instruction:
In this task, you're given a passage that represents a legal contract or clause between multiple parties. Your job is to write questions that ask the basic details corresponding to the legal contracts or clauses. Avoid questions that can be answered correctly without actually understanding the paragraph, and which might have multiple answers. The answer to each question should be unambiguous.
question:
1

EXHIBIT 10.26

CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.

SPONSORSHIP AGREEMENT

This agreement (Agreement) is entered into as of the 23rd day of September 1998 (Effective Date), by and between Excite, Inc., a Delaware corporation, located at 555 Broadway, Redwood City, California 94063 (Excite), and Vitamin Shoppe Industries Inc., a New York corporation, located at 4700 Westside Avenue, North Bergen, New Jersey 07047 (Client).

RECITALS

A. Excite maintains sites on the Internet at http://www.excite.com (the Excite Site), http://www.webcrawler.com (the WebCrawler Site) and http://www.excite.co.jp (the Excite Japan Site), and owns, manages or is authorized to place advertising on affiliated sites on the Internet worldwide (collectively, the Excite Network) which, among other things, allow its users to search for and access content and other sites on the Internet. For purposes of this Agreement, the parties hereby acknowledge that the Excite Network does not include the site on the Internet located at http://home.netscape.com and/or other URLs or locations designated by Netscape Communications Corporation.

B. Within the Excite Site and the WebCrawler Site, Excite currently organizes certain content into topical channels (the Channels).

C. Client is engaged in the business of selling vitamins, minerals, nutritional supplements, herbs, sports nutrition formulae, homeopathic remedies and other health related products (Vitamins) at its site on the Internet located at http://www.vitaminshoppe.com (the Client Site).

D. Client wishes to promote its business to users of the Excite Network through promotions and advertising in various portions of the Excite Network.

Therefore, the parties agree as follows:

1. SPONSORSHIP ON THE WEBCRAWLER HEALTH CHANNEL

a) Client will be promoted as the preferred and dominant reseller of Vitamins in the Health Channel on the WebCrawler Site during the term of this Agreement. As such, Excite may not display banner advertising and/or promotional placements for any of Client's Competitors that are, in the aggregate, of equal or greater prominence and exposure than the aggregate of Client's links, advertising banners and promotional placements on the pages of the Health Channel on the WebCrawler Site during the term of this Agreement. For purposes of this Agreement, Client's Competitors means those merchants identified in Exhibit D attached hereto. Client may update

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this list in writing not more than once every six (6) months by adding other merchants whose primary business is reselling Vitamins upon the mutual agreement of Excite. Notwithstanding the foregoing, Excite may display links to Excite's own products and services anywhere in the Excite Network, and may display links to Client's Competitors in results pages of search services in response to user queries, in general directories of Web sites, in classified advertising listings and in results in the Jango shopping search service throughout the Excite Network. Client's preferred and dominant status as a reseller of Vitamins will be extended on the terms stated in this Section l(a) to its presence within future departments within the WebCrawler Health Channel, when launched, which may include, but are not limited to, the alternative medicine and senior living departments.

b) The parties will cooperate in good faith to identify and implement appropriate promotional opportunities for Client to be displayed in rotation on the home page of the WebCrawler Health Channel during the term of the Agreement.

c) A link to the Client Site (consistent with the format used on similar links on the same page) will be displayed in the Nutrition & Vitamins department of the WebCrawler Health Channel during the term of the Agreement. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section l(c) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

d) The parties will cooperate in good faith to identify and implement other appropriate promotional opportunities for Client on the WebCrawler Health Channel including (if and when launched) but not limited to, the alternative medicine and senior living departments during the term of the Agreement. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 1(d) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

e) Excite is in the process of developing a Sponsorship Strip for the WebCrawler Health Channel consisting of a row of graphic links to sponsors' Web sites. Excite will display a graphic link to the Client Site on the Sponsorship Strip (consistent with the format used on similar links on the same strip) in the pages of the WebCrawler Health Channel for the duration of the term of the Agreement. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 1(e) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

f) Excite and Client acknowledge that neither party to this Agreement possesses any right to control the content or promotional programming displayed on any third party

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site. However, Excite will work with Client in good faith to evaluate the display of any Excite co-branded pages one level deep that directly link from the WebCrawler Health Channel to determine whether the non-banner display of modules related to Client's Competitors on those pages materially and adversely affect the aggregate value of Client's promotional placements on the WebCrawler Health Channel as described in this Agreement. Under such circumstances, Excite will then exert commercially reasonable efforts to modify such co-branded pages to reduce such material and adverse effects.

2. SPONSORSHIP ON THE WEBCRAWLER SHOPPING CHANNEL

a) Client will be promoted as the preferred and dominant reseller of Vitamins in the Shopping Channel on the WebCrawler Site during the term of this Agreement. As such, Excite may not display banner advertising and/or promotional placements for any of Client's Competitors that are, in the aggregate, of equal or greater prominence and exposure than the aggregate of Client's links, advertising banners and promotional placements on the pages of the Shopping Channel or the WebCrawler Site. Notwithstanding the foregoing, Excite may display links to Excite's own products and services anywhere in the Excite Network, and may display links to Client's Competitors in results pages of search services in response to user queries, in general directories of Web sites, in classified advertising listings and in results in the Jango shopping search service throughout the Excite Network.

b) A link to the Client Site (consistent with the format used on similar links on the same page) will be displayed in rotation on the first page of the health & fitness department of the WebCrawler Shopping Channel during the term of the Agreement. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 2(b) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

c) A link to the Client Site (consistent with the format used on similar links on the same page) will be displayed under the health foods category on the first page of the health & fitness groceries department of the WebCrawler Shopping Channel. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placement described in this Section 2(c) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

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3. ADDITIONAL SPONSORSHIP

a) The parties will cooperate in good faith to identify and implement selective sponsorship and promotional opportunities for Client in the Nutrition & Vitamins department of the Health Channel on the Excite Site. Such opportunities may include sponsorship links, sponsorship boxes and/or promotional boxes. The parties hereby acknowledge that Client will be sharing such opportunities in the Nutrition & Vitamins department of the Excite Health Channel with one other reseller of vitamins.

b) The parties will cooperate in good faith to identify and implement selective sponsorship and promotional opportunities for Client on the Excite Japan Site. Such opportunities may include sponsorship links, sponsorship boxes and/or promotional boxes. Excite estimates, but does not guarantee, delivery of [*****] impressions of the Client promotional placements described in this Section 3(b) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

c) Excite estimates, but does not guarantee, delivery of a total of [*****] impressions of the Client promotional placements described in Sections 3(a) and 3(b) during the term of this Agreement.

4. DeliverE MESSAGE PROMOTIONS

a) Excite and Client will cooperate in developing and delivering MatchLogic DeliverE message campaigns during the term of the Agreement as described in Exhibit B. The MatchLogic DeliverE is an opt in email service providing the opportunity to distribute messages to highly targeted audiences on the Web via email. All such message campaigns will comply with Excite's then current privacy policy which is located at http://www.excite.com/privacy_policy and is subject to change from time to time. If the privacy policy changes in a manner that has a material adverse effect on the value, functionality or implementation of the DeliverE message campaign for Client, Excite will notify Client, which will then have the option to cancel future DeliverE campaigns and both parties will be relieved of their obligations related to those canceled DeliverE campaigns, if Client, in its sole but reasonable discretion, finds such changed privacy policy objectionable.

b) Excite estimates, but does not guarantee, delivery of [*****] impressions of the email messages described in this Section 4 during [*****] of the term of this Agreement and [*****] impressions during [*****] of the term of the Agreement.

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c) Excite and Client agree that Client may purchase additional DeliverE messages during the term of this Agreement at a rate of [*****] impressions (CPM), subject to availability.

5. ADVERTISING ON THE EXCITE NETWORK

a) Excite will display Client's banner advertising on [*****] in response to the keywords set forth in Exhibit A as amended from time to time by Client, and with additional keywords related to Vitamins, subject to availability, during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(a) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

b) Excite will display Client's banner advertising in [*****] during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(b) during [*****] of the term of the Agreement and [*****] such during [*****] of the term of the Agreement.

c) Excite will display Client's banner advertising in [*****] during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(c) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

d) Excite will display Client's banner advertising in [*****] during the term of the Agreement. Excite estimates, but does not guarantee, the display of [*****] impressions of the banner advertisements described in this Section 5(d) during [*****] of the term of the Agreement and [*****] such impressions during [*****] of the term of the Agreement.

6. LAUNCH DATE, RESPONSIBILITY FOR EXCITE NETWORK AND REPORTING

a) Client and Excite will use reasonable efforts to implement the display of the promotional placements and advertising described in the Agreement by October 1, 1998 (the Scheduled Launch Date). The parties recognize that the Scheduled Launch Date can be met only if Client provides final versions of all graphics, text, keywords, banner advertising, promotional placements, other promotional media and valid URL links necessary to implement the promotional placements and advertising described in the Agreement (collectively, Impression Material) to Excite fourteen (14) days prior to Scheduled Launch Date.

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b) In the event that Client fails to provide the Impression Material to Excite fourteen (14) days in

advance of the Scheduled Launch Date, Excite may, at its sole discretion (i) reschedule the Scheduled Launch Date at the earliest practicable date according to the availability of Excite's engineering resources after delivery of the complete Impression Material or (ii) commence delivery of Impressions based on Impression Material in Excite's possession at the time.

c) Client and Excite agree that the day the promotional placements and advertising described in this Agreement are first displayed on the Excite Network will be the Launch Date for purposes of this Agreement.

d) Excite will have sole responsibility for providing, hosting and maintaining, at its expense, the Excite Network. Excite will have sole control over the look and feel of the Excite Network including, but not limited to, the display, appearance and placement of the parties' respective names and/or brands and the promotional links, but such control shall not permit Excite to modify Client's logos and trademarks and it does not relieve Excite from its obligations regarding Client's preferred and dominant sponsorship status as set forth elsewhere in this Agreement.

e) Advertising banners will be served, tracked and reported by Excite's subsidiary, MatchLogic, Inc. (MatchLogic) as described in Exhibit B. MatchLogic will also provide Client with feedback as to comparisons of the performance of (i) the different creative messages supplied by Client for the advertising banners, (ii) the placements of those advertising banners on the Excite Network as set forth in this Agreement and (iii) through the implementation of MatchLogic's Closed Loop transaction reporting system on the Client Site, will report on correlations between transaction activity by users referred to the Client Site from the Excite Network and the various promotional placements and advertising displayed on the Excite Network, all as described in Exhibit B. Promotional placements, including text links, will be served, tracked and reported by Excite. These promotional placements will be tracked and reported by MatchLogic when this implementation becomes available. Excite will provide Client with monthly reports substantiating the number of impressions of Client's advertising banners and promotional placements displayed on the Excite Network.

f) As soon as such third party auditing is available to Excite, Excite will provide Client with monthly reports, including certified reports by a third party auditing firm substantiating the number of impressions of Client's advertising banners and promotional placements displayed on the Excite Network. When available, such third party audit reports will be at Excite's cost and expense.

