of such inquiry, investigation, action or proceeding as determined by Agent in its Permitted Discretion
and confirmed by written notice from Agent (whether by judgment, withdrawal of such action or proceeding or settlement of such action
or proceeding), such Regulatory Trigger Event for such Governmental Authority shall cease to exist immediately upon such determination
by Agent.
“Release Price”
shall mean an amount equal to the then Current Lease Balance of the Pledged Lease as of the close of business on the last Business Day
of the Due Period relating to the Payment Date immediately preceding the date on which the release is to be made.
“Request for Revolving
Advance” shall have the meaning assigned to it in Section 4.2(a) hereof.
“Required Loan Overadvance
Principal Payment” shall mean, with respect to any Payment Date, the positive difference, if any, as of the Reporting Date preceding
such Payment Date of (a) the outstanding principal balance of the Revolving Advances (prior to giving effect to any payments to be made
on such Payment Date) minus (b) the Borrowing Base.
“Requisite Lenders”
shall mean at any time Lenders then holding fifty-one percent (51%) or more of the aggregate amount of the Advances then outstanding,
provided, that at any time that Agent and its Affiliates collectively own more than thirty five percent (35%) or more of the aggregate
amount of the Advances then outstanding, then Requisite Lenders must include Agent and any matter requiring the consent or approval of
Requisite Lenders shall require the consent or approval of Agent.
“Requisite Special
Stockholder Meeting” shall mean the special meeting of the stockholders of the Parent Entity to approve the issuance of the
Maximum Warrant Shares upon the exercise of the Closing Date Warrants and, if applicable, an amendment to the charter to increase the
authorized and unissued Common Stock of the Parent Entity to the amount of the Maximum Warrant Shares under the Closing Date Warrants.
27
“Requisite Stockholder
Approval” shall have the meaning set forth in Section 5.3 hereof.
“Responsible Officer”
shall mean the chief executive officer, chief financial officer, chief accounting officer or the president of Borrower, or any other officer
having substantially the same authority and responsibility; or, with respect to compliance with financial covenants or delivery of financial
information, the chief financial officer, chief accounting officer, the treasurer or the controller of Borrower, or any other officer
having substantially the same authority and responsibility, and in all cases such person shall be listed on an incumbency certificate
delivered to Agent, in form and substance acceptable to Agent in its sole discretion.
“Revolving Advance”
or “Revolving Loan Advance” shall have the meaning assigned to it in Section 2.1 hereof.
“Revolving Calculated
Rate” shall have the meaning assigned to it in Section 2.2 hereof.
“Revolving Credit
Period” shall mean the period beginning on the Closing Date and ending on the Maturity Date, unless terminated earlier in accordance
with the provisions hereof.
“Revolving Loan Commitment”
shall mean the commitment of a Class A Lender to make or otherwise fund Revolving Loan Advances and “Revolving Loan Commitments”
shall mean such commitments of all Lenders to fund Revolving Loan Advances in the aggregate. The amount of each Lender’s
Revolving Loan Commitment, if any, is set forth on Schedule B attached hereto, subject to any adjustment or reduction pursuant
to the terms and conditions hereof. The aggregate amount of the Revolving Loan Commitments as of the First Amendment Effective
Date is $110,000,000.00 (which, for the avoidance of doubt, is comprised of Class A-1 Revolving Loan Commitments in an amount equal to
$90,000,000.00 and Class A-2 Revolving Loan Commitments in an amount equal to $20,000,000.00, in each case, as set forth on Schedule
B attached hereto).
“Routine Inquiry”
shall mean, without limitation, any inquiry, written or otherwise, made by a competent Governmental Authority with legal authority to
regulate the activities of Borrower, Holdings or their respective Affiliates with respect to the Leases, made via a form letter or otherwise
in connection with the routine transmittal of a consumer complaint or an alleged failure to comply with such State’s lending licensing
requirements or its deferred deposit or “payday” lending laws or similar laws that are not applicable to Borrower, Holdings
or their respective Affiliates with respect to the Leases.
“Scheduled Payment”
shall mean the originally scheduled weekly, bi-weekly or monthly payment by or on behalf of an Account Lessee on a Lease.
“Scheduled Payment
Date” shall mean Friday of each calendar week that the Loans are outstanding, or if such day is not a Business Day, the next
succeeding Business Day; provided that, if the Borrower timely delivers a Borrowing Base Certificate on Tuesday (rather than Wednesday)
of a calendar week, then the Scheduled Payment Date for such calendar week shall be Thursday of such calendar week (so long as such Thursday
is a Business Day).
“Second Amendment
Effective Date” shall mean December 11, 2025.
“Securities Act”
shall mean the Securities Act of 1933, as amended.
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“Security Documents”
shall mean this Agreement, each Guaranty, the Collateral Assignment of Purchase Agreement, the Pledge Agreement, UCC financing statements,
the Collection Account Control Agreement, other agreements related to Deposit Accounts, and all other documents or instruments necessary
to create or perfect the Liens in the Collateral, as such may be modified, amended or supplemented from time to time.
“Servicer”
shall mean Holdings or such other Person, prior to the occurrence of an Event of Default, designated and engaged by the Borrower and approved
by Agent (including, without limitation, BRG or Advensus).
“Servicer Default”
shall mean a “Servicer Event of Default” as such term is defined in the Servicing Agreement.
“Servicer Physical
Payment Address” shall have the meaning assigned to it in Section 2.3(a) hereof.
“Servicing Agreement”
shall mean (a) that certain Servicing Agreement, dated as of the Original Closing Date, by and among the Borrower, Holdings and Agent,
as the same may be amended, modified, supplemented, restated, replaced or renewed in writing from time to time and (b) each other agreement
pursuant to which Pledged Leases will be serviced and administered in accordance with the terms of this Agreement.
“Servicing Fee”
shall mean the fee payable monthly to Holdings pursuant to the Servicing Agreement, which shall be equal to the product of (i) three
percent (3%) and (ii) the sum of the amounts described in clauses (a), (c) and (e) of the definition of “Available
Amounts” collected by Servicer during the calendar month immediately preceding the applicable Scheduled Payment Date on which fee
is to be paid to the Servicer.
“Servicing Policy”
means servicing, collections and payment plan policies of each Servicer, copies of which are attached hereto as Exhibit G, as such
policies may be amended from time to time in compliance with the applicable Servicing Agreement.
“Settlement Date”
shall have the meaning assigned to it in Section 13.5(a)(ii) hereof.
“SOFR”
means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published
by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.
“SOFR Administrator”
means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s
Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor
source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“Solvency Certificate”
shall have the meaning assigned to it in Section 4.1(e) hereof.
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“Specified Regulatory
Change” means a legal or regulatory change, the effect of which is to materially and adversely impair the ability of any Borrower,
Holdings or prior to a Parent Reorganization Transaction, Parent Entity or following a Parent Reorganization Transaction, Katapult Intermediate
IIIMidco to originate, own, hold, pledge, service,
collect or enforce the Pledged Leases or similar assets.
“Subsidiary”
shall mean, as to any Person, any other Person in which more than fifty percent (50%) of all Voting Equity Interests is owned directly
or indirectly by such Person or one or more of its Subsidiaries.
“Taxes”
shall mean present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto (including
penalties, interest and additions to tax), imposed by any Governmental Authority.
“Termination Date”
shall have the meaning assigned to it in Section 11.1 hereof.
“Term SOFR Administrator”
shall mean the CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected
by the Agent in its reasonable discretion).
“Term SOFR Rate”
shall mean, in respect of any calendar month, a rate per annum rounded upwards, if necessary, to the nearest 1/1000 of 1% (3 decimal places)
equal to the one-month forward-looking term rate (“Term SOFR Reference Rate”) based on SOFR appearing on Bloomberg Professional
Service page TSFR1M (or any equivalent page used by Bloomberg Professional Service from time to time or, if Bloomberg Professional Service
no longer reports the Term SOFR Rate, another nationally-recognized rate reporting source acceptable to Agent) as the offered rate for
loans in United States dollars for a one (1) month period as of 5:00 p.m. (New York City time) on the day (such day “Periodic Term
SOFR Determination Date”) that is two (2) Business Days prior to the first calendar day of such month (or, in the case of the month
that includes the date hereof, the date hereof), provided, however, that if as of 5:00 p.m. (New York City Time) on any
Periodic Term SOFR Determination Date the Term SOFR Reference Rate for a one (1) month period has not been published, then the Term SOFR
Rate will be the Term SOFR Reference Rate for a one (1) month period that was published on the first preceding Business Day for which
such rate was published, so long as such preceding Business Day is not more than three (3) Business Days prior to such Periodic Term SOFR
Determination Date. If Bloomberg Professional Service (or another nationally-recognized rate reporting source acceptable to Agent) no
longer reports the Term SOFR Rate, then Agent may select a replacement for such page that displays the Term SOFR Reference Rate as published
by Term SOFR Administrator. If (i) the Term SOFR Administrator permanently or indefinitely ceases to provide the Term SOFR
Reference Rate, (ii) the Term SOFR Reference Rate has been determined and announced by the regulatory supervisor for the Term SOFR Administrator
to be non-representative or (iii) the Governmental Authority having jurisdiction over the Term SOFR Administrator has made a public statement
identifying a specific date after which the Term SOFR Reference Rate shall no longer be used or published for determining interest rates
for loans, Agent in its Permitted Discretion, may select a comparable replacement rate that gives due consideration to the then prevailing
market convention for determining a rate of interest for privately placed secured loans in the United States at such time, and shall enter
into an amendment to this Agreement to reflect such alternate
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rate of interest and such other related changes
to this Agreement as may be applicable to effect a comparable overall yield to that which was in place immediately prior to the occurrence
of any of the foregoing events described by clauses (i) through (iii) in the foregoing clause (provided that such replacement rate and
amendments are approved by the Borrower (which approval shall not be unreasonably withheld or delayed)).
“Third Party Serviced
Lease” shall mean any Lease originated through Holdings’ origination platform on behalf of a third-party (including Metro
PCS) and serviced by Holdings.
“Transferee”
shall have the meaning assigned to it in Section 12.2(a) hereof.
“UCC” shall
mean the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection
or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in
a jurisdiction other than the State of New York, “UCC” shall mean the Uniform Commercial Code as in effect from time
to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection
or priority.
“Underwriting Guidelines”
shall mean Holdings’ customary credit and underwriting and guidelines as set forth in its underwriting model, a copy of each is
attached hereto as Exhibit E, as such guidelines are amended from time to time with the consent of Agent (which consent may be
provided in Agent’s Permitted Discretion), provided, that any material amendments thereto shall be subject to Agent’s
consent, which may be granted in Agent’s Permitted Discretion.
“Unmatured Defaulted
Lease” shall mean any Pledged Lease for which any portion of a Scheduled Payment (without giving effect to any modifications
of such Pledged Lease after the date such Pledged Lease was first pledged hereunder or under any other Loan Document) is delinquent more
than thirty (30) but less than sixty (60) days.
“Unrelated Connections”
shall have the meaning assigned to it in Section 13.8(a) hereof.
“Utilization Ratio”
shall mean, as of any date of determination, the percentage calculated as (a) the total outstanding principal balance of the Loans as
of such date, divided by (b) the then applicable Maximum Revolving Loan Amount.
“Verification Certificate”
shall mean the original certificate in the form annexed to the Backup Servicing Agreement, duly completed and signed by the Backup Servicer.
“Verification Deliverables”
shall mean:
with respect to each
Pledged Lease:
(a) an electronic schedule in a format described in the Backup Servicing Agreement containing a list of the
proposed Leases to be pledged to Agent as Collateral for the Loan (including such Pledged Lease), and account information with respect
thereto;
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(b) complete and accurate copy of the electronic record of the original electronic credit application, Lease
and the electronic signature by the related Account Lessee, and which shall originally be payable to Holdings and, with respect to each
electronic Lease, a bill of sale (or other documentation acceptable to Agent in its Permitted Discretion) which evidences a complete chain
of title and ownership from Holdings to Borrower, and such other documentation evidencing the pledge from Borrower in favor of Agent,
all as further provided in the Backup Servicing Agreement;
(c) electronic copies of all other agreements and documents relating to such Lease; and
(d) a copy of each of the credit application, truth-in-lending disclosure, credit report and similar information
provided by or related to each Account Lessee for such Lease; and
(e) such other documents not otherwise described above as Agent, as specified in writing to Borrower, may
reasonably require from time to time.
“Vintage Pool”
shall mean and refers to, at any given time, all Pledged Leases that were originated in a particular fiscal month. By way of
example, and not by way of limitation, all Pledged Leases that were originated in a single fiscal month shall constitute one Vintage Pool,
regardless of when Borrower purchases said Pledged Leases from Holdings.
“Voting Equity Interests”
means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right to so vote
has been suspended by the happening of such contingency.
“Warrants”
means, individually and collectively, (a) the Warrant issued by Parent Entity to Agent on or about the March 6, 2023, as amended, restated,
supplemented or otherwise modified from time to time, and (b) the Warrants issued by Parent Entity to Agent or its Affiliates set
forth on Exhibit M (together with their respective successors and assigns, the “Closing Date Warrant Holders”)
on the Closing Date, as amended, restated, supplemented, assigned or otherwise modified from time to time (the Warrants described in this
clause (b), the “Closing Date Warrants”).
II. LOAN,
PAYMENTS, INTEREST AND COLLATERAL
2.1 The
Revolving Loan Advances
(a) Revolving
Loan Advances.
(i) Rollover
of Existing Revolving Loan Advances. Prior to the date hereof, pursuant to and in accordance with the Original Loan Agreement,
certain Lenders made Revolving Loan Advances (as defined in the Original Loan Agreement) (the “Existing Revolving Loan Advances”)
and immediately prior to giving effect to this
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Agreement, the Existing Revolving Loan
Advances remain outstanding under the Original Loan Agreement in an aggregate outstanding principal amount (inclusive of any outstanding
original issue discount) of $80,921,728.82. Immediately upon the effectiveness of this Agreement, such Existing Revolving Loan
Advances shall, without any further action, automatically roll and convert into, and shall be deemed to be, a Revolving Loan Advance made
hereunder, and shall continue under this Agreement as included as part of the Revolving Loan Advances and shall be governed by this Agreement
and the other Loan Documents.
(ii) Revolving
Loan Advances. Subject to the provisions of this Agreement, including, without limitation satisfaction or waiver in writing
by Agent of all conditions set forth in Article IV hereof, (x) each Lender severally agrees to make Advances (or to request Agent
to make Agent Advances pursuant to Section 13.4(b)) up to such Lender’s respective Class A-1 Revolving Loan Commitment to
Borrower under the Loan from time to time on or prior to the last day of the Revolving Credit Period (collectively, the “Class
A-1 Revolving Advances” or the “Class A-1 Revolving Loan Advances”) and (y) solely to the extent
the Class A-1 Revolving Loan Commitments are fully utilized as of any date of determination, each Lender severally agrees to make Advances
(or to request Agent to make Agent Advance pursuant to Section 13.4(b)) up to such Lender’s respective Class A-2 Revolving Loan
Commitment to Borrower under the Loan from time to time on or prior to the last day of the Revolving Credit Period (collectively, the
“Class A-2 Revolving Advances” or the “Class A-2 Revolving Loan Advances” and together
with the Class A-1 Revolving Advances and/or the Class A-2 Revolving Loan Advances, collectively the “Revolving Advances”
or the “Revolving Loan Advances”). Each Revolving Loan Advance shall be made in an amount requested
by Borrower not to exceed the Availability as of such date of determination by deposit into a Deposit Account designated by Borrower;
provided, that under no circumstances shall the outstanding amount of the Revolving Loan Advances exceed neither (i) the aggregate
Revolving Loan Commitment without Agent’s consent nor (ii) the Maximum Revolving Loan Amount under any circumstances, and provided,
further, no Lender shall be obligated to provide funding for any Revolving Loan Advance that would increase the aggregate of all
outstanding amounts funded by such Lender (including any Revolving Loan Advances made by any predecessor in interest to such Lender) to
an amount in excess of the stated principal amount of that Lender’s Note or such Lender’s Revolving Loan Commitment. For
the avoidance of doubt, no Class A-2 Revolving Loan Advance shall be made hereunder unless the Class A-1 Revolving Loan Commitments are
fully utilized at the time of such Class A-2 Revolving Loan Advance. Unless otherwise permitted by Agent, each Revolving Loan
Advance shall be in an amount of at least Two Hundred Fifty Thousand Dollars ($250,000). No more than one (1) Revolving Loan
Advance may be made hereunder in any calendar week. Any such request for a Revolving Loan Advance by Borrower must be made
by 1:00 p.m. EST two (2) Business Days prior to the proposed borrowing date and shall contain a certification from an officer of Borrower
representing that all conditions precedent to the funding of such Revolving Advance contained herein are satisfied. Subject to the terms
hereof Revolving Advances may be repaid (including, through application of Available Amounts pursuant to Section 2.4 hereof) and
re-borrowed prior to the expiration of the Revolving Credit Period. The failure of any Lender to make any Advance required
to be made by it shall not relieve any other Lender of its obligations
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hereunder; provided, that the
Revolving Loan Commitment of each Lender is several and no Lender shall be responsible for any other Lender’s failure to make required
Advances. Notwithstanding anything else herein to the contrary, no Revolving Loan Advances shall be made or requested after
the last day of the Revolving Credit Period.
(b) Term
Loan. For purposes of clarity, the Term Loan (as defined in this Agreement immediately prior to giving effect to the First Amendment),
was paid in full in cash on the First Amendment Effective Date.
(c) Notes. The
Advances made by each Lender shall, to the extent requested by a Lender, be evidenced by a promissory note payable to the order of such
Lender, substantially in the form of Exhibit B-1 with respect to Revolving Loan Advances (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, a “Note”), executed by Borrower and delivered to the Agent
on or prior to the Closing Date, as applicable (or after the Closing Date in respect of any assignee of a Lender who becomes a Lender
pursuant to Section 12.2 or any Lender who requests a Note after the third Business Day prior to the Closing Date). The
Note payable to the order of a Lender shall be in a stated maximum principal amount equal to such Lender’s Revolving Loan Commitment.
(d) Payment
of the Loan. Borrower shall repay the Loan pursuant to and in accordance with the terms of this Agreement and the Notes
evidencing the Loans. Each Revolving Advance shall be due and payable in full, if not earlier in accordance with this Agreement,
on the Maturity Date. All other amounts outstanding under the Loan and all other Obligations under the Loan shall be due and
payable in full, if not earlier in accordance with this Agreement, on the Maturity Date.
(e) Promptly
following receipt of a Request for Revolving Advance in accordance with Section 4.2(a) and all other deliverables described
therein, Agent shall advise each Class A Lender of the details thereof and of the amount of such Class A Lender’s Revolving Advance
to be made as a part of the requested Revolving Advance. Each Class A Lender shall make each Revolving Advance to be made by
it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon (New York City time) to the account
of Agent most recently designated by it for such purpose by notice to Lenders. Unless Agent shall have received notice from
a Class A Lender prior to the proposed date of any Revolving Advance that such Class A Lender will not make available to Agent such Class
A Lender’s share of such Revolving Advance, Agent may assume that such Class A Lender has made such share available on such date
in accordance with the previous sentence and may, in reliance upon such assumption, make available to Borrower a corresponding amount. In
lieu of the foregoing, Agent may, on behalf of any Class A Lender, make, or cause Lender that is an Affiliate of Agent to make, Revolving
Advances hereunder upon satisfaction of the provisions of Section 4.2(a). Each Class A Lender shall, upon demand,
reimburse Agent (or such Affiliate of Agent) for such Class A Lender’s Pro Rata Share of each such Revolving Advance. In
such event, if a Class A Lender has not in fact made its share of the applicable Revolving Advance available to Agent, then the applicable
Lender and Borrower severally agree to pay to Agent forthwith on demand such corresponding amount with interest thereon, for each day
from and including the date such amount is made available to Borrower to but excluding the date of payment to Agent, at the applicable
Revolving Calculated Rate and, until such Lender has paid such amount to Agent, all amounts
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owed to such Lender hereunder (whether interest,
fees, principal or otherwise) shall paid to Agent (or any Affiliate of Agent that has funded such amounts in lieu of such Lender) in such
amount as is necessary to repay in full such unfunded amounts owed by such Lender and such Lender shall not be entitled to receive any
amounts hereunder until such unfunded amounts have been repaid in full. If such Lender pays such amount to Agent, then such
amount shall constitute such Lender’s Pro Rata Share of such Revolving Advance. No Class A Lender shall be obligated
to make a Revolving Advance on behalf of another Class A Lender.
2.2 Interest
on the Loan
(a) The
Borrower agrees to pay interest in respect of the outstanding principal amount of the Revolving Loan Advances, weekly in arrears in accordance
with Section 2.4 to Agent for the account of Lenders, from the date the proceeds thereof are made available to the Borrower until paid
in full, at a rate per annum equal to the lesser of (i)(A) Adjusted Term SOFR plus (B) seven percent (7.00%) per annum (such rate, the
“Calculated Rate”) and (ii) the Maximum Rate. All such payments of interest shall be made weekly
pursuant to Section 2.4, and, in any event, shall be due and owing for each Due Period no later than the Payment Date immediately
following such Due Period, provided, that, on any Interest Settlement Date on which interest has accrued, but has not been paid
pursuant to Section 2.4, Agent shall be entitled to apply any or all Available Amounts on deposit in the Collection Account or
the Collateral Account to the payment of any accrued interest and fees for the preceding month payable to the Lenders pursuant to Section
13.5(a)(iii) hereof. If Lenders are prevented from charging or collecting interest at the applicable Calculated Rate, to
the extent permitted by law, then the interest rate shall continue to be the Maximum Rate until such time as Lenders have charged and
collected the full amount of interest that would be chargeable and collectable if interest at the applicable Calculated Rate had always
been lawfully chargeable and collectible. Whenever, subsequent to the date of this Agreement, Adjusted Term SOFR is increased or decreased,
the Applicable Rate shall be similarly changed without notice or demand of any kind by an amount equal to the amount of such change in
Adjusted Term SOFR (in each case, subject to the Maximum Rate).
(b) The
weekly interest due on the principal balance of the Loan outstanding shall be computed for the actual number of days elapsed on the basis
of a year consisting of 360 days and shall be calculated by determining the average daily principal balance of the Obligations under the
Loan Documents outstanding for each day.
2.3 Loan
Collections; Repayment.
(a) Borrower
shall, or shall cause Servicer to, instruct the Account Lessee and the Servicer’s payment processing company of each Pledged Lease
to pay directly to the Collection Account or by delivery to the addresses set forth in the Servicing Agreement (the “Servicer
Physical Payment Address”), all Scheduled Payments, prepayments (both voluntary and mandatory), and other amounts received
of any and every description payable to Borrower by or on behalf of such Account Lessee pursuant to the applicable Pledged Lease, the
related Portfolio Documents, or any other related documents or instruments. All such amounts delivered to the Servicer Physical
Payment Address shall be received and held in trust for the sole and exclusive benefit of the Agent and shall be directed to the Collection
Account within two (2) Business Days after such amounts so received and held by the Servicer equals or exceeds $25,000. In
the event
35
that Servicer or Borrower receives any payments
on any Pledged Lease directly from or on behalf of the Account Lessee thereof in a manner other than through a deposit into the Collection
Account or a payment at a Servicer Physical Payment Address, the Servicer or Borrower, as applicable, shall receive and hold all such
payments in trust for the sole and exclusive benefit of Agent, and Servicer or Borrower, as applicable, shall deliver to the Collection
Account within two (2) Business Days after such amounts so received and held by the Servicer equals or exceeds $25,000 all such payments
(in the form so received) as and when received by Servicer or Borrower, as applicable, unless Agent shall have notified Servicer or Borrower,
as applicable, to deliver directly to Agent all payments in respect of the Leases after the occurrence and during the continuance of an
Event of Default, in which event all such payments (in the form received) shall be endorsed by Servicer or Borrower, as applicable, to
Agent and delivered to Agent promptly upon Servicer or Borrower’s receipt thereof. Borrower and Servicer shall cause,
and shall cause Collection Account Bank to cause, all amounts delivered to the Collection Account to be automatically directed pursuant
to a standing wire instruction to the Collateral Account two (2) Business Days prior to each Payment Date until all Obligations have been
paid in full and this Agreement has been terminated.
(b) At
any time after the occurrence and during the continuance of an Event of Default, Agent shall have the right to notify any Account Lessee
to mail or otherwise deliver payments directly to an address determined by Agent or to otherwise deposit such sums in the Collateral Account
or any other deposit account established by Agent from time to time.
(c) All
Scheduled Payments, interest, principal, prepayments (both voluntary and mandatory), and other amounts received of any and every description
payable to Borrower by or on behalf of such Account Lessee pursuant to the applicable Lease, the related Portfolio Documents, or any other
related documents or instruments with respect to the Leases pledged as Collateral for the Revolving Advances shall be paid directly to
the Collection Account, unless otherwise directed by Agent at any time after the occurrence and during the continuance of an Event of
Default.
2.4 Promise
to Pay; Manner of Payment.
(a) Payments. On
each Payment Date, payments shall be made by the Agent from the Collateral Account in the following order of priority and to the extent
of the Available Amounts:
(i) to
the Borrower, the portion of the Available Amounts that are identifiable as sales tax receipts received by Borrower or Servicer during
the period since the prior Payment Date with respect to any Pledged Lease;
(ii) on
the last Scheduled Payment Date to occur in each calendar month, to Servicer, the Servicing Fee for such calendar month until paid in
full, and any such fees that remain unpaid with respect to one or more prior Payment Dates, provided, that if Servicer is Holdings
or an Affiliate of Holdings, such payments shall not be made if an Event of Default has occurred and is continuing as of such Payment
Date unless otherwise agreed by Agent in its sole discretion;
36
(iii) on
the last Scheduled Payment Date to occur in each calendar month, to the Backup Servicer, the Backup Servicer Fee for such calendar month
until paid in full, including any such fees that remain unpaid with respect to one or more prior Payment Dates;
(iv) to
Agent, for the benefit of Lenders, first, any Protective Advances, together with all interest owed with respect to all Protective Advances,
and second, any indemnities owed by Borrower or any Guarantor to Agent or any Lender, in each case, to the extent not previously reimbursed
or paid;
(v) to
Agent, for the benefit of itself and the Class A Lenders, on a Pro Rata Basis, all accrued and unpaid, costs, fees and expenses relating
to the Revolving Advances as of such Payment Date;
(vi) to
Agent, for the benefit of itself and the Class A Lenders, on a Pro Rata Basis, all accrued and unpaid interest (including any Additional
Interest) relating to the Revolving Advances as of such Payment Date;
(vii) if
no Event of Default has occurred and is continuing and a Required Loan Overadvance Principal Payment is due, to Agent, for the benefit
of itself and the Class A-2 Lenders on a Pro Rata Basis until the first to occur of (x) the Class A-2 Revolving Advances are reduced to
zero or (y) the Required Loan Overadvance Principal Payment is repaid in full;
(viii) if
no Event of Default has occurred and is continuing and a Required Loan Overadvance Principal Payment is due, to Agent, for the benefit
of itself and the Class A-1 Lenders on a Pro Rata Basis until the first to occur of (x) the Class A-1 Revolving Advances are reduced to
zero or (y) the Required Loan Overadvance Principal Payment is repaid in full;
(ix) if
no Event of Default has occurred and is continuing and if directed in writing by the Borrower, to Agent, for the benefit of itself and
the Lenders, the Revolving Advances in the amount specified by the Borrower in such writing;
(x) if
an Event of Default has occurred and is continuing, to Agent, for the benefit of Lenders, any remaining Available Amounts in the Collateral
Account to the extent of Obligations owing to Lenders to be applied in accordance with Section 2.4(c) hereof; and
(xi) to
the Borrower, any remaining Available Amounts in the Collateral Account;
provided that the Borrower
may from time-to-time during any calendar week deliver a Borrowing Base Certificate to Agent and elect that payments be made pursuant
to this Section 2.4(a) mutatis mutandis on the date that is two (2) Business Days after delivery of such Borrowing Base
Certificate (any such date on which such payments are to be made, an “Additional Payment Date”). In
no event shall there be more than one (1) Additional Payment Date in any calendar week absent the prior written consent of the Agent.
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(b) In
the event that amounts distributed under Section 2.4(a) as of each Payment Date are insufficient for payment of the amounts set
forth in Section 2.4(a)(i),(ii), (iii), (iv), (v), (vi), (vii), and (viii) for such Payment
Date, Borrower shall pay an amount equal to the extent of such insufficiency (i) through a Revolving Loan Advance (if available pursuant
to the terms hereof) hereunder on such date of determination, or (ii) if insufficient Availability or another failure of a condition
precedent to an Advance then exists, from a wire transfer of immediately available funds by Holdings or Borrower within two (2) Business
Days of request by Agent. Agent shall distribute any such payment received by it for the account of any Lender to the appropriate
Lender in accordance with the terms hereof.
