Exhibit 10.1


 


FIFTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT


 


This
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT dated November 14, 2018 (this “Amendment”) to the Loan and
Security Agreement dated as of August 17, 2016 (as amended by the First Amendment thereto dated as of December 12, 2016, the
Second Amendment thereto dated as of November 13, 2017 (including the Allonge dated November 13, 2017 pursuant thereto to the
Revolving Note and the Term Note), the Third Amendment dated as of January 16, 2018, and the Fourth Amendment dated as of
April 27, 2018 and as it may be further amended, restated, supplemented, modified or otherwise changed from time to time, the
“Loan Agreement”), is by and among Creative Realities, Inc., a Minnesota corporation
(“CRI”), Creative Realities, LLC, a Delaware limited liability company (“CRLLC”), and
Conexus World Global, LLC, a Kentucky limited liability company (“Conexus”) and collectively referred to
together with CRI and CRLLC as the “Borrower”), and Slipstream Communications, LLC, an Anguillan
limited liability company (the “Lender”). All terms used herein that are defined in the Loan Agreement and
not otherwise defined herein shall have the respective meanings assigned to them in the Loan Agreement.


 


WHEREAS,
Borrower, Broadcast International, Inc., a Utah corporation (“BII”), and the Lender are parties to the Loan Agreement,
pursuant to which, inter alia, as of the date hereof and immediately prior to the effectiveness of this Amendment, the
outstanding principal amount of the Term Loan is $3,011,000, the outstanding principal amount of the Revolving Loan is $2,107,000
and the outstanding principal amount of the Disbursed Escrow Loan is $264,000;


 


WHEREAS,
CRI has advised the Lender that BII has been dissolved;


 


WHEREAS,
Borrower has requested that Lender extend the Maturity Dates of the Term Loan and the Revolving Loan as set forth herein; and


 


WHEREAS,
CRI proposes to engage in an underwritten registered public offering under the Securities Act of 1933, as amended, pursuant to
which CRI proposes to issue and sell an aggregate of at least $10,000,000.00 of gross proceeds of its common stock or units consisting
of its common stock and warrants to purchase shares of its common stock (the “CRI Stock Issuance”).


 


NOW
THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Borrower and the Lender, intending to be legally bound, hereby agree as follows:


 


		1.	Amendments.
                                                                                                                                                                                                                              The                                          Loan Agreement is hereby amended as follows:



 


(a)       The
second sentence of Section 3.3 is hereby amended by inserting immediately after the phrase “As of the Closing Date, each
Loan Document (other than the First Amendment, as to which as of the First Amendment Effective Date and other than the Second
Amendment, as to which as of the Second Amendment Effective Date and other than the Third Amendment, as to which as of the Third
Amendment Effective Date and other than the Fourth Amendment, as to which as of the Fourth Amendment Effective Date” and
immediately before the closing of the parenthetical therein, the phrase “and other than the Fifth Amendment, as to which
as of the Fifth Amendment Effective Date”;


 






    


     


    

 


(b)       Schedule
A is hereby amended by:


 


		i)	amending
                                         the definition of Loan Documents by inserting immediately after the phrase “and
                                         from and after the Fourth Amendment Effective Date, the Fourth Amendment, the Disbursed
                                         Escrow Note and the Fourth Amendment Warrant (as defined in the Fourth Amendment)”
                                         the phrase “and from and after the Fifth Amendment Effective Date, the Fifth Amendment”;



 


		ii)	amending
                                         and restating the following definition so as so amended and restated it reads in its
                                         entirety as follows:



 


“’Loan
Rate’ means eight percent (8.0%) per annum; provided however at all times when the aggregate outstanding principal amount
of the Term Loan and the Revolving Loan (excluding the additional principal added pursuant to this proviso) exceeds $4,000,000
then the Loan Rate shall be ten percent (10%), of which eight percent (8%) shall be payable in cash and two percent (2%) shall
be paid by the issuance of and treated as additional principal of the Term Loan (the “PIK”); provided, further, however
at all times from and after July 1, 2019, so long as any principal or interest of the Term Loan remains outstanding then the Loan
Rate with respect to the Term Loan shall be ten percent (10%), all of which shall be payable in cash; and provided, further, however,
that the Loan Rate with respect to the Disbursed Escrow Loan shall be zero percent (0%).”; and


 


		iii)	adding
                                         the following definitions, in appropriate alphabetical order:



 


		(A)	“‘Fifth
                                         Amendment’ means the Fifth Amendment to Loan and Security Agreement dated as of
                                         November 14, 2018, among Borrower and Lender.”; and



 


		(B)	“‘Fifth
                                         Amendment Effective Date’ shall have the meaning specified therefor in Section
                                         3 of the Fifth Amendment.”.