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7. FEES; REVENUE SHARE

a) Client will pay Excite sponsorship and advertising fees of [*****] for the first twelve (12) month period following the Launch Date ([*****]). These fees will be paid in twelve (12) equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the Launch Date. Subsequent installments will be due on a monthly basis thereafter.

b) Client will pay Excite sponsorship and advertising fees of [*****] for the twelve (12) month period following the first anniversary of the Launch Date ([*****]). These fees will be paid in equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the first anniversary of the Launch Date. Subsequent

installments will be due on a monthly basis thereafter.

c) Separate and apart from the sponsorship and advertising fees, Client will pay Excite MatchLogic DeliverE fees of [*****] for [*****]. These fees will be paid in equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the Launch Date. Subsequent installments will be due on a monthly basis.

d) Separate and apart from the sponsorship and advertising fees, Client will pay Excite MatchLogic DeliverE fees of [*****] for [*****]. These fees will be paid in equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the first anniversary of the Launch Date. Subsequent installments will be due on a monthly basis.

e) Separate and apart from the sponsorship and advertising fees and the MatchLogic DeliverE fees, Client will pay Excite MatchLogic banner and link serving fees of [*****] for [*****]. These fees will be paid in equal monthly installments of [*****]. The first monthly payment for [*****] will be due one month following the Launch Date. Subsequent installments will be due on a monthly basis.

f) Separate and apart from the sponsorship and advertising fees and the MatchLogic DeliverE fees, Client will pay Excite MatchLogic banner and link serving fees of [*****] for [*****]. These fees will be paid in equal monthly installments of [*****]

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[*****]. The first monthly payment for [*****] will be due one month following the first anniversary of the Launch Date. Subsequent installments will be due on a monthly basis.

g) Separate and apart from the sponsorship and advertising fees, the MatchLogic DeliverE fees and the MatchLogic banner and link serving fees, Client will pay Excite [*****] recognized by Client on transactions conducted by users referred to the Client Site from the Excite Network during [*****]. Separate and apart from the sponsorship and advertising fees, the MatchLogic DeliverE fees and the MatchLogic banner and link serving fees, Client will pay Excite [*****] recognized by Client on transactions conducted by users referred to the Client Site from the Excite Network during [*****] of the term of the Agreement. For purposes of this Agreement Net Revenue means gross revenue recognized by Client on transactions conducted by users referred to the Client Site from the Excite Network minus sales tax, sales returns and allowances. Client will pay Excite these revenue share payments within thirty (30) days after the close of the financial quarter in which Client recognizes the Net Revenue on these transactions.

h) The fees and revenue share payments are net of any agency commissions to be paid by Client.

i) Client will maintain accurate records with respect to the calculation of all payments due under this Agreement. Once per year, the parties will review these records to verify the accuracy and appropriate accounting of all payments made pursuant to the Agreement. In addition, Excite may, upon no less than thirty (30) days prior written notice to Client, cause an independent Certified Public Accountant to inspect the records of Client reasonably related to the calculation of such payments during Client's normal business hours. The fees charged by such Certified Public Accountant in connection with the

inspection will be paid by Excite unless the payments made to Excite are determined to have been less than ninety-five percent (95%) of the payments actually owed to Excite, in which case Client will be responsible for the payment of the reasonable fees for such inspection.

8. PUBLICITY

Unless required by law, neither party will make any public statement, press release or other announcement relating to the terms of or existence of this Agreement without the prior written approval of the other. Notwithstanding the foregoing, either party may issue an initial press release regarding the relationship between Excite and Client, the timing and wording of which will be mutually agreed upon, and nothing herein shall preclude Client from promoting the Client Site.

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9. TERM AND TERMINATION

a) Unless terminated earlier in accordance with the specific terms of this Agreement, the term of this Agreement will begin on the Launch Date and will not end until Excite displays a total of [*****] impressions of the Client advertising banners and promotional placements on the Excite Network as described in this Agreement and pushes [*****] emails using the email vehicles specified in Exhibit B. Regardless of Excite's actual delivery of impressions, the term of this Agreement will not be shorter than [*****] after the Launch Date, unless the Agreement is terminated earlier in accordance with the specific terms of this Agreement.

b) Either party may terminate this Agreement if the other party materially breaches its obligations hereunder and such breach remains uncured for thirty (30) days following the notice to the breaching party of the breach.

c) All undisputed payments that have accrued prior to the termination or expiration of this Agreement will be payable in full within thirty (30) days thereof.

d) The provisions of Section 12 (Confidentiality and User Data), Section 13 (Indemnity), Section 14 (Limitation of Liability) and Section 15 (Dispute Resolution) will survive any termination or expiration of this Agreement.

e) Excite guarantees to deliver the annual impressions totals set forth in Exhibit C hereto. If Excite fails to deliver the indicated number of impressions required during any annual period, Client may suspend (but not eliminate) its payments specified in Section 7 for a maximum of sixty (60) days (the Make-Good Period) during which Excite will deliver the shortfall of such impressions. The parties agree to cooperate in good faith to evaluate the quality and performance of the placements used to deliver the impressions during the Make-Good Period. Until such shortfall is delivered, no impressions will be deemed delivered for the next annual period. If Excite has not achieved the required annual impression delivery by the end of the Make-Good Period, Client may then terminate this Agreement upon written notice within ten (10) days following the end of the Make-Good Period. Client's termination of the Agreement in accordance with the previous sentence will not relieve Excite of its obligation to deliver any previously paid for but undelivered impressions. If Excite achieves the annual impression delivery goal at any time during the Make-Good Period, the term of this Agreement will continue and Client shall immediately resume payment of the sponsorship and advertising fees specified in Section 7.

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10. TRADEMARK OWNERSHIP AND LICENSE

a) Client will retain all right, title and interest in and to its trademarks, service marks and trade names worldwide, subject to the limited license granted to Excite hereunder.

b) Excite will retain all right, title and interest in and to its trademarks, service marks and trade names worldwide, subject to the limited license granted to Client hereunder.

c) Each party hereby grants to the other a non-exclusive, limited license to use its trademarks, service marks or trade names only as specifically described in this Agreement. All such use shall be in accordance with each party's reasonable policies regarding advertising and trademark usage as established from time to time. Client agrees to obtain Excite's written consent prior to use of Excite's logo and trademarks.

d) Upon the expiration or termination of this Agreement, each party will cease using the trademarks, service marks and/or trade names of the other except:

i) As the parties may agree in writing; or

ii) To the extent permitted by applicable law.

11. OWNERSHIP

a) Client will retain all right, title and interest in and to the Client Site worldwide including all intellectual property rights, including but not limited to copyright, trademark, trade secrets, patents, moral rights or any derivative rights thereof. Any intellectual property rights, including but not limited to copyright, trademark, trade secrets, patents, moral rights or any derivative rights thereof, created by changes made by Excite to Impression Materials are the sole property of Client.

b) Excite will retain all right, title, and interest in and to the Excite Network worldwide including, but not limited to, ownership of all copyrights, look and feel and other intellectual property rights therein.

12. CONFIDENTIALITY AND USER DATA

a) For the purposes of this Agreement, Confidential Information means information about the disclosing party's (or its suppliers') business or activities that is proprietary and confidential, which shall include all business, financial, technical and other information of a party marked or designated by such party as confidential or

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proprietary or information which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential.

b) Confidential Information will not include information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation, (iii) the receiving party knew prior to receiving such information from the disclosing party or (iv) the receiving party develops independent of any information originating from the disclosing party.

c) Each party agrees (i) that it will not disclose to

any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.

d) The usage reports provided by Excite to Client hereunder will be deemed to be the Confidential Information of Excite.

e) The terms and conditions of this Agreement will be deemed to be Confidential Information and will not be disclosed without the written consent of the other party.

f) For the purposes of this Agreement, User Data means all information submitted by users referred to the Client Site from the Excite Network during the term of the Agreement. Such User Data includes, but is not limited to, the number of purchase requests requested by such users, the number of purchase requests completed, the number of purchases completed and the dollar values of completed purchases The parties acknowledge that any individual user of the Internet could be a user of Excite, WebCrawler and/or Client through activities unrelated to this Agreement and that user data gathered independent of this Agreement, even from individuals who are users of both parties' services, will not be deemed to be User Data for the purposes of this Agreement.

g) User Data will be owned by Client, and subject to the limitations contained herein, Client grants to Excite a non-exclusive license to use the User Data for the purposes of this Agreement.

h) In order to facilitate optimization of Client's sponsorship program, Client will make good faith efforts to develop tracking and reporting capabilities to correlate information regarding transaction activity by users referred to the Client Site from the Excite Network to the various promotional placements and advertising banners displayed on the Excite Network. Client will provide to Excite all User Data and

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user transaction reports collected by Client within thirty (30) days following the end of each calendar month during the term of this Agreement in a mutually-determined electronic format.

i) Client will not use User Data to specifically target any Excite and/or WebCrawler users, as distinct from all users of the Client Site, for solicitations (except as specifically provided in this Agreement), either individually or in the aggregate, during the term of this Agreement and for a period of twelve (12) months following the expiration or termination of this Agreement.

j) Neither party will sell, disclose, transfer or rent any User Data which could reasonably be used to identify a specific named individual (Individual Data) to any third party nor will either party use Individual Data on behalf of any third party without the express permission of the individual user. Where user permission for dissemination of Individual Data to third parties has been obtained, each party will use commercially reasonable efforts to require the third party recipients of Individual Data to provide an unsubscribe feature in any email communications generated by, or on behalf of, the third party recipients of Individual Data.

k) Notwithstanding the foregoing, each party may disclose Confidential Information or User Data (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law or (ii) on a

need-to-know basis under an obligation of confidentiality to its legal counsel, accountants, banks and other financing sources and their advisors.

13. INDEMNITY

a) Client will indemnify, defend and hold harmless Excite, its affiliates, officers, directors, employees, consultants and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from:

i) Its breach of any representation or covenant in this Agreement; or

ii) Any claim that Client's Impression Material infringes or violates any third party's copyright, patent, trade secret, trademark, right of publicity or right of privacy or contain any defamatory content; or

iii) Any claim that Client's Impression Material and/or its display on the Excite Network violates any federal, state or local laws, regulations or statutes, including but not limited to restrictions on the sale, advertisement or promotion of vitamins, nutritional supplements, drugs or other health-related products; or

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iv) Any claim of personal injury or product liability with respect to products or services sold, advertised or otherwise offered to consumers or third parties through display of Client's Impression Material on the Excite Network or links to the Client Site; or

v) Any claim arising from content displayed on the Client Site.

Excite will promptly notify Client of any and all such claims and will reasonably cooperate with Client with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts Excite in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement shall require Excite's written consent (not to be unreasonably withheld or delayed) and Excite may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.

b) Excite will indemnify, defend and hold harmless Client, its affiliates, officers, directors, employees, consultants and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from:

i) Its breach of any representation or covenant in this Agreement; or

ii) Any claim arising from the Excite Network other than content or services provided by Client.

Client will promptly notify Excite of any and all such claims and will reasonably cooperate with Excite with the defense and/or settlement thereof; provided that, if any settlement requires an affirmative obligation of, results in any ongoing liability to or prejudices or detrimentally impacts Client in any way and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement shall require Client's written consent (not to be unreasonably withheld or delayed) and Client may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.

c) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.

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14. LIMITATION OF LIABILITY

EXCEPT UNDER SECTIONS 13(a) AND 13(b), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT UNDER SECTIONS 13(a) AND 13(b), THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS TO BE PAID BY CLIENT TO EXCITE HEREUNDER.

15. DISPUTE RESOLUTION

a) The parties agree that any breach of either of the parties' obligations regarding trademarks, service marks or trade names, confidentiality and/or User Data would result in irreparable injury for which there is no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party's obligations regarding trademarks, service marks or trade names or confidentiality, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.

b) In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, other than disputes arising from or concerning trademarks, service marks or trade names, confidentiality and/or User Data, the parties will first attempt to resolve the dispute(s) through good faith negotiation. In the event that the dispute(s) cannot be resolved through good faith negotiation, the parties will refer the dispute(s) to a mutually acceptable mediator.

c) In the event that disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, other than disputes arising from or concerning trademarks, service marks or trade names, confidentiality and/or User Data, cannot be resolved through good faith negotiation and mediation, the parties will refer the dispute(s) to the American Arbitration Association for resolution through binding arbitration by a single arbitrator pursuant to the American Arbitration Association's rules applicable to commercial disputes.