(c) Following
the occurrence and during the continuance of an Event of Default, payments shall be made by the Agent from the Collateral Account in the
following order of priority and to the extent of the Available Amounts:
(i) on
the last Scheduled Payment Date to occur in each calendar month, to Servicer, the Servicing Fee for such calendar month until paid in
full, and any such fees that remain unpaid with respect to one or more prior Payment Dates, provided, that if Servicer is Holdings
or an Affiliate of Holdings, such payments shall not be made unless otherwise agreed by Agent in its sole discretion;
(ii) on
the last Scheduled Payment Date to occur in each calendar month, to the Backup Servicer, the Backup Servicer Fee for such calendar month
until paid in full, including any such fees that remain unpaid with respect to one or more prior Payment Dates;
(iii) to
Agent, for the benefit of Lenders, first, any Protective Advances, together with all interest owed with respect to all Protective Advances,
and second, any indemnities owed by Borrower or any Guarantor to Agent or any Lender, in each case, to the extent not previously reimbursed
or paid;
(iv) to
Agent, for the benefit of itself and the Class A-2 Lenders, all accrued and unpaid, costs, fees and expenses (including the Exit Additional
Interest) relating to the Class A-2 Revolving Advances as of such Payment Date;
(v) to
Agent, for the benefit of itself and the Class A-1 Lenders, all accrued and unpaid, costs, fees and expenses (including the Exit Additional
Interest) relating to the Class A-1 Revolving Advances as of such Payment Date;
(vi) to
Agent, for the benefit of itself and the Class A-2 Lenders all accrued and unpaid interest (including any Additional Interest) relating
to the Class A-2 Revolving Advances as of such Payment Date;
(vii) to
Agent, for the benefit of itself and the Class A-1 Lenders all accrued and unpaid interest (including any Additional Interest) relating
to the Class A-1 Revolving Advances as of such Payment Date;
(viii) to
Agent, for the benefit of itself and the Class A-2 Lenders the outstanding principal amount of the Advances in respect of the Class A-2
Obligations until
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the aggregate outstanding principal
amount of the Class A-2 Revolving Advances have been reduced to zero;
(ix) to
Agent, for the benefit of itself and the Class A-1 Lenders the outstanding principal amount of the Advances in respect of the Class A-1
Obligations until the aggregate outstanding principal amount of the Class A-1 Revolving Advances have been reduced to zero; and
(x) to
the Borrower, any remaining Available Amounts in the Collateral Account.
(d) Borrower
absolutely and unconditionally promises to pay, when due and payable pursuant hereto, principal, interest and all other amounts and Obligations
payable, hereunder or under any other Loan Document, without any right of rescission and without any deduction whatsoever, including any
deduction for set-off, recoupment or counterclaim, notwithstanding any damage to, defects in or destruction of the Collateral or any other
event, including obsolescence of any property or improvements. Except as expressly provided for herein, Borrower hereby waives
setoff, recoupment, demand, presentment, protest, and all notices and demands of any description, and the pleading of any statute of limitations
as a defense to any demand under this Agreement and any other Loan Document, all to the extent permitted by law. Each Revolving
Advance shall be due and payable in full, if not earlier in accordance with this Agreement, on the Maturity Date. All other
amounts outstanding under the Loan and all other Obligations under the Loan shall be due and payable in full, if not earlier in accordance
with this Agreement, on the Maturity Date.
2.5 Voluntary
Prepayments
(a) Except
as set forth in Section 2.5(b) below, the Loan may be prepaid only through the collections of Scheduled Payments and any other
amounts with respect to the Leases.
(b) Revolving
Loan Voluntary Prepayment. Borrower may voluntarily prepay, in whole, but not in part (except as described in Section
2.1 hereof), the principal balance of the Revolving Advances and all accrued and unpaid interest thereon, and terminate the Revolving
Loan Commitment in connection with such prepayment in full at any time, so long as Borrower shall have identified the Prepayment Date
and given Agent not less than thirty (30) calendar days prior written notice in advance of such proposed Prepayment Date. Upon
the payment by the Borrower in cash in full of the Obligations with respect to the Revolving Advances (other than indemnity obligations
that are not then due and payable or with respect to which no claim has been made) pursuant to this Section 2.5(b), the Revolving
Loan Commitments shall terminate.
2.6 Mandatory
Prepayments
(a) If
a Change of Control occurs that has not been consented to in writing by Agent prior to the consummation thereof, on or prior to the first
Business Day following the date of such Change of Control, Borrower shall prepay the Loan and all other Obligations (other than, indemnity
obligations that are not then due and payable or with respect to which no claim has been made) in full in cash together with accrued interest
thereon to the date of such prepayment and all other amounts owing to Agent and Lenders under the Loan Documents, and whereupon the
39
Revolving Loan Commitments shall be terminated;
provided, that any such prepayment shall be in compliance with Section 6.16 hereof.
(b) In
addition to and without limiting any provision of any Loan Document, if Borrower, in any transaction or series of related transactions,
(i) sells any Pledged Lease or other material assets or other properties, (ii) sells or issues any equity or debt securities, Equity Interests
or other ownership interests other than, in each case, to Holdings or (iii) incurs any Indebtedness except for Permitted Indebtedness,
then it shall deposit 100% (or such lesser amount as is required to indefeasibly pay in cash in full the Obligations (other than indemnity
obligations that are not then due and payable or with respect to which no claim has been made)) of the cash proceeds thereof (net of reasonable
transaction costs and expenses and taxes) to the Collateral Account.
(c) In
no event shall the sum of the aggregate outstanding principal balance of the Revolving Loan Advances exceed the lesser of (i) the
Borrowing Base and (ii) the Maximum Revolving Loan Amount. If at any time and for any reason, the outstanding unpaid principal
balance of the Revolving Loan Advances exceed the Maximum Revolving Loan Amount, Borrower shall promptly, and in any event within five
(5) Business Days, without the necessity of any notice or demand, whether or not a Default or Event of Default has occurred or is continuing,
prepay the principal balance of the Loan in an amount equal to the difference between the then aggregate outstanding principal balance
of the Revolving Loan Advances and the Maximum Revolving Loan Amount. If at any time and for any reason, the outstanding unpaid
principal balance of the Loan exceeds the Borrowing Base (including due to any Eligible Lease thereafter failing to meet the eligibility
criteria and becoming an Ineligible Lease; provided, however, that if such Lease is an Ineligible Lease solely as a result
of a Regulatory Trigger Event described in clause (xxx) of the definition of “Eligible Leases” Borrower shall have
forty five (45) calendar days after the earlier of its discovery or receipt of notice thereof to comply with this clause(c) of
Section 2.6), then Borrower shall without the necessity of any notice or demand, whether or not a Default or Event of Default has
occurred or is continuing, either (x) prepay the principal balance of the Loan in an amount equal to the difference between
the then aggregate outstanding principal balance of the Loan and the Borrowing Base or (y) increase the aggregate principal
balance of Eligible Leases pledged to Agent in accordance with this Agreement so that the Borrowing Base is equal to or exceeds the then
outstanding principal balance of the Loan. The pledge and delivery to Agent of additional Eligible Leases shall comply with
the document delivery requirements set forth in Sections 2.9 and 4.2 of this Agreement, as applicable, and shall be
accompanied by a certification from Borrower that demonstrates that after giving effect to the pledge to Agent of such additional Eligible
Leases, the outstanding unpaid principal balance of the Loan is equal to or less than the Borrowing Base.
2.7 Payments
by Agent; Protective Advances
(a) Should
any amount required to be paid under any Loan Document be unpaid beyond any applicable cure period, such amount may be paid by Agent,
for the account of Lenders, which payment shall be deemed a request for an Advance under the Loan as of the date such payment is due,
and Borrower irrevocably authorizes disbursement of any such funds to Agent, for the benefit of itself and the Lenders, by way of direct
payment of the relevant amount, interest or Obligations in accordance with Section 2.4 without necessity of any demand whether
or not a Default or Event of Default has occurred or is continuing. No payment or prepayment of any
40
amount by Agent, Lenders or any other Person shall
entitle any Person to be subrogated to the rights of Agent and/or Lenders under any Loan Document unless and until the Obligations are
repaid in full and the Loan Agreement and the other Loan Documents have been terminated. Any sums expended or amounts paid
by Agent and/or Lenders as a result of Borrower’s failure to pay, perform or comply with any Loan Document or any of its Obligations
may be charged to Borrower’s account as an Advance under the Loan and added to the Obligations.
(b) Notwithstanding
any provision of any Loan Document, Agent, in its sole discretion, shall have the right, but not any obligation, at any time that Borrower
fails to do so, and from time to time, without prior notice, to: (i) discharge (at the Borrower’s expense) taxes or Liens affecting
any of the Collateral that have not been paid in violation of any Loan Document or that jeopardize the Agent’s Lien priority in
the Collateral, including any underlying collateral securing any Lease; or (ii) make any other payment (at the Borrower’s expense)
for the administration, servicing, maintenance, preservation or protection of the Collateral, or any underlying collateral securing any
Lease (each such advance or payment set forth in clauses (i) and (ii), a “Protective Advance”). Agent
shall be reimbursed for all Protective Advances pursuant to Section 2.4 and any Protective Advances shall bear interest at the
Applicable Rate plus the Default Rate from the date the Protective Advance is paid by Agent until it is repaid. No Protective
Advance by Agent shall be construed as a waiver by Agent, or any Lender of any Default, Event of Default, Default Trigger Event, First
Payment Default Trigger Event or any of the rights or remedies of Agent or any Lender.
2.8 Grant
of Security Interest; Collateral
(a) To
secure the payment and performance of the Obligations, Borrower hereby grants to Agent, for the benefit of itself and the other Lenders,
a valid, perfected and continuing first priority Lien upon, and security interest in, all of Borrower’s right, title, and interest,
whether now owned or existing or hereafter from time to time acquired or coming into existence, in, to, and under the following assets
(collectively, the “Collateral”): (i) all Leases and all amounts due or to become due under the Leases, (ii)
all Inventory and other personal property securing the payment of any Lease, (iii) all Portfolio Documents and all rights, remedies, powers,
privileges, and claims under the Portfolio Documents, (iv) the Collection Account and all funds and other property credited to the Collection
Account, (v) the Purchase and Sale Agreement, each Servicing Agreement, and the Backup Servicing Agreement and all rights, remedies, powers,
privileges, and claims under those contracts, (vi) all Accounts, General Intangibles, Chattel Paper, Instruments, Documents, Goods, money
and any rights to the payment of money or other forms of consideration of any kind, Deposit Accounts, Investment Property, letters of
credit, Letter-of-Credit Rights, Contract Rights, Contracts, Supporting Obligations, Equipment, Inventory, Fixtures, Computer Hardware,
Software, securities, Permits, intellectual property, and oil, gas and other minerals, (vii) all other personal property and other
types of property of Borrower, including, but not limited to, all goods (including, but not limited to, the Inventory) owned by Borrower,
whether or not such goods are the subject of a Lease and (viii) all Proceeds of all of the foregoing.
(b) Borrower
shall promptly notify Agent of any Commercial Tort Claims of the Borrower, individually or in the aggregate, involving damages of more
than $500,000 related to any Collateral in which Borrower has an interest arising after the Closing Date and shall provide all necessary
information concerning each such Commercial Tort Claim and take all necessary
41
action with respect thereto to grant and perfect
a first priority Lien thereon in favor of Agent for the benefit of itself and the other Lenders.
(c) Borrower
has full right and power to grant to Agent, for the benefit of itself and the other Lenders, a perfected, first priority Lien on the Collateral
pursuant to this Agreement, subject to Permitted Liens. Upon the execution and delivery of this Agreement, and upon the filing
of the necessary financing statements and other documents and the taking of all other necessary action, Agent will have a valid and first
priority perfected Lien on the Collateral, subject to no transfer or other restrictions or Liens of any kind in favor of any other Person
other than Permitted Liens. As of the Closing Date, no financing statement naming Borrower as debtor and describing any of
the Collateral is on file in any public office except those naming Agent as secured party and those related to the Permitted Liens. As
of the Closing Date, Borrower is not party to any agreement, document or instrument that conflicts with this Section 2.8.
(d) Borrower
hereby authorizes Agent to prepare and file financing statements provided for by the UCC with all appropriate jurisdictions to perfect
or protect the Lenders’ security interest or rights hereunder, and to take such other action as may be required, in Agent’s
Permitted Discretion, in order to perfect and to continue the perfection of Agent’s Lien on the Collateral, for the benefit of itself
and the other Lenders, including a notice that any disposition of the Collateral, by either the Borrower or any other Person, shall be
deemed to violate the rights of the Lender under the UCC. Such financing statements may indicate the Collateral as “all
assets of the Debtor” or words of similar effect, or as being of an equal or lesser scope, or with greater detail, all in the Agent’s
sole discretion.
(e) For
the avoidance of doubt, no Collateral shall be released (except as specifically set forth herein) until payment in full of all of the
Obligations.
(f) Agent,
Lenders and Borrower hereby agree that upon funding of any Revolving Loan Advance, the Borrowing Base Certificate prepared by Borrower
and approved by Agent shall automatically supplement and add the Leases described therein to any Leases described in any previously-delivered
Borrowing Base Certificate and shall constitute Collateral for purposes of this Agreement.
2.9 Collateral
Administration
(a) All
tangible Collateral (except Collateral in the possession of Backup Servicer or Agent) will at all times be kept by Borrower or Servicer
at the locations set forth on Schedule 5.18B hereto, and shall not, without thirty (30) calendar days prior written notice
to Agent, be moved therefrom other than to another such location, and in any case shall not be moved outside the continental United States. Borrower
hereby agrees to deliver to the Agent and Backup Servicer or, upon the request of the Agent, to the Servicer, on or prior to the date
of each Revolving Advance, the Verification Deliverables for each Lease that is to be added to the Collateral in connection with such
Revolving Advance. From and after the funding of each Advance hereunder, the originals of all Leases constituting Collateral
in respect of such Advance shall, regardless of their location, be deemed to be under Agent’s dominion and control and deemed to
be in Agent’s possession. Any of Agent’s officers, employees, representatives or agents, including, without limitation,
Backup Servicer, shall have the right upon reasonable notice, at any time during normal
42
business hours, in the name of Agent or any designee
of Agent or Borrower, to verify the validity, amount or any other matter relating to the Collateral. Borrower shall cooperate
fully with Agent in an effort to facilitate and promptly conclude such verification process. In addition to any provision of
any Loan Document, Agent shall have the right at all times after the occurrence and during the continuance of an Event of Default to notify
Account Lessees party to Leases held by Borrower that their Leases have been assigned to Agent and to collect such Leases directly in
Agent’s own name, for the benefit of itself and the Lenders, and to charge collection costs and expenses, including attorney’s
fees, to Borrower.
(b) As
and when determined by Agent in its sole discretion, Agent will perform the searches described in clauses (i) and (ii) below against Borrower,
Servicer and Holdings: (i) UCC searches with the Secretary of State and local filing offices of each jurisdiction where Borrower,
Servicer or Holdings is organized; and (ii) judgment, bankruptcy, federal tax lien and corporate and partnership tax lien searches,
in each jurisdiction where Borrower, Servicer or Holdings maintains their executive offices, a place of business or any assets.
(c) Borrower
shall keep accurate and complete records of the Collateral and all payments and collections thereon and shall submit such records to Agent
on such periodic basis as Agent may request in its Permitted Discretion.
(d) In
respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is not a transferable
record under Applicable Law, Borrower shall deliver to Agent or, at the request of Agent, Servicer (i) the original Portfolio Documents;
and (ii) originals or true copies of the truth-in-lending disclosure statements and, if required by Agent, lease applications, any related
Account Lessee’s acknowledgments and understandings, and other receipts and payment authorization agreements, which shall be delivered,
at Borrower’s expense, to Agent at its address set forth herein or as otherwise specified by Agent and, except as otherwise expressly
provided herein to the contrary, held in Agent’s custody or, if Agent has so requested, Servicer’s or Backup Servicer’s
custody until all of the Obligations have been fully satisfied or Agent expressly agrees to release such custody of such documents. In
respect of the portion of the Collateral consisting of any Lease which is evidenced by an electronic record that is a transferable record
under applicable law, Borrower shall deliver to Agent the control of such transferable electronic record in accordance with Applicable
Law (to ensure, among other things, that Agent has a first priority perfected Lien in such Collateral), which shall be delivered, at Borrower’s
expense, to Agent at its address as set forth herein or as otherwise specified by Agent and, except as otherwise expressly provided herein
to the contrary, held in Agent’s possession, custody, and control until all of the Obligations have been fully satisfied or Agent
expressly agrees to release such documents. Alternatively, Agent, in its sole discretion, may elect for the Servicer or Backup
Servicer or any other agent to accept delivery of and maintain possession, custody, and control of all such documents and any instruments
on behalf of Agent during such period of time. Borrower shall identify (or cause any applicable servicing agent to identify)
on the related electronic record the pledge of such Lease by Borrower to Agent.
(e) Borrower
hereby agrees to, and to cause Servicer to, take the following protective actions to prevent destruction of records pertaining to the
Collateral: create an electronic file of the computerized information regarding the Collateral and provide Agent and Backup Servicer monthly
with a copy of such file (A) no later than fifteen (15) days following the Closing
43
Date and (B) no later than fifteen (15) days following
the end of each calendar month following the Closing Date. Subject to the limitations set forth in Section 6.7 of this
Agreement, Agent at all times during regular business hours (provided, that any electronic materials available on a website or through
other remote electronic means for which Agent has been given access shall be available to Agent at all times) shall have the right to
access and review any and all Portfolio Documents in Borrower’s or Servicer’s possession and any and all data and other information
relating to Portfolio Documents as may from time to time be input to or stored within Borrower’s or Servicer’s computers and/or
computer records including, without limitation, diskettes, tapes and other computer software and computer systems.
2.10 Power
of Attorney
Borrower hereby acknowledges
and agrees that Agent is hereby irrevocably made, constituted and appointed the true and lawful attorney for Borrower (without requiring
Agent to act as such) with full power of substitution to do the following upon the occurrence and during the continuation of an Event
of Default: (i) endorse the name of Borrower upon any and all checks, drafts, money orders and other instruments for the payment of money
that are payable to Borrower and constitute collections on the Pledged Leases; (ii) execute and/or file in the name of Borrower any financing
statements, amendments to financing statements, schedules to financing statements, releases or terminations thereof, assignments, instruments
or documents that it is obligated to execute and/or file under any of the Loan Documents (to the extent Borrower fails to so execute and/or
file any of the foregoing within two (2) Business Days of Agent’s request or the time when Borrower is otherwise obligated to do
so); (iii) execute and/or file in the name of Borrower assignments, instruments, documents, schedules and statements that it is obligated
to give Agent under any of the Loan Documents (to the extent Borrower fails to so execute and/or file any of the foregoing within two
(2) Business Days of Agent’s request or the time when Borrower is otherwise obligated to do so); (iv) execute and/or file such documents
as may be necessary to register and/or otherwise perfect Agent’s Lien on Borrower’s owned goods, including, but not limited
to, the Inventory, and (v) do such other and further acts and deeds in the name of Borrower that Agent may deem necessary to enforce,
make, create, maintain, continue, enforce or perfect Lender’s security interest, Lien or rights in any Collateral.
2.11 Deposit
of Release Price or Substitution of Eligible Lease.
(a) Subject to Section 2.11(b),
at any time, upon discovery by Borrower or upon notice from Holdings, Servicer or Agent that (i) any Lease is a Defaulted Lease, Borrower
may, within ten (10) calendar days after the earlier of its discovery or receipt of notice thereof deposit the Release Price for such
Lease in the Collection Account. Notwithstanding the foregoing, Borrower may exercise its rights pursuant to this Section 2.11
solely with respect to the repurchase of Pledged Leases in a pool of Eligible Leases having an aggregate Current Lease Balance (measured
as of the date of such repurchase) that is less than or equal to five percent (5%) of the sum of the funded Revolving Advances and the
total unfunded Revolving Loan Commitment held by the Lenders with respect to such pool of Eligible Leases. Borrower shall deliver, or
cause Servicer to deliver, a schedule of any Defaulted Leases so removed to Agent in connection with the Monthly Servicing Report and
shall update all other reports and schedules accordingly.
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(b) Release
of Ineligible Lease. If the Release Price for any Defaulted Lease is deposited in the Collection Account then, (a) the
Agent’s Lien on such Defaulted Lease and all related Collateral is automatically released without any further action and (b) Agent
shall, and shall cause Backup Servicer to, at Borrower’s sole cost and expense, deliver the related Portfolio Documents to Borrower
or its designee and shall execute such documents, releases and instruments of transfer, prepared by Borrower at its sole cost and expense,
or assignment and take such other actions as shall reasonably be requested by the Borrower to effect the release of such Defaulted Lease
and the related Collateral.
2.12 Collection
Account and Collateral Account
(a) Collection
Account. Deposits made into the Collection Account shall be limited to amounts deposited therein by, or at the direction
of, Borrower or Servicer in accordance with this Agreement or the Purchase and Sale Agreement, as applicable, and Available Amounts and
amounts deposited therein from the Collateral Account (it being understood that amounts returned to the Borrower pursuant to Section
2.4(a)(xi) shall not be deposited in the Collection Account from the Collateral Account unless so directed in writing by the Borrower).
(b) Withdrawals. Other
than as set forth in clause (c) below, Agent shall have the sole and exclusive right to withdraw or order a transfer of funds from the
Collection Account and the Collateral Account, in all events in accordance with the terms and provisions of the Collection Account Control
Agreement, the Monthly Servicing Report and this Agreement. In addition, notwithstanding anything in the foregoing to the contrary,
the Servicer may request, but Agent is obligated to comply only if an Event of Default has not occurred and is then continuing with such
request, withdrawals or order transfers of funds from the Collection Account or the Collateral Account, to the extent such funds either
(i) have been mistakenly deposited into the Collection Account or the Collateral Account or (ii) related to items subsequently returned
for insufficient funds or as a result of stop payments. In the case of any withdrawal or transfer pursuant to the foregoing
sentence, the Servicer shall provide Agent with notice of such request of withdrawal or transfer, together with reasonable supporting
details, on the next Monthly Servicing Report to be delivered by the Servicer following the date of such withdrawal or transfer (or in
such earlier written notice as may be required by Agent from the Servicer from time to time). Borrower shall cause the Servicer
to deposit all proceeds of the Collateral processed by the Servicer to the Collection Account within two (2) Business Days of receipt,
which amounts shall be automatically swept to the Collateral Account two (2) Business Days prior to each Payment Date absent the consent
of the Agent. On each Payment Date, amounts in the Collateral Account shall be applied to make the payments and disbursements
described in Section 2.4 and this Section 2.12. Agent agrees to use its best efforts to provide Borrower and
Servicer, at all times other than during the continuance of an Event of Default, with on-line access to view account related activity
(such as deposits to and withdrawals from) the Collateral Account to view account related activity such as deposits to and withdrawals
from the Collateral Account. On the Reporting Date prior to each Payment Date, Agent shall deliver to Borrower a notice setting
forth the allocation of funds in the Collateral Account to be made on such Payment Date in accordance with Section 2.4 hereto (each
such notice, an “Allocation Notice”), provided, that the failure of Agent to deliver an Allocation Notice
to Borrower with respect to any Payment Date shall not affect any of the rights of Agent or any Lender or any obligation of Borrower under
this Agreement or any other Loan Document. Except with respect to any manifest error in any Allocation Notice, the application
of funds
45
pursuant to Section 2.4 for the following
Payment Date shall be made in accordance with such Allocation Notice.
(c) Irrevocable
Deposit. Any deposit made into the Collection Account or the Collateral Account hereunder shall, except as otherwise provided
herein, be irrevocable, and the amount of such deposit and any money, instruments, investment property or other property on deposit in,
carried in or credited to the Collection Account or the Collateral Account, as applicable, hereunder and all interest thereon shall be
held in trust by the Agent and applied solely as provided herein.
2.13 Registration
Rights
The Closing Date Warrant Holders
shall receive the registration rights set forth in Exhibit L with respect to the shares of Common Stock issuable upon exercise
of the Closing Date Warrants for the Maximum Warrant Shares in accordance with the Closing Date Warrants issued by Parent Entity to the
Closing Date Warrant Holders and in the amounts as set forth on Exhibit M hereto, on the Closing Date. Exhibit
L is incorporated herein by this reference. For the avoidance of doubt, the resale of the Closing Date Warrants by the
Closing Date Warrant Holders was registered pursuant to a Form S-1 filed on July 25, 2025.
III. FEES
AND OTHER CHARGES
3.1 Computation
of Fees; Lawful Limits
All fees hereunder shall be
computed on the basis of a 360-day year consisting of twelve 30-day months. In no contingency or event whatsoever, whether
by reason of acceleration or otherwise, shall the interest and other charges paid or agreed to be paid to Agent, for the benefit of itself
and the other Lenders, for the use, forbearance or detention of money hereunder exceed the Maximum Rate permissible under Applicable Law
which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. If, due to any circumstance
whatsoever, fulfillment of any provision hereof, at the time performance of such provision shall be due, shall exceed any such limit,
then the obligation to be so fulfilled shall be reduced to such lawful limit, and, if Agent or Lenders shall have received interest or
any other charges of any kind which might be deemed to be interest under Applicable Law in excess of the Maximum Rate, then such excess
shall be applied first to any unpaid fees and charges hereunder, then to unpaid principal balance owed by Borrower hereunder,
and if the then remaining excess interest is greater than the previously unpaid principal balance, Agent and Lenders shall promptly refund
such excess amount to Borrower and the provisions hereof shall be deemed amended to provide for such permissible rate. The
terms and provisions of this Section 3.1 shall control to the extent any other provision of any Loan Document is inconsistent
herewith.
3.2 Default
Rate of Interest
Upon the occurrence and during
the continuation of a Default or an Event of Default, the Applicable Rate of interest then in effect at such time with respect to the
Obligations shall be increased by three percent (3.0%) per annum (subject to the Maximum Rate) (the “Default Rate”). Interest
at the Default Rate shall accrue from the initial date of such Default or Event of Default
46
until such Default or Event of Default
is waived or ceases to continue, and shall be payable upon demand.
3.3 Increased
Costs; Capital Adequacy
(a) If
any Change in Law shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender (other than a Non-Funding Lender) and the result of any of the foregoing
shall be to increase the cost (other than for Indemnified Taxes, Excluded Taxes or Other Taxes) 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 otherwise), then Borrower will pay to such Lender on demand (which demand shall be accompanied
by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall
be furnished to Agent) such additional amount or amounts as will compensate Lender for such additional costs incurred or reduction suffered.
(b) If
any Lender (other than a Non-Funding Lender) determines that any Change in Law regarding capital requirements (other than in respect of
Taxes) 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 or the Loans made by such Lender to a level materially below that which such
Lender or such Lender’s holding company, as applicable, 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, as applicable, with respect to capital adequacy),
then from time to time Borrower will pay to such Lender on demand (which demand shall be accompanied by a statement setting forth the
basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to Agent) such
additional amount or amounts as will compensate such Lender’s or such Lender’s holding company, as applicable, for any such
reduction suffered.
(c) A
certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or such Lender’s holding company,
as the case may be, as specified in Sections 3.3(a) and (b), shall be delivered to Borrower and shall be conclusive absent
manifest error. Borrower shall pay such Lender on demand the amount shown as due on any such certificate pursuant to Section
2.4 of this Agreement.
(d) Failure
or delay on the part of any Lender to demand compensation pursuant to this Section 3.3 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 this Section
3.3 for any increased costs or reductions incurred more than 180 days prior to the date 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; provided
further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred
to above shall be extended to include the period of retroactive effect thereof.
(e) Each
Lender shall promptly notify Borrower and Agent of any event of which it has actual knowledge which will result in, and will use reasonable
commercial efforts
47
available to it (and not, in such Lender’s
sole judgment, otherwise disadvantageous to such Lender) to mitigate or avoid, (i) any obligation by Borrower to pay any amount pursuant
to Sections 3.3(a) or (b) or (ii) the occurrence of any circumstances described in Sections 3.3(a) or (b)
(and, if any Lender has given notice of any such event described in clause (i) or (ii) above and thereafter such event ceases to exist,
such Lender shall promptly so notify Borrower and Agent).
3.4 Administration
Fee
Borrower hereby agrees to
pay to Agent, solely for the account of Agent, an administration fee (the “Administration Fee”) in the sum of
Twelve Thousand Five Hundred and No/100 Dollars ($12,500), which fee shall be payable on the Closing Date and on the first Scheduled Payment
Date of each calendar quarter thereafter, in advance, for such calendar quarter.
3.5 [Reserved].
3.6 Additional
Interest.
(a) On
each Payment Date prior to the last day of the Revolving Credit Period, as well as on the Payment Date immediately following the expiration
of the Revolving Credit Period, Borrower shall pay to Agent, for the benefit of Lenders, with respect to the Due Period occurring since
the immediately prior Payment Date (or, with respect to the first Payment Date, for the Due Period occurring since the Closing Date and,
with respect to the Payment Date immediately following the expiration of the Revolving Credit Period, for the Due Period up to and including
the last day of the Revolving Credit Period), as additional interest (the “Unused Additional Interest”) an amount
equal to the product of (A) one-half of one percent (0.50%) multiplied by (B) the difference between the then-applicable Maximum Revolving
Loan Amount and the average daily principal balance of the Obligations for such period multiplied by (C) the number of days in the applicable
Due Period, divided by (D) 360.
(b) In
addition to the above, if, as of any Payment Date prior to the last day of the Revolving Credit Period, as well as on the Payment Date
immediately following the expiration of the Revolving Credit Period, the Utilization Ratio is less than the Minimum Utilization Ratio
for the correlative time period, Borrower shall pay to Agent, for the benefit of Lenders, with respect to the Due Period occurring since
the immediately prior Payment Date (or, with respect to the first Payment Date, for the Due Period occurring since the Closing Date and,
with respect to the Payment Date immediately following the expiration of the Revolving Credit Period, for the Due Period up to and including
the last day of the Revolving Credit Period), as additional interest an amount equal to (a) the Revolving Calculated Rate multiplied by
(b) the total amount of additional principal balance of the Revolving Advances that would have needed to be outstanding in order to cause
the Utilization Ratio to be equal to Minimum Utilization Ratio for the correlative time period (the “Minimum Utilization Additional
Interest” and together with the Unused Additional Interest, collectively, the “Additional Interest”).
For the avoidance of doubt, if the Minimum Utilization Additional Interest is paid on any Payment Date, the Borrower shall not be required
to pay any Unused Additional Interest solely with respect to the total amount of additional principal balance of the Loan that would have
needed to be outstanding in order to cause the Utilization Ratio to be equal to Minimum Utilization Ratio for the correlative time period.
48
(c) Upon
the repayment in full of the principal amount of the Loans and the termination of all of the Revolving Loan Commitments, pursuant to (i)
a voluntary prepayment under Section 2.5(b), (ii) a mandatory prepayment under Section 2.6(a) or 2.6(b), (iii) the
occurrence of the Maturity Date under Section 2.1, or (iv) Agent’s acceleration of the Obligations or termination of its
obligations hereunder, Borrower shall pay to Agent upon the occurrence thereof, for the benefit of Class A Lenders, exit additional interest
of $681,250 (the “Exit Additional Interest”) without set-off, counterclaim or deduction of any kind. For
the avoidance of doubt, the Exit Additional Interest shall not accrue interest or be treated as principal outstanding hereunder.