 


		2.	Representations
                                         and Warranties.Borrower hereby represents and warrants to Lender as follows:



 


		a)	Representations
                                         and Warranties; No Event of Default. The representations and warranties herein, in Article
                                         3 of the Loan Agreement and in each other Loan Document, certificate or other writing
                                         delivered by or on behalf of Borrower to the Lender pursuant to this Amendment, the Loan
                                         Agreement or any other Loan Document on or prior to the Fifth Amendment Effective Date
                                         (as defined below) are true and correct in all material respects (except that such materiality
                                         qualifier shall not be applied to any representations or warranties that already are
                                         qualified or modified as to “materiality” or “Material Adverse Effect”
                                         in the text thereof, which representations and warranties shall be true and correct in
                                         all respects subject to such qualification) on and as of the Fifth Amendment Effective
                                         Date as though made on and as of such date (unless such representations or warranties
                                         (after taking into account this Amendment) are stated to relate to an earlier date, in
                                         which case such representations and warranties shall be true and correct on and as of
                                         such earlier date in all material respects (except that such materiality qualifier shall
                                         not be applicable to any representations or warranties that already are qualified or
                                         modified as to “materiality” or “Material Adverse Effect” in the
                                         text thereof, which representations and warranties shall be true and correct in all respects
                                         subject to such qualification), and no Default or Event of Default has occurred and is
                                         continuing as of the Fifth Amendment Effective Date or would result from this Amendment
                                         becoming effective in accordance with its terms.



 






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		b)	Authorization,
                                         Etc. The execution, delivery and performance by Borrower of this Amendment and the other
                                         Loan Documents being executed concurrently herewith, and the performance of the Loan
                                         Agreement, as amended hereby, and the other Loan Documents, (i) have been duly authorized
                                         by all necessary action, (ii) do not and will not contravene any of the governing documents
                                         of any Borrower or any applicable Requirement of Law, (iii) do not and will not contravene
                                         any Contractual Obligation binding on or otherwise affecting any Borrower or any of its
                                         properties (except for those the conflict with which could not reasonably be expected
                                         to result in a Material Adverse Effect), (iv) do not and will not result in or require
                                         the creation of any Lien (other than pursuant to any Loan Document) upon or with respect
                                         to any properties of any Borrower, and (v) do not and will not result in any default,
                                         noncompliance, suspension, revocation, impairment, forfeiture or non-renewal of any permit,
                                         license, authorization or approval applicable to its operations or any of its properties,
                                         except in each case to the extent that such default, noncompliance, contravention, suspension,
                                         revocation, impairment, forfeiture or non-renewal could not reasonably be expected to
                                         result in a Material Adverse Effect.



 


		c)	Enforceability
                                         of Loan Documents. This Amendment, the Loan Agreement as amended by this Amendment, and
                                         each other Loan Document to which any Borrower is or will be a party, when delivered
                                         hereunder, will be, a legal, valid and binding obligation of such Person, enforceable
                                         against such Person in accordance with its terms, except as enforceability may be limited
                                         by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws
                                         and by general principles of equity.



 


		3.	Conditions
                                         to Effectiveness. This Amendment shall become effective only upon satisfaction in full,
                                         in a manner reasonably satisfactory to the Lender and its counsel, of the following conditions
                                         precedent (the first date upon which all such conditions shall have been satisfied (or
                                         waived) being herein called the “Fifth Amendment Effective Date”):



 


		a)	Representations
                                         and Warranties. The representations and warranties contained in this Amendment and in
                                         Article 3 of the Loan Agreement and in each other Loan Document, certificate or other
                                         document delivered to Lender pursuant to this Amendment, the Loan Agreement or any other
                                         Loan Document on or prior to the Fifth Amendment Effective Date are true and correct
                                         in all material respects (except that such materiality qualifier shall not be applied
                                         to any representations or warranties that already are qualified or modified as to “materiality”
                                         or “Material Adverse Effect” in the text thereof (which representations and
                                         warranties shall be true and correct in all respects subject to such qualification),
                                         on and as of the Fifth Amendment Effective Date as though made on and as of such date,
                                         except to the extent that any such representation or warranty (after taking into account
                                         this Amendment) expressly relates solely to an earlier date (in which case such representation
                                         or warranty shall be true and correct on and as of such earlier date in all material
                                         respects (except that such materiality qualifier shall not be applicable to any representations
                                         or warranties that already are qualified or modified as to “materiality” or
                                         “Material Adverse Effect” in the text thereof, which representations and warranties
                                         shall be true and correct in all respects subject to such qualification) on and as of
                                         such earlier date).