16. GENERAL

a) Assignment. Neither party may assign this Agreement, in whole or in part, without the other party's written consent (which will not be unreasonably withheld or delayed), except that no such consent will be required in connection with (i) a merger, reorganization or sale of all, or substantially all, of such party's assets or its

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Internet business assets (ii) either party's assignment and/or delegation of its rights and

responsibilities hereunder to a wholly-owned subsidiary or affiliate or joint venture in which the assigning party holds an interest. Any attempt to assign this Agreement other than as permitted above will be null and void.

b) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, notwithstanding the actual state or country of residence or incorporation of Excite or Client.

c) Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, express courier, confirmed facsimile, confirmed email or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with express courier, upon confirmation of receipt of facsimile or email or five (5) days after deposit in the mail. Notices will be sent to a party at its address set forth in this Agreement or such other address as that party may specify in writing pursuant to this Section.

d) No Agency. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture.

e) Force Majeure. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages and governmental restrictions.

f) Severability. In the event that any of the provisions of this Agreement are held to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect.

g) Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.

h) Counterparts. This Agreement may be executed in counterparts, each of which will serve to evidence the parties' binding agreement.

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VITAMIN SHOPPE INDUSTRIES INC. EXCITE, INC.

By: [SIG] By: [SIG] -------------------------------- --------------------------------

Name: J. Howard Name: Robert C. Hood ------------------------------ ------------------------------

Title: President/CEO Title: EVP/CFO ----------------------------- -----------------------------

Date: 9/23/98 Date: 9/29/98 ------------------------------ ------------------------------

4700 Westside Avenue 555 Broadway North Bergen, New Jersey 07047 Redwood City, California 94063 650.568.6000 (voice) 650.568.6030 (fax)

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EXHIBIT A

KEYWORDS

acidophilus cholesterol greentree obesity medicine acids chondroitin healing omega aromatherapy adhd chromium picolinate health organic bodybuilding aids co q 10 herb pinnacle diet alternative medicine coenzyme q10 herb tea pms fitness amino acids complimentary herbal pregnant herbs andrew weil energy herbal extracts pregnancy health andro complex enzymmatic herbal tea prenatal homeopathic androstat therapy herbal teas prevention multivitamins Androstat 100 essential oils herbs protein nutrition androstat 6 ester hiv protein powders stress Androstene exercise holistic ripped vitamins androstenedione extract holistic healing rna vitamin antioxidant fat holistic medicine saint john's wort wellness antioxidants fatty acids homeopathic saw palmetto weightloss anxiety fen phen homeopathic schiff aphrodisiac phen fen natrol sex aphrodisiacs fiber nature sexual enhancer aroma fitness natural steroids aromatherapy garry null natural food solaray atkins ginkgo supplements source natural bodybuilder ginkgo biloba natural healing sports nutrition bodybuilders ginseng natural medicine st. johns wort bodybuilding glucosamine natures way st john's wort calcium green tea nature's way stress cancer green tree nutrition sulfate cats claw greentea nutritional alternative

17 18 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.

medicine remedies coq10 homeopathy supplement country life iron supplements creatine kal tablets creatine kava teas monohydrate depression kava kava twinlab diet lactose vegetarian dietary magnesium vegetarians dione melatonin viagra disease mental alertness vitamin dna MetRx vitamins dr. andrew weil mother nature vitasave dr. atkins mother's nature weight lifting dr. weil msm weight loss dr. wiel msm sulphur weightlifting eas multivitamins weightloss echinacea natrol wellness yohimbe

18 19 CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.

EXHIBIT B

MATCHLOGIC SERVICES

AD MANAGEMENT, MEASUREMENT & OPTIMIZATION Ad Management, Measurement and Optimization refers to the suite of services and technologies to be used to measure and evaluate variables contributing to the performance of client marketing messages within the Excite Network. Descriptions of the services and technologies to be leveraged throughout the

optimization process are highlighted below.

CENTRALIZED AD SERVING Through its proprietary centralized ad serving infrastructure, MatchLogic will facilitate the trafficking, delivery, tracking and reporting of Client's banners throughout the Excite Network. During the ad management process, MatchLogic will employ TrueCount(sm) cache counting techniques as the underlying measurement technology for the reporting of client campaign performance data. Basic campaign performance data including primary impressions, clicks, click %, cache impressions and total impressions will be supplied to Client daily through an online interface.

TRUEFFECT(sm) TruEffect(sm) refers to the process of establishing, tracking and communicating the relationship between locations from which users have interacted with Client's marketing messages and the activities they engaged in at the Client Site as a result of these interactions. TruEffect(sm) measurement will allow Client to directly relate user activity within the Client Site to marketing messages within the Excite Network. As a result of these measurements, Client will have the ability to optimize campaigns in order to drive actual user activities or transactions. Client will be able to identify the number of unique visitors coming to the Client Site or promotional areas, from which message and area they originated, and the number of measurable transactions these visitors performed. Additionally, measurements of reach and frequency will accompany this analysis.

Upon successful implementation of TruEffect(sm), performance reporting will be available to Client on a daily basis through an online interface.

LANDSCAPE(sm) LandscapE(sm) demographic profile reports will afford Client an effective means of understanding the visitor segments exposed to Client's messages or interacting with Client sponsored content areas within the Excite Network. All of the information contained within the demographic profiles is derived from consumers who have been both exposed to an advertising campaign and are also within MatchLogic's Digital 1:1(sm) database (MatchLogic's proprietary consumer database). When a subset of unique visitors taken from all visitors exposed to a Client's marketing message or content area are matched against the Digital 1:1(sm) database, demographic profiles are derived. The matched records create a sample of visitors that are used to demographically represent and statistically profile

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each visitor segment. These profiles will allow Client to compare its understanding of its customers offline to its customers online as a basis for more effective segmenting and future targeting.

LandscapE(sm) reports are generated on a campaign basis and will include measurements of campaign reach by Age, Gender, Age/Gender, Household Income, and Household Income/Age. These reports will be made available to Client once statistically significant profiles have been established.

TRUESELECT(sm) TrueSelect(sm) is MatchLogic's centralized advertising targeting system. TrueSelect(sm) enables MatchLogic to project demographics of users across the Internet based on our Digital 1:1 database, user traffic and user search patterns. The first implementation of this technology will be Virtual Keywords slated for release in 4Q98. Virtual Keywords will allow MatchLogic to actively target a user on the Excite Network based on the user's input of search terms at a previous point in time. TrueSelect(sm) will be able to track and target users by Virtual Keywords on both an inter-day and intra-day basis. Following Virtual Keywords, TrueSelect(sm) capabilities will enable marketers to actively target specific users based on predetermined demographic or lifestyle information in real time.

Upon release of this technology, delivery of TrueSelect(sm) targeted messaging for Client is highly dependent on a number of qualifying criteria. A critical qualifier for the implementation of TrueSelect(sm) will be the establishment of a significant behavioral profile target for Client's customers as highlighted within the LandscapE(sm) services description above.

DELIVERE(sm) DeliverE(sm), MatchLogic's email marketing service will be leveraged to deliver email marketing campaigns on behalf of Vitamin Shoppe. The DeliverE(sm) team will consult with Client to evaluate current business objectives (branding, acquisition, retention, reactivation, etc.) and develop e-mail strategies that meet these specific objectives. Once appropriate strategies have been established, MatchLogic will target both MatchLogic and Excite registered users for the facilitation of the Client's program. Performance results for these campaigns will be provided to Client and assist in the development of strategies for subsequent e-mail campaigns.

Projected delivery schedules for DeliverE(sm) services over the [*****]-year term of this agreement are as follows.

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are matched against the Digital 1:1(sm) database, demographic profiles are derived. The matched records create a sample of visitors that are used to demographically represent and statistically profile each visitor segment. These profiles will allow Client to compare its understanding of its customers offline to its customers online as a basis for more effective segmenting and future targeting.

LandscapE(sm) reports are generated on a campaign basis and will include measurements of campaign reach by Age, Gender, Age/Gender, Household Income, and Household Income/Age. These reports will be made available to Client once statistically significant profiles have been established.

TRUESELECT(sm)

TrueSelect(sm) is MatchLogic' centralized advertising targeting system. TrueSelect(sm) enables MatchLogic to project demographics of users across the Internet based on our Digital 1:1 database, user traffic and user search patterns. The first implementation of this technology will be Virtual Keywords stated for release in 4Q98. Virtual Keywords will allow MatchLogic to actively target a user on the Excite Network based on the user's input of search terms at a previous point in time. TrueSelect(sm) will be able to track and target users by Virtual Keywords on both an inter-day and intra-day basis. Following Virtual Keywords, TrueSelect(sm) capabilities will enable marketers to actively target specific users based on predetermined demographic or lifestyle information in real time.

Upon release of this technology, delivery of TrueSelect(sm) targeted messaging for Client is highly dependent on a number of qualifying criteria. A critical qualifier for the implementation of TrueSelect(sm) will be the establishment of a significant behavioral profile target for Client's customers as highlighted within the LandscapE(sm) services description above.

DELIVERE(sm)

DeliverE(sm), MatchLogic's email marketing service will be leveraged to deliver email marketing campaigns on behalf of Vitamin Shoppe. The DeliverE(sm) team will consult with Client to evaluate current business objectives (branding, acquisition, retention, reactivation, etc.) and develop e-mail strategies that meet these specific objectives. Once appropriate strategies have been established, MatchLogic will target both MatchLogic and Excite registered users for the facilitation of the Client's program. Performance results for these campaigns will be provided to Client and assist in the development of strategies for subsequent e-mail campaigns.

Projected delivery schedules for DeliverE(sm) services over the [*****]-year term of this agreement are as follows.

[*****] TESTS INCLUSIONS VOLUME - ---------------------------------------------------------------------------- 12 Exclusive Offer 2 e-mail offer tests [*****] Tests Push against best offer [*****]

Target model creation [*****]

Model role-out [*****] - ---------------------------------------------------------------------------- 7 Prospecting Co-op Offer role-out to co-op [*****] Tests file - ---------------------------------------------------------------------------- [*****] - ----------------------------------------------------------------------------

[*****] TESTS INCLUSIONS VOLUME - ---------------------------------------------------------------------------- 12 Exclusive Offer 2 e-mail offer tests [*****] Tests Push against best offer [*****]

Target model creation [*****]

Model role-out [*****] - ---------------------------------------------------------------------------- 13 Prospecting Co-op Offer role-out to co-op [*****] Tests file - ---------------------------------------------------------------------------- [*****] - ----------------------------------------------------------------------------

Above listed DeliverE(sm) services are to be allocated to meet Client's needs and overall production schedule.