IV. CONDITIONS
PRECEDENT
4.1 Conditions
to Closing
The obligations of Agent and
Lenders to consummate the transactions contemplated herein and the obligations of Lenders to make the initial Revolving Advance under
the Loan are subject to the satisfaction (or waiver), in the sole judgment and discretion of Agent, of the following:
(a) Borrower
shall have delivered to Agent (i) a Note payable to each requesting Lender that has requested a Note at least three Business Days
prior to the Closing Date in an aggregate amount up to such Lender’s Revolving Loan Commitment, (ii) [reserved], (iii) the other
Loan Documents to which it or any Guarantor is a party, each duly executed by a Responsible Officer of Borrower and the Guarantors parties
thereto, and (iv) a Borrowing Base Certificate for the initial Revolving Advances, executed by a Responsible Officer of Borrower;
(b) all
in form and substance satisfactory to Agent in its Permitted Discretion, Agent shall have received (i) a report of UCC financing statement,
bankruptcy, tax and judgment lien searches performed with respect to Borrower and each Guarantor in each jurisdiction determined by Agent
in its Permitted Discretion, and such report shall show no Liens on the Collateral (other than Permitted Liens), (ii) each document
(including, without limitation, any UCC financing statement) required by any Loan Document or under law or requested by Agent to be filed,
registered or recorded to create, in favor of Agent, for the benefit of itself and the other Lenders, a first priority and perfected security
interest upon the Collateral, and (iii) evidence of each such filing, registration or recordation and of the payment by Borrower
of any necessary fee, tax or expense relating thereto;
(c) Agent
shall have received (i) the Charter and Good Standing Documents of Borrower and each Guarantor (to the extent applicable), all in form
and substance acceptable to Agent in its Permitted Discretion, (ii) a certificate of the secretary or assistant secretary of Borrower
and each Guarantor in his or her capacity as such and not in his or her individual capacity dated the Closing Date, as to the incumbency
and signature of the Persons executing the Loan Documents on behalf of such Person in form and substance acceptable to Agent in its Permitted
Discretion, and (iii) a certificate executed by an authorized officer of Borrower, which shall constitute a representation and warranty
by Borrower as of the Closing Date that the conditions contained in this Agreement have been satisfied;
49
(d) Agent
shall have received the written legal opinions of Borrower’s and Guarantor’s outside legal counsel regarding certain customary
closing matters;
(e) Agent
shall have received a certificate of the chief financial officer (or, in the absence of a chief financial officer, the chief executive
officer) of Borrower, in his or her capacity as such and not in his or her individual capacity, in form and substance satisfactory to
Agent in its Permitted Discretion (each, a “Solvency Certificate”), certifying the solvency of Borrower, after
giving effect to the transactions and the Indebtedness contemplated by the Loan Documents;
(f) Agent
shall have completed examinations, the results of which shall be satisfactory in form and substance to Agent, in its Permitted Discretion,
of Borrower and each Guarantor, including, without limitation, (i) an examination of background checks with respect to the chief
executive officer, chief financial officer and chief operating officer of Holdings and (ii) an examination of the Collateral and the Underwriting
Guidelines, and Borrower shall have demonstrated to Agent’s satisfaction, in its Permitted Discretion, that (x) the forms of Portfolio
Documents used by Borrower and Holdings comply, in all respects deemed material by Agent, in its Permitted Discretion, with all Applicable
Law and (y) no operations of Borrower or Holdings are the subject of any governmental investigation, evaluation or any remedial action
which would be reasonably expected to result in it being unable to perform its obligations in connection with these transactions, and
(z) Borrower has no liabilities or obligations (whether contingent or otherwise), other than the Obligations, that are deemed material
by Agent, in its Permitted Discretion;
(g) Agent
shall have received all fees, charges and expenses due and payable to Agent and Lenders on or prior to the Closing Date pursuant to the
Loan Documents;
(h) upon
giving effect to the waiver set forth in Section 12.14(f), no Event of Default shall exist and be continuing under this Agreement or any
other Loan Document;
(i) all
corporate and other proceedings, documents, instruments and other legal matters of Borrower and any Guarantor (to the extent applicable)
in connection with the transactions contemplated by the Loan Documents (including, but not limited to, those relating to corporate and
capital structures of the Borrower) shall be satisfactory to Agent in its Permitted Discretion;
(j) the
making of the Loans shall not contravene in any material respects any Applicable Laws and there shall exist no Material Adverse Effect;
(k) each
Lender shall have received all required internal approvals;
(l) Agent
shall have received evidence of release and termination of, or Agent’s authority to release and terminate, any and all Liens and/or
UCC financing statements in, on, against or with respect to any of the Collateral (other than Permitted Liens);
(m) Agent
shall have received the Amendment No. 1 to Backup Servicing Agreement, duly executed by the parties thereto;
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(n) the
board observer Designee shall have been appointed in accordance with Section 6.18 hereof; and
(o) the
Closing Date Warrants shall have been issued and delivered to the Closing Date Warrant Holders and in the amounts as set forth next to
each such Closing Date Warrant Holder’s name on Exhibit M.
For purposes of determining
whether the conditions specified in this Section 4.1 have been satisfied on the Closing Date, Agent and each Lender, by delivering its
signature page to this Agreement, shall be deemed to have consented to, approved or accepted, or to be satisfied with each document or
other matter required hereunder to be consented to or approved by or acceptable or satisfactory to Agent or such Lender as the case may
be. The parties hereto hereby agree that, notwithstanding any other provision hereof, the Closing Date is June 12, 2025.
4.2 Conditions
to Initial Revolving Advances and Subsequent Revolving Advances
The obligations of Lenders
to make any Revolving Advance under the Loan are subject to the satisfaction (or waiver), in the sole judgment and discretion of Agent,
of the following:
(a) Borrower
shall have delivered to Agent, not later than 12:59 p.m. (Eastern Standard Time) two (2) Business Days prior to the proposed date for
such requested Revolving Advance, a request for advance in the form of Exhibit F hereto (a “Request for Revolving Advance”),
and a Borrowing Base Certificate for such Revolving Advance with necessary supporting documentation executed by a Responsible Officer
of Borrower, which shall constitute a representation and warranty by Borrower as of the date of such Revolving Advance that the conditions
contained in this Section 4.2 have been satisfied;
(b) Borrower
shall own or, after payment of the purchase price pursuant to the Purchase and Sale Agreement, will have the unconditional right to purchase
from Holdings, the Leases to be financed by such Revolving Advance and the Inventory related to such Leases free and clear of any Liens,
encumbrances or other rights of third parties, with respect to any of the Leases or other Collateral sold to Borrower pursuant to the
Purchase and Sale Agreement, and Agent shall have received evidence satisfactory to Agent that all such Liens have been released and UCC
Financing Statements terminated or partially released and filed;
(c) each
of the representations and warranties made by Borrower or any Affiliate of the Borrower in or pursuant to the Loan Documents shall be
accurate in all material respects before and after giving effect to the making of such Revolving Advance (except for those representations
and warranties made as of a specific date) and no Default or Event of Default shall have occurred or be continuing or would exist after
giving effect to the requested Revolving Advance on such date;
(d) immediately
after giving effect to the requested Revolving Advance, the aggregate outstanding principal amount of Advances under the Loan shall not
exceed the lesser of (i) the Maximum Revolving Loan Amount and (ii) the Borrowing Base;
(e) Agent
shall have received all fees, charges and expenses to the extent due and payable to Agent and Lenders on or prior to such date pursuant
to the Loan Documents;
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(f) there
shall not have occurred any Material Adverse Effect; and
(g) Backup
Servicer shall have received the Verification Deliverables with respect to each Lease to be pledged pursuant to such Revolving Advance,
and shall have issued and delivered to Agent a Verification Certificate (without any exceptions noted thereon unless otherwise waived
by Agent) provided for in the Backup Servicing Agreement, all in form and substance acceptable to Agent at its Permitted Discretion.
V. REPRESENTATIONS
AND WARRANTIES
Each Credit Party represents
and warrants, as of the Closing Date and as of the date of any Request for Revolving Advance and the making of each Advance and, solely
with respect to Section 5.3, as of immediately prior to the exercise of the Closing Date Warrants and the issuance of the Maximum
Warrant Shares upon the exercise of the Closing Date Warrants, as follows:
5.1 Organization
and Authority
Borrower is a limited liability
company, duly organized, validly existing and in good standing under the laws of its state of organization. Each Guarantor
is a corporation, duly organized, validly existing and in good standing under the laws of its state of organization. Each Credit
Party (a) has all requisite power and authority to own its properties and assets (including, without limitation, the Collateral) and to
carry on its business as now being conducted and as contemplated in the Loan Documents, and (b) is duly qualified to do business
in each jurisdiction in which failure to so qualify could reasonably be likely to have or result in a Material Adverse Effect. Each
Credit Party has all requisite power and authority (i) to execute, deliver and perform the Loan Documents to which it is a party,
(ii) with respect to Borrower, to acquire the Pledged Leases and other Collateral under the Purchase and Sale Agreement, (iii) to
consummate the transactions contemplated under the Loan Documents to which it is a party, and (iv) to grant the Liens with regard
to the Collateral pursuant to the Security Documents to which it is a party. Borrower has all requisite power and authority
to borrow hereunder. No Credit Party is an “investment company” registered or required to be registered under the
Investment Company Act of 1940, as amended, nor controlled by such an “investment company.” No transaction contemplated
in this Agreement or the other Loan Documents requires compliance with any bulk sales act or similar law.
5.2 Loan
Documents
The execution, delivery and
performance by each Credit Party of the Loan Documents to which it is a party, and the consummation by such parties of the transactions
contemplated thereby, (a) have been duly authorized by all requisite action of such parties and have been duly executed and delivered
by such parties; (b) do not violate any provisions of (i) any Applicable Law, (ii) any order of any Governmental Authority
binding on any such party or any of their respective properties, or (iii) the limited liability company agreement (or any other equivalent
governing agreement or document) of any such party, or any agreement between any such party and its equity owners or among any such equity
owners; (c) are not in conflict with, and do not result in a breach or default of or constitute an event of default, or an event,
fact, condition or circumstance which, with notice or passage of time, or both, would constitute or result in a conflict, breach, default
or
52
event of default under, any indenture, agreement
or other instrument to which any such party is a party, or by which the properties or assets of such party are bound, the effect of which
could reasonably be expected to be, have or result in a Material Adverse Effect; (d) except as set forth herein or therein, will
not result in the creation or imposition of any Lien of any nature upon any of the properties or assets of such party, and (e) except
for filings in connection with the perfection of Agent’s Liens, do not require the consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority or any other Person that has not been obtained. When executed
and delivered, each of the Loan Documents will constitute the legal, valid and binding obligation of each party signatory thereto (other
than Agent and the Lenders), enforceable against such parties in accordance with its terms, subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors’ rights generally and to the
effect of general principles of equity (whether in a proceeding at law or in equity). The Purchase and Sale Agreement is the
only agreement pursuant to which the Borrower purchases the Pledged Leases and the related Collateral. The Borrower has furnished
to the Agent a true, correct and complete copy of the Purchase and Sale Agreement. The purchase by the Borrower under the Purchase
and Sale Agreement constitutes a true sale at a fair market valuation enforceable against creditors of Holdings and is not merely a financing
or extension of credit.
5.3 Requisite
Stockholder Approval
At the time of (i) any
exercise of the Closing Date Warrants and the issuance of Maximum Warrant Shares upon the exercise of the Closing Date Warrants and (ii)
if applicable, an amendment to the charter to increase the authorized and unissued Common Stock of the Parent Entity to provide that the
authorized share capital of the Parent Entity is sufficient to issue the Maximum Warrant Shares under the Closing Date Warrants (collectively,
the “Requisite Special Stockholder Meeting Items”), such Requisite Special Stockholder Meeting Items, in each
case, shall have been duly authorized by all requisite action of the (x) Parent Entity, (y) its board of directors and (z) a majority
of votes cast by the Parent Entity’s stockholders at the Requisite Special Stockholder Meeting, in each case, in a manner acceptable
to Agent in its Permitted Discretion (such approval of all Requisite Special Stockholder Meeting Items, the “Requisite Stockholder
Approval”); notwithstanding the foregoing, the Closing Date Warrants shall be exercisable irrespective of the outcome of
the Requisite Stockholder Approval. For the avoidance of doubt, the Requisite Special Stockholder Meeting was held on August
6, 2025 and the Requisite Stockholder Approval was obtained at such meeting.
5.4 Subsidiaries,
Capitalization and Ownership Interests
Borrower has no Subsidiaries
as of the Closing Date. 100% of the outstanding Equity Interest in the Borrower is directly owned (both beneficially and of
record) by Holdings. The outstanding ownership or voting interests of Borrower have been duly authorized and validly issued. Schedule 5.4
lists the managers or managing members or directors of each Credit Party as of the Closing Date. Borrower does not (i) own
any Investment Property or (ii) own any interest or participate or engage in any joint venture, partnership or similar arrangements
with any Person. Borrower will only purchase Leases and other Collateral pursuant to the Purchase and Sale Agreement with Holdings.
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5.5 Properties
Borrower is the lawful owner
of, and has good title to, each Pledged Lease, free and clear of any Liens (other than the Lien of this Agreement and any Permitted Liens).
5.6 Other
Agreements
No Credit Party is (a) a
party to any judgment, order or decree or any agreement, document or instrument, or subject to any restriction, which would have a Material
Adverse Effect its ability to execute and deliver, or perform under, any Loan Document or to pay the Obligations or (b) in default
in the performance, observance or fulfillment of any obligation, covenant or condition contained in any agreement, document or instrument
to which it is a party or to which any of its properties or assets are subject, which default, if not remedied within any applicable grace
or cure period, could reasonably be expected to be, have or result in a Material Adverse Effect, nor is there any event, fact, condition
or circumstance which, with notice or passage of time or both, would constitute or result in a conflict, breach, default or event of default
under, any of the foregoing which, if not remedied within any applicable grace or cure period could reasonably be expected to be, have
or result in a Material Adverse Effect.
5.7 Litigation
(a) No Credit Party is
a party to any material pending or, to the knowledge of Borrower or Holdings, threatened action, suit, proceeding or investigation related
to its respective business that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (b) there
is no pending or, to the knowledge of any Credit Party, threatened action, suit, proceeding or investigation against any such Credit Party
that could reasonably be expected to prevent or materially delay the consummation by such Credit Party of the transactions contemplated
herein, (c) no Credit Party is a party or subject to any order, writ, injunction, judgment or decree of any Governmental Authority and
(d) there is no action, suit, proceeding or investigation initiated by any Credit Party currently pending that could, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.8 Tax
Returns; Taxes
Each Credit Party has timely
filed or caused to be timely filed all federal, state, local and foreign tax returns which are required to be filed by such Credit Party,
has paid or caused to be paid all taxes shown thereon to be due and owing by it, and Borrower has paid or caused to be paid all property
taxes due and owing by it with respect to any Inventory related to Pledged Leases except for (i) any taxes or assessments, the validity
of which are being contested in good faith by appropriate proceedings timely instituted and diligently pursued and with respect to which
such Credit Party has set aside adequate reserves on its books in accordance with GAAP and which proceedings have not given rise to any
Lien or (ii) any taxes or assessments which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
5.9 Financial
Statements and Reports
All financial statements and
financial information relating to Borrower, Holdings, Katapult Intermediate IIIMidco
or Parent Entity that have been or may hereafter be delivered to Agent by
54
Borrower, Holdings, Katapult Intermediate
IIIMidco or Parent Entity (a) are consistent with
the books of account and records of Borrower, Holdings, Katapult Intermediate IIIMidco
or Parent Entity, (b) have been prepared in accordance with GAAP, on a consistent basis throughout the indicated periods, except that
the unaudited financial statements contain no footnotes or year-end adjustments, and (c) present fairly in all material respects the financial
condition, assets and liabilities and results of operations of Borrower, Holdings, Katapult Intermediate
IIIMidco and Parent Entity at the dates and for the
relevant periods indicated in accordance with GAAP on a basis consistently applied. Neither Borrower, Holdings, Katapult Intermediate
IIIMidco nor Parent Entity has any material obligations
or liabilities of any kind required to be disclosed therein that are not disclosed in such financial statements, and since the date of
the most recent financial statements submitted to Agent pursuant to Section 6.1, there has not occurred any Material Adverse Effect.
5.10 Compliance
with Law
Each Credit Party (a) is in
compliance with all Applicable Laws, and (b) is not in violation of any order of any Governmental Authority or other board or tribunal,
except, in the case of both (a) and (b), where noncompliance or violation could not reasonably be expected to be, have or result in a
Material Adverse Effect. No Credit Party has received any written notice that such Credit Party is not in material compliance
in any respect with any of the requirements of any of the foregoing. No Credit Party has established or maintains or contributes
(or has an obligation to contribute) to, or otherwise has any liability (including any liability as an ERISA Affiliate of another entity)
with respect to any “employee benefit plan” that is covered by Title IV of ERISA or Section 412 of the Code. Each
Credit Party has maintained in all material respects all records required to be maintained by any applicable Governmental Authority, except
where the failure to do so could not reasonably be expected to have a Material Adverse Effect. Since its formation, Borrower
has not engaged, directly or indirectly, in any business other than the activities set forth herein and in the Purchase and Sale Agreement
and the Loan Documents.
5.11 Intellectual
Property
Other than as provided on
Schedule 5.11, as of the Closing Date, no Credit Party owns any patents or trademarks that are registered with the United States
Patent and Trademark Office or any copyrights that are registered with the United States Copyright Office. No Credit Party
is in breach of or default under the provisions of any license agreement, domain name registration or other agreement related to intellectual
property, nor is there any event, fact, condition or circumstance which breach or default would reasonably be expected to be, have or
result in a Material Adverse Effect.
5.12 Licenses
and Permits; Labor
Each Credit Party is in compliance
with and have all Permits necessary or required by Applicable Law or any Governmental Authority for the operation of their respective
businesses as presently conducted and as proposed to be conducted except where noncompliance, violation or lack thereof could not reasonably
be expected to be, have or result in a Material Adverse Effect. All Permits necessary or required by Applicable Law or Governmental
Authority for the operation of each Credit Party’s businesses are in full force and effect and not in known conflict with the
55
rights of others, except where such conflict
or lack of being in full force and effect could not reasonably be expected to be, have or result in a Material Adverse Effect. No
Credit Party has been involved in any labor dispute, strike, walkout or union organization which could reasonably be expected to be, have
or result in a Material Adverse Effect.
5.13 No
Default; Solvency
There does not exist any Default
or Event of Default. Each Credit Party is and, after giving effect to the transactions and the Indebtedness contemplated by
the Loan Documents, will be solvent and able to meet its obligations and liabilities as they become due, and the assets of the each Credit
Party, at a Fair Valuation, exceed the total liabilities (including contingent, subordinated, unmatured and unliquidated liabilities)
of such Credit Party, and no unreasonably small capital base exists with respect to such Credit Party.
5.14 Disclosure
No Loan Document nor any other
agreement, document, certificate, or statement furnished to Agent and Lenders and prepared by or on behalf of any Credit Party in connection
with the transactions contemplated by the Loan Documents, nor any representation or warranty made by any Credit Party in any Loan Document,
contains any untrue statement of material fact or omits to state any fact necessary to make the factual statements therein taken as a
whole not materially misleading in light of the circumstances under which it was furnished. There is no fact known to any Credit
Party which has not been disclosed to Agent in writing which could reasonably be expected to be, have or result in a Material Adverse
Effect.
5.15 Existing
Indebtedness; Investments, Guarantees and Certain Contracts
No Credit Party (a) has any
outstanding Indebtedness, except Indebtedness under the Loan Documents or (b) owns or holds any equity or long-term debt investments
in, or have any outstanding advances to or any outstanding guarantees for, the obligations of, or any outstanding borrowings from, any
other Person, except as permitted under Section 7.3.
5.16 Affiliated
Agreements
Except for the Loan Documents,
the Charter and Good Standing Documents of the Borrower and those set forth on Schedule 5.16, (i) there are no existing or proposed
agreements, arrangements, understandings or transactions between Borrower, on the one hand, and Borrower’s members, managers, managing
members, investors, officers, directors, stockholders, other equity holders, employees, or Affiliates or any members of their respective
families, on the other hand, and (ii) to Borrower’s knowledge, none of the employees or officers of the Parent Entity or its Subsidiaries
are directly or indirectly, indebted to or have any direct or indirect ownership or voting interest in any Person with which Borrower
has a business relationship or which competes with Borrower (except that any such Person may own Equity Interests in any publicly traded
company that may compete with Borrower).
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5.17 Insurance
As of the Closing Date, Borrower
has in full force and effect such insurance policies as are listed on Schedule 5.17.
5.18 Names;
Location of Offices, Records and Collateral; Deposit Accounts and Investment Property
No Credit Party nor any of
its predecessors has conducted business under or used any name (whether corporate, partnership or assumed) other than as shown on Schedule
5.18A. Each Credit Party is (or such Credit Party’s predecessors were) the sole owner(s) of all of its names listed
on Schedule 5.18A, and any and all business done and invoices issued in such names are such Credit Party’s (or any such
predecessors’) sales, business and invoices. Each Credit Party maintains its respective places of business and chief
executive offices only at the locations set forth on Schedule 5.18B or, after the Closing Date, as additionally disclosed
to Agent in writing, and all Leases of Borrower arise, originate and are located, and all of the Collateral and all books and records
in connection therewith or in any way relating thereto or evidencing the Collateral are located and shall be only, in and at such locations
(other than (i) Deposit Accounts, and (ii) Collateral in the possession of Agent or the Backup Servicer). All of the Collateral
is located only in the continental United States. Schedule 5.18C lists all of Borrower’s Deposit Accounts and
Investment Property as of the Closing Date.
5.19 Non-Subordination
None of the Obligations are
subordinated in any way to any other obligations of Borrower, any other Credit Party or to the rights of any other Person.
5.20 Leases
With respect to each Pledged
Lease, Borrower continuously warrants and represents to Agent and Lenders that until the Maturity Date and so long as any of its Obligations
remain unpaid: (i) as of the Closing Date and each date any Revolving Advance is made, each of the Pledged Leases set forth
in the Borrowing Base Certificate delivered in connection therewith constitutes an Eligible Lease and (ii) in determining which Leases
are “Eligible Leases,” Lender may rely upon all statements or representations made by Borrower.
5.21 Servicing
Borrower has entered into
the each Servicing Agreement with Servicer pursuant to which Borrower has engaged each Servicer, as servicer and as Borrower’s agent,
to monitor, manage, enforce and collect the Pledged Leases and disburse any collections in respect thereof as provided by the applicable
Servicing Agreement, subject to this Agreement. Borrower acknowledges that each Servicer has the requisite knowledge, experience,
expertise and capacity to service the Pledged Leases.
5.22 Legal
Investments; Use of Proceeds
57
No Credit Party is engaged
in the business of extending credit for the purpose of purchasing or carrying any “margin stock” or “margin security”
(within the meaning of Regulations T, U or X issued by the Board of Governors of the Federal Reserve System), and no proceeds of the Loan
will be used to purchase or carry any margin stock or margin security or to extend credit to others for the purpose of purchasing or carrying
any margin stock or margin security.
5.23 Broker’s
or Finder’s Commissions
No broker’s, finder’s
or placement fee or commission will be payable to any broker or agent engaged by Borrower or any of its officers, directors or agents
with respect to the Loan or the transactions contemplated by this Agreement. Each Credit Party, jointly and severally, agree
to indemnify Agent and each Lender and each of their respective Affiliates and hold Agent and each Lender and each of their respective
Affiliates harmless from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, reasonable fees and disbursements
of counsel, but limited, in the case of legal fees and expenses, to the reasonable and documented fees, disbursements and expenses of
one regulatory counsel and one other firm of outside counsel to Agent and each Lender and each of their respective Affiliates taken as
a whole and, solely in the case of an actual or potential conflict of interest, one additional firm of outside counsel to each group of
similarly situated Persons), which may be imposed on, incurred by or asserted against Agent, any Lender or any of their respective Affiliates
with respect to or arising out of, or in any litigation, proceeding or investigation instituted or conducted by any Person with respect
to broker’s, finder’s or placement fees or similar commissions, whether or not payable by such Credit Party or their respective
Affiliates, alleged to have been incurred in connection with such transactions, other than any broker’s or finder’s fees payable
to Persons engaged by Agent and/or Lenders or their respective Affiliates without the knowledge of the such Credit Party. Agent
and each Lender, jointly and severally, agree to indemnify Credit Parties and each of their respective Affiliates and hold Credit Parties
and each of their respective Affiliates harmless from and against any and all claims, demands, liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation,
reasonable fees and disbursements of counsel, but limited, in the case of legal fees and expenses, to the reasonable and documented fees,
disbursements and expenses of one firm of outside counsel to Credit Parties and each of their respective Affiliates taken as a whole and,
solely in the case of an actual or potential conflict of interest, one additional firm of outside counsel to each group of similarly situated
Persons) which may be imposed on, incurred by or asserted against any Credit Party or any of their respective Affiliates with respect
to or arising out of, or in any litigation, proceeding or investigation instituted or conducted by any Person with respect to broker’s,
finder’s or placement fees or similar commissions, whether or not payable by the Agent, any Lender or their respective Affiliates,
alleged to have been incurred in connection with such transactions, other than any broker’s or finder’s fees payable to Persons
engaged by any Credit Party or their respective Affiliates without the knowledge of the Agent or Lenders.
5.24 Anti-Terrorism;
OFAC
(a) (i) Neither
Borrower, Holdings nor any Guarantor nor any Person controlling or controlled by Borrower, Holdings or any Guarantor, nor any Person for
whom
58
Borrower, Holdings or any Guarantor is acting
as agent or nominee in connection with this transaction (“Transaction Persons”) (1) is a Person whose property
or interest in property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (2)
engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such Person
in any manner violative of Section 2 of such executive order, or (3) is a Person on the list of Specially Designated Nationals and Blocked
Persons or is in violation of the limitations or prohibitions under any other OFAC regulation or executive order.
(b) No
part of the proceeds of the Loans will be used, directly or indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain,
retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.
(c) Borrower
acknowledges by executing this Agreement that Agent has notified Borrower and each Guarantor that, pursuant to the requirements of the
Patriot Act, Agent is required to obtain, verify and record such information as may be necessary to identify Borrower and each Guarantor
(including, without limitation, the name and address of Borrower and each Guarantor) in accordance with the Patriot Act.
5.25 Survival
Borrower hereby makes the
representations and warranties contained herein with the knowledge and intention that Agent and Lenders are relying and will rely thereon. All
such representations and warranties will survive the execution and delivery of this Agreement, the Closing and the making of any and all
Advances.
VI. AFFIRMATIVE
COVENANTS
Each Credit Party covenants
and agrees that, until the indefeasible payment in full in cash, of all the Obligations (other than indemnity obligations that are not
then due and payable or with respect to which no claim has been made) and termination of this Agreement:
6.1 Financial
Statements, Reports and Other Information
(a) Financial
Reports. Borrower shall furnish to Agent (i) as soon as available and in any event within thirty (30) calendar days after
the end of each calendar month of Parent Entity, unaudited monthly financial statements of Parent Entity and its Subsidiaries on a consolidated
basis consisting of a balance sheet and statements of income and cash flows as of the end of the immediately preceding calendar month,
(ii) as soon as available and in any event within one hundred fifty (150) calendar days after the end of each fiscal year of Parent Entity,
audited annual financial statements of Parent Entity on a consolidated and consolidating basis, including the notes thereto, consisting
of a balance sheet at the end of such completed fiscal year and the related statements of income, retained earnings, cash flows and owners’
equity for such completed fiscal year, which financial statements shall be prepared and certified without qualification (except for any
qualification pertaining to, or disclosure of an exception or qualification resulting from,
59
the maturity (or impending maturity) of any Revolving
Loan Commitment or any Revolving Advance made thereunder) by Deloitte & Touche LLP or such other independent certified public accounting
firm mutually agreeable to Agent and Borrower and accompanied by related management letters, if available and (iii) no later than thirty
(30) days after the beginning of Parent Entity’s and Borrower’s fiscal years, a month by month projected operating budget
and cash flow of Parent Entity and its Subsidiaries for such fiscal year (including an income statement for each month and a balance sheet
as at the end of the last month in each fiscal quarter). All such financial statements shall be prepared in accordance with
GAAP consistently applied with prior periods (subject, as to interim statements, to lack of footnotes and year-end adjustments). Concurrently
with the delivery of (x) the quarterly financial statements of Parent Entity and (y) the Monthly Servicing Report, Borrower shall also
deliver a compliance certificate of a Responsible Officer of Borrower in the form satisfactory to Agent stating that (A) such person has
reviewed the relevant terms of the Loan Documents and the condition of Borrower, (B) no Default or Event of Default has occurred or is
continuing, or, if any of the foregoing has occurred or is continuing, specifying the nature and status and period of existence thereof
and the steps taken or proposed to be taken with respect thereto and (C) no Material Adverse Effect has occurred since the last delivery
of such monthly financial statements or Monthly Servicing Report, as applicable.
(b) Servicing
Reports and Information; Borrowing Base Certificates; Approved Consultant.
(i) As
soon as available, and in any event not later than the fifteenth (15th) of each calendar month or if such day is not a Business
Day than on the immediately preceding Business Day (or, upon the request of Agent, at any time following the occurrence and continuance
of an Event of Default), Borrower shall cause Servicer to deliver to Agent and Backup Servicer, a Monthly Servicing Report, in computer
file form reasonably accessible and usable by Agent and Backup Servicer showing, as of the end of the immediately preceding calendar month,
with respect to all Leases, the information contained in the form of Monthly Servicing Report attached hereto as Exhibit C (which
Monthly Servicing Report shall include Servicer’s calculation of the Current Lease Balance with respect to each Pledged Lease) and
such other matters as Agent may from time to time reasonably request, all prepared by Servicer and certified as to being true, correct
and complete in all material respects by the Servicer. Together with the Monthly Servicing Report delivered to Agent as set
forth above, Borrower shall deliver to Agent, in a form and substance acceptable to Agent, a monthly roll rate report and first payment
default report (each in form and substance and with details and reporting information acceptable to Agent), on the entire portfolio of
Leases owned by Borrower.