 






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		b)	No
                                         Default; Event of Default. No Default or Event of Default shall have occurred and be
                                         continuing on the Fifth Amendment Effective Date or result from this Amendment becoming
                                         effective in accordance with its terms.



 


		c)	Delivery
                                         of Documents. The Lender shall have received on or before the Fifth Amendment Effective
                                         Date the following, each in form and substance reasonably satisfactory to the Lender
                                         and, unless indicated otherwise, dated the Fifth Amendment Effective Date:



 


		i)	this
                                         Amendment, duly executed by each Borrower; and



 


		ii)	the
                                         Third Allonge to the Term Note in the form of Exhibit A hereto, duly executed by each
                                         Borrower.



 


		4.	Continued
                                         Effectiveness of the Loan Agreement and Other Loan Documents. Each Borrower hereby (i)
                                         confirms and agrees that the Loan Agreement and each other Loan Document to which it
                                         is a party is, and shall continue to be, in full force and effect and is hereby ratified
                                         and confirmed in all respects except that on and after the Fifth Amendment Effective
                                         Date all references in any such Loan Document to “the Loan Agreement,” the
                                         “Agreement,” “thereto,” “thereof,” “thereunder”
                                         or words of like import referring to the Loan Agreement shall mean the Loan Agreement
                                         as amended by this Amendment, and (ii) confirms and agrees that to the extent that any
                                         Loan Document purports to assign or pledge to the Lender, or to grant to the Lender a
                                         security interest in or Lien on, any Collateral as security for the Obligations of any
                                         Borrower from time to time existing in respect of the Loan Agreement (as amended hereby)
                                         and the other Loan Documents, such pledge, assignment and/or grant of the security interest
                                         or Lien is hereby ratified and confirmed in all respects. This Amendment does not and
                                         shall not affect any of the obligations of any Borrower, other than as expressly provided
                                         herein, including, without limitation, the Borrower’s obligations to repay the
                                         Loans in accordance with the terms of the Loan Agreement, or the obligations of any Borrower
                                         under any Loan Document to which it is a party, all of which obligations shall remain
                                         in full force and effect. Except as expressly provided herein, the execution, delivery
                                         and effectiveness of this Amendment shall not operate as a waiver of any right, power
                                         or remedy of the Lender under the Loan Agreement or any other Loan Document, nor constitute
                                         a waiver of any provision of the Loan Agreement or any other Loan Document.



 






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		5.	Release.
                                         (a) Each Borrower hereby acknowledges and agrees that: (i) no Borrower has any claim
                                         or cause of action against the Lender (or any of its Affiliates or its or their officers,
                                         directors, employees, managers, members, partner, shareholders, attorneys or consultants)
                                         in connection with the Loan Documents and (ii) the Lender has heretofore properly performed
                                         and satisfied in a timely manner all of its obligations to Borrower under the Loan Agreement
                                         and the other Loan Documents that are required to have been performed on or prior to
                                         the date hereof. Notwithstanding the foregoing, the Lender wishes (and Borrower agrees)
                                         to eliminate any possibility that any past conditions, acts, omissions, events or circumstances
                                         would impair or otherwise adversely affect any of the Lender’s rights, interests,
                                         security and/or remedies under the Loan Agreement and the other Loan Documents. Accordingly,
                                         for and in consideration of the agreements contained in this Amendment and other good
                                         and valuable consideration, each Borrower (for itself and each other Borrower and the
                                         successors, assigns, heirs and representatives of each of the foregoing) (collectively,
                                         the “Releasors”) does hereby fully, finally, unconditionally and irrevocably
                                         release and forever discharge Lender and each of its Affiliates and its and their managers,
                                         members, partners, officers, directors, employees, shareholders attorneys and consultants
                                         in their capacities as or for the Lender (collectively, the “Released Parties”)
                                         from any and all debts, claims, obligations, damages, costs, attorneys’ fees, suits,
                                         demands, liabilities, actions, proceedings and causes of action, in each case, whether
                                         known or unknown, contingent or fixed, direct or indirect, and of whatever nature or
                                         description, and whether in law or in equity, under contract, tort, statute or otherwise,
                                         which any Releasor has heretofore had or now or hereafter can, shall or may have against
                                         any Released Party by reason of any act, omission or thing whatsoever done or omitted
                                         to be done directly arising out of, connected with or related to this Amendment, the
                                         Loan Agreement or any other Loan Document, or any act, event or transaction related or
                                         attendant thereto, or the agreements of the Lender contained therein, or the possession,
                                         use, operation or control of any of the assets of any Borrower, or the making of any
                                         Loans or other Advances, or the management of such Loans or Advances or the Collateral,
                                         in each case, solely to the extent arising from any act, omission or thing whatsoever
                                         done or omitted to be done on or prior to the Fifth Amendment Effective Date.