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EXHIBIT C

ANNUAL IMPRESSION DELIVERY SCHEDULE

Vitamin Shoppe Industries WC/Excite Placement Details *LINE ITEM PLACEMENTS AND IMPRESSIONS ARE ESTIMATES ONLY AN WILL CHANGE OVER TIME

EXHIBIT C

Products Description Item # [*****] Estimated [*****] Estimated TOTALS in IMPS IMPS Contract Excite Integrated Links Excite Japan Sponsorship/Promotion Positions #3b [*****] [*****] [*****] Excite Nutrition & Vitamins Sponsorship/Promotion Positions #3c [*****] [*****] [*****] 0 0 0 - ---------------------------------------------------------------------------------------------------------------------------- Excite Links, subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- Excite Banners NONE - ---------------------------------------------------------------------------------------------------------------------------- Excite Banner subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- Excite Links/Banner subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Integrated Links WC Health Home Page Home Page Rotation #1b [*****] [*****] [*****] WC Nutrition & Vitamin Sub Channel Link #1c [*****] [*****] [*****] WC Health Channel Promotional Opportunities, [*****] [*****] [*****] i.e., alternative medicine #1d WC Health Channel Sponsorship Strip #1e [*****] [*****] [*****] WC Shopping Channel Under Health & Fitness Sub Channel #2b [*****] [*****] [*****] WC Shopping Channel Under Health & Fitness/ Groceries Sub Channel #2c [*****] [*****] [*****] 0 0 0 - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Links Subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Banners

WC Keywords Search #5a [*****] [*****] [*****] WC Health Channel Channel Rotation #5b [*****] [*****] [*****] WC Health Channel Mutually determined departments #5c [*****] [*****] [*****] WC General Rotation General Rotation across WC site #5d [*****] [*****] [*****] 0 - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Banner subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Links/Banner subtotal [*****] [*****] [*****] - ---------------------------------------------------------------------------------------------------------------------------- 0 - ---------------------------------------------------------------------------------------------------------------------------- 0 - ----------------------------------------------------------------------------------------------------------------------------------- 0 - ----------------------------------------------------------------------------------------------------------------------------------- S&P Links Total [*****] [*****] [*****] S&P Banner Total [*****] [*****] [*****]

- ---------------------------------------------------------------------------------------------------------------------------- Grand Total [*****] [*****] [*****] - ----------------------------------------------------------------------------------------------------------------------------

Vitamin Shoppe E Sponsorship Agr/bja Version 980918

22

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During the term of the Agreement, the parties agree to cooperate in good faith and use commercially reasonable efforts to evaluate the quality and performance of the placements used to deliver the impressions described in the Agreement and to modify such placements in an effort to reach the objectives set forth in this Agreement.

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EXHIBIT D

CLIENT'S COMPETITORS

Acta Pharmacal Nutritional Warehouse All Vitamins Phillips Nutritional Austin Nutritional Puritans Pride BenSalem Naturals Reach4life B-Vital Realtime Chayas Chemical-Free S. Shiraishi Office, Inc. Cherokee Naturals, Inc Shop Vitamins Club Vitamin The Herb Shop GNC The Herb Shoppe Good Life Nutrition The Nickel and Thyme Shoppe Green Tree The Vitamin Source Green Turtle Bay Vitamin The Vitamin Tree Greenshack Direct US Health Distributors, Inc Health and Vitamin Express Vita Save Health Depot VitaCare Infinity 2 VitaFit Jamieson Natural Sources Vital Life Karemore Vitamin Company Vitamin Depot Kava Systems Vitamin Express L & H Vitamins Vitamin House Life Plus Vitamins Vitamin House MineralNet Vitamin Shack Mother Nature's General Store Vitamin Warehouse, Inc. Mountain Naturals Vitamins Vitamins for Life My Vitamins Vitamins Online Nature Sunshine Vitamins.com Nature Sunshine Herb and Vitamins Vitanet Noah's Ark Vitawise Nutritional Direct Wholesale Vitamins

24
answer:
Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party's obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.

question:
EXHIBIT 10.6

DISTRIBUTOR AGREEMENT

THIS DISTRIBUTOR AGREEMENT (the Agreement) is made by and between Electric City Corp., a Delaware corporation (Company) and Electric City of Illinois LLC (Distributor) this 7th day of September, 1999.

RECITALS

A. The Company's Business. The Company is presently engaged in the business of selling an energy efficiency device, which is referred to as an Energy Saver which may be improved or otherwise changed from its present composition (the Products). The Company may engage in the business of selling other products or other devices other than the Products, which will be considered Products if Distributor exercises its options pursuant to Section 7 hereof.

B. Representations. As an inducement to the Company to enter into this Agreement, the Distributor has represented that it has or will have the facilities, personnel, and financial capability to promote the sale and use of Products. As an inducement to Distributor to enter into this Agreement the Company has represented that it has the facilities, personnel and financial capability to have the Products produced and supplied as needed pursuant to the terms hereof.

C. The Distributor's Objectives. The Distributor desires to become a distributor for the Company and to develop demand for and sell and distribute Products solely for the use within the State of Illinois, including but not limited to public and private entities, institutions, corporations, public schools, park districts, corrections facilities, airports, government housing authorities and other government agencies and facilities (the Market).

D. The Company's Appointment. The Company appoints the Distributor as an exclusive distributor of Products in the Market, subject to the terms and conditions of this Agreement.

1. ESTABLISHMENT OF DISTRIBUTORSHIP

1.1 Grant and Acceptance. Company hereby appoints Distributor as Company's exclusive distributor within the Market and grants to Distributor the exclusive right to sell and distribute Products within the Market, and Distributor hereby accepts such appointment and such grant, in accordance with the terms and conditions of this Agreement. Distributor acknowledges that customers of other distributors of the Products may have sites, locations or operations in the Market, which will use the Products. Distributor will sell any and all Products required by such customers in the Market to those customers. Distributor also acknowledges that if its customers have sites, locations or operations outside the Market, in the market of another exclusive distributor of the Products, those customers will be required to purchase products from the applicable exclusive distributor in that market; otherwise, Distributor shall be free to sell to its customers in any market which does not have another exclusive distributor.

1.2 License. The Company hereby grants the Distributor the right to do business and use the name Electric City of Illinois or a similar variation thereof (collectively the Names) for use under this Agreement. Distributor may file with the appropriate state and local authorities assumed name certificates as required. Copies of all documents relating to the use of the Names shall be forwarded to the Company. Upon termination of this Agreement Distributor shall have no further right to the Names and said License to use the Names shall terminate. Distributor shall have no right to sublicense the Names or to do business under any other names without the Company's prior approval in writing. The parties acknowledge that the terms herein consist of there terms for Illinois. At the request of either party, a new agreement reflecting the terms and conditions of this Agreement, may be executed for each state or entity representing each state.

1.3 Term. The term of this Agreement shall be ten (10) years (the Term) which shall commence on the date upon which the Company delivers to Distributor the last Sample, as defined hereinafter. If Distributor complies with all of the terms of this Agreement, the Agreement shall be renewable on an annual basis for one (1) year terms for up to another ten (10) years on the same terms and conditions as set forth herein. All renewals of this Agreement shall be on the same terms and conditions as are set forth herein.

1.4 Company's Obligation. Company shall sell and deliver as provided in Section 2.3 of this Agreement to Distributor on the price terms set forth in this Agreement or as amended from time to time such quantity of Products as Distributor from time to time orders from Company. Company shall promote and advertise the Products generally, at its own expense, and shall furnish Distributor copies at all advertisement and promotional materials.

1.5 The Distributor's Obligation. The Distributor, at its own expense, shall promote the distribution, sales, and use of Products in the Market.

1.6 Distributor's Terms and Minimum Expectations. In order to maintain the exclusive rights to sell, lease, distribute and service Products in the Market, the Distributor must use all commercially reasonably efforts to purchase for sale to subdistributors the following minimum quantities of the Products from the Company:

On the commencement of the Term Distributor will issue to the Company an irrevocable letter of credit (LC) in the amount of Five Hundred Thousand Dollars ($500,000), the form of which is attached hereto as Exhibit A and incorporated herein by reference. The LC shall have a two (2) month term, and shall be renewed for five (5) consecutive bimonthly periods. A minimum of a $250,000.00 purchase order must be received by Company by the first of each month for a total (12) month period. The Company may draw funds from the LC to pay for Distributor's purchases, which are not paid according to the terms in Section 2.7. Prices for the EnergySaver units are

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provided by the Company as Exhibit C. The Company will be entitled to draw against the LC pursuant to the terms of the LC.

(A) 375 units in the first Product Year (1999)

(B) 750 units in the next succeeding Product Year; (2000)

(C) 937 units in the next succeeding Product Year; (2001)

(D) 1,171 units in the next succeeding Product Year; (2002)

(E) 1,463 units in the next succeeding Product Year; (2003)

(F) 1,828 units in the next succeeding Product Year; (2004)

(G) 2,285 units in the next succeeding Product Year; (2005)

(H) 2,856 unit each in the lat three years of the initial Term of this Agreement and any renewals thereof.

For purposes of this Agreement, a Product Year shall be the twelve (12) month period following the commencement of the initial Term of this Agreement and each twelve (12) months thereafter. Distributor's expected sales shall include the purchase of the Samples as defined hereinafter.

Sales in excess of the expected sales which are actually made in a Product Year may be applied to meet the expectations for the next Product Year. Any such carry-over from one year to the next Product Year may not be considered in determining whether there is a carry-over from that next Product Year. Thus, by way of example and not limitation, if there was an expectation of 50 in year one and 200 for year two and 60 units are sold in year one and 195 units are sold in year two, the expectation for year two will have been met, but there will be no carry-over to year three. If the Distributor shall fail to purchase the minimum number of units in any year, the Distributor's exclusive rights to sell and distribute the Product in the Market, may at Company's sole option, be reevaluated.

Company agrees that Distributor shall not be liable or subject to reevaluation for failure to meet expectations due to any occurrence beyond Distributor's reasonable control, including, but not limited to, Acts of God, fires, floods, wars, sabotage, accidents in shipping, labor disturbances,

weather conditions, governmental regulation, lack of Company performance, delay by Company, failure of Company to honor warranties or otherwise materially support the Products.

The aggregate units to be sold on an annual basis described above are for the Illinois distributorship on an aggregate basis.

1.7 Relationship of Parties. The relationship between the Company and the Distributor

Page -3-

is that of vendor and vendee. This Agreement does not create the relationship of principal and agent between the Company and the Distributor for any purpose whatsoever. This Agreement shall not be construed as constituting the Distributor and the Company as partners, joint venturers, or as creating any other form of legal association or arrangement which would impose liability upon one party for the act or omission of the other party. Neither party is granted any express or implied right of authority by the other party to assume or to create any obligation or responsibility on behalf of or in the name of the other party, or to bind the other party in any manner or thing whatsoever.

2. PURCHASE OF PRODUCTS

2.1 Orders. The Distributor shall order Products from the Company on a purchase order form mutually acceptable to the Company and Distributor and which is consistent with Exhibit B hereto, and which incorporates the terms and provisions of this Distributor Agreement. The Distributor shall not order or purchase Products from any source other than the Company. All orders shall be subject to acceptance and confirmation by the Company. Distributor may cancel an order that is properly cancelled by Distributor's customer, unless the Company has commenced production which is in any way customized for that customer. The Distributor shall annually provide the Company with a non-binding forecast of orders for Products for the succeeding 12-month period.

2.2 Shipment. The Company and the Distributor shall jointly determine shipment dates. The Company shall use commercially reasonable efforts to ship promptly all orders for Products received from the Distributor. In addition to any other remedy which this Agreement provides to Distributor against Company, if Company fails to deliver or delays in delivering Products as were ordered by Distributor within 45 days after their required delivery date, and if as a result of such failure or delay Distributor loses its customer's orders for those Products, the number of units which Distributor ordered but were not timely delivered to Distributor or to Distributor's customer will be credited against Distributor's minimum expectation as specified on Section 1.6 of this Agreement. The Company may refuse to accept a purchase order on the grounds that it cannot meet the delivery schedule therein, and if as a result of such failure or delay Distributor loses its customer's orders for those Products, the number of units which Distributor ordered but were not timely delivered to Distributor or to Distributor's customer will be credited against Distributor's minimum. Distributor shall make reasonable efforts to notify the Company of the proposed delivery schedule before accepting a customer order and shall give the Company written notice of any customer purchase orders which imposes liability for late shipment and neither the Distributor nor the Company shall have a liability for consequential or liquidated damages pertaining to late delivery unless Company specifically acknowledges and agrees in writing to the same. The Distributor agrees that the Company shall not be liable for its failure to perform due to any occurrence beyond the Company's reasonable control, including, but not limited to, acts of God, fires,

Page -4-

floods, wars, sabotage, accidents in shipping beyond the Company's control, labor strikes other than strikes against the Company itself, weather conditions or foreign or domestic government regulation or authority which directly affects Company's ability to deliver Product.