(ii) As
soon as available, and in any event not later than two (2) Business Days prior to each Payment Date (each such date, a “Reporting
Date”) (or, upon the request of Agent, at any time following the occurrence and continuance of an Event of Default), Borrower
shall cause Servicer to deliver to Backup Servicer, in computer “data tape” form, all of the loan-level data generated by
the Servicer with respect to the Leases, (including, but not limited to, data related to collections, defaults, Servicer’s calculation
of the Current Lease Balance with respect to each Pledged Lease, and such other matters as Agent or Backup Servicer may from time to time
reasonably request), all prepared by Servicer and certified as to being true, correct and complete in all material respects by the Servicer.
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(iii) As
soon as available, and in any event not later than the Reporting Date prior to each Payment Date (or, upon the request of Agent, at any
time following the occurrence and continuance of an Event of Default), Borrower shall deliver a Borrowing Base Certificate to Agent, without
regard to whether any Revolving Advances have been requested in the calendar week in which such Payment Date (or request) occurs.
(iv) The
Borrower shall promptly furnish or cause to be furnished to the Agent any other financial information regarding Borrower and/or the Pledged
Leases reasonably requested by the Agent (including, from and after the date that is twenty-one (21) days after the Closing Date, to the
extent reasonably requested by the Agent from time to time), evidence to the effect that Borrower, and Servicer have caused the portions
of the computer files relating to the Pledged Leases pledged to the Agent to be clearly and unambiguously marked to indicate that such
Leases constitute part of the Collateral pledged by the Borrower in accordance with the terms of the Loan Documents).
(v) Notwithstanding
the foregoing or anything to the contrary contained herein, Borrower and Servicer hereby agree to continue to retain BRG (or another consultant
acceptable to Agent in its sole discretion) (an “Approved Consultant”) for purposes of preparing and delivering
Borrowing Base Certificates, Monthly Servicing Reports, and all other similar “loan-level data” with respect to the Leases
and other Collateral. The scope and duties of the Approved Consultant shall be acceptable to Agent in its sole discretion and the Borrower
and Servicer shall continue to engage such Approved Consultant until such time as the Agent determines, in its sole discretion, that the
Approved Consultant’s services are no longer appropriate. For the avoidance of doubt, the use of an Approved Consultant
by the Borrower and Servicer shall not relieve Borrower or Servicer of any of its obligations and responsibilities hereunder to the Agent
and the Borrower and Servicer shall remain obligated and liable for the servicing and administering of the Leases in accordance with this
Agreement and the Servicing Agreement without diminution of such obligation or liability by virtue of such consulting arrangement. For
the avoidance of doubt, any failure of the Approved Consultant to provide such services to the satisfaction of the Agent (including any
breach by the Approved Consultant of its engagement terms) shall not constitute a breach, Default or Event of Default hereunder unless
such failure was caused directly by a Credit Party or any other Person controlled by a Credit Party.
(c) Notices. Each
Credit Party shall promptly, and in any event within five (5) Business Days after the end of each calendar month notify Agent in writing
of (i) any notice any Credit Party or any of their respective Subsidiaries received of any material litigation, claims, offsets,
protests or disputes asserted by any Account Lessee with respect to the Pledged Leases, (ii) any pending or threatened legal action,
litigation, suit, investigation, arbitration, dispute resolution proceeding or administrative or regulatory proceeding brought or initiated
or threatened in writing by or against any Credit Party or otherwise affecting or involving or relating to any Credit Party or any of
its property or assets in an amount in excess of $500,000, (iii) any Default or Event of Default, which notice shall specify the nature
and status thereof, the period of existence thereof and what action is proposed to be taken with respect thereto, (iv) any other
development, event, fact, circumstance or condition that could reasonably be expected to be, have or result in a Material Adverse Effect,
in each case describing the nature and status thereof and the action proposed to be taken with respect thereto, (v) any matter(s)
known to any Credit Party and in existence at any one time materially adversely affecting the value, enforceability or collectability
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of any material portion of the Collateral, (vi)
receipt of any material notice, inquiry, investigation, legal action or proceeding or request from any Governmental Authority, (vii) receipt
of any notice or document by any Credit Party regarding any lease of real property of Borrower (and such notice shall include a copy of
the notice or document), (viii) any lease of real property entered into by any Credit Party after the Closing Date, (ix) the filing,
recording or assessment of any federal, state, local or foreign tax lien against the Collateral or any Credit Party which becomes known
to such Credit Party, (x) any action taken or, to Borrower’s knowledge, threatened to be taken by any Governmental Authority
(or any notice of any of the foregoing) with respect to Borrower which could reasonably be expected to be, have or result in a Material
Adverse Effect or with respect to any Collateral, (xi) any change in the corporate name of any Credit Party, and/or (xii) the loss, termination
or expiration of any material contract to which such Credit Party is a party or by which its properties or assets are subject or bound.
(d) Notwithstanding
the foregoing, Agent may, upon written notice to Parent Entity, temporarily waive the reporting requirements of Parent Entity and its
Subsidiaries under this Section 6.1 until such date as indicated by Agent in a subsequent written notice provided to Parent Entity.
(e) Katapult
Merger Transaction. Promptly, and in any event within one (1) Business Day after the Closing Date (as defined in the Katapult Merger
Agreement), Borrower shall furnish to Agent (i) fully executed copies of all of the documents required to be delivered under the Katapult
Merger Agreement as a condition to the Katapult Merger Transaction, including, without limitation, pursuant to Sections 8.5, 9.5 and 10.5
of the Katapult Merger Agreement, (ii) a certificate, executed by the chief executive officer of Parent Entity, in his or her capacity
as such and not in his or her individual capacity, in form and substance reasonably satisfactory to Agent, certifying that all of the
conditions to the Katapult Merger Transaction have been satisfied or waived by applicable parties to the Katapult Merger Agreement and
(iii) such additional documents, instruments and information as Agent may have reasonably requested in writing with respect to the Katapult
Merger Agreement or the Katapult Merger Transaction.
6.2 Payment
of Obligations
Borrower shall make full and
timely indefeasible payment in cash of the principal of and interest on the Loan and all other Obligations when due and payable (other
than indemnity obligations that are not then due and payable or with respect to which no claim has been made), provided, however,
that to the extent the Agent has indicated in any Allocation Notice that amounts on deposit in the Collateral Account are to be applied
as of any applicable Payment Date to the amounts due and owing pursuant to Section 2.4, and such application is actually made on
such Payment Date, or in the event Agent, in breach of this Agreement, fails to make such application, Borrower shall be deemed to have
made all such payments as of the Payment Date.
6.3 Conduct
of Business and Maintenance of Existence and Assets
Each Credit Party shall (a)
maintain all of its tangible Collateral used or useful in its business in good repair, working order and condition (normal wear and tear
excepted and except as may be disposed of in the ordinary course of business and in accordance with the terms of the Loan Documents),
except in each case where the failure to do so individually or in the aggregate
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could not reasonably be expected to be, have or
result in a Material Adverse Effect, (b) maintain and keep in full force and effect its existence and all material Permits and qualifications
to do business and good standing in its jurisdiction of formation and each other jurisdiction in which the ownership or lease of property
or the nature of its business makes such Permits or qualification necessary and in which failure to maintain such Permits or qualification
could reasonably be expected to be, have or result in a Material Adverse Effect; (c) remain in good standing and maintain operations in
all jurisdictions in which currently located, except where the failure to remain in good standing or maintain operations could not reasonably
be expected to be, have or result in a Material Adverse Effect, and (d) maintain, comply with and keep in full force and effect its existence
and all intellectual property and Permits necessary to conduct its business, except in each case where the failure to maintain, comply
with or keep in full force and effect could not reasonably be expected to be, have or result in a Material Adverse Effect.
6.4 Compliance
with Legal and Other Obligations
Each Credit Party shall (a) comply
with all Applicable Law except where any failure to do so could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect, (b) pay all taxes, assessments, fees, governmental charges, claims for labor, supplies, rent and all other
obligations or liabilities of any kind when due and payable, except in each case liabilities being contested in good faith and against
which adequate reserves have been established in accordance with GAAP consistently applied, (c) perform in accordance with its terms
each contract, agreement or other arrangement to which it is a party or by which it or any of the Collateral is bound except where any
failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (d) properly
file all reports required to be filed by such Credit Party with any Governmental Authority, except under clauses (a), (b), (c), and/or
(d) where the failure to comply, pay, file or perform would not reasonably be expected to be, have or result in a Material Adverse Effect.
6.5 Insurance
Each Credit Party shall keep
all of its insurable properties and assets adequately insured in all material respects against losses, damages and hazards as are customarily
insured against by businesses of similar size engaging in similar activities or lines of business or owning similar assets or properties
and at least the minimum amount required by this Agreement, Applicable Law and any agreement to which any such Person is a party or pursuant
to which such Person provides any services; all such insurance policies and coverage levels shall (a) be satisfactory in form and substance
to Agent in its Permitted Discretion (it being understood that the insurance policies of the Credit Parties provided to Agent shall be
deemed satisfactory to the Agent until the Agent provides notice to the Credit Parties to the contrary), (b) name Agent, for the benefit
of itself and the other Lenders, as a loss payee or additional insured thereunder, as applicable, and (c) expressly provide that such
insurance policies and coverage levels cannot be altered, amended or modified in any manner which is adverse to Agent and/or Lenders,
or canceled or terminated without thirty (30) calendar days prior written notice to Agent, and that they inure to the benefit of Agent
and Lenders, notwithstanding any action or omission or negligence of or by any Credit Party, or any insured thereunder.
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6.6 True
Books
Each Credit Party shall (or,
with respect to Borrower, at all times that Servicer is an Affiliate of Borrower, shall cause Servicer to, on its behalf) (a) keep true,
complete and accurate (in accordance with GAAP, except for the omission of footnotes and year-end adjustments in interim financial statements)
books of record and account in accordance with commercially reasonable business practices in which true and correct entries are made of
all of its dealings and transactions in all material respects; and (b) set up and maintain on its books such reserves as may be required
by GAAP with respect to doubtful accounts and all taxes, assessments, charges, levies and claims and with respect to its business.
6.7 Inspection;
Periodic Audits; Quarterly Review
Each Credit Party shall permit,
and shall cause the Servicer to permit, the representatives of Agent and each Lender, at, in the case of Agent only, the expense of Credit
Parties (which expenses must be reasonably incurred), from time to time during normal business hours upon reasonable notice, to (a) visit
and inspect Servicer’s offices, Credit Parties’ offices or properties or any other place where Collateral is located to inspect
the Collateral and/or to examine and/or audit all of Borrower’s and Servicer’s books of account, records, reports and other
papers (provided, however, that at all times, Credit Parties shall be responsible for the costs and expenses of all such
visits) (b) make copies and extracts therefrom, and (c) discuss Credit Parties’ business, operations, prospects, properties,
assets, liabilities, condition and/or Pledged Leases with its officers and independent public accountants (and by this provision such
officers and accountants are authorized to discuss the foregoing); provided, however, so long as an Event of Default has
occurred and is continuing, no such notice shall be required; provided, further that, so long as no Event of Default has
occurred and is continuing not more than four (4) such visits shall take place annually. Additionally, Borrower shall cause
Servicer to permit Agent to have online access to Servicer’s internal electronic reporting system, including without limitation
tracking of collections on the Pledged Leases and agings of the same, and summaries for each of the Pledged Leases. Borrower
shall cause Servicer’s officers to meet with Agent at least once per quarter, if requested by Agent (which meeting may take place
telephonically if requested by Agent), to review the Servicer’s operations, prospects, properties, assets, liabilities, condition
and/or Pledged Leases.
6.8 Further
Assurances; Post Closing
(a) At
Credit Parties’ cost and expense, each Credit Party shall (a) within five (5) Business Days (or such longer period in the case
of actions involving third parties as determined by Agent in its Permitted Discretion) after Agent’s written demand, take such further
actions, obtain such consents and approvals and shall duly execute and deliver such further agreements, assignments, instructions or documents
as Agent may request in its Permitted Discretion in order to ensure the validity and effectiveness of this Agreement and the Loan Documents
and the consummation of the transactions contemplated thereby, whether before, at or after the performance and/or consummation of the
transactions contemplated hereby or the occurrence and during the continuation of a Default or Event of Default, (b) without
limiting and notwithstanding any other provision of any Loan Document, execute and deliver, or cause to be executed and delivered, such
agreements and documents, and take or cause to be taken such actions, and otherwise perform, observe and comply with such
obligations, as are set forth on Schedule 6.8,
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and (c) upon the exercise by Agent,
any Lender or any of its Affiliates of any power, right, privilege or remedy pursuant to any Loan Document or under Applicable Law or
at equity following the occurrence and during the continuance of an Event of Default which requires any consent, approval, registration,
qualification or authorization of such Person (including, without limitation, any Governmental Authority), execute and deliver, or cause
the execution and delivery of, all applications, certificates, instruments and other documents that may be so required for such consent,
approval, registration, qualification or authorization.
6.9 Payment
of Indebtedness
Except as otherwise prescribed
in the Loan Documents, each Credit Party shall pay, discharge or otherwise satisfy when due and payable (subject to applicable grace periods
and, in the case of trade payables, to ordinary course of payment practices) all of its obligations and liabilities to the extent that
the failure to pay, discharge or otherwise satisfy such obligations or liability could reasonably be expected have or result in a Material
Adverse Effect, except when the amount or validity thereof is being contested in good faith by appropriate proceedings and such reserves
shall have been made in accordance with GAAP consistently applied.
6.10 Other
Liens
If Liens with respect to any
Credit Party or its assets (other than Permitted Liens) exist, such Credit Party immediately shall take all actions, and execute and deliver
all documents and instruments necessary to promptly release and terminate such Liens. Immediately upon discovery of any Lien
other than a Permitted Lien, Borrower shall notify Agent.
6.11 Use
of Proceeds
Borrower shall use the proceeds
from each Advance under the Loan only for (a) the purposes set forth in the recitals to this Agreement, (b) for the purposes set forth
in Section 2.4(b) or as otherwise expressly authorized herein or in the other Loan Documents, and (c) to pay other fees, costs and expenses
approved by Agent in connection with this Agreement.
6.12 Collateral
Documents; Security Interest in Collateral
On demand of Agent, Credit
Parties shall (or, at all times that Servicer is an Affiliate of Borrower, shall cause Servicer to) make available to Agent copies of
any and all documents, instruments, materials and other items that relate to, secure, evidence, give rise to or generate or otherwise
involve Collateral, including, without limitation, the Leases to the extent Credit Parties or Servicer has access to such documents, instruments,
materials and other items. Each Credit Party shall (or, at all times that Servicer is an Affiliate of Borrower, shall cause
Servicer to) (i) execute, obtain, deliver, file, register and/or record any and all financing statements, continuation statements, stock
powers, instruments and other documents, or cause the execution, filing, registration, recording or delivery of any and all of the foregoing,
that are necessary or required under law or otherwise requested by Agent, in its Permitted Discretion, to be executed, filed, registered,
obtained, delivered or recorded to create, maintain, perfect, preserve, validate or otherwise protect such Credit Party’s interest
in the Collateral and the pledge of the Collateral to Agent’s perfected first priority (other than with respect to property or assets
covered by Permitted Liens) Lien on the Collateral (and each Credit
Party irrevocably grants Agent the right, at Agent’s
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option, to file any or all of the foregoing), (ii) maintain, or cause
to be maintained, at all times, the pledge of the Collateral to Agent and Agent’s perfected first priority (other than with respect
to property or assets covered by Permitted Liens) perfected Lien on the Collateral, and (iii) defend the Collateral and Agent’s
first priority (other than with respect to property or assets covered by Permitted Liens) perfected Lien thereon against all claims and
demands of all Persons at any time claiming the same or any interest therein adverse to Agent, and pay all costs and expenses (including,
without limitation, in-house documentation and diligence fees and expenses and reasonable attorneys’ fees and expenses) in connection
with such defense, which may, at Agent’s discretion, be added to the Obligations. Borrower acknowledges and agrees that
Agent is authorized, pursuant to the power of attorney granted to Agent by Borrower pursuant to Section 2.10 of this Agreement,
to perform any or all of the obligations or duties of Borrower pursuant to this Section 6.12 following the occurrence and during
the continuance of an Event of Default.
6.13 Servicing
Agreement; Backup Servicer
(a) Borrower
shall enter into a Backup Servicing Agreement as of the Closing Date. From and after the Closing Date, Borrower and Servicer
shall be required to provide the Monthly Servicing Report in computer “data tape” form to Backup Servicer and Agent in a manner
reasonably acceptable to Agent as described in Section 6.1(b) hereof. Borrower shall cause Servicer to promptly provide
Agent with true and complete copies of all written notices concerning defaults, amendments, waivers notice information or other matters
that are material to a Pledged Lease sent or received by any Servicer under any Servicing Agreement. Borrower shall cause Servicer
to service all Pledged Leases in accordance with, in all material respects, the terms of each Servicing Agreement, Borrower shall comply,
in all material respects, with the provisions, terms and conditions set forth in such Servicing Agreement and Borrower shall not terminate
any Servicing Agreement without Agent’s prior written consent at its sole discretion.
(b) Borrower
agrees not to, and will cause Servicer not to, interfere with Backup Servicer’s performance of its duties under any Backup Servicing
Agreement or to take any action that would be inconsistent in any way with the terms of such Backup Servicing Agreement. Borrower
covenants and agrees to, and will cause Servicer to, provide any and all information and data requested by Agent (in its Permitted Discretion)
to be provided promptly to Backup Servicer in the manner and form so requested by Agent. Upon the occurrence and during the
continuance of any Event of Default, Agent shall have the right to immediately substitute Backup Servicer, Agent or an Affiliate of Agent
or another third party servicer acceptable to Agent for Servicer in all of Servicer’s roles and functions as contemplated by the
Loan Documents and the Servicing Agreements. In connection with any substitution of Backup Servicer, Agent, Affiliate of Agent
or another third party servicer for Servicer, Borrower shall (and, at all times that Servicer is an Affiliate of Borrower, shall cause
Servicer to) cooperate with Agent and Backup Servicer in connection with such substitution and to take such further actions, obtain such
consents and approvals, to deliver such documents and to duly execute and deliver such further agreements, assignments, instructions or
documents as each of Agent or Backup Servicer may request in its Permitted Discretion in order to effectuate such substitution, in each
case, at no cost or expense to Agent or any Lender.
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6.14 [RESERVED]
6.15 Collections;
Deposit Accounts
Borrower and Servicer each
agree and covenant that it shall:
(a) Instruct
or cause all Account Lessees to be instructed to either:
(i) send
all Scheduled Payments directly to the Collection Account; or
(ii) in
the alternative, make Scheduled Payments by way of pre-authorized debits from a deposit account of such Account Lessee pursuant to a PAC
or from a credit card of such Account Lessee pursuant to a Credit Card Account from which Scheduled Payments shall be electronically transferred
to the Collection Account.
(b) In
the case of funds transfers pursuant to a PAC or Credit Card Account, take, or cause each of the Servicer, the Collection Account Bank
and/or the Agent to take, all necessary and appropriate action to ensure that each such pre-authorized debit or credit card payments
is credited directly to the Collection Account;
(c) If
the Borrower or Servicer shall receive any collections or other proceeds of the Collateral, hold such collections or proceeds in trust
for the benefit of the Agent and deposit such collections into the Collection Account within two (2) Business Days after such amounts
so received and held by Borrower or Servicer equals or exceeds $25,000; and
(d) Prevent
the deposit into the Collection Account or the Collateral Account of any funds other than collections from Leases or other funds to be
deposited into the Collection Account or the Collateral Account under this Agreement or the other Loan Documents (provided that,
this covenant shall not be breached to the extent that such other funds are inadvertently or mistakenly deposited into the Collection
Account or the Collateral Account if Borrower or Servicer promptly requests that such funds be segregated and removed from the Collection
Account or the Collateral Account in accordance with Section 2.12(b)).
(e) Notwithstanding
anything to the contrary in this Section 6.15, Borrower hereby authorizes Agent, at any time after the occurrence of an Event of
Default, to send directions to each Account Lessee to make payments directly to the Collateral Account.
(f) Subject
to Schedule 6.8, the Credit Parties shall cause the Agent to have view access to the statements and status of each Deposit Account
of the Credit Parties within fourteen (14) days following the Closing Date or, with respect to account number(s) 3302893366 and 330299631
held with Silicon Valley Bank, sixty (60) days following the Closing Date to the extent such account(s) remain(s) open.
6.16 Right
of First Refusal
Subject to the last sentence
of this paragraph, in addition to the rights granted to Agent and the Lenders pursuant to Section 2.13 hereof, Borrower, Holdings
and Parent Entity hereby agree that, if at any time prior to the date that all of the Revolving Advances, all accrued and unpaid,
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costs, fees and expenses relating to the Revolving
Advances, and all accrued and unpaid interest (including any Additional Interest) relating to the Revolving Advances have been
indefeasibly paid in full in cash and the Revolving Loan Commitments terminated, Borrower, Holdings or any Subsidiary of Borrower, Holdings
or Parent Entity shall have obtained a bona fide third-party offer (the “Third-Party Offer”) (for the avoidance
of doubt, a bona fide, fully negotiated and executed term sheet delivered by the applicable lender to Borrower, Holdings or any Subsidiary
of Borrower, Holdings or Parent Entity, as applicable, together with a commitment letter, if any, shall qualify as a “Third-Party
Offer” hereunder) for any refinancing of the Revolving Advances or any similar ABL or borrowing base (however described) revolving
financing (including in the form of a repurchase agreement transaction) of Leases to be originated, acquired or otherwise held by Holdings,
Borrower, Parent Entity or any Subsidiary of Borrower, Holdings or Parent Entity that is formed for the purpose of originating Leases,
Borrower, Holdings or Parent Entity shall, in writing within five (5) Business Days of receipt of such offer, promptly inform Agent (such
writing to Agent is referred to herein as the “First Refusal Offer”) of such Third-Party Offer and the terms
and conditions of such Third-Party Offer (and, if such Third-Party Offer is in writing, shall attach a copy of such Third-Party Offer
to such First Refusal Offer) and, in such First Refusal Offer, shall offer to Agent a right of first refusal in respect of such financing
or refinancing. Agent’s right of first refusal shall grant Agent the right to, within fifteen (15) days after the receipt
of such First Refusal Offer, deliver a writing to Borrower, Holdings and Parent Entity (the “Acceptance”) stating
that Agent and Lenders agree to extend such financing on Material Terms which shall be the same or more favorable (taken as a whole) to
the applicable borrower than the Material Terms of financing under such Third-Party Offer (as such Material Terms were communicated to
Agent by Borrower, Holdings or Parent Entity or such Affiliate), it being agreed and understood that, with respect to any such Third-Party
Offer, the (i) aggregate principal amount, (ii) pricing (including, without limitation, interest rate, closing, commitment, structuring,
arrangement or similar fees and original issue discount) and payment and prepayment terms and conditions, (iii) term and/or duration,
(iv) financial covenants, borrowing base or availability, (v) events of default, (vi) material conditions to closing and borrowing,
(vii) operational covenants, including as to debt, liens, investments, prepayments and repayments of other debt, use of proceeds, dividends
and distributions, reporting, access to cash, and (viii) collateral and transaction structure (with respect to any financing, such material
terms are referred to as “Material Terms”). Upon receipt of the Acceptance by Borrower, Holdings
or Parent Entity, Agent and one or more of the Lenders or their respective Affiliates, on the one hand, and Borrower, Holdings, Parent
Entity or the applicable Subsidiary, on the other hand, shall, in good faith negotiate an agreement for such financing on the terms set
forth in such Acceptance (subject to the satisfaction of appropriate conditions in respect of due diligence, documentation and other customary
and commercial conditions precedent set forth in (or incorporated by reference) in the Acceptance). If Agent shall have declined
to exercise its right under such First Refusal Offer, or shall have failed to timely respond within fifteen (15) Business Days to such
First Refusal Offer or shall have offered a counterproposal to Borrower, Holdings or Parent Entity in respect of such First Refusal Offer,
Borrower, Holdings, Parent Entity or such applicable Subsidiary shall be free to close such Third-Party Offer within one hundred twenty
(120) days of the date of such First Refusal Offer on terms substantially similar to the terms thereof set forth in such Third-Party Offer
(as communicated to Agent). If Borrower, Holdings, Parent Entity or such applicable Subsidiary shall have failed to so close
such financing within said one hundred twenty (120) days or if the material terms of such financing are modified from the description
of such terms in the Third-Party Offer, then a new right of first refusal for the
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benefit of Agent
with respect to such financing shall immediately arise. Borrower, Holdings and Parent Entity agree to inform any Person making
a Third-Party Offer of Agent’s and Lender’s rights under this Section 6.16 in respect thereof. Notwithstanding the
foregoing, the rights granted to Agent and the Lenders pursuant this Section 6.16 shall not apply with respect to any Third-Party
Offer for a bond issuance, public securitization or a syndicated corporate credit facility. For the avoidance of doubt, any refinancing
of the Class A Obligations with a financing similar in nature to the terms of this Agreement shall be subject to a right of first refusal
under this Section 6.16.
Borrower and Holdings covenant
and agree not to form, or consent to or otherwise acquiesce in the formation of, any Affiliate, or otherwise use any Subsidiary existing
on the Closing Date, to originate, acquire or finance any Leases in circumvention of the intent of the covenants, agreements and obligations
set forth in this Section 6.16.
6.17 Requisite
Special Stockholder Meeting Items.
Each Credit Party hereby agrees
to cause the Parent Entity’s board of directors to recommend to the shareholders at the Requisite Special Stockholder Meeting that
the stockholders vote in favor of approving the Requisite Special Stockholder Meeting Items.
6.18 Board
of Directors; Observer Rights.
Effective as of the Closing
Date, Agent (or its designee) shall have the right to designate one (1) representative (who shall initially be Justin Burns) (the “Designee”)
to: (a) receive prior written notice of all meetings (both regular and special) of Parent Entity’s or Holdings’
board of directors and each committee thereof (such notice to be delivered or mailed as specified in Section 12.5 at the same time as
notice is given to the members of such board and/or committee); (b) be entitled to attend (or, at the option of such representatives,
monitor by telephone) all such meetings at the Designee’s sole cost and expense; (c) receive all notices, information and reports
which are furnished or made available to the members of such board (solely in their capacity as a “board member”) and/or committee
at the same time and in the same manner as the same is furnished or made available to such members; (d) be entitled to participate
in all discussions conducted at such meetings; and (e) receive (to the extent and when so provided to the members of any such board) copies
of the minutes of all such meetings. If any action is proposed to be taken after the Closing Date by such board and/or committee
by written consent in lieu of a meeting, Parent Entity or Holdings, as applicable, will provide a copy of such consent to such Designee,
which shall be delivered or mailed as specified in Section 12.5 at the same time as notice is given to the members of such board and/or
committee. Parent Entity or Holdings, as applicable, will furnish or cause to be furnished such Designee with a copy of each
such written consent promptly after it has become effective. Such Designee shall not constitute a member of such board and/or
committee and shall not be entitled to vote on any matters presented at meetings of such board and/or committee or to consent to any matter
as to which the consent of any such board and/or committee shall have been requested. The parties hereto agree that the Designee
shall have no fiduciary duties or any other duties or responsibilities to Borrower, Parent Entity, Holdings or any of their respective
Affiliates. Notwithstanding anything herein to the contrary, Parent Entity and Holdings may exclude the Designee from access
to any portion of notices, reports, minutes or other materials or information or from portions of board of director meetings or deliberations
(or any committee thereof), if Parent Entity’s or Holdings’
board of directors concludes, acting in good faith based on advice of external
69
counsel, that such exclusion is reasonably necessary: (a)
to preserve the attorney-client or work product privilege between Parent Entity, Holdings, Borrower or any of its Affiliates and its external
counsel; provided, however, that any such exclusion shall only apply to such portion of such material or meeting which would
be required to preserve such privilege and not to any other portion thereof; or (b) to avoid an actual bona fide conflict of interest
between Designee, Agent, Lenders or any of their respective Affiliates, on the one hand, and Parent Entity, Holdings, Borrower or any
of their respective Affiliates, on the other hand (including any portion of any board materials or meeting related to any transaction
in which Designee, Agent, Lenders or any of their respective Affiliates has any such actual bona fide conflict of interest with Parent
Entity, Holdings, Borrower or any of their respective Affiliates); provided, however, that any such exclusion shall only
apply to such portion of such material or meeting which would be required to avoid an actual bona fide conflict of interest and not to
any other portion thereof. The Designee shall at all times be subject mutatis mutandis to the confidentiality provisions set forth
in Sections 12.10(e) and (h) herein.
6.19 Financial
Covenants.
(a) Minimum
Trailing Three-Month Net Originations. As of the last Business Day of each such calendar month, the then
Minimum Trailing Three-Month Net Originations shall not be less than the amount set forth in the table below opposite the applicable calendar
month:
Calendar Month
Minimum Trailing Three-Month Net Originations for such Calendar Month
October 2025
$51,000,000
November 2025
$60,000,000
December 2025
$77,000,000
January 2026
$75,000,000
February 2026
$68,000,000
March 2026
$65,000,000
April 2026
$68,000,000
May 2026
$73,000,000
June 2026
$70,000,000
July 2026
$67,000,000
August 2026
$64,000,000
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September 2026
$65,000,000
October 2026
$66,000,000
November 2026 and each month thereafter
$80,000,000
(a) [Reserved].
(b) Minimum
Liquidity. As of the First Amendment Effective Date and as of the last Business Day of each such calendar week ending thereafter,
(x) prior to the consummation of the Katapult Merger Transaction, Parent
Entity and (y) following the consummation of the Katapult Merger Transaction,
Katapult Midco, shall not permit Liquidity to be less than $5,000,000.