 


		6.	Payment
                                         to the Lender from Gross Proceeds from the CRI Stock Issuance.



 


		a)	CRI
                                         shall, upon or promptly after the closing of the CRI Stock Issuance pay a portion of
                                         the gross proceeds from the CRI Stock Issuance to an account of the Lender designating
                                         in writing by the Lender without any reduction, setoff, withholding or other discount,
                                         in an amount such that immediately upon the application of the same pursuant to Section
                                         6 b) hereof there shall not be outstanding any Legal Fees or interest and the aggregate
                                         outstanding amount of the Loans shall equal $4,264,000 (the “Lender Proceeds”);



 


		b)	Notwithstanding
                                         anything to the contrary, the Lender Proceeds shall be applied as follows:



 


 


		i)	first,
                                         to the payment of all the Lender’s fees and expenses, including legal fees and
                                         expenses with respect to the negotiation, execution and delivery of this Consent Agreement,
                                         the Note Consent Agreement and the Series A Preferred Stock Consent and all related agreements
                                         and instruments (and expressly including any legal fees and expenses related to the registration
                                         statement) of Creative Realities, Inc. and the consummation of the transactions contemplated
                                         hereby and thereby (“Legal Fees and Expenses”);



 


		ii)	second,
                                         to the payment of all accrued but unpaid interest under the Revolving Loan;



 


		iii)	third,
                                         to the payment of all accrued but unpaid interest under the Term Loan;



 


		iv)	fourth,
                                         to the payment of the principal balance of the Revolving Loan; and



 


		v)	fifth,
                                         to the payment of the principal balance of the Term Loan.



 






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		2)	Miscellaneous.



 


		a)	Without
                                         duplication of any payments, Borrower will pay on demand all reasonable and documented
                                         out-of-pocket fees, costs and expenses of the Lender, including, without limitation,
                                         fees, costs and expenses of the Office of Andrew Ross, counsel to the Lender, in connection
                                         with the structuring, preparation, negotiation, execution and delivery of this Amendment
                                         and the transactions and all documents contemplated herein, and related transactions,
                                         and all documents with respect thereto.



 


		b)	Section
                                         and paragraph headings herein are included for convenience of reference only and shall
                                         not constitute a part of this Amendment for any other purpose.



 


		c)	Borrower
                                         hereby acknowledges and agrees that this Amendment constitutes a “Loan Document”
                                         under the Loan Agreement. Accordingly, it shall be an Event of Default under the Loan
                                         Agreement if (i) any representation or warranty made by a Borrower under or in connection
                                         with this Amendment shall have been incorrect in any material respect when made, or (ii)
                                         any Borrower shall fail to perform or observe any term, covenant or agreement contained
                                         in this Amendment.



 


		d)	All
                                         representations, warranties, acknowledgements, agreements and other covenants of the
                                         Borrowers in this Amendment are made on a joint and several basis and are made by each
                                         Borrower with respect to itself and all other Borrowers.



 


		e)	Any
                                         provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall,
                                         as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability
                                         without invalidating the remaining portions hereof or affecting the validity or enforceability
                                         of such provision in any other jurisdiction.



 


		3)	Covenant
                                         by Borrower. Borrower covenants and agrees that at any time upon the request of Lender,
                                         Borrower will cause Wireless Ronin Technologies, Corp., a Canadian company and subsidiary
                                         of CRI to become a party to the Agreement.



 


		4)	Counterparts.
                                         This Amendment may be entered into in any number of separate counterparts by any one
                                         or more of the parties hereto, and all of said counterparts taken together shall constitute
                                         one and the same instrument. Valid and binding signatures to this Amendment may be delivered
                                         in original ink, by facsimile or by email or other means of electronic transmission.



 


		5)	Governing
                                         Law. This Amendment and the obligations arising hereunder shall be governed by, and construed
                                         and enforced in accordance with, the laws of the State of New York applicable to contracts
                                         made and performed in such state, without regard to the principles thereof regarding
                                         conflicts of laws.