2.3 Delivery. Other than drop ship deliveries, all deliveries

made pursuant to this Agreement shall be FOB the Company's facilities located within the continental United States by a carrier authorized by the Distributor.

2.4. Prices.

(A) Prices For Basic Units. The prices for Products in the first Product Year are supplied by Company as Exhibit C.

(B) Inflation Price Adjustment. The prices set forth in Section 2.4(a) shall be subject to adjustment annually on the first day of each Product Year beginning in the calendar year 2000 and on the first day of each succeeding Product Year for the remainder of the Term and all renewals of this Agreement in proportion to the increase or decrease in the Consumer Price Index (CPI) as compared to the CPI as it existed on the first day of the Term of this Agreement. The Company also reserves the right to increase or decrease the price per unit based on Company wide changes in unit prices to all distributors of the Company, provided however, that any price changes, other than those based on the CPI, shall be uniformly applied to all distributors of the Products and shall reasonably applied to all distributors of the Products and shall reasonably reflect Company's costs of manufacturing the Products and/or market demand for the Products, provided further than any increase in price based upon market demand shall not be so great as to deprive Distributor of its normal and customary profit margin. The Company agrees to exercise this right in good faith, and consider all circumstances of the Distributor and the Company. The CPI referred to herein in issued by the Bureau of Labor Statistics of the U.S. Department of Labor. Should the Bureau of Labor Statistics discontinue publication of the CPI, the parties shall accept comparable statistics on the purchasing power of the consumer dollar as published at the time of said discontinuation by responsible periodical or recognized authority to be chosen by the parties.

2.5. Resale Prices. The Distributor may resell Products at such price, as the Distributor, in its sole discretion, shall determine. While the Company has the right to suggest a range of manufacturer's suggested retail prices for the Products, the distributor is not obligated to set retail prices within the Company's suggested range of retail prices.

2.6 Product Returns.

Page -5-

(A) Non-defective Products. Unless the Company has first authorized or permitted the return of any non-defective Products and except as otherwise permitted or required herein, the Company shall not be obligated to accept the return from the Distributor of any non-defective Products, nor to make any exchanges therefor, nor to credit the Distributor therefor. If Company does not give Annual Notice pursuant to Section 3.1 hereof, Distributor may, within 90 days of modification, improvement or alteration, return the Products to the Company. The Company shall not have any obligation with respect to Products after 365 days following delivery to Distributor, except as provided herein.

(B) Defective Products. In the event of any damages or other defect in a Product which is discovered by Distributor within 365 days of satisfactory installation of a Product at Distributor's or a subdistributor's customer, the Distributor shall promptly report the same to the Company and reasonably demonstrate the defect to the Company. If the Distributor reasonably demonstrates that the Company is responsible for such damage or defect, the Company shall promptly deliver and install at the Company's expense, additional or substitute Products to the subdistributor's customer without additional cost or charge to the Distributor or the customer for material, labor, shipping, insurance or any other charge.

2.7 Payment Terms. Distributor shall pay Company within thirty

(30) days of Distributor's or, as the case may be, the end-user's receipt of Products.

2.8 Company Cooperation. The Company shall cooperate with the Distributor in obtaining all necessary permits and approvals to permit the use of the Products. The Company shall bear responsibility for any permits needed to manufacture the Products and Distributor shall bear responsibility for any permits needed to distribute the Products.

3. PRODUCTS AND WARRANTY

3.1 Product Improvements by the Company. At the Company's sole discretion, and at any time, the Company may give the Distributor at least 90 days advance notice (Annual Notice) of any modification, improvement or alteration of Products (New Products) and development of new models of Products (collectively with New Products, Improved Products). Except for the Improved Products for which the Distributor receives the Annual Notice, the Company shall sell Improved Products to Distributor only with the consent of the Distributor. Any Improved Products shall be subject to the provisions of this Agreement. Old Products will remain available unless

Page -6-

Improved Products perform at the same or better levels and are offered at reasonably similar prices or at prices increases, which reasonably reflect improvements in performance.

3.2 Product Improvements by the Distributor. The Distributor shall disclose to the Company any modifications to Products requested by end-users or other proposals for Product improvement from end-users or the Distributor, but shall have no right to make modifications without Distributor's consent.

3.3 Warranty. Company shall at all times make reasonable efforts to maintain quality control and to deliver Products to Distributor which, when received by Distributor, or, as the case may be, the end-user, are properly and adequately packaged and contained, fully assembled (except for miscellaneous components which may be shipped separately to prevent damage in transit), fully functional and otherwise in conformance with the warranties set forth herein. Company warrants that the Products will be designed, manufactured, constructed, assembled and packaged in a workmanlike manner and that such Products shall be fully functional and fit for their intended purposes. Company further warrants that the Products sold hereunder shall be free from defects in design, materials and workmanship for a period of twenty-four (24) months after delivery to Distributor's end-user. The Company shall not be liable for defective Products, except as provided in this Agreement. The Distributor at all times shall comply with all requirements of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act and similar federal and state laws and regulations.

3.4 Warranty Work. If, within the twenty-four (24) month warranty period set forth above, Company received from Distributor or any of Distributor's end-user's a notice which may be oral notice confirmed in writing) that any of the Products sold hereunder do not meet the Warranties specified above, Company shall thereupon correct each such defect by providing the necessary repairs, and/or replacement parts, or if necessary, Products. Company shall promptly respond to any timely notice of defect. Unless otherwise expressly agreed to in writing by Distributor or Distributor's and-user, Company shall bear the reasonable expense of all labor, materials and shipping expended or used in connection with the correction of any defects in the Products occasioned by the non-conformance of the Product with Company's warranty as set forth herein. Company shall be entitled to dispute whether a Product is defective. In the event that Company is unable or unwilling to promptly perform any warranty work without reasonable cause and following full and fair opportunity to do so, or in the event of the necessity for emergency repairs of a defective Product for which there is no reasonable possibility of performance by Company, Distributor may perform such warranty work or hire a third party to perform such warranty work and the reasonable cost thereof shall be paid by Company.

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3.5 Service of Products in Territory. Within thirty (30) days after the execution of this Agreement, the Company and the Distributor shall mutually agree upon a reasonable schedule of charges for after market parts and services provided by the Company or the Distributor so that such charges do not adversely affect the marketability of the Products.

3.6. Non-Disclosure of Confidential Information. None of the parties hereto nor their associated or affiliated or affiliated companies shall during the term of this Agreement or thereafter disclose any confidential information obtained or acquired by them in connection with the Products and the business of the other, including, without limitation, trade secrets, business techniques, technical information, customer and potential customer lists, marketing data and information, prices, improvements to the Products in various stages of development, processes, or other confidential information relating to the Products or the business of the Distributor, except that either party shall be permitted to disclose (x) all or portions of such confidential information on a strictly need-to-know basis to the extent required by an order of a court of competent jurisdiction or by the order or demand of a regulatory body having jurisdiction over one or both parties and (y) any of such confidential information that is the sole property of the party making the disclosure and does not include any information owned by the other party. The Distributor shall not disclose this agreement except upon consent of Company. Confidential information shall not include information which:

(A) Is or becomes generally available to the party who desires to disclose such information (or its associated or affiliated companies) (a Disclosing Party) other than as a result of a breach of this Agreement or some other unlawful means;

(B) Becomes available to the Disclosing Party on a non-confidential basis from a third party who is under no confidentiality or nondisclosure obligation with respect to such information; or

(C) Was known to the Disclosing Party on a non-confidential basis prior to the disclosure thereof to such disclosing Party by a party to this Agreement.

4. DURATION AND TERMINATION

4.1 Duration. Unless earlier terminated otherwise provided therein, this Agreement, subject to the commencement date established in Section 1.3, shall be effective immediately. Distributor shall submit written reports to the Company each quarter during the first year of the Term, commencing ninety (90) days after execution of this Agreement, describing its efforts, the potential customers it has approached and the status of its efforts.

4.2 Termination for Cause. Either party may terminate this Agreement upon 30 days

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prior written notice to the other upon the occurrence of any of the following events: (A) the Distributor's failure to make full and prompt payment to the Company of all sums due and owing to it; (b) either party's default in the performance of any of the material, terms, conditions, obligations, undertakings, covenants or liabilities set forth herein and such default is not cured within a commercially reasonable time after the defaulting party has been notified of the default by the other party and (c) as otherwise expressly provided herein. In the event either party (a) becomes adjudicated insolvent, (b) discontinues its business, (c) has voluntary of involuntary bankruptcy proceedings instituted against it, or (d) makes an assignment for the benefit of creditors, the other party shall be entitled to terminate this Agreement effective immediately upon written notice.

4.3 Accrued Obligations. In the event that either Distributor or Company fails to comply with the terms of this Agreement, both Distributor and Company acknowledge and agree that in addition to any claim for damages either party may have arising from the default of the other, they shall have the right to seek equitable relief by way of a temporary restraining order, preliminary injunction, permanent injunction and such other equitable relief as may be appropriate. In the event a party seeks the equitable relief of a temporary restraining order, preliminary injunction, permanent injunction, mandatory

injunction or specific performance both parties acknowledge that they shall not be required to demonstrate the absence of an adequate remedy at law, and neither party shall be required to post bond as a precondition to obtaining a temporary restraining order or preliminary injunction. The termination of this Agreement shall not relieve either party hereto from obligations which have occurred pursuant to the provisions of this Agreement prior to its termination, nor shall it release either party hereto from any obligations which have been incurred as a result of operations conducted under this Agreement.

4.4 Repurchase of Products. Upon the expiration or termination of this Agreement, pursuant to Section 4.1 or 4.2 hereof, the Company may, at its option to be exercised within 30 days of the date of the termination of this Agreement, and in its sole discretion, repurchase any Products in the possession of the Distributor at the net invoice price paid by the Distributor to the Company less any applicable special allowances, discounts, shipping or allowances for cooperative advertising. If Company terminates the Agreement without cause and for reasons other than Distributor's failure to meet its minimum expectations; it shall repurchase from Distributor any unopened Product, and shall bear all shipping, handling and related costs notwithstanding any other remedies to which Distributor may be entitled. On demand and tender of the repurchase price, the Distributor shall be obligated to deliver such Products to the Company. The Company reserves the right to reject any Products that are not factory sealed and in new and unused condition. Repurchased Products shall be shipped at the Company's expense, and the Company may offset any indebtedness of the Distributor to the Company against the repurchase price of such Products. Following expiration or termination of this Agreement, the Distributor may continue to sell any Products in the Market which are in its inventory

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and which the Company has not repurchased.

5. REPRESENTATIONS AND WARRANTIES AND OTHER MATTERS

5.1 Representations and Warranties of Company.

(A) The Company represents that, to the best of its knowledge, Products are in compliance with all laws, and that the Products will not be hazardous or dangerous when used for their intended purpose. Products do not cause harmful emissions or other environmental hazards and Products do not violate or infringe any patents, copyrights, trademarks or other rights of nay third party(ies). Company further represents and warrants that its Products will perform as advertised and promoted by the Company, and will be approved or certified by Underwriters Laboratory.