6.20 [Reserved].
6.21 Federal
Securities Laws. Each Credit Party shall promptly notify Agent in writing if any such Credit Party or any of their Subsidiaries (i)
is required to file periodic reports under the Exchange Act, (ii) registers any securities under the Exchange Act or (iii) files a registration
statement under the Securities Act.
6.22 Government
Receivables. Take all steps necessary to protect Agent’s interest in the Collateral under the Federal Assignment
of Claims Act, the Uniform Commercial Code and all other applicable state or local statutes or ordinances and deliver to Agent appropriately
endorsed, any instrument or tangible chattel paper connected with any receivable arising out of any contract between any Credit Party
and the United States, any state or any department, agency or instrumentality of any of them.
VII. NEGATIVE
COVENANTS
Each Credit Party covenants
and agrees that, until the indefeasible payment in full in cash, of all the Obligations under the Loan Documents (other than indemnity
obligations under the Loan Documents that are not then due and payable or with respect to which no claim has been made) and termination
of this Agreement:
7.1 Indebtedness
No Credit Party shall create,
incur, assume or suffer to exist any Indebtedness, except Permitted Indebtedness.
7.2 Liens
No Credit Party shall create,
incur, assume or suffer to exist any Lien upon, in or against, or pledge of, any of the Collateral, whether now owned or hereafter acquired,
except the following (collectively, “Permitted Liens”): (a) Liens under the Loan Documents or otherwise arising
in favor of Agent, for the benefit of itself and the other Lenders, (b) Liens on insurance policies and the proceeds thereof securing
Permitted Insurance Premium Indebtedness, (c) any Lien or right of set-off granted in favor of any financial institution in respect of
Deposit Accounts opened and
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maintained in the ordinary course of business
or pursuant to the requirements of this Agreement covering fees, expenses and overdrafts with respect to such Deposit Accounts; provided,
that with respect to any such Deposit Account, other than an Excluded Deposit Account, Agent has a perfected Lien thereon and control
thereof, in form, scope and substance satisfactory to Agent in its Permitted Discretion and (d) any Liens granted by Katapult Intermediate
IIIMidco in connection with a Parent Reorganization
Transaction and the consummation of the Katapult Merger Agreement to secure the Permitted Hawthorn Debt, solely to the extent that such
Liens are subordinated to the rights of the Agent and the Lenders under the Loan Documents pursuant to a written agreement in form and
substance reasonably satisfactory to Agent.
7.3 Investments;
Investment Property; New Facilities or Collateral; Subsidiaries
No Credit Party shall, directly
or indirectly, (a) merge with, purchase, own, hold, invest in or otherwise acquire any obligations or Equity Interests or securities
of, or any other interest in, all or substantially all of the assets of, any Person or any joint venture other than Permitted Investments
(as defined below), (b) purchase, own, hold, invest in or otherwise acquire any Investment Property (except (i) those set forth on
Schedule 5.18C as of the Closing Date), (ii) Permitted Loans and any other investments in a Subsidiary formed by any Credit Party,
(iii) investments constituting Permitted Indebtedness, (iv) Deposit Accounts with financial institutions in the ordinary course of business
or as required by this Agreement; provided, that with respect to any such Deposit Accounts (other than an Excluded Deposit Account),
Agent has a perfected Lien thereon and control thereof, in form, scope and substance satisfactory to Agent in its Permitted Discretion,
(v) investments in Cash Equivalents, (vi) accounts payable, and (vii) the endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business (the investments described in clauses (i) through (vii) being “Permitted
Investments”) or (c) make or permit to exist any loan, advances or guarantees to or for the benefit of any Person
or assume, guarantee, endorse, contingently agree to purchase or otherwise become liable for or upon or incur any obligation of any Person
other than Permitted Investments and Guaranties by, or other Contingent Obligations of, any Credit Party of Permitted Indebtedness of
another Credit Party. No Credit Party shall purchase, lease, own, operate, hold, invest in or otherwise acquire any property
or asset or any Collateral that is located outside of the continental United States. Borrower shall not have any Subsidiaries.
Other than as contemplated by
Section 2.13(d), no Credit Party shall form any Subsidiary unless (i) such Subsidiary, (x) expressly joins in this Agreement as a borrower
and becomes jointly and severally liable for the obligations of Borrower hereunder and under any other agreement between Borrower and
Lenders, or (y) becomes a Guarantor with respect to the Obligations and executes a guaranty and security agreement in favor of Agent,
and (ii) Agent shall have received all documents, including without limitation, legal opinions and appraisals it may reasonably require
to establish compliance with each of the foregoing conditions in connection therewith.
7.4 Dividends;
Redemptions; Equity; Compensation
Notwithstanding any provision
of any Loan Document, absent the prior written consent of the Agent, no Credit Party shall (i) declare, pay or make any dividend
or distribution on any Equity Interests or other securities or ownership interests, (ii) apply any of its funds, property or assets
to
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the acquisition, redemption or other retirement
of any Equity Interests or other securities or interests or of any options to purchase or acquire any of the foregoing, (iii) otherwise
make any payments, dividends or distributions to any member, manager, managing member, stockholder, director or other equity owner in
such Person’s capacity as such, (iv) make any payment of any management, service or related or similar fee to any Affiliate or holder
of Equity Interests of Borrower, other than (a) the payment of general operating and compliance costs and expenses (including corporate
overhead, legal or similar expenses and customary salary, bonus and other benefits payable to directors, officers, employees, members
of management, managers and/or consultants of any Credit Party), in each case, which are reasonable and customary and incurred in the
ordinary course of business, plus any reasonable and customary indemnification claims made by directors, officers, members of management,
managers, employees or consultants of any Credit Party, in each case, to the extent attributable to the ownership or operations of any
Credit Party, (b) the payment of franchise, excise and similar taxes, and other fees, taxes and expenses, required to maintain the organizational
existence of any Credit Party, (c) the payment of customary salary, bonus, long-term incentive, severance and other benefits payable to
directors, officers, members of management, managers, employees or consultants, as well as applicable employment, social security or similar
taxes in connection therewith, to the extent such salary, bonuses, severance and other benefits are attributable to the operations of
any Credit Party, (d) the payment of audit and other accounting and reporting expenses of such any Credit Party to the extent attributable
to any Credit Party, (e) the payment of insurance premiums to the extent attributable to any Credit Party and (f) for any taxable period
for which any Credit Party is a member (or is disregarded as separate from a member) of a consolidated, combined or similar income tax
group for U.S. federal and/or applicable state or local income tax purposes (a “Tax Group”) of which a direct
or indirect parent of the Borrower is the common parent, additional payments the proceeds of which shall be used by such common parent
to pay the portion of any U.S. federal, state or local income taxes of such Tax Group, or any franchise taxes imposed in lieu thereof,
for such taxable period that are attributable to the taxable income of the Credit Parties, provided that such payments made by such Credit
Party with respect to such period (regardless of when paid) shall not exceed the aggregate amount of such Taxes that Borrower and its
Subsidiaries would have been required to pay with respect to such period if they were a stand-alone corporate taxpayer or Tax Group; provided
that, notwithstanding anything to the contrary herein, absent the prior written consent of the Agent in its sole discretion, the aggregate
bonus payments payable to the directors, officers and other members of management of the Credit Parties for the fiscal year ending December
31, 2024 shall not exceed $3,000,000 in the aggregate and shall be paid no later than December 31, 2026 (the “2024 Management
Bonuses”); provided that, the 2024 Management Bonuses shall be subject to the following restrictions: (x) no more
than an aggregate amount not to exceed $500,000 may be paid on or before June 30, 2025, (y) no more than an aggregate amount not to exceed
$1,000,000 (inclusive of any amounts paid pursuant to the immediately preceding clause (x)) may be paid on or before June 30, 2026 and
(z) no more than an aggregate amount not to exceed $3,000,000 (inclusive of the any amounts paid pursuant to the immediately preceding
clauses (x) and (y)) may be paid on or before December 31, 2026, provided, further, that so long as no Event of Default
has occurred and is continuing, nothing set forth in this Section 7.4 shall prohibit (A) the Borrower from distributing amounts
returned to the Borrower pursuant to Section 2.4(a)(xi) on any Payment Date to Holdings solely for further distribution to Katapult
Intermediate IIIMidco
pursuant to clause (B) below and (B) Holdings from distributing amounts received from the
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Borrower pursuant to the foregoing clause (A)
to Katapult Intermediate IIIMidco
solely for payment of any accrued and unpaid interest with respect to the Permitted Hawthorn Debt.
7.5 Transactions
with Affiliates
No Credit Party shall enter
into or consummate any transaction of any kind with any of its Affiliates other than (i) the transactions contemplated hereby and by the
other Loan Documents, (ii) to the extent not otherwise prohibited under this Agreement, other transactions upon fair and reasonable terms
materially no less favorable to such Credit Party than would be obtained in a comparable arms-length transaction with a Person not an
Affiliate, (iii) transactions otherwise permitted pursuant to Section 7.4 and (iv) the Katapult Merger Agreement and the Katapult Merger
Transaction.
7.6 Charter
Documents; Fiscal Year; Dissolution; Use of Proceeds; Insurance Policies; Disposition of Collateral; Trade Names
No Credit Party shall (a)
except to permit the Parent Entity to issue additional shares, amend, modify, restate or change its certificate of formation, limited
liability company agreement or similar charter or governance documents in a manner that would adversely affect the rights of the Agent
or Lenders under the Loan Documents, (b) change its state of formation or change its name without thirty (30) calendar days prior
written notice to Agent, (c) change its fiscal year, (d) amend, alter, suspend, terminate or make provisional in any material
way, any Permit, the suspension, amendment, alteration or termination of which would reasonably be expected to be, have or result in a
Material Adverse Effect without the prior written consent of Agent, (e) wind up, liquidate or dissolve (voluntarily or involuntarily),
effectuate any Division or commence or suffer any proceedings seeking or that would result in any of the foregoing, (f) use any proceeds
of any Loan for “purchasing” or “carrying” “margin stock” as defined in Regulations T, U or X of the
Board of Governors of the Federal Reserve System for any use not contemplated or permitted by this Agreement, (g) amend, modify,
restate or change any insurance policy in a manner adverse to Agent or Lenders in any material respect, (h) engage, directly or indirectly,
in any business other than as set forth herein, (i) establish new or additional trade names without providing not less than thirty
(30) days advance written notice to Agent or (j) certificate, or cause to have certificated, any equity ownership interest in Borrower
that is not evidenced by a certificate as of the Closing Date that is Collateral subject to this Agreement, without Agent’s prior
written consent.
7.7 Transfer
of Collateral; Amendment of Pledged Leases
(a) No
Credit Party shall sell, lease, transfer, pledge, encumber, assign or otherwise dispose (a “Disposition”) of
any Collateral, except:
(i) the
repurchase of Leases by Holdings as otherwise provided in Section 2.11,
(ii) the
Disposition of surplus, obsolete or worn out property in the ordinary course of business;
(iii) disbursements
of cash not otherwise prohibited under this Agreement or any other Loan Document;
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(iv) any
Disposition by such Person to another Credit Party;
(v) any
Disposition permitted under Sections 7.2, 7.3, 7.4 and 7.5;
(vi) any
sale of inventory (other than Leases) in the ordinary course of business;
(vii) any
sale, trade-in or other Disposition of used equipment for value in the ordinary course of business;
(viii) licenses
of technology in the ordinary course of business;
(ix) the
surrender, modification, release or waiver of contract rights to the extent not otherwise prohibited under this Agreement.
(b) Except
for the purpose of granting payment discounts to Account Lessees in the ordinary course of business consistent in all material respects
with the Underwriting Guidelines and Servicing Policy or in connection with the payment in full of such Pledged Lease, Borrower shall
not extend, amend, waive or otherwise modify the terms of any Pledged Lease or permit the rescission or cancellation of any Pledged Lease,
whether for any reason relating to a negative change in the related Account Lessee’s creditworthiness or inability to make any payment
under the Pledged Lease or otherwise, except in accordance with the Underwriting Guidelines and the Servicing Policy.
(c) Except
in connection with the payment in full of such Pledged Lease or settlements of a Defaulted Lease in accordance with the Servicing Policy,
Borrower shall not terminate or reject any Pledged Lease prior to the end of the term of such Lease, whether such rejection or early termination
is made pursuant to an Applicable Law, unless prior to such termination or rejection, such Pledged Lease and any related Collateral have
been released from the Lien created by this Agreement.
7.8 Contingent
Obligations and Risks
Except for the Loan Documents,
the Purchase and Sale Agreement and as otherwise expressly permitted by this Agreement, no Credit Party shall enter into any Contingent
Obligations with respect to Indebtedness for borrowed money or assume, guarantee, endorse, contingently agree to purchase or otherwise
become liable for or upon or incur any Indebtedness for borrowed money of any Person other than another Credit Party (other than indemnities
to officers and directors of such Person to the extent permitted by Applicable Law) or indemnity guarantees in connection with Indebtedness
permitted under Section 2.13(d); provided, however, that nothing contained in this Section 7.8 shall prohibit any
Credit Party from endorsing checks in the ordinary course of its business.
7.9 Truth
of Statements
No Credit Party shall furnish
to Agent any certificate or other document prepared by or on behalf of such Credit Party with respect to which the representations and
warranties set forth in
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Section 5.14 would not be true if made at the
time such certificate or other document were so furnished to Agent.
7.10 Modifications
of Agreements
No Credit Party shall make,
or agree to make, any modification, amendment or waiver of any of the terms or provisions of any Material Agreement, without the prior
written consent of Agent. Borrower shall not make, or agree to make, any Material Modification with respect to any Lease, without
the prior written consent of Agent.
7.11 Anti-Terrorism;
OFAC
No Credit Party shall, nor
shall any Credit Party permit any of its Subsidiaries to, (a) be or become a Person whose property or interests in property are blocked
or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions
With Persons Who Commit, Threaten to Commit or Support Terrorism (66 Fed. Reg. 49079 (2001)), (b) engage in any dealings or transactions
prohibited by Section 2 of such executive order, or otherwise be associated with any such Person in any manner violative of Section 2
of such executive order, or (c) otherwise become a Person on the list of Specially Designated Nationals and Blocked Persons in violation
of the limitations or prohibitions under any other OFAC regulation or executive order.
7.12 Deposit
Accounts and Payment Instructions
(a) No
Credit Party shall open a Deposit Account (other than any Excluded Account and those listed on Schedule 5.18C as amended from time
to time) that is not subject to an account control agreement in favor of the Agent within thirty (30) days of opening such Deposit Account
(provided that, until such account control agreement is made effective, funds on deposit in such Deposit Account may not exceed de
minimis amounts) without the prior written consent of Agent (not to be unreasonably withheld).
(b) Borrower
shall not make any change in the instructions to any Servicer with respect to the deposits of collections regarding Leases to the Collateral
Account in accordance with this Agreement and the applicable Servicing Agreement.
(c) Borrower
shall not, and shall cause Servicer to not, make any change in the instructions to any Account Lessee on any Lease with respect to any
instructions to such Account Lessees regarding payment to be made to the Collection Account or any Servicer Physical Payment Address.
(d) Borrower
shall not, and shall cause Servicer to not, make any change in the standing instructions to Collection Account Bank regarding transfers
to be made from the Collection Account to the Collateral Account.
(e) Borrower
shall not, and shall cause Servicer to not, make any instructions to the Collection Account Bank to distribute funds from the Collection
Account (other the standing instructions regarding transfers to be made from the Collection Account to the Collateral Account referenced
in clause (d) above) without the prior written consent of the Agent.
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7.13 Servicing
Agreement
Borrower shall not:
(a) amend,
modify or terminate (or permit or cause Servicer to amend, modify or terminate) any Servicing Agreement without the prior written consent
of Agent (which consent may be provided in Agent’s Permitted Discretion), provided, that with respect to termination of any
Servicing Agreement or material amendments thereto, Agent’s consent may be granted in Agent’s sole discretion;
(b) except
in connection with (i) the replacement of the Servicer by the Backup Servicer or third party servicer acceptable to Agent after the occurrence
and during the continuance of an Event of Default and/or (ii) the delegation by the Servicer of certain duties to any of the Persons set
forth on Schedule 7.13(b) the delegation by the Servicer to third-party collection agencies the enforcement of Defaulted Leases
or the delegation of certain duties to such other Persons, in each case, consistent with the Servicing Policy, if any, as Agent may approve
from time to time (which approval may be provided in Agent’s Permitted Discretion), transfer or delegate (or allow Servicer to transfer
or delegate) any of its duties or functions under any Servicing Agreement to any Person, or otherwise engage any such Person to perform
any such duties or functions for or on behalf of the Servicer or Borrower, provided, that any delegation of duties under any Servicing
Agreement by Servicer pursuant to clause (ii) of this Section 7.13(b) shall (x) be terminable without the payment of any
fee or penalty upon not more than thirty (30) calendar days prior notice and (y) not relieve Servicer of any of its rights, duties or
obligations under the applicable Servicing Agreement and Servicer agrees that it shall remain liable to Agent and the Lenders for any
breach in the performance of the same, whether such breach is by the Servicer or its delegate; or
(c) except
in connection with the replacement of the Servicer by the Backup Servicer, Agent, an Affiliate of Agent or a third party servicer acceptable
to Agent after an Event of Default, transfer or delegate (or allow the Servicer to transfer or delegate) the duties and functions of the
Servicer under any Servicing Agreement to any other Persons.
7.14 ERISA.
No Credit Party shall sponsor,
maintain or contribute to any “employee benefit plan” that is covered by Title IV of ERISA or Section 412 of the Code.
7.15 Restrictive
Agreements.
No Credit Party will directly
or indirectly, enter into, incur or permit to exist any agreement (other than its Charter and Good Standing Documents or, in the case
of the Parent Entity, any agreements with its shareholders) that prohibits, restricts or imposes any condition upon (a) the ability of
such Credit Party or any such Subsidiary to create, incur or permit any Lien upon any of its assets or properties, whether now owned or
hereafter acquired, or (b) the ability of any of the Subsidiaries to pay dividends or other distributions with respect to capital stock,
to make or repay loans or advances to such Credit Party or any other Subsidiary or to transfer any of its property or assets to such Credit
Party or any other Subsidiary thereof.
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7.16 Sale
and Leaseback Transactions. No Credit Party will, and no Credit Party will permit any Subsidiary to, enter into any arrangement, directly
or indirectly, whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or
hereinafter 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 sold or transferred.
7.17 Hedging
Transactions. No Credit Party will, and no Credit Party will permit any Subsidiary to, enter into any Hedging Transaction, other than
Hedging Transactions entered into in the ordinary course of business to hedge or mitigate risks to which the Credit Parties or any of
their Subsidiaries is exposed in the conduct of its business or the management of its liabilities. Solely for the avoidance of doubt,
the Credit Parties acknowledge that a Hedging Transaction entered into for speculative purposes or of a speculative nature (which shall
be deemed to include any Hedging Transaction under which any Credit Party or any Subsidiary of a Credit Party is or may become obliged
to make any payment (a) in connection with the purchase by any third party of any capital stock or any Indebtedness or (b) as a result
of changes in the market value of any capital stock or any Indebtedness) is not a Hedging Transaction entered into in the ordinary course
of business to hedge or mitigate risks.
7.18 Loans.
No Credit Party shall make advances, loans or extensions of credit to any Person (other than another Credit Party). For the avoidance
of doubt, this Section 7.18 shall not be construed to prohibit the Leases.
7.19 Borrower
Purpose. Borrower shall not engage in any business or activity other than the acquisition, ownership, operation and maintenance of
the Leases and the other Collateral, and activities incidental thereto.
VIII. EVENTS
OF DEFAULT
The occurrence of any one
or more of the following shall constitute an “Event of Default”:
(a) Any
Credit Party shall fail to pay any amount on the Obligations or provided for in any Loan Document when due (in all cases, whether on any
payment date, at maturity, by reason of acceleration, by notice of intention to prepay, by required prepayment or otherwise) and such
failure shall continue or not be cured within a period of two (2) Business Days;
(b) any
representation, statement or warranty made by any Credit Party in any Loan Document or in any other certificate, document, report or opinion
delivered in conjunction with any Loan Document to which it is a party, shall not be true and correct in all material respects (except
to the extent already qualified by materiality, in which case it shall be true and correct in all respects) except those made as of a
specific date;
(c) Borrower,
any Guarantor or any other party hereto, other than Agent or any Lender, shall be in violation, breach or default of, or shall fail to
perform, observe or comply with any covenant, obligation or agreement set forth in this Agreement and such violation, breach or failure
(only if reasonably susceptible to being cured) shall not be cured within a period of thirty (30) days after such violation, breach or
default or such other applicable period set forth in this Agreement (other than any violation, breach or default in the covenants set
forth in Section 6.8(b), Section 6.19 or Article VII of this Agreement or in Article VIII(a) above or the
misappropriation
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of any funds to be delivered to the Collateral
Account pursuant to Section 2.3 and applied pursuant to Section 2.4 of this Agreement, for which there shall be no cure
period);
(d) Borrower,
any Guarantor or any other party thereto, other than Agent, Backup Servicer, any Servicer that is not Holdings or an Affiliate thereof,
or any Lender, shall be in violation, breach or default of, or shall fail to perform, observe or comply with any covenant, obligation
or agreement set forth in, or any event of default occurs under, any Loan Document other than this Agreement and such violation, breach,
default, event of default or failure shall not be cured within the applicable period set forth in the applicable Loan Document and such
violation, breach or failure (only if reasonably capable of being cured) shall not be cured within a period of thirty (30) days after
such; provided that there shall be no cure period for failure of the Borrower, Holdings or any Servicer that is an Affiliate of
Holdings to comply with its obligations under Section 2(e) (Hot Backup Services) of the Backup Servicing Agreement (it being understood
that failure of the Backup Servicer to comply with the requirements of Section 2(e) (Hot Backup Services) of the Backup Servicing Agreement
shall not constitute a Default or an Event of Default hereunder unless such failure was the direct result of a breach of such provision
by the Borrower, Holdings or any Servicer that is an Affiliate of Holdings);
(e) (i)
any of the Loan Documents ceases to be in full force and effect (other than in accordance with its terms), or (ii) any Lien created
under any Loan Document ceases to constitute a valid first priority (other than with respect to property or assets covered by Permitted
Liens) perfected Lien on the Collateral in accordance with the terms thereof, except with respect to Collateral that is released from
the Lien of Agent as permitted under the Loan Documents or the Security Documents;
(f) one
or more judgments or decrees is rendered against any of Borrower or any Guarantor in an amount in excess of $1,000,000 individually or
$1,000,000 in the aggregate (excluding judgments to the extent covered by insurance of such Person), which is/are not satisfied, stayed,
vacated or discharged of record within sixty (60) calendar days of being rendered;
(g) (i) any
default or breach occurs, which is not cured within any applicable grace period or waived in writing to the satisfaction of Agent, in
the payment of any amount with respect to any Indebtedness (other than the Obligations) of any of Borrower, Parent Entity (solely prior
to a Parent Reorganization Transaction), Katapult Intermediate
IIIMidco (solely following a Parent Reorganization
Transaction) or Holdings in excess of $1,000,000 individually or $1,000,000 in the aggregate, or (ii) any Indebtedness of Borrower, Parent
Entity (solely prior to a Parent Reorganization Transaction), Katapult
Intermediate IIIMidco
(solely following a Parent Reorganization Transaction) or Holdings
in excess of $1,000,000 individually or $1,000,000 in the aggregate is declared to be due and payable and that has been accelerated by
the holder of such Indebtedness or is required to be prepaid (other than by a regularly scheduled payment or a payment due on the voluntary
termination of a capital lease) prior to the stated maturity thereof;
(h) any
of Borrower or any Guarantor shall (i) be unable to pay its debts generally as they become due, (ii) file a petition under any
insolvency statute, (iii) make a general assignment for the benefit of its creditors, (iv) commence a proceeding for the appointment
of a receiver, trustee, liquidator or conservator of itself or of the whole or any substantial part of its
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property or shall otherwise be dissolved or liquidated,
or (v) file a petition seeking reorganization or liquidation or similar relief under any Debtor Relief Law or any other Applicable
Law or statute;
(i) (i) a
court of competent jurisdiction shall (A) enter an order, judgment or decree appointing a custodian, receiver, trustee, liquidator
or conservator of any of Borrower or any Guarantor or the whole or any substantial part of any of Borrower’s or such Guarantor’s
properties, which shall continue unstayed and in effect for a period of sixty (60) calendar days, (B) shall approve a petition filed
against any of Borrower or any Guarantor seeking reorganization, liquidation or similar relief under the any Debtor Relief Law or any
other Applicable Law or statute, which is not dismissed within sixty (60) calendar days or, (C) under the provisions of any Debtor
Relief Law or other Applicable Law or statute, assume custody or control of any of Borrower or any Guarantor or of the whole or any substantial
part of Borrower’s or any Guarantor’s properties, which is not irrevocably relinquished within sixty (60) calendar days, or
(ii) there is commenced against any of Borrower or any Guarantor any proceeding or petition seeking reorganization, liquidation or
similar relief under any Debtor Relief Law or any other Applicable Law or statute, which (A) is not unconditionally dismissed within
sixty (60) calendar days after the date of commencement, or (B) is with respect to which any of Borrower or any Guarantor takes any
action to indicate its approval of or consent;
(j) (i)
any Material Adverse Effect occurs or (ii) Borrower or any Guarantor ceases any material portion of its business operations as conducted
at the Closing Date, in the case of clause (ii), without the prior written consent of Agent;
(k) Servicer
shall fail at any time to use Advensus as a sub-servicer with respect to at least twenty-five percent (25%) of the Pledged Leases defined
by the percentage of inbound calls;
(l) so
long as any Lender and/or its Affiliates hold any of the Warrants, Parent Entity or any of its Affiliates (i) shall be in violation, breach
or default of, or shall fail to perform, observe or comply with any covenant, obligation or agreement (in each case, in any material respect)
set forth in the Warrants held by such Lender and/or its Affiliates, or (ii) any event of default occurs under, the Warrants held by such
Lender and/or its Affiliates;
(m) the
occurrence and continuance of one or more Default Trigger Events;
(n) the
occurrence of a First Payment Default Trigger Event:
(o) the
occurrence of one or more Level Two Regulatory Trigger Events;
(p) the
occurrence of a Specified Regulatory Change;
(q) the
occurrence of a Servicer Default;
(r) the
occurrence of a Key Man Trigger Event;
(s) any
formal enforcement order or criminal complaint relating to financial crimes or major felonies is brought by a Governmental Authority against
any Credit Party, which has not been dismissed or satisfied or of which the applicable Credit Party has not been found not
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guilty within sixty (60) days of the filing of
such order or complaint, provided, however, that no Event of Default under this clause (s) shall be deemed
to be continuing if at any time the applicable Credit Party is found not guilty under such order or complaint; or
(t) the
Katapult Merger Transaction has not occurred on or before the End Date (as defined in the Katapult Merger Agreement as in effect on the
Second Amendment Effective Date).
In the case of any such Event of Default, notwithstanding
any other provision of any Loan Document, (I) Agent may (and, at the request of Requisite Lenders (x) with respect to any Event of
Default occurring under Article VIII(m), may and (y) with respect to any other Event of Default described in this Article VIII,
shall), by notice to Borrower (i) terminate the commitment to make Advances hereunder, whereupon the same shall immediately terminate,
(ii) substitute immediately Backup Servicer or any other third party servicer acceptable to Agent, in its sole discretion, for Servicer
in all of Servicer’s roles and functions as contemplated by the Loan Documents and the Servicing Agreements and any fees, costs
and expenses of, for or payable to Backup Servicer or other third party servicer acceptable to Agent, in its sole discretion, shall be
at Borrower’s sole cost and expense, (iii) with respect to the Collateral, (A) terminate any Servicing Agreement and service the
Collateral, including the right to institute collection, foreclosure and other enforcement actions against the Collateral; (B) enter into
modification agreements and make extension agreements with respect to payments and other performances; (C) release Account Lessees and
other Persons liable for performance; (D) settle and compromise disputes with respect to payments and performances claimed due, all without
notice to Borrower or Guarantors, and all in Agent’s sole discretion and without relieving Borrower or Guarantors from performance
of the obligations hereunder; (E) receive, collect, open and read all mail of Borrower, Servicer or Guarantors for the purpose of obtaining
all items pertaining to the Collateral and any collateral described in any Loan Document; (F) collect all Scheduled Payments (both voluntary
and mandatory), and other amounts of any and every description payable by or on behalf of any Account Lessee pursuant to any Pledged Lease,
the related Portfolio Documents, or any other related documents or instruments directly from such Account Lessee; and (G) apply all amounts
in or subsequently deposited in the Collection Account and the Collateral Account to the payment of the unpaid Obligations or otherwise
as Agent in its sole discretion shall determine; and (iv) declare all or any of the Loan and/or Notes, all interest thereon and all
other Obligations to be due and payable immediately (except in the case of an Event of Default under clauses (h) or (i) of this
Article VIII in which event all of the foregoing shall automatically and without further act by Agent or Lenders be due and payable) and
Agent’s or Lenders’ obligations hereunder shall terminate, in each case without presentment, demand, protest or further notice
of any kind, all of which are hereby expressly waived by Borrower and (II) effective immediately upon receipt of notice from Agent
(unless specifically prohibited and provided for in Article VII, in which case effective immediately upon an Event of Default without
any action of Agent or any Lender), no action permitted to be taken under Article VII hereof may be taken.