 






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		6)	Submission
                                         To Jurisdiction; Waiver Of Jury Trial.



 


		a)	BORROWER
                                         HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK CITY,
                                         NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
                                         BETWEEN BORROWER AND THE LENDER PERTAINING TO THIS AMENDMENT OR ANY OF THE OTHER LOAN
                                         DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AMENDMENT OR ANY OF THE
                                         OTHER LOAN DOCUMENTS; PROVIDED, HOWEVER, THAT NOTHING IN THIS AMENDMENT OR ANY OTHER
                                         LOAN DOCUMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE LENDER FROM BRINGING SUIT OR
                                         TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT THE OBLIGATIONS, TO REALIZE
                                         ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT
                                         OR OTHER COURT ORDER IN FAVOR OF THE LENDER. BORROWER EXPRESSLY SUBMITS AND CONSENTS
                                         IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND
                                         BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
                                         IMPROPER VENUE OR FORUM NON CONVENIENS.



 


		b)	THE
                                         PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT
                                         TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN LENDER
                                         AND BORROWER ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP
                                         ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AMENDMENT, THE OTHER LOAN DOCUMENTS
                                         OR THE TRANSACTIONS RELATED HERETO OR THERETO.



 


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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date set forth on the first
page hereof.


 





	BORROWER:	 	LENDER:
	 	 	 	 	 
	CREATIVE REALITIES, INC.	 	SLIPSTREAM COMMUNICATIONS, LLC
	 	 	 	 	 
	By:	/s/ Rick Mills	 	By:	/s/ Alec Machiels
	 	Rick Mills, Chief Executive Officer	 	Name:	Alec Machiels
	 	 	 	Title:	Authorized Signatory
	CREATIVE REALITIES, LLC	 	 	 
	 	 	 	Address for Notice:
	By:	/s/ Rick Mills	 	850 3rd Avenue, 18th Floor
	 	Rick Mills, Chief Executive Officer	 	New York, NY 10022
	 	 	 	Attn: Mr. Alec Machiels
	CONEXUS WORLD GLOBAL, LLC	 	 	 
	 	 	 	 	 
	By:	/s/ Rick Mills	 	 	 
	 	Rick Mills, Chief Executive Officer	 	 	 



 


	Address
        for Notice (for all Borrowers):

        Creative
        Realities, Inc.

        Attention:
        Chief Financial Officer

        22
        Audrey Place

        Fairfield,
        NJ 07004





 



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EXHIBIT
A


THIRD
ALLONGE TO TERM NOTE


 


THIRD
ALLONGE


 


This
Third Allonge (“Allonge”), dated November 14, 2018, is to the Amended and Restated Secured Term Promissory Note, dated
as of August 16, 2016 in the initial principal amount of $3,000,000.00 (as amended by an Allonge dated November 13, 2017 and a
Second Allonge dated April 27, 2018, the “Note”) made by Creative Realities, Inc., a Minnesota corporation, Creative
Realities, LLC, a Delaware limited liability company, and Conexus World Global, LLC, a Kentucky limited liability company, jointly
and severally (each, and together herein referred to as “Maker”), payable to the order of Slipstream Communications,
LLC, an Anguillan limited liability company (the “Holder”).


 


The
Note was issued pursuant to that certain Loan and Security Agreement by and between, inter alia, Maker and the initial
Holder dated as of August 16, 2016 (as amended by the First Amendment thereto dated as of December 12, 2016, the Second Amendment
thereto dated as of November 13, 2017, the Third Amendment dated as of January 16, 2018, the Fourth Amendment dated as of April
27, 2018 and the Fifth Amendment dated as of the date hereof, and as it may be further amended, restated, supplemented, modified
or otherwise changed from time to time, the “Loan Agreement”), and are subject to the terms and conditions thereof.


 


The
Note currently matures on August 17, 2019. The Note is hereby amended as follows: the reference to “August 17, 2019”
is hereby changed to “August 16, 2020.”


 


Except
as expressly amended hereby, the Note, including without limitation the default and acceleration provisions thereof, remain in
full force and effect, and Makers hereby confirm their liability thereunder to Holder.


 


IN
WITNESS WHEREOF, this Allonge is executed and attached, or copies attached, to the Note on the date first set forth above.


 


	 	MAKERS
	 	 	 
	 	CREATIVE REALITIES, INC.
	 	CREATIVE REALITIES, LLC
	 	CONEXUS WORLD GLOBAL, LLC
	 	 	 
	 	By:	          
	 	Name:	 
	 	Title:	 









 


 


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