(B) The Company will make available to Distributor comprehensive technical support for the first Product Year. Distributor will have direct access to (a) the Company's engineering consultants and (b) the patent holder's technicians. Company's representatives will make themselves available three days per month in the first Product Year to consult with and train Distributor. All costs and expenses associated with the services provided to Distributor hereunder, including travel, lodging, engineering consultants' fees and employee time will be paid by Distributor.

(C) Company will timely furnish all of Distributor's requirements for Products within the Market, provided it is given adequate notice of Distributor's requirements and a full and fair opportunity to fulfill the same.

5.2 Representations and Warranties of Distributor.

(A) Distributor shall be entirely responsible for learning, understanding and training about the Products, the costs of advertising and promoting the Products in the Market through the Term of this Agreement. Distributor shall not issue, print or disseminate any information about the Products in the first Product Year without the express written consent of the Company.

(B) Distributor will not engage the services of any engineering or consulting firm without the express

written consent of the Company.

5.3 Indemnification. Company and Distributor agree to indemnify, defend and hold each other harmless from any and all suits, claims, obligations, liabilities, damages, losses and the like (including attorneys' fees and costs) relating to or arising out of: (A) any breach of any material representations, warranties, covenants, obligations, agreements or duties in connection with this Agreement; (b) any negligence or fault; (c) any violation by either of them of the patent, copyright, trademark or other

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intellectual property rights of third parties. In addition, Company agrees to indemnify, defend and hold harmless Distributor from and against all suits, claims, obligations, liabilities, damages, losses and the like (including attorneys' fees and costs) arising out of or related to Company's manufacture or design of the Products, provided that Distributor is not at fault in connection with the same, and Distributor agrees to indemnify, defend and hold harmless Company from and against all suits, claims, obligations, liabilities, damages, losses and the like (including a attorneys' fees and costs) arising out of or related to Distributor's sales, marketing practices or unauthorized Product alteration (provided that Company is not at fault in connection with same).

5.4 Product Liability Insurance. Company will carry a reasonable amount of product liability insurance through a reasonably acceptable products liability insurance company and will name the Distributor as an additional insured under that policy. Company will make reasonable efforts to procure a policy, which is non-cancelable, except upon thirty (30) days, advance notice to the Distributor.

5.5 No License. The Distributor acknowledges and agrees the except as provided by Section 1.2 of this Agreement, this Agreement will not be construed as granting by implication, estopped or otherwise any license or other right of use with respect to any present or future patent, copyright, trademark, trade name or other proprietary right owned by or licensed to the Company or any of its affiliates.

5.6 No Action to Invalidate. During the Term of this Agreement and for three years thereafter, the Distributor (on behalf of itself and each of its affiliates) agrees not to commence, or provide any information to or otherwise assist any person or entity in connection with, any suit, action or proceeding contesting the ownership, validity or enforceability of any patent, copyright, trademark, trade name or other propriety right owned by or licensed to the Company, whether currently existing or hereinafter invented, developed or acquired unless required to by court order. The Distributor agrees to inform the Company promptly and cooperate with the Company in the event the Distributor obtains knowledge of any such suit, action or proceeding which has been initiated or is contemplated by any other person or entity.

5.7 Nonsolicitation.

(A) During the Term of this Agreement and for a period of twelve (12) months thereafter, the Distributor (on behalf of itself, each of its affiliates and each of their respective representatives) agrees that it will not directly or indirectly solicit or hire any executive, managerial or technical employee of the Company or any of its affiliates.

(B) Distributor further agrees that it will not interfere with or otherwise disrupt the business relations between the Company or nay of its affiliates and any of their current or prospective customers, suppliers or distributors, during the

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Term of the Agreement and for a period of eighteen

(18) months thereafter, nor will Distributor solicit any customer or potential customer of Company to purchase a competitive product during that period.

5.8. Nonpublic Information. The Distributor acknowledges that is it aware that the securities laws prohibit any person who has material, non-public information concerning the Company or the matters which are the subject of this Agreement from purchasing or selling securities of the Company (or options, warrants and rights relating thereto) and from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.

6. INTERPRETATION AND ENFORCEMENT

6.1 Assignment. No assignment of this Agreement or any right accruing hereunder shall be made by the Distributor in whole or in part, without the prior written consent of the Company, which consent shall not be unreasonably withheld. As a condition to obtaining such consent, the Assignee of Distributor's interest hereunder shall first agree in writing in form and substance satisfactory to the Company, that is shall assume and be liable for the performance of all obligations imposes by this Agreement on Distributor, whether such obligations have then accrued are owing, or are yet to be performed, and shall demonstrate that is has the economic, and with approval of the assignment, the legal capability to perform all of the obligations of Distributor hereunder. Company may assign its interest in this agreement to any person or entity which has authority to fulfill Company's obligations hereunder and which has the economic ability to perform its obligations hereunder. Upon the assignment of a party's interest and rights in this Agreement the assigning party shall be relieved of all further obligations imposed by this Agreement. 6.2 Nonwaiver of Rights. Failure of either party to enforce any of the provisions of this Agreement or any rights with respect thereto or failure to exercise any election provided for herein shall in no way be a waiver of such provisions, rights or elections or in any way affect the validity of this Agreement. The failure of either party to exercise any of said provisions, rights or elections shall not preclude or prejudice such party from later enforcing or exercising the same or any other provisions, rights or elections which is may have under this Agreement.

6.3 Invalid Provisions. If any terms, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

6.4 Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, telegraphed, telexed, or sent by facsimile transmission or sent by certified, registered or express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally,

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telegraphed, telexed or sent by facsimile transmission or, if mailed, two (2) business days after the date of deposit in the United States mail, by certified mail return receipt requested, as follows:

If to the Distributor to: Electric City of Illinois L.L.C. 8628 Oketo Avenue Bridgeview, IL 60455 Facsimile No. (708) 598-4671 Attn: Jim Stumpe

With a copy to: Thomas V. McCauley 200 W. Adams, Suite 2500 Chicago, IL 60606 Facsimile No. (312) 346-9316

If to Company to: Electric City Corp. 1280 Lanmeier Rd. Elk Grove Village, IL 60007 Attn: Joseph Marino, President

With a copy to: Kwaitt & Ruben, Ltd. 211 Waukegan Road Suite 300

Northfield, Illinois 60093 Attn: Philip E. Ruben, Esq.

6.5 Entire Agreement. This Agreement, together with all exhibits attached hereto which are hereby incorporated by reference, supersedes any and all other agreements, either oral or written, between the parties hereto with respect to the subject matter hereof and contains of the covenants and agreements between the parties with respect to said matter. This Agreement may not be altered, amended or modified, except by written instrument signed by the parties hereto.

6.6 Sample Products. Company will, during the Term of this Agreement (and any renewal term), provide Distributor, at Distributor's cost pursuant to the terms of this Agreement, with five (5) sample units (the Sample or Samples) for use by Distributor in promoting sales. Distributor shall use the Samples for purposes of permitting potential customers to use the Products in the field. The Samples purchased by Distributor hereunder shall count toward the minimum expectations under this Agreement.

6.7 Time of the Essence. Time is of the essence of this Agreement.

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6.8 Force Majeure. Neither party to this Agreement shall be liable to the other party, nor shall be subject to injunctive relief by the other party if that party's performance of its duties or obligations under this Agreement is the consequence of Force Majeure as defined in Section 2.2 hereunder.

6.9 Governing Law. This Agreement is to be construed according to the laws of the State of Illinois.

7. NEW PRODUCTS

7.1 Right of Option. Should Company introduce other products or devices as contemplated by recital paragraph A, Distributor shall have the option of becoming Company's exclusive distributor of such other Products or devices within the Market.

7.2 Exercise of Option. Distributor shall exercise its option to become exclusive Distributor of other Products or devices by serving written notification on Company of its election to become exclusive distributor within thirty (30) days upon which Company informed Distributor in writing of Company's intention to introduce other Products or devices. If Distributor does not exercise its option as herein provided, Company may distribute the other Products or devices within the Market itself or through other distributors.

7.3 Other Agreements. The terms pursuant to which such other Products or devices shall be sold by Company to Distributor shall be determined by a separate agreement, but such agreement shall be essentially on the same terms and conditions as herein provided, understanding that such terms as price, quotas, and length of the term of the agreement shall be reasonably adjusted to reflect the nature of the other Product or device which is the subject of the agreement.

In witness whereof the parties have executed this Agreement as of the date first abovementioned.

Electric City Corp. Electric City of Illinois L.L.C.

By: /s/Joseph Marino By: Jim Stump ------------------- ------------------------------- President

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answer:
Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty's ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?

question:
Ex 10.3

SERVICING AGREEMENT

between

CURO RECEIVABLES FINANCE II, LLC, as Owner

and

CURO MANAGEMENT, LLC, as Servicer

Dated as of April 8, 2020

This SERVICING AGREEMENT (this Agreement) is entered into as of April 8, 2020, by and between CURO RECEIVABLES FINANCE II, LLC, a Delaware limited liability company (the Owner), and CURO MANAGEMENT, LLC, a Delaware limited liability company, as servicer (the Servicer).

Capitalized terms used but not defined herein shall have the meanings set forth in Annex A attached hereto.

W I T N E S S E T H:

WHEREAS, the Owner desires to have the Servicer to master service the Serviced Assets, to perform certain of the duties of the Owner, and to provide such additional services consistent with the terms of this Agreement and the Loan Documents as the Owner may from time to time request; and

WHEREAS, the Servicer has the capacity to provide the respective services required hereby and is willing to perform such services for the Owner on the terms set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

Section 1. Servicing Duties of the Servicer.

(a) The Owner authorizes Curo Management, LLC, to act, and Curo Management, LLC, agrees to act, as an independent contractor, as the Servicer effective upon the date hereof.

(b) From and after the date on which a Receivable or Participation Interest, as applicable, is sold to the Owner, the Servicer shall service and administer each related Serviced Asset for the benefit of the Owner and shall extend, amend or otherwise modify such Serviced Asset, by complying in all material respects with the following (collectively, the Servicing Standard): (A) reasonable care, using that degree of skill and attention that the Servicer exercises with respect to comparable receivables that it services for itself or others, and (B) Applicable Law.

(c) The Servicer shall have full power and authority, acting alone or through any party properly designated by it hereunder,

including any Sub-Servicer, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable, consistent with the terms of this Servicing Agreement and the Servicing Standard. Without limiting the generality of the foregoing, unless such power is revoked by the Owner on account of the occurrence of a Servicer Default, the Servicer shall have full power and authority (i) to make withdrawals from the applicable servicer collection account permitted by the terms of this Servicing Agreement, the Loan Agreement or any other Loan Document and (ii) to execute and deliver, on behalf of the Owner, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Receivables and, after the delinquency of any Receivable and to the extent permitted under and in compliance with applicable Servicing Standard and the Loan Agreement, to commence collection proceedings with respect to such Receivables. The Owner shall furnish the Servicer with any documents reasonably requested by the Servicer, including powers of attorney, as necessary or appropriate to enable the Servicer (or any Sub-Servicer on its behalf) to carry out its servicing and administrative duties hereunder.

(d) The Servicer shall collect and process all collections on the Serviced Assets in accordance with the terms and conditions set forth in Section 2.3 of the Loan Agreement and the Servicing Multi-Party Agreement.

Section 2. Administrative Duties of the Servicer.

(a) The Servicer agrees to perform all of the duties assigned to it in the Loan Agreement, and shall take all appropriate action with respect to the following matters under the Loan Agreement:

(i) upon written request of the Owner, executing and delivering such further instruments and do further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Loan Agreement;

(ii) preparing officer's certificates with respect to the Loan Agreement;

(iii) preparing, executing and filing any reports or other information which are required to be prepared or filed by the Owner in order to comply with federal, state or foreign securities laws, or exemptions thereunder; and

(iv) any other duties expressly required to be performed by the Servicer under the Loan Agreement or any other Loan Document.