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IX. RIGHTS
AND REMEDIES AFTER DEFAULT
9.1 Rights
and Remedies
(a) In
addition to the acceleration provisions set forth in Article VIII above, upon the occurrence and during the continuation of an
Event of Default, Agent shall have the right to (and at the request of Requisite Lenders, shall) exercise any and all rights, options
and remedies provided for in any Loan Document, under the UCC or at law or in equity, including, without limitation, the right to (i)
apply any property of Borrower held by Agent to reduce the Obligations, (ii) foreclose the Liens created under the Loan Documents, (iii) realize
upon, take possession of and/or sell any Collateral, with or without judicial process, (iv) exercise all rights and powers with respect
to the Collateral as Borrower might exercise, (v) collect and send notices regarding the Collateral, with or without judicial process,
(vi) by its own means or with judicial assistance, enter any premises at which Collateral are located, or render any of the foregoing
unusable or dispose of the Collateral on such premises without any liability for rent, storage, utilities, or other sums, and Borrower
shall not resist or interfere with such action, (vii) at Borrower’s expense, require that all or any part of the Collateral be assembled
and made available to Agent at any place designated by Agent in its sole discretion, (viii) reduce or otherwise change the Maximum Revolving
Loan Amount and/or any component of the Maximum Revolving Loan Amount and/or (ix) relinquish or abandon any Collateral or securities pledged
or any Lien thereon. Notwithstanding any provision of any Loan Document, Agent, in its sole discretion, shall have the right,
at any time that Borrower fails to do so, after an Event of Default, without prior notice, to: (A) obtain insurance covering any of the
Collateral to the extent required hereunder; (B) pay for the performance of any of the Obligations; (C) discharge taxes, levies and/or
Liens on any of the Collateral that are in violation of any Loan Document; and (D) pay for the maintenance, repair and/or preservation
of the Collateral. Such expenses and advances shall be deemed Advances hereunder and shall be added to the Obligations until
reimbursed to Agent, for its own account and for the benefit of the other Lenders, and shall be secured by the Collateral, and such payments
by Agent, for its own account and for the benefit of the other Lenders, shall not be construed as a waiver by Agent or Lenders of any
Event of Default or any other rights or remedies of Agent or Lenders.
(b) Borrower
and Holdings each agree that notice received at least ten (10) calendar days before the time of any intended public sale, or the time
after which any private sale or other disposition of Collateral is to be made, shall be deemed to be reasonable notice of such sale or
other disposition. If permitted by Applicable Law, any perishable Collateral which threatens to speedily decline in value or
which is sold on a recognized market may be sold immediately by Lender without prior notice to Borrower or Holdings. At any
sale or disposition of Collateral or securities pledged, Agent may (to the extent permitted by Applicable Law) purchase all or any part
thereof free from any right of redemption by Borrower which right is hereby waived and released. Borrower and Holdings each
covenant and agree not to interfere with or impose any obstacle to Agent’s exercise of its rights and remedies with respect to the
Collateral. In dealing with or disposing of the Collateral or any part thereof, Agent shall not be required to give priority
or preference to any item of Collateral or otherwise to marshal assets or to take possession or sell any Collateral with judicial process.
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9.2 Application
of Proceeds
Notwithstanding any other
provision of this Agreement (including, without limitation, Section 2.4 hereof), in addition to any other rights, options and remedies
Agent and Lenders have under the Loan Documents, the UCC, at law or in equity, all lease payments, dividends, interest, rents, issues,
profits, fees, revenues, income and other proceeds collected or received from collecting, holding, managing, renting, selling, or otherwise
disposing of all or any part of the Collateral or any proceeds thereof upon exercise of its remedies hereunder upon the occurrence and
continuation of an Event of Default shall be applied in accordance with the provisions of Section 2.4 hereof; provided,
that Borrower shall be liable for any deficiency if such proceeds are insufficient to satisfy the Obligations (other than indemnity obligations
that are not then due and payable or with respect to which no claim has been made).
9.3 Rights
to Appoint Receiver
Without limiting and in addition
to any other rights, options and remedies Agent and Lenders have under the Loan Documents, the UCC, at law or in equity, upon the occurrence
and continuation of an Event of Default, Agent shall have the right to apply for and have a receiver appointed by a court of competent
jurisdiction in any action taken by Agent and/or any Lender to enforce its rights and remedies in order to manage, protect and preserve
the Collateral and continue the operation of the business of Borrower and to collect all revenues and profits thereof and apply the same
to the payment of all expenses and other charges of such receivership including the compensation of the receiver and to the payments as
aforesaid until a sale or other disposition of such Collateral shall be finally made and consummated.
9.4 Attorney-in-Fact
Borrower hereby irrevocably
appoints Agent as its attorney-in-fact for the limited purpose of taking any action permitted under the Loan Documents that Agent deems
necessary or desirable (in Agent’s sole discretion) upon the occurrence and continuation of an Event of Default to protect, foreclose,
enforce and realize upon Agent’s Lien in the Collateral, including the execution and delivery of any and all documents or instruments
related to the Collateral in Borrower’s name, and said appointment shall create in Agent a power coupled with an interest.
9.5 Rights
and Remedies not Exclusive
Agent shall have the right
in its sole discretion to determine which rights, Liens and/or remedies Agent and Lenders may at any time pursue, relinquish, subordinate
or modify, and such determination will not in any way waive, compromise, modify or affect any of Agent’s or Lenders’ rights,
Liens or remedies under any Loan Document, Applicable Law or equity. The enumeration of any rights and remedies in any Loan
Document is not intended to be exhaustive, and all rights and remedies of Agent and Lenders described in any Loan Document are cumulative
and are not alternative to or exclusive of any other rights or remedies which Agent and Lenders otherwise may have. The partial
or complete exercise of any right or remedy shall not preclude any other further exercise of such or any other right or remedy.
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X. WAIVERS
AND JUDICIAL PROCEEDINGS
10.1 Waivers
Except as expressly provided
for herein, Borrower hereby waives set off, counterclaim, demand, presentment, protest, all defenses with respect to any and all instruments
and all notices and demands of any description, and the pleading of any statute of limitations as a defense to any demand under any Loan
Document. Borrower hereby waives any and all defenses and counterclaims it may have or could interpose in any action or procedure
brought by Agent to obtain an order of court recognizing the assignment of, or Lien of Agent in and to, any Collateral.
10.2 Delay;
No Waiver of Defaults
No course of action or dealing,
renewal, release or extension of any provision of any Loan Document, or single or partial exercise of any such provision, or delay, failure
or omission on Agent’s part in enforcing any such provision shall affect the liability of Borrower or operate as a waiver of such
provision or preclude any other or further exercise of such provision. No waiver by any party to any Loan Document of any one
or more defaults by any other party in the performance of any of the provisions of any Loan Document shall operate or be construed as
a waiver of any future default, whether of a like or different nature, and each such waiver shall be limited solely to the express terms
and provisions of such waiver. Notwithstanding any other provision of any Loan Document, by completing the Closing under this
Agreement and/or by making Advances, neither the Agent nor any Lender waives any breach of any representation or warranty of under any
Loan Document, and all of Agent’s or any Lender’s claims and rights resulting from any such breach or misrepresentation are
specifically reserved.
10.3 Jury
Waiver
(A) EACH
PARTY HEREBY (i) EXPRESSLY, KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION ARISING UNDER
ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR INCIDENTAL TO THE DEALINGS OF THE PARTIES WITH RESPECT TO ANY LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AND (ii) AGREES
AND CONSENTS THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION AS WRITTEN EVIDENCE OF THE CONSENTS OF THE PARTIES TO THE WAIVER OF THEIR RESPECTIVE
RIGHTS TO TRIAL BY JURY.
(b) In
the event any such claim or cause of action is brought or filed in any United States federal court sitting in the State of California
or in any state court of the State of California, and the waiver of jury trial set forth in Section 10.3(a) is determined or held
to be ineffective or unenforceable, the parties agree that all claims and causes of action shall be resolved by reference to a private
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judge sitting without a jury, pursuant to California
Code of Civil Procedure Section 638, before a mutually acceptable referee or, if the parties cannot agree, a referee selected by the Presiding
Judge of the SANTA CLARA County, California. Such proceeding shall be conducted in SANTA CLARA County, California, with California
rules of evidence and discovery applicable to such proceeding. In the event Claims or causes of action are to be resolved by
judicial reference, any party may seek from any court having jurisdiction thereover any prejudgment order, writ or other relief and have
such prejudgment order, writ or other relief enforced to the fullest extent permitted by law notwithstanding that all claims and causes
of action are otherwise subject to resolution by judicial reference.
10.4 Amendment
and Waivers
(a) No
waiver of any provision of this Agreement or consent to any departure by Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the foregoing, the making of an Advance shall not be
construed as a waiver of any Default or Event of Default, regardless of whether Agent or any Lender may have had notice or knowledge of
such Default or Event of Default at the time.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified (except pursuant to an agreement or agreements in writing entered
into by Borrower and the Agent), except for an amendment to increase the Maximum Revolving Loan Amount in accordance with Section 2.14
hereof, such amendment to require the consent of Agent and such Lenders so increasing their Revolving Loan Commitment, or by Borrower
and Agent with the consent of the Requisite Lenders, without taking into account the Loans held by Non-Funding Lenders; provided that
no such agreement shall:
(i) increase
the Revolving Loan Commitment of any Lender without the written consent of such Lender;
(ii) reduce
the principal amount of any Loan or reduce the rate of interest thereon (other than a waiver of post-default interest), or reduce any
fees payable hereunder, without the written consent of each Lender directly affected thereby;
(iii) postpone
the scheduled date of payment of the principal amount of any Loan, or any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Revolving Loan Commitment without the
written consent of each Lender directly affected thereby;
(iv) change
any of the provisions of this Section or the definition of “Requisite Lenders” or any other provision hereof specifying the
number or percentage of
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Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;
(v) release
any Guarantor from its obligations under a Guaranty without the written consent of each Lender; or
(vi) except
as otherwise specifically provided in this Agreement, release all or substantially all of the Collateral, without the written consent
of each Lender;
provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of Agent hereunder without the prior written consent of Agent.
(c) Notwithstanding
the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Requisite
Lenders, Agent and Borrower (x) to add one or more credit facilities to this Agreement and to permit extensions of credit from time to
time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the Loan and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders
holding such credit facilities in any determination of the Requisite Lenders and Lenders.
(d) If,
in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender
directly affected thereby,” the consent of the necessary Lenders is not obtained (any such Lender whose consent is necessary but
not obtained being referred to herein as a “Non-Consenting Lender”), then Agent or Borrower may elect to replace
a Non-Consenting Lender as a Lender party to this Agreement, provided, that, concurrently with such replacement, (i) another bank
or other entity which is reasonably satisfactory to Agent shall agree, as of such date, to purchase for cash the principal balance of
the Loans due to the Non-Consenting Lender pursuant to a Lender Addition Agreement and to become a Lender for all purposes under this
Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements
of clause (a) of Section 12.2, and (ii) Borrower shall pay to such Non-Consenting Lender in same day funds on the day of
such replacement all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by Borrower hereunder to and
including the date of termination, including without limitation any indemnity payments due to such Non-Consenting Lender hereunder for
which the amount is known.
(e) Notwithstanding
anything to the contrary herein Agent may, with the consent of Borrower only, amend, modify or supplement this Agreement or any of the
other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency.
XI. EFFECTIVE
DATE AND TERMINATION
11.1 Effectiveness
and Termination
Subject to Agent’s right
to accelerate the Loan and terminate the Revolving Loan Commitments and cease making and funding Advances upon the occurrence and during
the continuation of any Event of Default, this Agreement shall continue in full force and effect until
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the earlier of the Maturity Date and the date
on which the Revolving Loan Commitments are terminated pursuant to Section 2.5(b). All of the Obligations shall be immediately
due and payable upon the earlier of (i) the Maturity Date, (ii) the date on which Agent accelerates the Loan following the occurrence
and during the continuance of an Event of Default or (iii) the Prepayment Date stated in the notice of prepayment delivered by Borrower
pursuant to Section 2.5(b), as applicable (the “Termination Date”). Notwithstanding any other
provision of any Loan Document, no termination of this Agreement shall affect Agent’s or any Lender’s rights or any of the
Obligations under the Loan Documents existing as of the effective date of such termination, and the provisions of the Loan Documents shall
continue to be fully operative until the Obligations under the Loan Documents (other than indemnity obligations of Borrower under the
Loan Documents that are not then due and payable or with respect to which no claim has been made) have been indefeasibly paid in cash
in full. The Liens granted to Agent, under the Security Documents and the financing statements filed pursuant thereto and the
rights and powers of Agent shall continue in full force and effect until all of the Obligations (other than indemnity obligations of Borrower
under the Loan Documents that are not then due and payable or with respect to which no claim has been made) have been fully performed
and indefeasibly paid in full in cash.
11.2 Survival
Unless expressly provided
herein, all obligations, covenants, agreements, representations, warranties, waivers and indemnities made by Borrower in any Loan Document
shall survive the execution and delivery of the Loan Documents, the Closing, the making and funding of the Loan and any termination of
this Agreement until all Obligations under the Loan Documents (other than indemnity obligations under the Loan Documents that are not
then due and payable or with respect to which no claim has been made) are indefeasibly paid in full in cash. The obligations
and provisions of Sections 3.1, 3.2, 3.3, 3.4, 3.6(c), 10.1, 10.3, 11.1, 11.2,
12.1, 12.3, 12.4, 12.7, 12.9, 12.10, 12.11, 12.13 and 13.8 shall survive
termination of the Loan Documents and any payment, in full or in part, of the Obligations.
XII. MISCELLANEOUS
12.1 Governing
Law; Jurisdiction; Service of Process; Venue
(A) The
Loan Documents, pursuant to New York General Obligations Law Section 5-1401, shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to its choice of law provisions that would result in the application of the laws of
a different jurisdiction.
(B) By
execution and delivery of each Loan Document to which it is a party, each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of
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any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. Nothing in this Agreement shall affect any right that Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against Borrower or its properties in the courts of any jurisdiction.
(C) Borrower
hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (a) of this Section 12.1. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(D) Each
of the parties hereto waives personal service of process and Agreement irrevocably consents to service of process in the manner provided
for notices in Section 12.5. Nothing in this Agreement will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.
12.2 Successors
and Assigns; Assignments and Participations
(a) Subject
to Sections 12.2(c) and (d), a Lender may at any time assign all or a portion of its rights and delegate all or a portion
of its obligations under this Agreement and the other Loan Documents (including all its rights and obligations with respect to the Loan)
to one or more Persons other than the Borrower or any Affiliate of the Borrower (subject to the following provisos, each, a “Transferee”),
provided, that unless an Event of Default has occurred and is continuing (in which event no such restriction shall apply), no natural
person, Non-Funding Lender or Affiliate of a Non-Funding Lender, direct competitor of Borrower or Holdings or any Person who is directly
engaged in consumer lease financing to big box retail, or is controlled by a Person which is a direct competitor of Borrower or who is
directly engaged in consumer lease financing to big box retail, shall constitute a Transferee hereunder and Borrower shall have a right
to consent to any Transferee that is not an Approved Fund of a Lender (each such Person that is precluded from being a Transferee pursuant
to this proviso, an “Ineligible Transferee”). Notwithstanding anything to the contrary in this Agreement,
other than restrictions set forth in the definition of “Transferee” and in Section 12.2(k), there shall be no limitation or
restriction on any Lender’s ability to assign, pledge or otherwise transfer any Note or other Obligation. The Transferee
and such Lender shall execute and deliver for acceptance and recording in the Register, a Lender Addition Agreement, which shall be in
form and substance reasonably acceptable to Agent in its
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Permitted Discretion (“Lender Addition
Agreement”). Upon such execution, delivery, acceptance and recording, from and after the effective date determined
pursuant to such Lender Addition Agreement, (i) the Transferee thereunder shall be a party hereto and, to the extent provided in such
Lender Addition Agreement, have the same rights, benefits and obligations as it would if it were a Lender hereunder, (ii) the assigning
Lender shall be relieved of its obligations hereunder with respect to its Advances or assigned portion thereof, as the case may be, to
the extent that such obligations shall have been expressly assumed by the Transferee pursuant to such Lender Addition Agreement (and,
in the case of a Lender Addition Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations
under this Agreement, such assigning Lender shall cease to be a party hereto but, with respect to matters occurring before such assignment,
shall nevertheless continue to be entitled to the benefits of Sections 12.4 and 12.7). Borrower hereby acknowledges
and agrees that any assignment will give rise to a direct obligation of Borrower to the Transferee and that the Transferee shall be considered
to be a “Lender” hereunder. Borrower may not sell, assign or transfer any interest in this Agreement, any of the
other Loan Documents, or any of its Obligations, or any portion thereof, including Borrower’s rights, title, interests, remedies,
powers, and duties hereunder or thereunder.
(b) Each
Lender may at any time sell participations in all or any part of its rights and obligations under this Agreement and the other Loan Documents
(including all its rights and obligations with respect to the Loan) to one or more Persons acceptable to Agent that is not a non direct
competitor of Borrower or Holdings or any Person who is directly engaged in consumer lease financing to big box retail, or is controlled
by a Person which is a direct competitor of Borrower or who is directly engaged in consumer lease financing to big box retail, subject
to Section 12.2(k) (each, a “Participant” and each Person that is precluded from being a Participant pursuant
to this sentence, an “Ineligible Participant”). In the event of any such sale by a Lender of a participation
to a Participant, (i) such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Loan
(and any Note evidencing such Loan) for all purposes under this Agreement and the other Loan Documents, (iv) Borrower and Agent shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement
and the other Loan Documents, and (v) all amounts payable pursuant to Section 6.2 by Borrower hereunder shall be determined
as if such Lender had not sold such participation. Any agreement pursuant to which any Lender shall sell any such participation
shall provide that such Lender shall retain the sole right and responsibility to exercise such Lender’s rights and enforce Borrower’s
obligations hereunder, including the right to consent to any amendment, supplement, modification or waiver of any provision of this Agreement
or any of the other Loan Documents; provided, that such participation agreement may provide that such Lender will not agree, without
the consent of the Participant, to any amendment, supplement, modification or waiver relating to: (A) any reduction in the principal amount,
interest rate or fees or premium payments payable to Lenders with respect to any Loan in which such holder participates, (B) any extension
of the Maturity Date or of the scheduled date of expiration of any Revolving Loan Commitment or any reinstatement of any terminated Revolving
Loan Commitment, (C) any release of all or substantially all of the Collateral (other than in accordance with the terms of this Agreement
or the Loan Documents), (D) any amendment or modification to the priority of payments or pro rata treatment of payments in connection
with the application of any amounts due in respect of the Loan (including, without limitation, as set forth in Section 2.4 hereof),
(E) discharging any Credit Party from its respective payment obligations in
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respect of the Loan except as otherwise may be
provided in the Loan and Security Agreement or the other Loan Documents, (F) increasing any fees payable to Agent under this Agreement,
(G) waiving any Event of Default arising as a result of a Change of Control or Servicer Default or (H) amending or modifying any of Section
7.4 or 7.13 of this Agreement. Borrower hereby acknowledges and agrees that the Participant under each participation shall,
solely for the purposes of Sections 12.4 and 12.7 of this Agreement be considered to be a “Lender” hereunder.
Each Lender that sells a participation shall, acting solely for this purpose as an agent of the 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 Loans or other obligations under the Loan Documents (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 commitments, loans, letters of credit or its other obligations under
any Loan Document) to any Person except (x) to the extent that such disclosure is necessary to establish that such commitment, loan, letter
of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and (y) that each
Lender must notify the Agent of the date and the amount of such participation. The entries in the 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, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(c) Agent
shall maintain at its address referred to in Section 12.5 a copy of each Lender Addition Agreement delivered to it and a written
or electronic register (the “Register”) for the recordation of the names and addresses of the Lenders and the
Advances made by, and the principal amount of the Loan owing to, and the Notes evidencing such Loan owned by, each Lender from time to
time. Notwithstanding anything in this Agreement to the contrary, Borrower and the Agent shall treat each Person whose name
is recorded in the Register as the owner of the Loan, the Notes and the Advances recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable
prior notice.
(d) Notwithstanding
anything in this Agreement to the contrary, no assignment under Section 12.2(a) of any rights or obligations under or in respect
of the Loan or the Notes evidencing such Loan shall be effective unless and until Agent shall have recorded the assignment pursuant to
Section 12.2(c). Upon its receipt of a Lender Addition Agreement executed by an assigning Lender and a Transferee, Agent
shall (i) promptly accept such Lender Addition Agreement and (ii) on the effective date determined pursuant thereto record the information
contained therein in the Register and give prompt notice of such acceptance and recordation to the Lender and Borrower. On
or prior to such effective date, the assigning Lender shall surrender any outstanding Notes held by it, all or a portion of which are
being assigned, and Borrower, at its own expense, shall, upon the request of Agent by the assigning Lender or the Transferee, as applicable,
execute and deliver to Agent, within five (5) Business Days of any request, new Notes to reflect the interest held by the assigning Lender
and its Transferee.
(e) Except
as otherwise provided in this Section 12.2 Agent shall not, as between Borrower and Agent, be relieved of any of its obligations
hereunder as a result of any
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sale, assignment, transfer or negotiation of,
or granting of participation in, all or any part of the Loan or other Obligations owed to Agent and Lenders. Agent may furnish
any information concerning Borrower in the possession of Agent from time to time to assignees and participants (including prospective
assignees and participants), subject to confidentiality requirements hereunder.
(f) Notwithstanding
any other provision set forth in this Agreement, Agent and each Lender may at any time create a security interest in all or any portion
of its rights under this Agreement, including, without limitation, the Loan owing to it and the Notes held by it and (solely with respect
to the Agent) the other Loan Documents and Collateral.
(g) Borrower
agrees to use commercially reasonable efforts to assist Agent and each Lender in assigning or selling participations in all or any part
of any Loan made by any Lender to another Person identified by such Lender.
(h) Notwithstanding
anything in the Loan Documents to the contrary, (i) Agent and its Affiliates shall not be required to execute and deliver a Lender
Addition Agreement in connection with any transfer, assignment or participation transaction involving its Affiliates or lenders, in each
case, who, unless an Event of Default has occurred and is continuing, are not Ineligible Transferees, (ii) no lender to or funding or
financing source of Agent or its Affiliates shall be considered a Transferee, (iii) there shall be no limitation or restriction on Agent’s
ability to assign (except to any Ineligible Transferee at such time as no Event of Default has occurred and is continuing), participate
or otherwise transfer any Loan Document to any such Affiliate or lender or funding or financing source, (iv) there shall be no limitation
or restriction on such Affiliates’ or lenders’ or financing or funding sources’ ability to assign, participate or otherwise
transfer any Loan Document, Loan, Note or Obligation (or any of its rights thereunder or interest therein) and (v) no notice shall be
required to be delivered to Borrower in connection with any assignment, participation or other transfer described in this Section 12.2(g);
provided, however, Agent shall continue to be liable as a “Lender” under the Loan Documents unless such Affiliate
or lender or funding or financing source executes a Lender Addition Agreement and thereby becomes a “Lender.”
(i) The
Loan Documents shall inure to the benefit of Agent, Lenders, Transferee, Participant (to the extent expressly provided herein only) and
all future holders of the Notes, the Obligations and/or any of the Collateral, and each of their respective successors and permitted assigns. Each
Loan Document shall be binding upon the Persons other than Agent that are parties thereto and their respective successors and assigns,
and no such Person may assign, delegate or transfer any Loan Document or any of its rights or obligations thereunder without the prior
written consent of Agent. No rights are intended to be created under any Loan Document for the benefit of any third party donee,
creditor or incidental beneficiary of Borrower. Nothing contained in any Loan Document shall be construed as a delegation to
Agent of any other Person’s duty of performance. BORROWER ACKNOWLEDGES AND AGREES THAT AGENT AT ANY TIME AND FROM TIME
TO TIME MAY (I) DIVIDE AND REISSUE (WITHOUT SUBSTANTIVE CHANGES OTHER THAN THOSE RESULTING FROM SUCH DIVISION) THE NOTES, AND/OR (II)
SELL, ASSIGN OR GRANT PARTICIPATING INTERESTS IN OR TRANSFER ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER ANY LOAN DOCUMENT, NOTE,
THE OBLIGATIONS AND/OR THE COLLATERAL TO OTHER
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PERSONS, IN EACH CASE ON THE TERMS AND CONDITIONS
PROVIDED HEREIN. Each Transferee and Participant shall have all of the rights, obligations and benefits with respect to the
Obligations, Notes, Collateral and/or Loan Documents held by it as fully as if the original holder thereof; provided, that, notwithstanding
anything to the contrary in any Loan Document, Borrower shall not be obligated to pay under this Agreement to any Transferee or Participant
any sum in excess of the sum which it would have been obligated to pay to Agent had such participation not been effected. Agent
may disclose to any Transferee or Participant all information, reports, financial statements, certificates and documents obtained under
any provision of any Loan Document; provided, that Transferees and Participants shall be subject to the confidentiality provisions
contained herein that are applicable to Agent.
(j) Any
Lender may assign or pledge all or any portion of the Loans or Notes held by it to any Federal Reserve Bank or the United States Treasury
as collateral security to secure obligations of such Lender, including without limitation, any assignment or pledge pursuant to Regulation
A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank, provided,
that any payment in respect of such assigned Loans or Notes made by Borrower to or for the account of the assigning or pledging Lender
in accordance with the terms of this Agreement shall satisfy Borrower’s obligations hereunder in respect to such assigned Loans
or Notes to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.
12.3 Application
of Payments
To the extent that any payment
made or received with respect to the Obligations is subsequently invalidated, determined to be fraudulent or preferential, set aside,
defeased or required to be repaid to a trustee, debtor in possession, receiver, custodian or any other Person under any Debtor Relief
Law, common law or equitable cause or any other law, then the Obligations intended to be satisfied by such payment shall be revived and
shall continue as if such payment had not been received by Agent and the Liens created hereby shall be revived automatically without any
action on the part of any party hereto and shall continue as if such payment had not been received by Agent. Any payments with
respect to the Obligations received shall be credited and applied in accordance with Section 2.4.
12.4 Indemnity
Borrower shall indemnify Agent,
each Lender, each Transferee, each Participant, their respective Affiliates, managers, members, officers, employees, agents, representatives,
successors, assigns, accountants and attorneys (collectively, the “Indemnified Persons”) from and against any
and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements of any kind
or nature whatsoever (including, without limitation, reasonable fees and disbursements of counsel, but limited, in the case of legal fees
and expenses, to the reasonable and documented fees, disbursements and expenses of one regulatory counsel to such Indemnified Person and
one other firm of outside counsel to such Indemnified Person taken as a whole and, solely in the case of an actual or potential conflict
of interest, one additional firm of outside counsel to each group of similarly situated Indemnified Person) which are incurred or actually
paid by any Indemnified Person with respect to or arising out of, or in any litigation, proceeding or investigation instituted or conducted
by any Person with respect to any aspect of, or
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any transaction contemplated by, or any matter
related to, any act of or omission by Borrower or any of its Affiliates, officers, directors and agents relating to the Loan, this Agreement
or any other Loan Document, except to the extent resulting or arising from the applicable Indemnified Person’s own gross negligence
or willful misconduct. Agent agrees to give Borrower reasonable notice of any event of which Agent becomes aware for which
indemnification may be required under this Section 12.4 (provided, that the failure of Agent to give such notice shall not
affect the obligation of Borrower or any other Person pursuant to this Section 12.4 unless materially prejudiced thereby) and Agent
may elect (but is not obligated) to direct the defense thereof; provided, that the selection of counsel shall be subject to Borrower’s
consent, which consent shall not be unreasonably withheld or delayed, and Borrower shall be entitled to participate in the defense of
any matter for which indemnification may be required under this Section 12.4 and to employ counsel at its own expense to assist
in the handling of such matter. Any Indemnified Person may, in its reasonable discretion, take such actions as it deems necessary
and appropriate to investigate, defend or settle any event or take other remedial or corrective actions with respect thereto as may be
necessary for the protection of such Indemnified Person or the Collateral, subject to Borrower’s prior approval of any settlement,
which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, if any insurer agrees to undertake the
defense of an event (an “Insured Event”), Agent agrees not to exercise its right to select counsel to defend
the event if that would cause Borrower’s insurer to deny coverage; provided, however, that Lender reserves the right
to retain counsel to represent any Indemnified Person with respect to an Insured Event at its sole cost and expense. To the
extent that Agent obtains recovery from a third party other than an Indemnified Person of any of the amounts that Borrower has paid to
Lender pursuant to the indemnity set forth in this Section 12.4, then Agent shall promptly pay to Borrower the amount of such
recovery. Without limiting any of the foregoing, (a) Borrower indemnifies the Indemnified Persons for all claims for brokerage
fees or commissions (other than claims of a broker with whom such Indemnified Person has directly contracted in writing) and (b) Agent
indemnifies the Borrower for all claims for brokerage fees or commissions (other than the claims of a broker with whom Borrower or any
of its Affiliates has directly contracted in writing), in each case, which may be made in connection with respect to any aspect of, or
any transaction contemplated by or referred to in, or any matter related to, any Loan Document or any agreement, document or transaction
contemplated thereby.
12.5 Notice
Any notice or request under
any Loan Document shall be given to the applicable party to this Agreement at such party’s address set forth beneath its signature
on the signature page to this Agreement, or at such other address as such party may hereafter specify in a notice given in the manner
required under this Section 12.5. Any notice or request hereunder shall be given only by, and shall be deemed to have
been received upon (each, a “Receipt”): (i) registered or certified mail, return receipt requested,
on the date on which such received as indicated in such return receipt, (ii) delivery by a nationally recognized overnight courier,
one (1) Business Day after deposit with such courier, or (iii) facsimile or electronic transmission, in each case upon telephone or further
electronic communication from the recipient acknowledging receipt (whether automatic or manual from recipient), as applicable.
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12.6 Severability;
Captions; Counterparts; Facsimile Signatures
If any provision of any Loan
Document is adjudicated to be invalid under Applicable Laws or regulations, such provision shall be inapplicable to the extent of such
invalidity without affecting the validity or enforceability of the remainder of the Loan Documents which shall be given effect so far
as possible. The captions in the Loan Documents are intended for convenience and reference only and shall not affect the meaning
or interpretation of the Loan Documents. The Loan Documents may be executed in one or more counterparts (which taken together,
as applicable, shall constitute one and the same instrument) and by facsimile transmission, which facsimile signatures shall be considered
original executed counterparts. Each party to this Agreement agrees that it will be bound by its own facsimile signature and
that it accepts the facsimile signature of each other party.