(b) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Servicer may enter into transactions with or otherwise deal with any of its Affiliates; provided, however, that the terms of any such transactions or dealings shall be no less favorable to the Owner than would be available from unaffiliated parties, that Owner shall have no responsibility or liability for any fees payable to such Affiliates to perform such obligations as contemplated by this Agreement and that the Owner shall not be deemed pursuant to this Section 2(b) to enter into any contractual obligations with such Affiliates.

(c) To the fullest extent permitted by law, the Owner shall indemnify, defend and hold harmless the Servicer and its successors, assigns, directors, officers, agents, employees and servants (collectively, the Servicer Indemnified Parties) from and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable out-of-pocket costs, expenses and disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever (collectively, Liabilities) which may at any time be imposed on, incurred by, or asserted against the Servicer or any Servicer Indemnified Party in any way relating to or arising out of this Agreement or any other Loan Document, the Serviced Assets or any action or inaction of the Owner or any other Person; provided, that the Owner shall not be liable for or required to indemnify a Servicer Indemnified Party from and against expenses arising or resulting from such Servicer Indemnified Party's own willful misconduct, bad faith or gross negligence. The indemnities contained in this Section 2(c) shall survive the resignation and removal of the Servicer or the termination of this Agreement.

(d) Subject to Sections 4 and 5, the Servicer shall administer, perform or supervise the performance of such other activities in connection with the Serviced Assets (including the Loan Documents) as are not covered by any of the foregoing provisions and are reasonably within the capability of the Servicer. In no case may Servicer use any identifiable information, including consumers' nonpublic personal information and related account performance and status information, for any purpose other than as provided in this Agreement; provided, however, that Servicer is permitted to use nonidentifiable, aggregated consumer information obtained in connection with its activities undertaken pursuant to this Agreement.

(e) Notwithstanding anything to the contrary in this Agreement, the Servicer shall not be obligated to, and shall not, take any action that the Owner directs the Servicer not to take or which could reasonably be expected to result in a violation or breach of the Owner's covenants, agreements or obligations under any of the Loan Documents.

(f) The Servicer shall maintain appropriate books of account and records relating to services performed hereunder, which books of account and records shall be accessible for inspection by the Owner at any time during normal business hours.

Section 3. Reports and Information.

(a) At the times and in the manner required by Section 6.1 of the Loan Agreement, the Servicer shall deliver to the Owner and the Agent the reports described therein.

(b) The Servicer shall furnish in writing to the Owner and the Agent from time to time such additional information regarding the Serviced Assets as the Owner or the Agent shall reasonably request.

Section 4. Independence of the Servicer. For all purposes of this Agreement, the Servicer shall be an independent contractor and shall not be subject to the supervision of the Owner with respect to the manner in which it accomplishes the performance of its obligations hereunder; provided, however, Servicer shall be subject to the Owner's third-party vendor management program. Unless expressly authorized by the Owner in this Agreement or otherwise, the Servicer shall have no authority to act for or represent the Owner in any way and shall not otherwise be deemed an agent of the Owner.

Section 5. No Joint Venture. Nothing contained in this Agreement (i) shall constitute the Servicer and the Owner as members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (ii) shall be construed to impose any liability as such on any of them or (iii) shall be deemed to confer on any of them any express, implied or apparent authority to incur any obligation or liability on behalf of the others.

Section 6. Other Activities of Servicer. Nothing herein shall prevent the Servicer or its respective Affiliates from engaging in other businesses or, in its sole discretion, from acting in a similar capacity for any other person or entity even though such person or entity may engage in business activities similar to those of the Owner.

Section 7. Term of Agreement; Resignation and Removal of Servicer.

(a) This Agreement shall continue in force until the earlier to occur of (i) the Owner no longer owns any Receivables or Participation Interests, and (ii) subject to Section 7(d), the delivery of written notice of termination by the Owner to the Servicer pursuant to Section 7(c), in each case upon which event this Agreement shall automatically terminate unless otherwise agreed in writing between the Servicer and the Owner.

(b) Subject to Section 7(d), the Servicer may resign its duties hereunder by providing the Owner with at least 60 days' prior written notice.

(c) Subject to Section 7(d), and subject to the prior written consent of the Agent so long as the Loan Agreement remains outstanding, the Owner may remove the Servicer immediately upon written notice of termination from the Owner to the Servicer if any of the following events shall occur (each, a Servicer Termination Right - Owner):

(i) the Servicer shall default in the performance of any of its duties under this Agreement and, after notice of such default, shall not cure such default within 30 days (or, if such default cannot be cured in such time, shall not give within 30 days such assurance of cure as shall be reasonably satisfactory to the Owner); or

(ii) the Servicer files or consents to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or makes an assignment for the benefit of creditors; or

(iii) the Servicer fails to maintain, in any material respect, all necessary licenses and approvals in each jurisdiction in which it is performing the primary servicing function for any of the Serviced Assets under this Agreement.

The Servicer agrees that if any of the events specified in clause (ii) of this Section 7(c) shall occur, it shall give written notice thereof to the Owner within seven (7) days after the occurrence of such event.

(d) No termination, resignation or removal of the Servicer pursuant to this Section shall be effective until (i) a successor Servicer shall have been appointed by or on behalf of the Owner with the prior written consent of the Agent so long as the Loan Agreement remains outstanding, and (ii) such successor Servicer shall have agreed in writing to be bound by the terms of this Agreement in the same manner as the Servicer is bound hereunder.

(e) Agent may terminate this Agreement upon the occurrence and continuance of an Event of Default under the Loan Agreement by delivery of written notice of termination from Agent to Owner and Servicer (a Servicer Termination Right - Agent and, together with the Servicer Termination Right - Owner, each a Servicer Termination Right):

If a successor Servicer does not take office within 60 days after the retiring Servicer resigns or is removed, the resigning or removed Servicer or the Owner may petition any court of competent jurisdiction for the appointment of a successor Servicer.

In the event that the Servicer resigns or is terminated hereunder, the Servicer shall use its commercially reasonable efforts to and shall cooperate with the Owner and take other reasonable steps requested by the Owner to assist in the orderly and efficient transfer of the administration of the Serviced Assets to the successor Servicer.

Section 8. Action upon Termination, Resignation or Removal of the Servicer. Promptly upon the effective date of termination of this Agreement or the resignation or removal of the Servicer pursuant to Section 7, the Servicer shall be entitled to be paid all fees and reimbursable expenses, including any reasonable out-of-pocket attorneys' fees, accruing to it to the date of such termination, resignation or removal. The Servicer shall forthwith upon such termination pursuant to Section 7 deliver to the successor Servicer all property and documents of or relating to the Serviced Assets then in the custody of the Servicer, or if this Agreement has been terminated, to the Owner. In the event of the resignation or removal of the Servicer pursuant to Section 7, the Servicer shall cooperate with the Owner and take all reasonable steps requested to assist the Owner in making an orderly transfer of the duties of the Servicer.

Section 9. Compensation. The Servicer will be entitled to receive the Servicing Fee for the performance of the duties and provision of the services called for in this Agreement in accordance with, and subject to, the Loan Agreement. The Servicing Fee shall be payable on each Payment Date for the immediately prior Servicing Period in accordance with Section 2.4 of the Loan Agreement. Any opinion, filing or other services performed by the Servicer hereunder that generates additional costs shall be at the expense of the Owner.

Section 10. Sub-Servicers; Collection Agents.

(a) The Servicer may appoint one or more Persons (including any Affiliate) as a sub-servicer (each a Sub-Servicer) with respect to some or all of the Serviced Assets to perform any of the Servicer's obligations hereunder from time to time in its sole discretion; provided, however, that such servicing arrangement and the term of the related subservicing agreement (if any) must provide for the servicing of the Serviced Assets in a manner equivalent or greater than the Servicing Standard; provided, further, that the Servicer shall remain obligated and be liable to the Owner for the servicing and administering of the Serviced Assets in accordance with the provisions hereof without diminution of such obligation and liability by virtue of the appointment of such Sub-Servicer and to the same extent and under the same terms and conditions as if the Servicer alone were servicing and administering the Serviced Assets.

(b) The Servicer shall be entitled to terminate the subservicing of the Serviced Assets by any Sub-Servicer so appointed at any time in its sole discretion, provided, that any subservicing agreement entered into by Servicer with any such Sub-Servicer shall terminate by its terms no later than thirty (30) days after the Servicer is terminated as the servicer under this Agreement.

(c) Each Sub-Servicer shall be entitled to compensation for its services as a Sub-Servicer as agreed to by the Servicer and such Sub-Servicer provided that any sub-servicing fees payable to the Sub-Servicer in respect of its servicing activities shall be payable out of the Servicing Fee.

(d) Any subservicing arrangement that may be entered into and any other transactions or services relating to the Serviced Assets involving a Sub-Servicer in its capacity as such shall be deemed to be solely between the Sub-Servicer and the Servicer alone, and the Owner shall not be deemed party thereto and shall have no claims, rights, obligations, duties, or liabilities with respect to the Sub-Servicer in such capacity.

(e) The Owner may, from time to time, enter into Collection Agency Agreements with Collection Agents for the collection of delinquent or defaulted accounts. Any such Collection Agent shall not be deemed a Sub-Servicer hereunder and the Servicer shall have no liability with respect to the acts or omissions of any such Collection Agent. Any Collection Fees shall be paid directly by the Owner in accordance with the Loan Agreement. Notwithstanding the foregoing, the Servicer shall cooperate with the Owner and provide such assistance as is reasonably necessary to transfer servicing of applicable Serviced Assets to the related Collection Agent.

Section 11. Representations and Warranties of the Servicer. The Servicer hereunder hereby makes the following representations and warranties as of the date hereof, and as of the date of the delivery of each Monthly Servicing Report, on which representations and warranties the Owner shall be deemed to rely in entering into this Agreement:

(a) Organization. It is an organization validly existing and in good standing under the laws of, and is duly qualified to do business in, the jurisdiction of its incorporation or organization and has, in all material respects, full power and authority to own its properties and conduct its business as presently owned or conducted, and to execute, deliver and perform its obligations under this Agreement and each other Loan Document to which it is a party.

(b) Due Qualification. It is in good standing and duly qualified to do business (or is exempt from such requirements) and (i) the Servicer has obtained all necessary licenses and approvals in each jurisdiction in which it is performing the primary servicing function for any of the Serviced Assets under this Agreement (or has determined that such licenses are not required) or (ii) each Sub-Servicer has represented and warranted to the Servicer that such Sub-Servicer has obtained all necessary licenses and approvals in each jurisdiction in which such Sub-Servicer is performing the primary servicing function for any of the Serviced Assets under this Agreement, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to execute and deliver, or perform under, this Agreement or any other Loan Document to which it is a party.

(c) Due Authorization. The execution, delivery, and performance by it of this Agreement and the other agreements and instruments executed and delivered by it as contemplated hereby, have been duly authorized it by all necessary action on the part of such party.

(d) Binding Obligation. This Agreement and each other Loan Document to which it is a party constitutes a legal, valid and binding obligation of such party, enforceable in accordance with its terms, except as such enforceability may be limited by applicable Debtor Relief Laws or by general principles of equity (whether considered in a proceeding at law or in equity).

(e) No Conflict. The execution and delivery of this Agreement and each Loan Document to which it is a party by it, and the performance by it of the transactions contemplated by this Agreement and the fulfillment by it of the terms hereof and thereof applicable to such party, will not conflict with, violate or result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, any material indenture, contract, agreement, mortgage, deed of trust or other instrument to which it is a party or by which it or its properties are bound.

(f) No Violation. The execution and delivery by it of this Agreement and each other Loan Document to which it is a party, the performance by it of the transactions contemplated by this Agreement and each other Loan Document to which it is a party and the fulfillment by it of the terms hereof and thereof applicable to such party will not conflict with or violate any Applicable Law applicable to such party.

(g) No Proceedings. Servicer is not a party to any material pending or threatened action, suit, proceeding or investigation related to its respective business, (ii) there is no pending or, to the knowledge of Servicer, threatened action, suit, proceeding or investigation involving Servicer or its respective business that could reasonably be expected to prevent or materially delay the consummation by Servicer of the transactions contemplated herein, (iii) Servicer has not had any reason to believe that any material action, suit, proceeding or investigation may be brought or threatened against its business, (iv) Servicer is not a party or subject to any order, writ, injunction, judgment or decree of any Governmental Authority, (v) there is no action, suit, proceeding or investigation initiated by Servicer currently pending and (vi) Servicer has not had any existing accrued and/or unpaid indebtedness or similar obligations to any Governmental Authority or any other governmental payor.

(h) Compliance with Laws. Servicer (i) is in compliance with all Applicable Law, and (ii) is not in violation of any order of any Governmental Authority or other board or tribunal, except, in the case of both (i) and (ii), where noncompliance or violation could not reasonably be expected to be, have or result in a material adverse effect on its ability to execute and deliver, or perform under, this Agreement or any other Loan Document to which it is a party. Servicer has not received any notice that Servicer is not in material compliance in any respect with any of the requirements of any of the foregoing. Servicer has maintained in all material respects all records required to be maintained by any applicable Governmental Authority.

(i) Foreign Assets Control Regulations and Anti-Money Laundering. Servicer is in compliance in all material respects with all applicable U.S. economic sanctions laws, Executive Orders and implementing regulations as promulgated by the U.S. Department of the Treasury Office of Foreign Assets Control (OFAC), and all applicable anti-money laundering and counter-terrorism financing provisions of the Bank Secrecy Act and all regulations issued pursuant to it. Servicer is not (i) a Person designated by the U.S. government on OFAC's list of Specially Designated Nationals and Blocked Persons (the SDN List), (ii) a Person who is otherwise the target of U.S. economic sanctions laws such that a U.S. Person cannot deal or otherwise engage in business transactions with such Person or (iii) controlled by (including by virtue of such Person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any Person on the SDN List or a foreign government that is the target of U.S. economic sanctions prohibitions such that the entry into, or performance under, this Agreement or any other Loan Document would be prohibited under U.S. law.

(j) USA PATRIOT Act. Servicer is in compliance in all material respects with (a) the Trading with the Enemy Act, and each of OFAC's foreign assets control regulations and any other enabling legislation or executive order relating thereto, (b) the USA PATRIOT Act and (c) other federal or state laws relating to know your customer and anti-money laundering rules and regulations. No part of the proceeds of any Loan (as defined in the Loan Agreement) will be used directly or indirectly for any payments to any government 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.

Section 12. Notices. Any notice, report or other communication given hereunder shall be in writing, delivered by mail, overnight courier, electronic communication or facsimile and addressed as follows:

(a) if to the Owner, to:

CURO Receivables Finance II, LLC c/o CURO Management LLC 3527 North Ridge Road Wichita, KS 67205 Attention: Don Gayhardt

E-Mail: don.gayhardt@curo.com

With a copy to:

CURO Financial Technologies Corp. 3527 North Ridge Road Wichita, KS 67205 Attention: Vin Thomas E-Mail: vinthomas@curo.com

With a copy to the Servicer, at the address provided below.

(b) if to the Servicer, to:

CURO Management LLC 3527 North Ridge Road Wichita, KS 67205 Attention: Don Gayhardt E-Mail: don.gayhardt@curo.com

With a copy to:

CURO Financial Technologies Corp. 3527 North Ridge Road Wichita, KS 67205 Attention: Vin Thomas E-Mail: vinthomas@curo.com

or to such other address as any party shall have provided to the other parties in writing. Any notice required to be delivered hereunder shall be deemed given if such notice is mailed by certified mail, postage prepaid, hand delivered or faxed to the address of such party as provided above.

Section 13. Limitation of Liability; Indemnification.

(a) Except as provided in Section 13(b), neither the Servicer nor any of the directors, officers, partners, members, managers, employees, or agents of the Servicer in its capacity as Servicer shall be under any liability to the Owner or any other Person for any action taken or for refraining from the taking of any action in good faith in its capacity as Servicer in accordance with this Agreement; provided, however, that this provision shall not protect the Servicer or any such Person against contractual liability under this Agreement for any breach of warranties or representations made herein, or any failure to perform any express contractual duties set forth herein, or any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of its duties hereunder. The Servicer and any director, officer, employee, partner, member or manager or agent of the Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person (other than the Servicer) respecting any matters arising hereunder. The Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties as Servicer in accordance with this Agreement and which in its reasonable judgment may involve it in any material expense or liability. In furtherance of its obligations hereunder, the Servicer may, in its sole discretion, undertake any such legal action which it may deem necessary or desirable for the benefit of the Owner with respect to this Agreement and the rights and duties of the parties hereto and the interests of the Owner hereunder.

(b) Subject to Section 13(a), the Servicer shall indemnify and hold harmless the Owner, the Agent, each Lender and their respective directors, officers, employees, partners, members or managers and agents (each, an Indemnified Person) from and against any and all loss, liability, claim, action, suit, cost, expense, damage or injury, of any kind and nature whatsoever, including any judgment, award, settlement, fines, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any action, Proceeding, investigation or claim (any of the foregoing, Losses) suffered or sustained by any of them by reason of any acts or omissions of the Servicer which are in breach of this Agreement or which arise by reason of willful misfeasance, bad faith or negligence in the Servicer's performance of its duties hereunder; provided that the Servicer shall not be obligated to indemnify any such Indemnified Person for any Losses that arise from the negligence or willful misconduct of such Indemnified Person or its affiliates, directors, officers, employees, partners, members, managers or agents.

Section 14. Amendments. This Agreement may be amended from time to time by a writing signed by the Servicer and the Owner, with the prior written consent of the Agent so long as the Loan Agreement remains outstanding.

Section 15. Successors and Assigns. This Agreement shall be binding on the parties' successors and assigns.

Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

Section 17. Headings. The section headings hereof have been inserted for convenience of reference only and shall not be construed to affect the meaning, construction or effect of this Agreement.

Section 18. Counterparts. This Agreement and any waiver or amendment hereto may be executed in counterparts and by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. This Agreement and each of the other Loan Documents may be executed and delivered by facsimile, portable document format (.pdf), or other Electronic Transmission all with the same force and effect as if the same was a fully executed and delivered original manual counterpart. Delivery of an executed electronic signature page of this Agreement and each of the other Loan Documents by facsimile, portable document format (.pdf), or Electronic Transmission shall be as effective as delivery of a manually executed counterpart hereof and each party to this Agreement and each of the other Loan Documents agrees that it will be bound by its own signature and that it accepts the facsimile, portable document format (.pdf), or other electronic signature of each other party to this Agreement and each of the other Loan Documents. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Administrative Agent of a manually signed paper Agreement or any Loan Document which has been converted into electronic form (such as scanned portable format (.pdf)), or an electronically signed Agreement or any Loan Document converted into another format, for transmission, delivery and/or retention. The Administrative Agent may, at its option, create one or more copies of such Agreement in an electronic form (Electronic Copy), which shall be deemed created in the ordinary course of the Administrative Agent's business, and destroy the original paper document. Administrative Agent may also require that any such documents and signatures be confirmed by a manually signed original thereof; provided, however, that the failure to request or deliver the same shall not limit the effectiveness of any facsimile, portable document format (.pdf), or other Electronic Transmission document or signature. The words execution, executed, signed, signature, and words of like import in this paragraph shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

Electronic Transmission means each document, instruction, authorization, file, information and any other communication transmitted, posted or otherwise made or communicated by electronic mail (e-mail) or E-Fax, or otherwise to or from an electronic system or other equivalent service.

Section 19. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 20. Non-Petition. Notwithstanding any prior termination of the Owner or this Agreement, the Servicer shall not at any time with respect to the Owner, acquiesce, petition or otherwise invoke or cause the Owner to invoke the process of any court or governmental authority for the purpose of commencing or sustaining a case against the Owner under any federal or state bankruptcy, insolvency or similar law or appointing a receiver, conservator, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Owner or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Owner.

Section 21. Third-Party Beneficiary. Notwithstanding anything to the contrary in this Agreement, both the Owner and Servicer agree that the Agent shall be deemed to be a third-party beneficiary of this Agreement and has the authority to enforce the provisions hereof.

[Signature page follows.]

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123012898v2 123012898v4

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the day and year first above written.

CURO RECEIVABLES FINANCE II, LLC, a Delaware limited liability company

By: /s/Don Gayhardt Name: Donald F. Gayhardt Jr. Title: President & Chief Executive Officer

CURO MANAGEMENT, LLC, as Servicer

By: /s/Don Gayhardt Name: Donald F. Gayhardt Jr. Title: President & Chief Executive Officer

ANNEX A-- DEFINITIONS

Affiliate has the meaning set forth in the Loan Agreement.

Agent means Midtown Madison Management LLC, as agent under the Loan Agreement.

Applicable Law has the meaning set forth in the Loan Agreement.

Bank Receivable has the meaning set forth in the Loan Agreement.

Business Day has the meaning set forth in the Loan Agreement.

Collection Agency Agreement means a written agreement between the Owner and a Collection Agent.

Collection Agent means any collection agent retained by the Owner from time to time.

Collection Fees means any fees, expenses, reimbursements and other compensation payable to a Collection Agent by the Owner pursuant to a Collection Agency Agreement.

Collections has the meaning set forth in the Loan Agreement.

Governmental Authority has the meaning set forth in the Loan Agreement.

Lender has the meaning set forth in the Loan Agreement.

Liabilities is defined in Section 2(c).

Loan Agreement means the Loan and Security Agreement, dated as of April 8, 2020, by and among the Owner, the Lenders and the Agent.

Loan Document has the meaning set forth in the Loan Agreement.

Monthly Servicing Report has the meaning set forth in the Loan Agreement.

OFAC is defined in Section 11(i). Owner is defined in the preamble of this Agreement. Participation Interest has the meaning set forth in the Loan Agreement.

Payment Date has the meaning set forth in the Loan Agreement.

Person has the meaning set forth in the Loan Agreement.

Proceeding shall mean any suit in equity, action at law or other judicial or administrative proceeding.

Receivable has the meaning set forth in the Loan Agreement.

SDN is defined in Section 11(i).

Serviced Asset means (a) each Receivable owned by the Borrower, (b) each Participation Interest owned by the Borrower and (c) each Bank Partner Receivable related to a Participation Interest owned by the Borrower.

Servicer is defined in the preamble of this Agreement. Servicer Indemnified Parties is defined in Section 2(c).

Servicing Fee means, for any Servicing Period, an amount equal to the product of (a) 2.00%, (b) the daily average Receivable Balance of all Receivables serviced hereunder during such Servicing Period, and (c) a fraction, the numerator of which is the number of calendar days during such Servicing Period and the denominator of which is 360.

Servicing Period means a calendar month.

Servicing Standard is defined in Section 1(b).

Sub-Servicer is defined in Section 10(a).
answer:
Highlight the parts (if any) of this contract related to Third Party Beneficiary that should be reviewed by a lawyer. Details: Is there a non-contracting party who is a beneficiary to some or all of the clauses in the contract and therefore can enforce its rights against a contracting party?