12.7 Expenses
Borrower shall pay, whether
or not the Closing occurs, all out-of-pocket fees, costs and expenses incurred or actually paid by Agent, any Lender, and/or its Affiliates,
including, without limitation, documentation and diligence fees and expenses prior to and following the Closing, all search, audit, appraisal,
recording, professional and filing fees and expenses and all other charges and expenses (including, without limitation, UCC and judgment
and tax lien searches and UCC filings and fees for post-Closing UCC and judgment and tax lien searches and wire transfer fees and audit
expenses), and reasonable external attorneys’ fees and expenses (including, without limitation, reasonable fees and disbursements
of counsel, but limited, in the case of legal fees and expenses, to the reasonable and documented fees, disbursements and expenses of
one regulatory counsel to such Indemnified Person and one other firm of outside counsel to such Indemnified Person taken as a whole and,
solely in the case of an actual or potential conflict of interest, one additional firm of outside counsel to each group of similarly situated
Indemnified Person), (i) in any effort to enforce, protect or collect payment of any Obligation or to enforce any Loan Document or any
related agreement, document or instrument, (ii) in connection with entering into, negotiating, preparing, reviewing and executing the
Loan Documents and/or any related agreements, documents or instruments, (iii) arising in any way out of administration of the Obligations
or the taking or refraining from taking by Agent of any action requested by Borrower, (iv) in connection with instituting, maintaining,
preserving, enforcing and/or foreclosing on Agent’s Liens in any of the Collateral or securities pledged under the Loan Documents,
whether through judicial proceedings or otherwise, (v) in defending or prosecuting any actions, claims or proceedings arising out of or
relating to Agent’s or any Lender’s transactions with Borrower, (vi) in seeking, obtaining or receiving any advice with respect
to its rights and obligations under any Loan Document and any related agreement, document or instrument, (vii) arising out of or
relating to any Default or Event of Default or occurring thereafter or as a result thereof, (viii) in connection with all actions,
visits, audits and inspections undertaken by Agent or its Affiliates pursuant to the Loan Documents, and/or (ix) in connection with any
modification, restatement, supplement, amendment, waiver or extension of any Loan Document and/or any related agreement, document or instrument. All
of the foregoing shall be charged to Borrower’s account and shall be part of the Obligations. Without limiting the forgoing,
Borrower shall pay all Taxes (other than Taxes based upon or measured by Agent’s income or revenues or any personal property tax),
if any, in connection with the issuance of any Note and the filing and/or recording of any documents and/or financing statements.
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12.8 Entire
Agreement
This Agreement and the other
Loan Documents to which Borrower is a party constitute the entire agreement between Borrower, Agent and Lenders with respect to the subject
matter hereof and thereof, and supersede all prior agreements and understandings (including but not limited to the term sheet dated on
or about January 29, 2019), if any, relating to the subject matter hereof or thereof. Any promises, representations, warranties
or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing signed by Borrower, Agent and
Requisite Lenders, as appropriate. Except as set forth in and subject to Section 10.4, no provision of any Loan Document
may be changed, modified, amended, restated, waived, supplemented, discharged, canceled or terminated orally or by any course of dealing
or in any other manner other than by an agreement in writing signed by Borrower, Agent and Requisite Lenders, provided, that no
consent or agreement by Borrower shall be required to amend, modify, change, restate, waive, supplement, discharge, cancel or terminate
any provision of Article XIII, so long as no additional duties are required to be assumed by Borrower and there is no adverse effect
on Borrower or its rights or duties under this Agreement or any other Loan Document. Each party hereto acknowledges that it
has been advised by counsel in connection with the negotiation and execution of this Agreement and is not relying upon oral representations
or statements inconsistent with the terms and provisions hereof. The schedules attached hereto may be amended or supplemented
by Borrower upon delivery to Agent of such amendments or supplements and, except as expressly provided otherwise in this Agreement, the
written approval thereof by Agent.
12.9 Approvals
and Duties
Unless expressly provided
herein to the contrary, any approval, consent, waiver or satisfaction of Agent with respect to any matter that is subject of any Loan
Document may be granted or withheld by Agent, as applicable, in its sole and absolute discretion. Agent shall have no responsibility
for or obligation or duty with respect to any of the Collateral or any matter or proceeding arising out of or relating thereto, including,
without limitation, any obligation or duty to collect any sums due in respect thereof or to protect or preserve any rights pertaining
thereto.
12.10 Publicity
(a) Borrower
agrees, and agrees to cause each of its Affiliates, (i) not to transmit or disclose provision of any Loan Document to any Person (other
than to the advisors, managers, directors, officers and employees of the Borrower, Holdings, Katapult Intermediate
IIIMidco and Parent Entity on a need-to-know basis)
without Agent’s prior written consent, (ii) to inform all Persons of the confidential nature of the Loan Documents and to direct
them not to disclose the same to any other Person and to require each such Person (other than to the advisors, managers, directors, officers
and employees of the Borrower, Holdings, Katapult Intermediate IIIMidco
and Parent Entity) of them to be bound by these provisions. Borrower agrees to submit to Agent and Agent reserves the right to review
and approve all materials that Borrower or any of its Affiliates prepares to Persons other than Borrower, Holdings, Katapult Intermediate
IIIMidco and Parent Entity and their Affiliates and
their respective advisors, managers, directors, officers and employees that contain Agent’s or any Lender’s name or describe
or refer to any Loan Document, any of the terms thereof or any of the transactions contemplated thereby; provided, that Borrower
and its Affiliates shall have the right to disclose the Loan Documents to:
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(i) Agent,
Lenders and their respective Affiliates;
(ii) such
Person’s investors and prospective investors, rating agencies and their respective directors, officers, trustees, partners, members,
managers, employees, agents, advisors, representatives, attorneys, equity owners, professional consultants, portfolio management services
and rating agencies (in each case, provided that such Person agrees to be bound by this Section 12.10);
(iii) any
Governmental Authority to which the Borrower, Holdings, Katapult Intermediate IIIMidco
or Parent Entity is subject at the request or pursuant to any requirement of such Governmental Authority, or in connection with an examination
of Borrower, Holdings, Katapult Intermediate IIIMidco
or Parent Entity by any such Governmental Authority; and
(iv) any
Person (A) to the extent required by applicable law, (B) in response to any subpoena or other legal process or informal investigative
demand, (C) in connection with any litigation, or (D) in connection with the actual or potential exercise or enforcement of any right
or remedy under any Loan Document.
(b) The
obligations of Borrower, Holdings, Katapult Intermediate IIIMidco
or Parent Entity and their respective Affiliates under this Section 12.10 shall supersede and replace any other confidentiality obligations
to the Agent and Lenders with respect to the Loan Documents agreed to by Borrower, Holdings, Katapult Intermediate
IIIMidco or Parent Entity or any of their respective
Affiliates.
(c)
Borrower shall not, and shall not permit any of its Affiliates to, use Agent’s or any Lender’s name (or the name of any of
Agent’s, or any Lender’s Affiliates) in connection with any of its business operations, including without limitation, advertising,
marketing or press releases or such other similar purposes, without Agent’s prior written consent. Nothing contained in any Loan
Document is intended to permit or authorize Borrower or any of its Affiliates to contract on behalf of Agent or any Lender.
(d) Borrower
hereby agrees that Agent or any Affiliate of Agent may (i) disclose a general description of transactions arising under the Loan Documents
for advertising, marketing or other similar purposes and (ii) use Borrower’s or any Borrower Party’s name, logo or other indicia
germane to such party in connection with such advertising, marketing or other similar purposes.
(e) Lenders
and Agent shall exercise commercially reasonable efforts to maintain in confidence, in accordance with its customary procedures for handling
confidential information, all written non-public information of a Borrower Party that any Borrower Party furnishes on a confidential basis
(“Confidential Information”), other than any such Confidential Information that becomes generally available
to the public or becomes available to Lender or Agent from a source other than Borrower, Holdings, Katapult Intermediate
IIIMidco, Parent Entity or any of their respective
Affiliates (collectively, the “Borrower Parties”) that is not known to such recipient to be subject
to confidentiality obligations; provided, that each Lender and Agent
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and their respective Affiliates shall have the
right to disclose Confidential Information, in each case, provided that such Person agrees to be bound by this Section 12.10, to:
(i) Borrower
or its Affiliates;
(ii) such
Person’s Affiliates;
(iii) such
Person’s or such Person’s Affiliates’ lenders, funding or financing sources;
(iv) such
Person’s or such Person’s Affiliates’ directors, officers, trustees, partners, members, managers, employees, agents,
advisors, representatives, attorneys, equity owners, professional consultants, portfolio management services and rating agencies;
(v) any
Person to whom Agent or a Lender offers or proposes to offer to sell, assign or transfer the Loan or any part thereof or any interest
or participation therein (other than an Ineligible Transferee);
(vi) any
Person that provides statistical analysis and/or information services to a Lender or Agent or any of their respective Affiliates;
(vii) any
Governmental Authority to which any Lender or Agent is subject at the request or pursuant to any requirement of such Governmental Authority,
or in connection with an examination of any Lender or Agent by any such Governmental Authority; and
(viii) any
Person (A) to the extent required by applicable law, (B) in response to any subpoena or other legal process or informal investigative
demand, (C) in connection with any litigation, or (D) in connection with the actual or potential exercise or enforcement of any right
or remedy under any Loan Document.
In addition, each of the Lenders
and Agent agrees (i) to use commercially reasonable efforts to insure that no material non-public information provided to it by or on
behalf of any Borrower Party will be utilized by such Lender or the Agent or any of their respective affiliates, agents, advisors or representatives
to trade any securities of the Parent Entity (or its successors) and (ii) not to use, or cause any of its respective affiliates, agents,
advisors or representatives to use, any material non-public information provided to it by or on behalf of any Borrower Party to trade
any securities of the Parent Entity (or its successors).
(f) The
obligations of Lenders and Agent and their respective Affiliates under this Section 12.10 shall supersede and replace any other
confidentiality obligations agreed to by any Lender or Agent or any of their respective Affiliates.
(g) Notwithstanding
anything herein to the contrary, each party to this Agreement may disclose without limitation the tax treatment and tax structure of the
transactions contemplated by this Agreement.
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(h) Any
disclosure by Agent or Lenders of any of a Borrower Parties’ Confidential Information pursuant to applicable federal, state or local
law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”)
shall be subject to the terms of this paragraph. Prior to making any such disclosure, Agent or Lenders shall make commercially reasonable
efforts to provide the Borrower Parties with prompt written notice of such compelled disclosure so that the Borrower Parties may seek
a protective order or other remedy and reasonable assistance in opposing such disclosure or seeking a protective order or other limitations
on disclosure. If, after providing such notice and assistance as required herein, Agent or Lenders remain subject to a Legal Order to
disclose any Confidential Information, Agent or such Lender shall disclose, and, if applicable, shall require its representatives or other
persons to whom such Legal Order is directed to disclose, no more than that portion of the Confidential Information which, on the advice
of Agent’s or such Lender’s legal counsel, such Legal Order specifically compels and shall use commercially reasonable efforts
to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
12.11 Release
of Collateral
(a) So
long as no Default or Event of Default has occurred and is continuing, upon request of Borrower, Agent shall release any Lien granted
to or held by Agent upon any Collateral being sold or disposed of in compliance with the provisions of the Loan Documents, as determined
by Agent in its sole discretion. Subject to Section 12.3, promptly following indefeasible payment in full in cash of
all Obligations (other than indemnity obligations under the Loan Documents that are not then due and payable or with respect to which
no claim has been made) and the termination of this Agreement, the Liens created hereby shall terminate and Agent shall execute and deliver
such documents, at Borrower’s expense, as are necessary to release Agent’s Liens in the Collateral and shall return or cause
the return of or consent to the return of the Collateral to Borrower; provided, however, that the parties agree that, notwithstanding
any such termination or release or the execution, delivery or filing of any such documents or the return of any Collateral, if and to
the extent that any such payment made or received with respect to the Obligations is subsequently invalidated, determined to be fraudulent
or preferential, set aside, defeased or required to be repaid to a trustee, debtor in possession, receiver, custodian or any other Person
under any Debtor Relief Law, common law or equitable cause or any other law, then the Obligations intended to be satisfied by such payment
shall be revived and shall continue as if such payment had not been received by Agent and the Liens created hereby shall be revived automatically
without any action on the part of any party hereto and shall continue as if such payment had not been received by Agent. Agent
shall not be deemed to have made any representation or warranty with respect to any Collateral so delivered except that such Collateral
is free and clear, on the date of such delivery, of any and all Liens arising from such Person’s own acts. Section 12.9 shall
not be applicable to any actions required to be taken by the Agent under this Section.
(b) Notwithstanding
anything herein to the contrary, the Person constituting the Parent Entity immediately prior to the consummation of a Parent Reorganization
Transaction shall be automatically released from its obligations hereunder and under the other Loan Documents (and its obligations under
any Guaranty and any Liens on its property securing the Obligations shall be automatically released) upon the consummation of such Parent
Reorganization Transaction.
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12.12 Treatment
of Fees
The parties hereto agree that
all fees due and payable by the Borrower under this Agreement, including, without limitation, pursuant to Article III hereof, shall
be deemed to be and shall be treated as interest in respect of the outstanding principal amount of the Loan; provided, however,
that nothing in this Section 12.12 shall in any way modify or reduce the obligations of the Borrower under Sections 2.2
or 3.2 of this Agreement.
12.13 Release;
Cooperation
(a) Borrower
hereby acknowledges and agrees that as of the date hereof it has no defense, counterclaim, offset, cross-complaint, claim or demand of
any kind or nature whatsoever that can be asserted to reduce or eliminate all or any part of its liability to repay the obligations or
to seek affirmative relief or damages of any kind or nature from Agent or any Lender. To the extent permitted by applicable
law, Borrower hereby voluntarily and knowingly releases and forever discharges Agent and each Lender and each of their respective predecessors,
agents, employees, affiliates, attorneys, successors and assigns (collectively, the “Released Parties”) from
all Claims whatsoever, whether known or unknown, anticipated or unanticipated, suspected or unsuspected, fixed, contingent or conditional,
or at law or in equity, in any case to the extent originating on or before the date this Agreement is executed that Borrower may now or
hereafter have against the Released Parties, if any, irrespective of whether any such claims arise out of contract, tort, violation of
law or regulations, or otherwise, and that arise from any of the Loans, the exercise of any rights and remedies under this Agreement or
any of the other Loan Documents, and/or the negotiation for and execution of this Agreement, including, without limitation, any contracting
for, charging, taking, reserving, collecting or receiving interest in excess of the highest lawful rate applicable. Borrower
acknowledges that the foregoing release is a material inducement to each Lender’s decision to extend to Borrower the financial accommodations
hereunder and has been relied upon by such Lender in agreeing to make the Loan. Borrower hereby further specifically waives
any rights that it may have under Section 1542 of the California Civil Code (to the extent applicable), which provides as follows: “A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR,” and further waives any similar rights
under applicable laws.
(b) In
any litigation, arbitration or other dispute resolution proceeding relating to any Loan Document, Borrower waives any and all defenses,
objections and counterclaims it may have or could interpose with respect to (i) any of its directors, officers, employees or agents being
deemed to be employees or managing agents of Borrower for purposes of all applicable law or court rules regarding the production of witnesses
by notice for testimony (whether in a deposition, at trial or otherwise), (ii) Agent’s or any other Lender’s counsel examining
any such individuals as if under cross-examination and using any discovery deposition of any of them as if it were an evidence deposition,
and (iii) using all commercially reasonable efforts to produce in any such dispute resolution proceeding, at the time and in the manner
requested by Agent or such other Lender, all Persons, documents (whether in tangible, electronic or other form) and other things under
its control and relating to the dispute.
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12.14 Amendment
and Restatement; Acknowledgements; No Termination; Reaffirmations; References; Conditional Waiver.
(a) Amendment
and Restatement. Effective on the Closing Date, this Agreement amends and restates the Original Loan Agreement in its entirety. The
Obligations (as defined in the Original Loan Agreement) of the Borrower (the “Original Loan Agreement Obligations”)
that remain unpaid and outstanding on the date hereof shall, without duplication, constitute Obligations and shall continue as outstanding
under, and shall be governed by, this Agreement and the other Loan Documents. The Obligations shall continue to be (x) secured
by the Collateral (including the Collateral (as defined in the Original Loan Agreement)), the Collateral (as defined in the Payment Guaranty)
and all other collateral pledged by the Credit Parties under the applicable Loan Documents.
(b) Acknowledgements.
(i) Borrower
hereby acknowledges and confirms that pursuant to the Original Loan Agreement it assigned, pledged, and granted to the Agent a continuing
Lien in and to the “Collateral” (as defined in the Original Loan Agreement) (the “Existing Security Interest”)
to secure the Original Loan Agreement Obligations, and hereby reaffirms and confirms the Existing Security Interest.
(ii) The
parties hereto acknowledge, confirm and agree that, without further action by any party hereto, (i) the Existing Security Interest shall
be deemed to be granted in favor of the Agent hereunder; and (ii) such Existing Security Interest (A) shall be deemed to, and shall continue
to, and shall be deemed to continue to, secure the Obligations and (B) shall continue without interruption to secure all Obligations now
or hereafter outstanding and that such Existing Security Interest is valid, enforceable and subsisting.
(c) No
Termination. This Agreement and the other Loan Documents, whether executed and delivered in connection herewith or otherwise,
are not intended to, do not, and shall not in any circumstance be deemed to, (i) terminate, extinguish, release or discharge any Lien
pledged, assigned and granted by the applicable Credit Parties securing any of the Original Loan Agreement Obligations, (ii) constitute
a novation, satisfaction, extinguishment, payment, reborrowing or termination of any Original Loan Agreement Obligations that remain outstanding
as of the Closing Date or (iii) operate as a waiver of any right, power, privilege or remedy of any party under any Loan Document.
(d) Reaffirmation. As
of the Closing Date, each Credit Party hereby confirms and reaffirms all its respective obligations under this Agreement and the other
Loan Documents which it is a party (including all Obligations).
(e) References. Effective
as of the Closing Date, all references to the Original Loan Agreement in any Loan Document (other than this Agreement) or other document
or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof. It is
understood and agreed that the Original Loan Agreement is being amended, restated and replaced in its entirety by entry into this Agreement
on the Closing Date and the
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Original Loan Agreement (including all
exhibits and schedules attached thereto) shall thereafter be of no further force and effect, except to evidence (i) the incurrence by
the Borrower of the “Obligations” (under and as defined in the Original Loan Agreement), whether or not such “Obligations”
are contingent as of the Closing Date and (ii) the representations and warranties made by the Credit Parties prior to the Closing Date
(which representations and warranties shall not be superseded or rendered ineffective by this Agreement as they pertain to the period
prior to the Closing Date).
XIII. AGENT
PROVISIONS; SETTLEMENT
13.1 Agent
(a) Appointment. Each
Lender hereby designates and appoints Midtown Madison Management LLC as the administrative agent, payment agent and collateral agent under
this Agreement and the other Loan Documents, and each Lender hereby irrevocably authorizes Midtown Madison Management LLC, as Agent for
such Lender, to take such action or to refrain from taking such action on its behalf under the provisions of this Agreement and the other
Loan Documents and to exercise such powers and perform such duties as are delegated to Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental thereto. Agent agrees to act as such on the conditions
contained in this Article XIII. The provisions of this Article XIII are solely for the benefit of Agent and Lenders,
and Borrower shall have no rights as third-party beneficiaries of any of the provisions of this Article XIII other than the second
sentence of Section 13.1(h)(iii). Agent may perform any of its duties hereunder, or under the Loan Documents, by or
through its agents, employees or sub-agents.
(b) Nature
of Duties. In performing its functions and duties under this Agreement, Agent is acting solely on behalf of Lenders, and
its duties are administrative in nature, and does not assume and shall not be deemed to have assumed, any obligation toward or relationship
of agency or trust with or for Lenders, other than as expressly set forth herein and in the other Loan Documents, or Borrower. Agent
shall have no duties, obligations or responsibilities except those expressly set forth in this Agreement or in the other Loan Documents. Agent
shall not have by reason of this Agreement or any other Loan Document a fiduciary relationship in respect of any Lender. Each
Lender shall make its own independent investigation of the financial condition and affairs of Borrower in connection with the extension
of credit hereunder and shall make its own appraisal of the creditworthiness of Borrower. Except for information, notices,
reports and other documents expressly required to be furnished to Lenders by Agent hereunder or given to Agent for the account of or with
copies for Lenders, Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Lender with
any credit or other information with respect thereto, whether coming into its possession before the Closing Date or at any time or times
thereafter. If Agent seeks the consent or approval of any Lenders to the taking or refraining from taking any action hereunder,
then Agent shall send prior written notice thereof to each Lender. Agent shall promptly notify each Lender in writing any time
that the applicable percentage of Lenders have instructed Agent to act or refrain from acting pursuant hereto.
(c) Rights,
Exculpation, Etc. Neither Agent nor any of its officers, directors, managers, members, equity owners, employees, attorneys
or agents shall be liable to any Lender
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for any action lawfully taken or omitted by them
hereunder or under any of the other Loan Documents, or in connection herewith or therewith; provided that the foregoing shall not prevent
Agent from being be liable to the extent of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction
on a final and nonappealable basis. Notwithstanding the foregoing, Agent shall be obligated on the terms set forth herein for
performance of its express duties and obligations hereunder. Agent shall not be liable for any apportionment or distribution
of payments made by it in good faith, and if any such apportionment or distribution is subsequently determined to have been made in error,
the sole recourse of any Lender to whom payment was due but not made shall be to recover from the other Lenders any payment in excess
of the amount to which they are determined to be entitled (and such other Lenders hereby agree promptly to return to such Lender any such
erroneous payments received by them). In performing its functions and duties hereunder, Agent shall exercise the same care
which it would in dealing with loans for its own account. Agent shall not be responsible to any Lender for any recitals, statements,
representations or warranties made by Borrower herein or for the execution, effectiveness, genuineness, validity, enforceability, collectability
or sufficiency of this Agreement or any of the other Loan Documents or the transactions contemplated thereby, or for the financial condition
of Borrower. Agent shall not be required to make any inquiry concerning either the performance or observance of any of the
terms, provisions, or conditions of this Agreement or any of the Loan Documents or the financial condition of Borrower, or the existence
or possible existence of any Default or Event of Default. Agent may at any time request instructions from Lenders with respect
to any actions or approvals which by the terms of this Agreement or of any of the other Loan Documents Agent is permitted or required
to take or to grant, and Agent shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not
be under any liability whatsoever to any Person for refraining from taking any action or withholding any approval under any of the Loan
Documents until it shall have received such instructions from the applicable percentage of Lenders. Without limiting the foregoing,
no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting under this Agreement
or any of the other Loan Documents in accordance with the instructions of the applicable percentage of Lenders and, notwithstanding the
instructions of Lenders, Agent shall have no obligation to take any action if it, in good faith, believes that such action exposes Agent
or any of its officers, directors, managers, members, equity owners, employees, attorneys or agents to any personal liability unless Agent
receives an indemnification satisfactory to it from Lenders with respect to such action.
(d) Reliance. Agent
shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message or other
communication (including any writing, telex, telecopy or telegram) believed by it in good faith to be genuine and correct and to have
been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the other Loan
Documents and its duties hereunder or thereunder, upon advice of legal counsel, independent accountants and other experts selected by
Agent in its sole discretion.
(e) Indemnification. Each
Lender, severally and not (i) jointly or (ii) jointly and severally, agrees to reimburse and indemnify and hold harmless Agent and its
officers, directors, managers, members, equity owners, employees, attorneys and agents (to the extent not reimbursed by Borrower), ratably
according to their respective Pro Rata Share in effect on the date on which indemnification is sought under this subsection of the total
outstanding Obligations under
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the Loan Documents (or, if indemnification is
sought after the date upon which the Loans shall have been paid in full, ratably in accordance with their Pro Rata Share immediately prior
to such date of the total outstanding Obligations), 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 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 Loan Documents or any action taken or omitted by Agent under this
Agreement or any of the other 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 Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction on a
final and non-appealable basis. The obligations of Lenders under this Article XIII shall survive the payment in full
of the Obligations and the termination of this Agreement.
(f) Agent
in its Individual Capacity. With respect to the Loans made by it, if any, Midtown Madison Management LLC and its successors
as the Agent shall have, and may exercise, the same rights and powers under the Loan Documents, and is subject to the same obligations
and liabilities, as and to the extent set forth in the Loan Documents, as any other Lender. The terms “Lenders”
or “Requisite Lenders” or any similar terms shall include Agent in its individual capacity as a Lender. Agent 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 lending, banking, trust, financial advisory or other business with, Borrower or any Subsidiary or Affiliate of Borrower
as if it were not acting as Agent pursuant hereto.
(g) Successor
Agent.
(i) Resignation. Agent
may resign from the performance of all or part of its functions and duties hereunder at any time by giving at least thirty (30) calendar
days’ prior written notice to Borrower and Lenders. Such resignation shall take effect upon the acceptance by a successor
Agent of appointment pursuant to clause (ii) below or as otherwise provided below.
(ii) Appointment
of Successor. Upon any such notice of resignation pursuant to clause (g)(i) of this Section 13.1, Requisite Lenders
shall appoint a successor Agent which is not an Ineligible Transferee. If a successor Agent shall not have been so appointed
within said thirty (30) calendar day period referenced in clause (g)(i) above, the retiring Agent, upon notice to Borrower, may, on behalf
of Lenders, appoint a successor Agent which is not an Ineligible Transferee, who shall serve as Agent until such time as Requisite Lenders
appoint a successor Agent as provided above. If no successor Agent has been appointed pursuant to the foregoing within said
thirty (30) calendar day period, the resignation shall become effective and Requisite Lenders thereafter shall perform all the duties
of Agent hereunder, until such time, if any, as Requisite Lenders appoint a successor Agent as provided above.
(iii) Successor
Agent. Upon the acceptance of any appointment as Agent under the Loan Documents by a successor Agent which is not an Ineligible
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Transferee, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and, upon the earlier
of such acceptance or the effective date of the retiring Agent’s resignation, the retiring Agent shall be discharged from its duties
and obligations under the Loan Documents, provided that any indemnity rights or other rights in favor of such retiring Agent shall
continue after and survive such resignation and succession. After any retiring Agent’s resignation as Agent under the
Loan Documents, the provisions of this Article XIII shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under the Loan Documents.
(h) Collateral
Matters.
(i) Collateral. Each
Lender agrees that any action taken by Agent or the Requisite Lenders (or, where required by the express terms of this Agreement, a greater
number of Lenders) in accordance with the provisions of this Agreement or of the other Loan Documents relating to the Collateral, and
the exercise by Agent or the Requisite Lenders (or, where so required, such greater number of Lenders) of the powers set forth herein
or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of Lenders
and Agent. Without limiting the generality of the foregoing, Agent shall have the sole and exclusive right and authority to
(i) act as the disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection herewith
and with the Loan Documents in connection with the Collateral; (ii) execute and deliver each Loan Document relating to the Collateral
and accept delivery of each such agreement delivered by the Borrower or any Guarantor; (iii) act as collateral agent for Lenders for purposes
of the perfection of all security interests and Liens created by such agreements and all other purposes stated therein; (iv) manage, supervise
and otherwise deal with the Collateral; (v) take such action as is necessary or desirable to maintain the perfection and priority of the
security interests and Liens created or purported to be created by the Loan Documents relating to the Collateral; and (vi) except as may
be otherwise specifically restricted by the terms hereof or of any other Loan Document, exercise all right and remedies given to such
Agent and Lenders with respect to the Collateral under the Loan Documents relating thereto, Applicable Law or otherwise.
(ii) Release
of Collateral. Lenders hereby irrevocably authorize Agent, at its option and in its discretion, to release any Lien granted
to or held by Agent, for the benefit the of Lenders, upon any Collateral covered by the Loan Documents (A) upon termination of this Agreement
and the indefeasible payment in full in cash of all Obligations under the Loan Documents (other than contingent indemnification Obligations
to the extent no claim giving rise thereto has been asserted); (B) constituting Collateral being sold or disposed of if Borrower certifies
to Agent that the sale or disposition is made in compliance with the provisions of the Loan Documents (and Agent may rely conclusively
on any such certificate, without further inquiry); or (C) constituting Collateral leased to Borrower under a lease which has expired or
been terminated in a transaction permitted under this Agreement or is about to expire and which has not been, and is not intended by Borrower
to be, renewed or extended.
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(iii) Confirmation
of Authority; Execution of Releases. Without in any manner limiting Agent’s authority to act without any specific
or further authorization or consent by Lenders (as set forth in Section 13.1(h)(i) and (ii)), each Lender agrees to confirm
in writing, upon request by Borrower, the authority to release any property covered by this Agreement or the Loan Documents conferred
upon Agent under Section 13.1(h)(ii). So long as no Event of Default exists, upon receipt by Agent of confirmation
from the requisite percentage of Lenders of its authority to release any particular item or types of Collateral covered by this Agreement
or the other Loan Documents, and upon at least five (5) Business Days’ prior written request by Borrower, Agent shall (and hereby
is irrevocably authorized by Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to Agent,
for the benefit itself and the Lenders, herein or pursuant hereto upon such Collateral; provided, however, that (A) Agent
shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create
any obligation or entail any consequence other than the release of such Liens without recourse or warranty (other than that such Collateral
is free and clear, on the date of such delivery, of any and all Liens arising from such Person’s own acts), and (B) such release
shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or obligations of Borrower or any Subsidiary of
Borrower in respect of) all interests retained by Borrower or any Subsidiary of Borrower, including, without limitation, the proceeds
of any sale, all of which shall continue to constitute part of the Collateral covered by this Agreement or the Loan Documents.
(iv) Absence
of Duty. 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 Loan Documents exists or is owned by Borrower or is cared for, protected or insured or has been encumbered
or that the Liens granted to Agent, on behalf of the Lenders, herein or pursuant hereto 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 Agent in this Section 13.1(h) or in any of the Loan Documents; it being understood and agreed that in respect of
the Collateral covered by this Agreement or the other Loan Documents, or any act, omission or event related thereto, Agent may act in
any manner it may deem appropriate, in its discretion, given Agent’s own interest in Collateral covered by this Agreement or the
Loan Documents as one of Lenders and Agent shall have no duty or liability whatsoever to any of the other Lenders; provided, that
Agent shall exercise the same care which it would in dealing with loans for its own account.
(v) Parent
Reorganization Transaction. Without limiting Section 12.11(b), each Lender irrevocably authorizes and instructs Agent to, and
Agent shall at the request of Parent Entity, release any Lien on any property of the Parent Entity granted to or held by Agent under any
Loan Document to the extent required or desirable in connection with a Parent Reorganization Transaction.
(i) Agency
for Perfection. Each Lender hereby appoints Agent as agent for the purpose of perfecting Lenders’ security interest
in Collateral which, in accordance with Article 9 of the UCC in any applicable jurisdiction, can
be perfected only by possession. Should any
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Lender (other than Agent) obtain possession of any such Collateral, such Lender
shall hold such Collateral for purposes of perfecting a security interest therein for the benefit of the Lenders, notify Agent thereof
and, promptly upon Agent’s request therefor, deliver such Collateral to Agent or otherwise act in respect thereof in accordance
with Agent’s instructions.
(j) Exercise
of Remedies. Except as set forth in Section 13.4, each Lender agrees that it will not have any right individually
to enforce or seek to enforce this Agreement or any other Loan Document or to realize upon any Collateral security for the Loans or other
Obligations; it being understood and agreed that such rights and remedies may be exercised only by Agent in accordance with the terms
of the Loan Documents.
13.2 Lender
Consent
(a) In
the event Agent requests the consent of a Lender and does not receive a written denial thereof within five (5) Business Days after such
Lender’s receipt of such request, then such Lender will be deemed to have given such consent so long as such request contained a
notice stating that such failure to respond within five (5) Business Days would be deemed to be a consent by such Lender.
(b) In
the event Agent requests the consent of a Lender in a situation where such Lender’s consent would be required and such consent is
denied, then Agent may, at its option, require such Lender to assign its interest in the Loans to Agent for a price equal to the then
outstanding principal amount thereof due such Lender plus accrued and unpaid interest and fees due such Lender, which principal, interest
and fees will be paid to the Lender when collected from Borrower. In the event that Agent elects to require any Lender to assign
its interest to Agent pursuant to this Section 13.2 Agent will so notify such Lender in writing within forty-five (45) days
following such Lender’s denial, and such Lender will assign its interest to Agent no later than five (5) calendar days following
receipt of such notice.
13.3 Set-off
and Sharing of Payments
In addition to any rights
and remedies now or hereafter granted under Applicable Law and not by way of limitation of any such rights, upon the occurrence and during
the continuation of any Event of Default, each Lender is hereby authorized by Borrower at any time or from time to time, to the fullest
extent permitted by law, with the prior written consent of Agent and without notice to Borrower or any other Person other than Agent (such
notice being hereby expressly waived) to set off and to appropriate and to apply any and all (a) balances (general or special, time or
demand, provisional or final) held by such Lender at any of its offices for the account of Borrower (regardless of whether such balances
are then due to Borrower ), and (b) other Collateral at any time held or owing by such Lender to or for the credit or for the account
of Borrower, against and on account of any of the Obligations which are not paid when due; provided, that no Lender or any such
holder shall exercise any such right without prior written notice to Agent. Any Lender that has exercised its right to set-off
or otherwise has received any payment on account of the Obligations shall, to the extent the amount of any such set off or payment exceeds
its Pro Rata Share of payments obtained by all of the Lenders on account of such Obligations, purchase for cash (and the other Lenders
or holders of the Loans shall sell) participations in each such other Lender’s or holder’s Pro Rata Share
of Obligations as would be necessary to cause such Lender to
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share such excess with each other Lenders or holders in accordance with their
respective Pro Rata Shares; provided, however, that if all or any portion of such excess payment or benefits is thereafter
recovered from such purchasing Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of
such recovery. Borrower agrees, to the fullest extent permitted by law, that (y) any Lender or holder may exercise its right
to set-off with respect to amounts in excess of its Pro Rata Share of the Obligations and may sell participations in such excess to other
Lenders and holders, and (z) any Lender so purchasing a participation in the Loans made or other Obligations held by other Lenders may
exercise all rights of set-off, bankers’ lien, counterclaim or similar rights with respect to such participation as fully as if
such Lender were a direct holder of Loans and other Obligations in the amount of such participation.
13.4 Disbursement
of Funds
(a) Agent
may, on behalf of Lenders, disburse funds to Borrower for the Revolving Advance requested or any other Advance. Each Lender
shall reimburse Agent on demand for its Pro Rata Share of all funds disbursed on its behalf by Agent, or if Agent so requests, each Lender
shall remit to Agent its Pro Rata Share of any Advance before Agent disburses such Advance to or on account of Borrower. If
Agent so elects to require that funds be made available prior to disbursement to Borrower, Agent shall advise each Lender by telephone,
telex or telecopy of the amount of such Lender’s Pro Rata Share of such Advance no later than one (1) Business Day prior to the
funding date applicable thereto, and each such Lender shall pay Agent such Lender’s Pro Rata Share of such requested Loan, in same
day funds, by wire transfer to Agent’s account not later than 2:00 p.m. (New York City time). If Agent shall have disbursed
funds to Borrower on behalf of any Lender and such Lender fails to pay the amount of its Pro Rata Share forthwith upon Agent’s demand,
Agent shall promptly notify Borrower, and Borrower shall immediately repay such amount to Agent. Any repayment by Borrower
required pursuant to this Section 13.4 shall be without premium or penalty. Nothing in this Section 13.4 or elsewhere
in this Agreement or the other Loan Documents, including, without limitation, the provisions of Section 13.5, shall be deemed to
require Agent to advance funds on behalf of any Lender or to relieve any Lender from its obligation to fulfill its commitments hereunder
or to prejudice any rights that Agent or Borrower may have against any Lender as a result of any default by such Lender hereunder.
(b) As
a matter of administrative convenience, as requested from time to time by a Lender, Agent may, either directly, or through one or more
of its Affiliates, on behalf of one or more Lenders, disburse funds to Borrower for an Advance that is otherwise required to be funded
pursuant to Section 2.1(a)(ii) by such Lender by advancing the amount thereof on behalf of such Lender (on terms to be agreed upon
between Agent and such Lender (each such advance, an “Agent Advance”)). With respect to each Agent
Advance, Agent or its Affiliate(s) shall have, subject to the agreed upon terms related to such Agent Advance, the right to set off against
the amounts of any payments or distributions to be made to such Lender hereunder, the entire amount of such Agent Advance, together with
any agreed upon interest or fees thereon, until such Agent Advance is paid in full. For the avoidance of doubt, nothing in
this Section 13.4, or elsewhere in this Agreement or the other Loan Documents, including, without limitation, the provisions of
this Section 13.4, shall be deemed to require Agent or its Affiliates to advance funds on behalf of any Lender, whether in the
form of an Agent Advance, or otherwise, or to relieve any Lender from
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such Lender’s obligation to fulfill its
commitments hereunder, or to prejudice any rights that Agent or Borrower may have against any Lender as a result of any default by such
Lender hereunder.
13.5 Settlements;
Payments; and Information
(a) Advances;
Payments; Interest and Fee Payments.
(i) The
amount of the outstanding Loan may fluctuate from day to day through Agent’s disbursement of funds to or on account of, and receipt
of funds from, Borrower. In order to minimize the frequency of transfers of funds between Agent and each Lender, notwithstanding
terms to the contrary set forth in Section 13.4, Advances and repayments thereof may be settled according to the procedures
described in Sections 13.5(a)(ii) and 13.5(a)(iii). Notwithstanding these procedures, each Lender’s
obligation to fund its Pro Rata Share of any Advances made by Agent to or on account of Borrower will commence on the date such Advances
are made by Agent. Nothing contained in this Agreement shall obligate a Lender to make an Advance at any time any Default or
Event of Default exists. All such payments will be made by such Lender without set-off, counterclaim or deduction of any kind.
(ii) Once
each week, or more frequently (including daily), if Agent so elects (each such day being a “Settlement Date”),
Agent will advise each Lender by 1:00 p.m. (New York City time) on a Business Day by telephone, telex or telecopy of the amount of each
such Lender’s Pro Rata Share of the outstanding Advances. In the event payments are necessary to adjust the amount of
such Lender’s share of the Advances to such Lender’s Pro Rata Share of the Advances, the party from which such payment is
due will pay the other party, in same day funds, by wire transfer to the other’s account not later than 2:00 p.m. (New York City
time) on the Business Day following the Settlement Date.
(iii) On
the fifteenth (15th) calendar day of each month (or, if such day shall not be a Business Day, on the next Business Day following
such day) (the “Interest Settlement Date”), Agent will advise each Lender by telephone or facsimile of the amount
of interest and fees charged to and collected from Borrower from and including the prior Interest Settlement Date (but excluding such
current Interest Settlement Date) in respect of the Loans. Provided that such Lender has made all payments required to be made
by it under this Agreement and provided that Lender has not received its Pro Rata Share of interest and fees directly from Borrower, Agent
will pay to such Lender, by wire transfer to such Lender’s account (as specified by such Lender on Schedule A of this Agreement
as amended by such Lender from time to time after the date hereof pursuant to the notice provisions contained herein or in the applicable
Lender Addition Agreement) not later than 2:00 p.m. (New York City time) on the next Business Day following the Interest Settlement Date,
such Lender’s share of such interest and fees.
(b) Availability
of Lenders’ Pro Rata Share.
(i) Unless
Agent has been notified by a Lender prior to any proposed funding date of such Lender’s intention not to fund its Pro Rata Share
of an Advance, Agent may assume that such Lender will make such amount available to Agent on the proposed
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funding date or the Business Day following
the next Settlement Date, as applicable; provided, however, nothing contained in this Agreement shall obligate a Lender
to make an Advance at any time any Default or Event of Default exists. If such amount is not, in fact, made available to Agent
by such Lender when due, Agent will be entitled to recover such amount on demand from such Lender without set-off, counterclaim or deduction
of any kind.
(ii) Nothing
contained in this Section 13.5(b) will be deemed to relieve a Lender of its obligation to fulfill its commitments or to prejudice
any rights Agent or Borrower may have against such Lender as a result of any default by such Lender under this Agreement.
(c) Return
of Payments.
(i) If
Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will be received
by Agent from Borrower and such related payment is not received by Agent, then Agent will be entitled to recover such amount from such
Lender without set-off, counterclaim or deduction of any kind.
(ii) If
Agent determines at any time that any amount received by Agent under this Agreement must be returned to Borrower or paid to any other
Person pursuant to any Debtor Relief Law or otherwise, then, notwithstanding any other term or condition of this Agreement, Agent will
not be required to distribute any portion thereof to any Lender. In addition, each Lender will repay to Agent on demand any
portion of such amount that Agent has distributed to such Lender, together with interest at such rate, if any, as Agent is required to
pay to Borrower or such other Person, without set-off, counterclaim or deduction of any kind.
13.6 Dissemination
of Information
Upon request by a Lender,
Agent will distribute promptly to such Lender, unless previously provided by Borrower to such Lender, copies of all notices, schedules,
reports, projections, financial statements, agreements and other material and information, including, without limitation, financial and
reporting information received from Borrower or generated by a third party (and excluding only internal information generated by Midtown
Madison Management LLC for its own use as a Lender or as Agent and any attorney-client privileged communications or work product), as
provided for in this Agreement and the other Loan Documents as received by Agent. Agent shall not be liable to any of the Lenders
for any failure to comply with its obligations under this Section 13.6, except to the extent that such failure is attributed
to Agent’s gross negligence or willful misconduct and results in demonstrable damages to such Lender as determined, in each case,
by a court of competent jurisdiction on a final and non-appealable basis.
13.7 Non-Funding
Lender
(a) The
failure of any Lender to make any Advance (the “Non-Funding Lender”) on the date specified therefor shall not
relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Advance,
but neither any Other Lender nor
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Agent shall be responsible for the failure of
any Non-Funding Lender to make an Advance or make any other payment required hereunder. Notwithstanding anything set forth
herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or
constitute a “Lender” for any voting or consent rights under or with respect to any Loan Document. In the event
that any Lender (other than a Non-Funding Lender) shall fund such Non-Funding Lender’s Pro Rata Share of such Advance, in accordance
with such Lender’s Pro Rata Share (any such funding Lender, a “Funding Lender”), then such Non-Funding
Lender agrees immediately to pay to each Funding Lender the amount so funded by such Funding Lender, with interest thereon, for each day
from and including the date such amount was funded by such Funding Lender to, but excluding, the date of payment to each such Funding
Lender, at the rate per annum equal to Adjusted Term SOFR plus three percent (3.0%). If, at a later date, such Non-Funding
Lender pays the amount of its failed Pro Rata Share of the applicable Advance to the Funding Lenders, together with interest as provided
above, then such amount attributable to principal shall constitute such Non-Funding Lender’s funding of its Pro Rata Share of the
applicable Advance. The failure of any Lender to fund its Pro Rata Share of any Advance shall not relieve any other Lender
of its obligation to fund its Pro Rata Share of such Advance.
(b) Non-Funding
Lender Commitment Assignment. An Other Lender who is not then an Affiliate of a Non-Funding Lender shall have the right,
but not the obligation, to acquire and assume its Pro Rata Share of a Non-Funding Lender’s then remaining Revolving Loan Commitment. Immediately
upon receiving written notice from such Other Lender that it desires to acquire its Pro Rata Share of such Non-Funding Lender’s
then remaining Revolving Loan Commitment, the Non-Funding Lender shall assign, in accordance with this Agreement, all or part, as the
case may be, of its Revolving Loan Commitment and other rights and obligations under this Agreement and all other Loan Documents to such
Other Lender.
If no Other Lender elects
to acquire and assume its Pro Rata Share of such Non-Funding Lender’s then remaining Revolving Loan Commitment as set forth in the
immediately preceding paragraph within thirty (30) calendar days of such Non-Funding Lender becoming an Non-Funding Lender, then the Borrower
may, by notice (a “Replacement Notice”) in writing to the Agent and the Non-Funding Lender, (i) request such
Non-Funding Lender to cooperate with the Borrower in obtaining a Replacement Lender for such Non-Funding Lender (each a “Replacement
Lender”); or (ii) propose a Replacement Lender. If a Replacement Lender shall be accepted by the Agent who, at
the time of determination, is neither an Non-Funding Lender nor an Affiliate of an Non-Funding Lender or an Ineligible Transferee, then
such Non-Funding Lender shall assign its then remaining Revolving Loan Commitment and other rights and obligations related to unfunded
Revolving Loan Commitments and under this Agreement and all other Loan Documents to such Replacement Lender.
In either case, following
the consummation of the assignment and assumption of the Non-Funding Lender’s remaining Revolving Loan Commitment pursuant to one
of the two immediately preceding paragraphs in this Section 13.7, any remaining Revolving Loan Commitment of such Non-Funding Lender
shall not terminate, but shall be reduced proportionately to reflect any such assignments and assumptions, and such Non-Funding Lender
shall continue to be a “Lender” hereunder with its Revolving Loan Commitment and Pro Rata Share eliminated to reflect such
assignments and assumptions. Upon the effective date of such assignment(s) and assumption(s) such Replacement Lender shall,
if not already a Lender, become a “Lender” for all purposes under
110
this Agreement and the other Loan Documents. The
assignment and assumption contemplated by this paragraph shall modify the ownership of obligations related to unfunded Revolving Loan
Commitments only and shall not modify the Non-Funding Lender’s rights and obligations, including, without limitation, all indemnity
obligations hereunder, with respect to Advances previously funded.
13.8 Taxes
(a) Subject
to Section 13.8(g), any and all payments by or on account of any obligations of Borrower to each Lender or Agent under this Agreement
or any other Loan Document shall be made free and clear of, and without deduction or withholding for, any and all Taxes, excluding, in
the case of each Lender and Agent, (i) such Taxes (including income taxes or franchise taxes) as are imposed on or measured by the net
income (however denominated), overall receipts or total capital of such Lender or Agent, respectively, by the jurisdiction in which such
Lender or Agent, as the case may be, is organized or maintains a Lending Office or any political subdivision thereof, (ii) such Taxes
that are branch profits Taxes imposed by the United States of America, (iii) such Taxes as are imposed by reason of Agent’s or such
Lender’s place of organization or lending office or other present or former connection between Agent or such Lender and the jurisdiction
imposing such Tax (other than such connections arising from Agent or such Lender 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 Loan Document, or sold or assigned an interest in any Loan or Loan Document) (such connections described in this clause
(iii), other than those connections set forth in the parenthetical, being referred to herein as “Unrelated Connections”)
and (iv) such Taxes expressly described in clauses (i)-(iv) of Section 13.8(g) hereof (all such excluded Taxes described in the foregoing
clauses (i)-(iv) above being referred to as “Excluded Taxes” and such Taxes, levies, imposts, deductions, charges,
withholdings and liabilities described above in this Section 13.8(a) other than Excluded Taxes being referred to as “Indemnified
Taxes” for the purposes of this Agreement).
(b) In
addition, Borrower shall pay to the relevant Governmental Authority any present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies which arise from any payment made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are imposed as a result of Unrelated
Connections and with respect to an assignment(hereinafter referred to as “Other Taxes”).
(c) Borrower
shall indemnify and hold harmless each Lender and Agent for the full amount of any and all Indemnified Taxes or Other Taxes (including
any Indemnified Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 13.8) paid or payable by
such Lender or Agent and any liability (other than any penalties, interest, additions, and expenses that accrue both after the 120th
day after the receipt by Agent or such Lender of written notice of the assertion of such Indemnified Taxes or Other Taxes and before the
date that Agent or such Lender provides Borrower with a certificate relating thereto pursuant to Section 13.8(l)) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted by the relevant Governmental Authority. Payments
under this
111
indemnification shall be made within 10 days from
the date any Lender or Agent makes written demand therefor.
(d) If
Borrower shall be required by Applicable Law to deduct or withhold any Indemnified Taxes or Other Taxes from or in respect of any sum
payable hereunder to any Lender or Agent, then:
(i) the
sum payable shall be increased to the extent necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 13.8), such Lender or Agent, as the case may be, receives an amount equal to the sum
it would have received had no such deductions been made;
(ii) Borrower
shall make such deductions; and
(iii) Borrower
shall pay the full amount deducted to the relevant Governmental Authority in accordance with Applicable Law.
(e) Borrower
shall furnish to Agent (and the applicable Lender) a receipt evidencing payment by Borrower of Indemnified Taxes or Other Taxes to a Governmental
Authority promptly, but in any event within ten (10) Business Days, after obtaining such receipt, or other evidence of payment satisfactory
to Agent (and the applicable Lender) within ten (10) Business Days after the date of any payment by Borrower of Indemnified Taxes or Other
Taxes to a Governmental Authority.
(f) Each
Lender that is not a citizen or resident of the United States of America, a corporation, partnership or other entity created or organized
in or under the laws of the United States (or any jurisdiction thereof), or any estate or trust that is subject to United States federal
income taxation regardless of the source of its income or is otherwise a “foreign person” within the meaning of Treasury Regulation
Section 1.1441-1(c) (a “Non-U.S. Lender”) shall deliver to Borrower and Agent (or, in the case of an assignment
that is not disclosed to Borrower in accordance with the provisions of Section 12.2, solely to the assigning Lender and Agent and
not to Borrower) two (2) copies of each applicable U.S. Internal Revenue Service Form W-8BEN, Form W-8BEN-E, Form W-8IMY or Form W-8ECI,
or any subsequent versions thereof or successors thereto or other forms prescribed by Applicable Law as a basis for claiming exemption
from or a reduction in U.S. federal withholding Tax, properly completed and duly executed by such Non-U.S. Lender claiming complete exemption
from United States federal withholding Tax on all payments by Borrower under this Agreement and the other Loan Documents. Such
forms shall be delivered by each Non-U.S. Lender on or before the date it becomes a party to this Agreement. In addition, each
Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. In addition to properly completing and duly executing Forms W-8BEN, W-8BEN-E or W-8IMY (or any subsequent versions
thereof or successor thereto), if such Non-U.S. Lender is claiming an exemption from withholding of United States Federal income tax under
Section 871(h) or 881(c) of the Code, such Lender hereby represents and warrants that (A) it is not a “bank” within the
meaning of Section 881(c) of the Code, (B) it is not subject to regulatory or other legal requirements as a bank in any jurisdiction,
(C) it has not been treated as a bank for purposes of any Tax, securities law or other filing or submission made to any governmental
securities law or other
112
legal requirements, (D) it is not a “10
percent shareholder” within the meaning of Section 871(h)(3)(B) of the Code of Borrower, (E) it is not a controlled foreign
corporation receiving interest from a related person within the meaning of Section 881(c)(3)(C) of the Code and (F) none of the interest
arising from this Agreement constitutes contingent interest within the meaning of Section 871(h)(4) or Section 881(c)(4) of the Code and
such Non-U.S. Lender agrees that it shall provide Agent, and Agent shall provide to Borrower (or, in the case of an assignment that is
not disclosed to Borrower in accordance with the provisions of Section 12.2, solely to the assigning Lender and Agent and not to
Borrower), with prompt notice at any time after becoming a Lender hereunder that it can no longer make the foregoing representations and
warranties. If a payment made to a Non-U.S. Lender under any Loan Document would be subject to United States federal withholding
Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA, such Lender shall deliver
to the Borrower and Agent at the time or times prescribed by Applicable Law and at such time or times reasonably requested by the Borrower
or the Agent such documentation prescribed by Applicable Law and such additional documentation reasonably requested by the Borrower or
the Agent as may be necessary for the Borrower and the 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 the foregoing sentence, FACTA shall include all amendments to FACTA after the date of this Agreement.) Each
Non-U.S. Lender shall promptly notify Borrower (or, in the case of an assignment that is not disclosed to Borrower in accordance with
the provisions of Section 12.2, solely to the assigning Lender and Agent and not to Borrower) at any time it determines that it
is no longer in a position to provide any previously delivered form or certificate (or any other form of certification adopted by the
U.S. taxing authorities for such purpose). Notwithstanding any other provision of this section, a Non-U.S. Lender shall not
be required to deliver any form pursuant to this subsection (other than Form W-8BEN, Form W-8BEN-E, Form W-8IMY or Form W-8ECI, or any
subsequent versions thereof or successors thereto, as applicable) 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. Each Lender who makes an assignment pursuant to Section 12.2 shall indemnify and agree to hold
Agent, Borrower and the other Lenders harmless from and against any United States federal withholding Tax, interest and penalties that
would not have been imposed but for (i) the failure of the Affiliate that received such assignment under Section 12.2 to comply
with this Section 13.8(f) or (ii) the failure of such Lender to withhold and pay such tax at the proper rate in the event
such Affiliate does not comply with this Section 13.8(f) (or complies with Section 13.8(f) but delivers forms indicating
it is entitled to a reduced rate of such tax). Any Lender that is a U.S. Lender shall deliver to Borrower and Agent (i) a
properly prepared and duly executed U.S. Internal Revenue Service Form W-9, or any subsequent versions thereof or successors thereto,
certifying that such Lender is entitled to receive any and all payments under this Agreement and each other Loan Document free and clear
from withholding of United States federal income taxes and (ii) upon Borrower’s reasonable request, such other reasonable documentation
as will enable Borrower and/or Agent to determine whether or not such Lender is subject to backup withholding or information reporting
requirements. Each Person that shall become a Participant pursuant to Section 12.2 shall, on or before the date
of the effectiveness of the related transfer, be required to provide all of the forms, certifications and statements required pursuant
to this Section 13.8(f) and Section 13.8(h), and shall make the representations and warranties set forth in clauses (A)
– (F) above, provided that
113
the obligations of such Participant, pursuant
to this Section 13.8(f) and Section 13.8(h), shall be determined as if such Participant were a Lender except that such Participant
shall furnish all such required forms, certifications and statements to the Lender from which the related participation shall have been
purchased.
(g) Borrower
will not be required to pay any additional amounts in respect of United States federal withholding or income Tax pursuant to Section
13.8(d) to any Lender or Agent or to indemnify any Lender or Agent pursuant to Section 13.8(c) to the extent that (i) the
obligation to pay such additional amounts would not have arisen but for a failure by such Lender to comply with its obligations under
Section 13.8(f) for any reason; (ii) with respect to a Lender, the obligation to withhold amounts with respect to the United
States federal withholding Tax existed on the date such Lender became a party to this Agreement or, with respect to payments to a lending
office newly designated by a Lender (a “New Lending Office”), the date such Lender designated such New Lending
Office with respect to the applicable Loan; provided that this clause (ii) shall not apply to the extent the additional amounts
any Lender (or Transferee) through a New Lending Office, would be entitled to receive (without regard to this clause (ii)) do not exceed
the additional amounts that the Person making the transfer, or Lender (or Transferee) making the designation of such New Lending Office,
would have been entitled to receive in the absence of such transfer or designation; (iii) such Lender is claiming an exemption from
withholding of United States Federal income Tax under Sections 871(h) or 881(c) of the Code but is unable at any time to make the representations
and warranties set forth in clauses (A) – (F) of Section 13.8(f) or (iv) any withholding Taxes imposed under FATCA.
(h) Each
Non-U.S. Lender agrees to provide Borrower and the Agent, upon the reasonable request of Borrower, such other forms or documents as may
be reasonably required under Applicable Law in order to establish an exemption from or eligibility for a reduction in the rate or imposition
of Taxes or Other Taxes. If, at any time, Borrower requests any Lender to deliver any such additional forms or other documentation,
then Borrower shall, on demand of such Lender through Agent, reimburse such Lender for any out-of-pocket costs and expenses (including
reasonable attorneys’ fees and expenses) reasonably incurred by such Lender in the preparation or delivery of such forms or other
documentation.
(i) If
Borrower is required to pay additional amounts to or for the account of any Lender or Agent pursuant to this Section 13.8, then
such Lender or Agent shall use its reasonable efforts (consistent with legal and regulatory restrictions) to file any certificate or document
reasonably requested by Borrower or to designate a Lending Office from a different jurisdiction (if such a Lending Office exists) so as
to eliminate or reduce any such additional payments by Borrower which may accrue in the future if such filing or changes in the reasonable
judgment of such Lender or Agent, would not require such Lender to disclose information such Lender deems confidential and is not otherwise
disadvantageous to such Lender or Agent.
(j) If
Agent or a Lender, in its reasonable judgment, receives a refund of any Taxes or Other Taxes as to which it has been indemnified by Borrower
or with respect to which Borrower has paid additional amounts pursuant to this Section 13.8, it shall promptly pay to Borrower
an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by Borrower under this
Section 13.8 with respect to the Taxes or Other Taxes giving rise to such refund) and any interest paid by the relevant Governmental
Authority
114
with respect to such refund, provided,
that Borrower, upon the request of Agent or such Lender, shall repay the amount paid over to Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to Agent or such Lender in the event Agent or such Lender is required to
repay the applicable refund to such Governmental Authority.
(k) Notwithstanding
anything herein to the contrary, if Agent is required by law to deduct or withhold any Taxes or Other Taxes or any other Taxes from or
in respect of any sum payable to any Lender by Borrower or Agent, the Agent shall not be required to make any gross-up payment to or in
respect of such Lender, except to the extent that a corresponding gross-up payment is actually received by Agent from Borrower.
(l) Any
Lender claiming reimbursement or compensation pursuant to this Section 13.8 shall deliver to Borrower (with a copy to Agent) a
certificate setting forth in reasonable detail the amount payable to such Lender hereunder and such certificate shall be conclusive and
binding on Borrower in the absence of manifest error.
(m) The
Term Loans (as defined in this Agreement immediately prior to giving effect to the First Amendment) are intended to be treated as issued
together with the Closing Date Warrants as part of an “investment unit” as described in Section 1273(c)(2) of the Code. Pursuant
to Treasury Regulation Section 1.1273-2(h), for U.S. federal, state and local income tax purposes, the issue price of such investment
unit will be allocated between the Term Loans (as defined in this Agreement immediately prior to giving effect to the First Amendment)
made pursuant to this Agreement and the Closing Date Warrants based on their respective relative fair market values and the fair market
value of the Closing Date Warrants shall be the last reported sale price of the Maximum Warrant Shares on the Nasdaq Stock Market on the
Closing Date. No party shall take any position on a tax return, report or declaration inconsistent with the above intended
tax treatment, unless otherwise required by Applicable Law.
The agreements and obligations
of Borrower in this Section 13.8 shall survive the payment of all other Obligations.
13.9 Patriot
Act
Each Lender that is subject
to the requirements of the Patriot Act and Agent (for itself and not on behalf of any Lender) hereby notifies Borrower that pursuant to
the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies Borrower, which information
includes the name and address of Borrower and other information that will allow Agent and each Lender to identify Borrower in accordance
with the Patriot Act. Borrower shall, promptly following a request by Agent or any Lender, provide all documentation and other
information that Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer”
an anti-money laundering rules and regulations, including the Patriot Act.
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Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
-Subsection 12
+ Details
Name:
dei_SolicitingMaterial
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Trading symbol of an instrument as listed on an exchange.
+ References
No definition available.
+ Details
Name:
dei_TradingSymbol
Namespace Prefix:
dei_
Data Type:
dei:tradingSymbolItemType
Balance Type:
na
Period Type:
duration
X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
+ Details
Name:
dei_WrittenCommunications
Namespace Prefix:
dei_
Data Type:
xbrli:booleanItemType
Balance Type:
na
Period Type:
duration
X
- Details
Name:
us-gaap_StatementClassOfStockAxis=KPLT_CommonStockParValue0.0001PerShareMember
Namespace Prefix:
Data Type:
na
Balance Type:
Period Type:
X
- Details
Name:
us-gaap_StatementClassOfStockAxis=KPLT_RedeemableWarrantsMember
Namespace Prefix:
Data Type:
na
Balance Type:
Period Type: