Exhibit 10.1


 


LOAN
AND SECURITY AGREEMENT


 


Dated
as of November 20, 2018


 


between


 


Siena
Lending Group LLC,

as Lender,


 


WE
SELL CELLULAR LLC,

UPSTREAM PHONE COMPANY USA, INC.,

PHONEX, INC.,

as Borrowers,


 


and


 


USELL.COM,
INC.,

BST DISTRIBUTION, INC.,

UPSTREAM PHONE HOLDINGS, INC.,

HD CAPITAL HOLDINGS, LLC,

as Loan Parties


 






     


     


    

 


TABLE
OF CONTENTS


 


	 	 	 	 	Page
	 	 	 	 
	1.	LOANS
    AND LETTERS OF CREDIT	1
	 	1.1	Amount
    of Loans / Letters of Credit	1
	 	1.2	Reserves
    for Revolving Loans / Letters of Credit	1
	 	1.3	Protective
    Advances	2
	 	1.4	Notice
    of Borrowing; Manner of Revolving Loan Borrowing	2
	 	1.5	Other
    Provisions Applicable to Letters of Credit	3
	 	1.6	Conditions
    of Making the Loans and Issuing Letters of Credit	3
	 	1.7	Repayments	4
	 	1.8	Prepayments
    / Voluntary Termination / Application of Prepayments	5
	 	1.9	Obligations
    Unconditional	5
	 	1.10	Reversal
    of Payments	6
	 	 	 
	2.	INTEREST
    AND FEES; LOAN ACCOUNT	6
	 	2.1	Interest	6
	 	2.2	Fees	7
	 	2.3	Computation
    of Interest and Fees	7
	 	2.4	Loan
    Account; Monthly Accountings	7
	 	2.5	Further
    Obligations; Maximum Lawful Rate	7
	 	 	 
	3.	SECURITY
    INTEREST GRANT / POSSESSORY COLLATERAL / FURTHER ASSURANCES	8
	 	3.1	Grant
    of Security Interest	8
	 	3.2	Possessory
    Collateral	9
	 	3.3	Further
    Assurances	9
	 	3.4	UCC
    Financing Statements	10
	 	 	 
	4.	CERTAIN
    PROVISIONS REGARDING ACCOUNTS, INVENTORY, COLLECTIONS, APPLICATIONS OF PAYMENTS, INSPECTION RIGHTS, AND APPRAISALS	11
	 	4.1	Lock
    Boxes and Blocked Accounts	11
	 	4.2	Application
    of Payments	11
	 	4.3	Notification;
    Verification	12
	 	4.4	Power
    of Attorney	13
	 	4.5	Disputes	14
	 	4.6	Inventory	14
	 	4.7	Access
    to Collateral, Books and Records	15
	 	4.8	Appraisals	15
	 	 	 
	5.	REPRESENTATIONS,
    WARRANTIES AND COVENANTS	15
	 	5.1	Existence
    and Authority	16
	 	5.2	Names;
    Trade Names and Styles	16
	 	5.3	Title
    to Collateral; Third Party Locations; Permitted Liens; Inactive Loan Parties	16
	 	5.4	Accounts,
    Chattel Paper and Inventory	17
	 	5.5	Electronic
    Chattel Paper	17
	 	5.6	Capitalization;
    Investment Property	18
	 	5.7	Commercial
    Tort Claims	19


 






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TABLE
OF CONTENTS


 


	 	 	 	 	Page
	 	 	 	 
	 	5.8	Jurisdiction
    of Organization; Location of Collateral	19
	 	5.9	Financial
    Statements and Reports; Solvency	20
	 	5.10	Tax
    Returns and Payments; Pension Contributions	20
	 	5.11	Compliance
    with Laws; Intellectual Property; Licenses	21
	 	5.12	Litigation	23
	 	5.13	Use
    of Proceeds	23
	 	5.14	Insurance	23
	 	5.15	Financial,
    Collateral and Other Reporting / Notices	24
	 	5.16	Litigation
    Cooperation	26
	 	5.17	Maintenance
    of Collateral, Etc	26
	 	5.18	Material
    Contracts	26
	 	5.19	No Default	27
	 	5.20	No Material
    Adverse Change	27
	 	5.21	Full
    Disclosure	27
	 	5.22	Sensitive
    Payments	27
	 	5.23	Subordinated
    Debt	27
	 	5.24	Negative
    Covenants	28
	 	5.25	Financial
    Covenants	30
	 	5.26	Employee
    and Labor Matters	30
	 	5.27	Post-Closing Matters	 
	 	 	 
	6.	RELEASE,
    LIMITATION OF LIABILITY AND INDEMNITY	30
	 	6.1	Release	30
	 	6.2	Limitation
    of Liability	31
	 	6.3	Indemnity/Currency
    Indemnity	31
	 	 	 
	7.	EVENTS
    OF DEFAULT AND REMEDIES	32
	 	7.1	Events
    of Default	32
	 	7.2	Remedies
    with Respect to Lending Commitments/Acceleration/Etc	35
	 	7.3	Remedies
    with Respect to Collateral	36
	 	 	 
	8.	LOAN
    GUARANTY	41
	 	8.1	Guaranty	41
	 	8.2	Guaranty
    of Payment	41
	 	8.3	No Discharge
    or Diminishment of Loan Guaranty	41
	 	8.4	Defenses
    Waived	42
	 	8.5	Rights
    of Subrogation	42
	 	8.6	Reinstatement;
    Stay of Acceleration	42
	 	8.7	Information	43
	 	8.8	Termination	43
	 	8.9	Maximum
    Liability	43
	 	8.10	Contribution	44
	 	8.11	Liability
    Cumulative	44
	 	 	 
	9.	PAYMENTS
    FREE OF TAXES; OBLIGATION TO WITHHOLD; PAYMENTS ON ACCOUNT OF TAXES	44


 






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TABLE
OF CONTENTS


 


	 	 	 	 	Page
	 	 	 
	10.	GENERAL
    PROVISIONS	47
	 	10.1	Notices	47
	 	10.2	Severability	49
	 	10.3	Integration	49
	 	10.4	Waivers	49
	 	10.5	Amendment	49
	 	10.6	Time
    of Essence	49
	 	10.7	Expenses,
    Fee and Costs Reimbursement	50
	 	10.8	Benefit
    of Agreement; Assignability; Servicer	50
	 	10.9	Recordation
    of Assignment	52
	 	10.10	Participations	53
	 	10.11	Headings;
    Construction	53
	 	10.12	USA
    PATRIOT Act Notification	53
	 	10.13	Counterparts;
    Email Signatures	54
	 	10.14	GOVERNING
    LAW	54
	 	10.15	WAIVERS
    AND JURISDICTION	54
	 	10.16	Publication	55
	 	10.17	Confidentiality	55
	 	10.18	Borrowing
    Agency Provisions	56


  


	Disclosure Schedule	 
	 	 
	Schedule A	Description of Certain Terms
	Schedule B	Definitions
	Schedule C	Fees
	Schedule D	Reporting
	Schedule E	Financial Covenants
	Schedule F	Warrants, Etc.
	Schedule G	Subordinated Debt
	 	 
	Exhibit A	Form of Notice of Borrowing
	Exhibit B	Closing Checklist
	Exhibit C	Client User Form
	Exhibit D	Authorized Accounts Form
	Exhibit E	Form of Account Debtor Notification
	Exhibit F	Form of Compliance Certificate
	Exhibit G	Form of Monthly Financial Model


 






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LOAN
AND SECURITY AGREEMENT


 


This
Loan and Security Agreement (as it may be amended, restated or otherwise modified from time to time, this “Agreement”)
is entered into as of November 20, 2018 among (1) Siena Lending Group LLC, together with its successors and assigns (“Lender”),
(2) WE SELL CELLULAR LLC, a Delaware limited liability company (“WeSell”), UPSTREAM PHONE COMPANY USA,
INC., a Delaware corporation (“Upstream”) and PHONEX, INC., a Delaware corporation (“PhoneX”
and together with WeSell and Upstream and any other Person who from time to time becomes a Borrower hereunder, collectively, the
“Borrowers” and each individually, a “Borrower”), and (3) the Loan Parties
(as defined herein) set forth on the signature pages to this Agreement. The Schedules and Exhibits to this Agreement are an integral
part of this Agreement and are incorporated herein by reference. Terms used, but not defined elsewhere, in this Agreement are
defined in Schedule B.


 


		1.	LOANS
                                         AND LETTERS OF CREDIT.



 


1.1          Amount
of Loans / Letters of Credit.


 


(a)           Revolving
Loans and Letters of Credit. Subject to the terms and conditions contained in this Agreement, including Sections 1.3 and 1.6,
Lender shall, from time to time prior to the Maturity Date, at Borrowing Agent’s request, (i) make revolving loans to Borrowers
(“Revolving Loans”), and (ii) make, or cause or permit a Participant (as defined in Section 10.10) to
make, letters of credit (“Letters of Credit”) available to Borrowers; provided, that after
giving effect to each such Revolving Loan and each such Letter of Credit, (A) the outstanding balance of all Revolving Loans and
the Letter of Credit Balance will not exceed the lesser of (x) the Maximum Revolving Facility Amount, minus Reserves
and (y) the Borrowing Base, and (B) none of the other Loan Limits for Revolving Loans will be exceeded. All Revolving Loans shall
be made in and repayable in Dollars.


 


1.2          Reserves
for Revolving Loans / Letters of Credit. Lender may, with or without notice to Borrowing Agent, from time to time establish
and revise reserves against the Borrowing Base and/or the Maximum Revolving Facility Amount in such amounts and of such types
as Lender deems appropriate in its Permitted Discretion (“Reserves”). Such Reserves shall be available
for Borrowing Agent to view in Passport 6.0 simultaneously with the imposition thereof; provided, that Lender shall
endeavor to provide email notice advising Borrowing Agent of such Reserves prior to or simultaneously with the imposition of such
Reserves; provided, further that Lender shall have no liability for failing to provide such email notice. Without
limiting the foregoing, references to Reserves shall include the Dilution Reserve. In no event shall the establishment of a Reserve
in respect of a particular actual or contingent liability obligate Lender to make advances to pay such liability or otherwise
obligate Lender with respect thereto.


 






     


     


    

 


1.3          Protective
Advances. Any contrary provision of this Agreement or any other
Loan Document notwithstanding, Lender is hereby authorized by Borrowers at any time, regardless of (a) the existence of a Default
or an Event of Default, (b) whether any of the other applicable conditions precedent set forth in Section 1.6 hereof have not
been satisfied or the commitment of Lender to make Loans hereunder has been terminated for any reason, or (c) any other contrary
provision of this Agreement, to make (in its Permitted Discretion prior to the occurrence and continuance of an Event of Default)
Revolving Loans to, or for the benefit of, Borrowers that Lender, in its sole discretion, deems necessary or desirable: (i) to
preserve or protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment
of the Loans and other Obligations, or (iii) to pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement
(the “Protective Advances”). Any contrary provision of this Agreement or any other Loan Document notwithstanding,
Lender may direct the proceeds of any Protective Advance to Borrowers or to such other Person as Lender determines in its sole
discretion. All Protective Advances shall be payable immediately upon demand.


 


1.4          Notice
of Borrowing; Manner of Revolving Loan Borrowing. Borrowing
Agent shall request each Revolving Loan by an Authorized Officer submitting such request via Passport 6.0 (or, if requested by
Lender, by delivering, in writing or via an Approved Electronic Communication, a Notice of Borrowing substantially in the form
of Exhibit A hereto) (each such request a “Notice of Borrowing”). Subject to the terms and conditions
of this Agreement, including Sections 1.1 and 1.6, Lender shall, except as provided in Section 1.3, deliver the amount of the
Revolving Loan requested in the Notice of Borrowing for credit to any account of Borrowers at a bank in the United States of America
as Borrowing Agent may specify (provided that such account must be one identified on Section 3 of the Disclosure
Schedule and approved by Lender as an account to be used for funding of loan proceeds) by wire transfer of immediately available
funds (a) on the same day if the Notice of Borrowing is received by Lender on or before 11:00 a.m. Eastern Time on a Business
Day, or (b) on the immediately following Business Day if the Notice of Borrowing is received by Lender after 11:00 a.m. Eastern
Time on a Business Day, or is received by Lender on any day that is not a Business Day. Lender shall charge to the Revolving Loan
Lender’s usual and customary fees for the wire transfer of each Loan.


 






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1.5          Other
Provisions Applicable to Letters of Credit. Lender shall, on
the terms and conditions set forth in this Agreement (including the terms and conditions set forth in Section 1.1 and Section
1.6), make Letters of Credit available to Borrowers either by issuing them, or by causing other financial institutions to issue
them supported by Lender’s guaranty or indemnification; provided, that after giving effect to each Letter
of Credit, the Letter of Credit Balance will not exceed the Letter of Credit Limit. Notwithstanding anything in this Agreement,
the parties agree that in connection with Lender’s option to make Letters of Credit available to Borrowers by causing other
financial institutions to issue Letters of Credit, Lender may cause or permit any Participant under this Agreement to cause other
financial institutions to issue such Letters of Credit and thereafter (a) all such Letters of Credit shall be treated for all
purposes under this Agreement as if such Letters of Credit were requested by Borrowing Agent and made available by Lender, (b)
such Participant’s support of such Letters of Credit in the form of a guaranty or indemnification shall be treated as if
such support had been made by Lender, (c) Borrowers hereby unconditionally and irrevocably, jointly and severally agree to pay
to Lender the amount of each payment or disbursement made by such Participant or the applicable issuer under any such Letter of
Credit honoring any demand for payment thereunder upon demand in accordance with the reimbursement provisions of this Section
1.5 and agrees that such reimbursement obligations of Borrowers constitute Obligations under this Agreement, and (d) any and all
amounts paid by such Participant or the applicable issuer in respect of any such Letter of Credit will, at the election of Lender,
be treated for all purposes as a Revolving Loan, and be payable, in the same manner as a Revolving Loan. Borrowers agree to execute
all documentation reasonably required by Lender and/or the issuer of any Letter of Credit in connection with any such Letter of
Credit. Borrowers hereby unconditionally and irrevocably, jointly and severally agree to reimburse Lender and/or the applicable
issuer for each payment or disbursement made by Lender and/or the applicable issuer under any Letter of Credit honoring any demand
for payment made thereunder, in each case on the date that such payment or disbursement is made. Borrowers’ reimbursement
obligations hereunder shall be irrevocable and unconditional under all circumstances, including (w) any lack of validity or enforceability
of any Letter of Credit, this Agreement or any other Loan Document, (x) the existence of any claim, set-off, defense or other
right which any Loan Party may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter
of Credit (or any Person for whom any such transferee may be acting), Lender, any Participant, the applicable issuer under any
Letter or Credit, or any other Person, whether in connection with any Letter of Credit, this Agreement, any other Loan Document,
the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Loan Party
and the beneficiary named in any Letter of Credit), (y) any lack of validity, sufficiency or genuineness of any document which
Lender or the applicable issuer has determined complies on its face with the terms of the applicable Letter of Credit, even if
such document should later prove to have been forged, fraudulent, invalid or insufficient in any respect or any statement therein
shall have been untrue or inaccurate in any respect, or (z) the surrender or impairment of any security for the performance or
observance of any of the terms hereof. Any and all amounts paid by Lender and any Participant in respect of a Letter of Credit
will, at the election of Lender, be treated for all purposes as a Revolving Loan, and bear interest, and be payable, in the same
manner as a Revolving Loan.


 


1.6          Conditions
of Making the Loans and Issuing Letters of Credit. Lender’s
obligation to make any Loan or issue or cause any Letter of Credit to be issued under this Agreement is subject to the following
conditions precedent (as well as any other conditions set forth in this Agreement or any other Loan Document), all of which must
be satisfied in a manner acceptable to Lender (and as applicable, pursuant to documentation which in each case is in form and
substance acceptable to Lender) as of each day that such Loan is made or such Letter of Credit is issued, as applicable:


 


(a)           Loans
and Letters of Credit Made and/or Issued on the Closing Date: With respect to Loans made, and/or Letters of Credit issued,
on the Closing Date, (i) each applicable Loan Party shall have duly executed and/or delivered, or, as applicable, shall have caused
such other applicable Persons to have duly executed and or delivered, to Lender such agreements, instruments, documents and/or
certificates listed on the closing checklist attached hereto as Exhibit B; (ii) Lender shall have completed its
business and legal due diligence pertaining to the Loan Parties, their respective businesses and assets, with results thereof
satisfactory to Lender in its sole discretion; (iii) Lender’s obligations and commitments under this Agreement shall have
been approved by Lender’s Credit Committee; (iv) after giving effect to such Loans and Letters of Credit, as well as to
the payment of all trade payables (other than trade payables to Brightstar but including the payment of $1,200,000 made to Brightstar
whether or not made on the Closing Date) older than sixty (60) days past due and the consummation of all transactions contemplated
hereby to occur on the Closing Date, closing costs and any book overdraft, Excess Availability (after giving effect to the Availability
Block) shall be no less than $1,000,000; (vi) Lender shall have received proceeds of an equity raise and/or Subordinated Debt
in respect of the Loan Parties in an amount at least equal to $4,800,000 on terms and conditions satisfactory to Lender; and (vii)
Borrowers shall have paid to Lender all fees due on the date hereof, and shall have paid or reimbursed Lender for all of Lender’s
costs, charges and expenses incurred through the Closing Date (and in connection herewith, Borrowers hereby irrevocably authorize
Lender to charge such fees, costs, charges and expenses as Revolving Loans; and


 






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(b)           All
Loans and/or Letters of Credit: With respect to Loans made and/or Letters of Credit issued, on the Closing Date and/or at
any time thereafter, in addition to the conditions specified in clause (a) above as applicable, (i) Borrowers shall have provided
to Lender such information as Lender may require in order to determine the Borrowing Base (including the items set forth in Section
5.15(a)), as of such borrowing or issue date, after giving effect to such Loans and/or Letters of Credit, as applicable; (ii)
each applicable Loan Party and Other Obligor shall have duly executed and/or delivered, or, as applicable, shall have caused such
other applicable Persons to have duly executed and or delivered, to Lender such further agreements, instruments, documents, proxies
and certificates as Lender may reasonably require in connection therewith; (iii) each of the representations and warranties set
forth in this Agreement and in the other Loan Documents shall be true and correct in all material respects (without duplication
of any materiality qualifier contained therein) as of the date such Loan is made and/or such Letter of Credit is issued (or to
the extent any representations or warranties are expressly made solely as of an earlier date, such representations and warranties
shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of
such earlier date), both before and after giving effect thereto; and (iv) no Default or Event of Default shall be in existence,
both before and after giving effect thereto.


 


1.7          Repayments.


 


(a)           Revolving
Loans/Letters of Credit. If at any time for any reason whatsoever (including without limitation as a result of currency fluctuations)
(i) the sum of the outstanding balance of all Revolving Loans and the Letter of Credit Balance exceeds the lesser of (x) the Maximum
Revolving Facility Amount and (y) the Borrowing Base, or (ii) any of the Loan Limits for Revolving Loans or Letters of Credit
are exceeded, then in each case, Borrowers will immediately, jointly and severally pay to Lender such amounts (or, with respect
to the Letter of Credit Balance, provide cash collateral to Lender in the manner set forth in clause (c) below) as shall cause
Borrowers to eliminate such excess (such excess, an “Overadvance”).


 


(b)           Maturity
Date Payments / Cash Collateral. All remaining outstanding monetary Obligations (including, all accrued and unpaid fees described
on Schedule C) shall be payable in full on the Maturity Date. Without limiting the generality of the foregoing, if, on the Maturity
Date, there are any outstanding Letters of Credit, then on such date Borrowers shall provide to Lender cash collateral in an amount
equal to 105% of the Letter of Credit Balance to secure all of the Obligations (including estimated attorneys’ fees and
other expenses) relating to said Letters of Credit, pursuant to a cash pledge agreement in form and substance reasonably satisfactory
to Lender.


 






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(c)           Currency
Due. If, notwithstanding the terms of this Agreement or any other Loan Document, Lender receives any payment from or on behalf
of Borrowers or any other Person in a currency other than the Currency Due, Lender may convert the payment (including the monetary
proceeds of realization upon any Collateral and any funds then held in a cash collateral account) into the Currency Due at exchange
rate selected by Lender in the manner contemplated by Section 6.3(b) and Borrowers shall jointly and severally reimburse Lender
on demand for all reasonable costs they incur with respect thereto. To the extent permitted by law, the obligation shall be satisfied
only to the extent of the amount actually received by Lender upon such conversion.


 


1.8          Prepayments
/ Voluntary Termination / Application of Prepayments.


 


(a)           Voluntary
Termination of Loan Facilities. Borrowers may, on at least thirty (30) days prior and irrevocable written notice received
by Lender, permanently terminate the Loan facilities by repaying all of the outstanding Obligations, including all principal,
interest and fees with respect to the Revolving Loans, and an Early Payment/Termination Premium in the amount specified in Schedule
C. If, on the date of a voluntary termination pursuant to this Section 1.8(a), there are any outstanding Letters of Credit, then
on such date, and as a condition precedent to such termination, Borrowers shall provide to Lender cash collateral in an amount
equal to 105% of the Letter of Credit Balance to secure all of the Obligations (including estimated attorneys’ fees and
other expenses) relating to said Letters of Credit, pursuant to a cash pledge agreement in form and substance reasonably satisfactory
to Lender. From and after such date of termination, Lender shall have no obligation whatsoever to extend any additional Loans
or Letters of Credit and all of its lending commitments hereunder shall be terminated.


 


1.9          Obligations
Unconditional.


 


(a)           The
payment and performance of all Obligations shall constitute the absolute and unconditional obligations of each Loan Party, and
shall be independent of any defense or rights of set-off, recoupment or counterclaim which any Loan Party or any other Person
might otherwise have against Lender or any other Person. All payments required (other than by Lender) by this Agreement and/or
the other Loan Documents shall be made in Dollars (unless payment in a different currency is expressly provided otherwise in the
applicable Loan Document) and paid free of any deductions or withholdings for any taxes or other amounts and without abatement,
diminution or set-off. If any Loan Party is required by applicable law to make such a deduction or withholding from a payment
under this Agreement or under any other Loan Document, such Loan Party shall pay to Lender such additional amount as is necessary
to ensure that, after the making of such deduction or withholding, Lender receives (free from any liability in respect of any
such deduction or withholding) a net sum equal to the sum which it would have received and so retained had no such deduction or
withholding been made or required to be made. Each Loan Party shall (i) pay the full amount of any deduction or withholding, which
it is required to make by law, to the relevant authority within the payment period set by applicable law, and (ii) promptly after
any such payment, deliver to Lender an original (or certified copy) official receipt issued by the relevant authority in respect
of the amount withheld or deducted or, if the relevant authority does not issue such official receipts, such other evidence of
payment of the amount withheld or deducted as is reasonably acceptable to Lender.


 






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(b)           If,
at any time and from time to time after the Closing Date (or at any time before or after the Closing Date with respect to (x)
the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder
or issued in connection therewith, or (y) all requests, rules, guidelines or directives promulgated by the Bank for International
Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory
authorities, in each case for purposes of this clause (y) pursuant to Basel III, regardless of the date enacted, adopted or issued),
(i) any change in any existing law, regulation, treaty or directive or in the interpretation or application thereof, (ii) any
new law, regulation, treaty or directive enacted or application thereof, or (iii) compliance by Lender with any request or directive
(whether or not having the force of law) from any Governmental Authority, central bank or comparable agency (A) subjects Lender
to any tax, levy, impost, deduction, assessment, charge or withholding of any kind whatsoever with respect to any Loan Document,
or changes the basis of taxation of payments to Lender of any amount payable thereunder (except for net income taxes, or franchise
taxes imposed in lieu of net income taxes, imposed generally by federal, state, local or other taxing authorities with respect
to interest or fees payable hereunder or under any other Loan Document or changes in the rate of tax on the overall net income
of Lender or its members), or (B) imposes on Lender any other condition or increased cost in connection with the transactions
contemplated thereby or participations therein, and the result of any of the foregoing is to increase the cost to Lender of making
or continuing any Loan or Letter of Credit or to reduce any amount receivable hereunder or under any other Loan Documents, then,
in any such case, Borrowers shall promptly and jointly and severally pay to Lender, when notified to do so by Lender, any additional
amounts necessary to compensate Lender, on an after-tax basis, for such additional cost or reduced amount as determined by Lender.
Each such notice of additional amounts payable pursuant to this Section 1.9(b) submitted by Lender to Borrowing Agent shall, absent
manifest error, be final, conclusive and binding for all purposes.


 


(c)           This
Section 1.9 shall remain operative even after the Termination Date and shall survive the payment in full of all of the Obligations.


 


1.10        Reversal
of Payments. To the extent that any payment or payments made
to or received by Lender pursuant to this Agreement or any other Loan Document are subsequently invalidated, declared to be fraudulent
or preferential, set aside, or required to be repaid to any trustee, receiver or other Person under any state, federal or other
bankruptcy or other such applicable law, then, to the extent thereof, such amounts (and all Liens, rights and remedies therefore)
shall be revived as Obligations (secured by all such Liens) and continue in full force and effect under this Agreement and under
the other Loan Documents as if such payment or payments had not been received by Lender. This Section 1.10 shall remain operative
even after the Termination Date and shall survive the payment in full of all of the Obligations.


 


		2.	INTEREST
                                         AND FEES; LOAN ACCOUNT.



 


2.1          Interest.
All Loans and other monetary Obligations shall bear interest at the interest rate(s) set forth in Section 2 of Schedule A, and
accrued interest shall be payable (a) on the first day of each month in arrears, (b) upon a prepayment of such Loan in accordance
with Section 1.8, and (c) on the Maturity Date; provided, that after the occurrence and during the continuation
of an Event of Default, all Loans and other monetary Obligations shall bear interest at a rate per annum equal to five (5) percentage
points in excess of the rate otherwise applicable thereto (the “Default Rate”), and all such interest
shall be payable on demand. Changes in the interest rate shall be effective as of the date of any change in the Base Rate.


 






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2.2          Fees.
Borrowers shall jointly and severally pay Lender the fees set forth on Schedule C hereto on the dates set forth therein, which
fees are in addition to all fees and other sums payable by Borrowers or any other Person to Lender under this Agreement or under
any other Loan Document, and, in each case are not refundable once paid.


 


2.3          Computation
of Interest and Fees. All interest and fees shall be calculated
daily on the outstanding monetary Obligations based on the actual number of days elapsed in a year of 360 days.


 


2.4          Loan
Account; Monthly Accountings. Lender shall maintain a loan
account for Borrowers reflecting all outstanding Loans and the Letters of Credit Balance, along with interest accrued thereon
and such other items reflected therein (the “Loan Account”), and shall provide Borrowing Agent with
a monthly accounting reflecting the activity in the Loan Account, viewable by Borrowing Agent on Passport 6.0. Each accounting
shall be deemed correct, accurate and binding on Borrowers and an account stated (except for reverses and reapplications of payments
made and corrections of errors discovered by Lender), unless Borrowing Agent notifies Lender in writing to the contrary within
thirty (30) days after such account is posted on Passport 6.0to Borrower Agent, describing the nature of any alleged errors or
omissions. However, Lender’s failure to maintain the Loan Account or to provide any such accounting shall not affect the
legality or binding nature of any of the Obligations, provided that Lender’s failure to maintain the Loan
Account or to post an accounting for a particular period during the term of this Agreement shall toll Borrower Agent’s right
to object to the accounting for the applicable period until thirty (30) days after such accounting is provided or posted for the
applicable period. Interest, fees and other monetary Obligations due and owing under this Agreement (including fees and other
amounts paid by Lender to issuers of Letters of Credit) may, in Lender’s discretion, be charged to the Loan Account, and
will thereafter be deemed to be Revolving Loans and will bear interest at the same rate as other Revolving Loans.


 


2.5          Further
Obligations; Maximum Lawful Rate. With respect to all monetary
Obligations for which the interest rate is not otherwise specified herein (whether such Obligations arise hereunder or under any
other Loan Document, or otherwise), such Obligations shall bear interest at the rate(s) in effect from time to time with respect
to the applicable loan and shall be payable upon demand by Lender. In no event shall the interest charged with respect to any
Loan or any other Obligation exceed the maximum amount permitted under applicable law. Notwithstanding anything to the contrary
herein or elsewhere, if at any time the rate of interest payable or other amounts hereunder or under any other Loan Document (the
“Stated Rate”) would exceed the highest rate of interest or other amount permitted under any applicable
law to be charged (the “Maximum Lawful Rate”), then for so long as the Maximum Lawful Rate would be
so exceeded, the rate of interest and other amounts payable shall be equal to the Maximum Lawful Rate; provided,
that if at any time thereafter the Stated Rate is less than the Maximum Lawful Rate, Borrowers shall, to the extent permitted
by applicable law, continue to pay interest and such other amounts at the Maximum Lawful Rate until such time as the total interest
and other such amounts received is equal to the total interest and other such amounts which would have been received had the Stated
Rate been (but for the operation of this provision) the interest rate payable or such other amounts payable. Thereafter, the interest
rate and such other amounts payable shall be the Stated Rate unless and until the Stated Rate again would exceed the Maximum Lawful
Rate, in which event this provision shall again apply. In no event shall the total interest or other such amounts received by
Lender exceed the amount which it could lawfully have received had the interest and other such amounts been calculated for the
full term hereof at the Maximum Lawful Rate. If, notwithstanding the prior sentence, Lender has received interest or other such
amounts hereunder in excess of the Maximum Lawful Rate, such excess amount shall be applied to the reduction of the principal
balance of the Loans or to other Obligations (other than interest) payable hereunder, and if no such principal or other Obligations
are then outstanding, such excess or part thereof remaining shall be paid to Borrowers. In computing interest payable with reference
to the Maximum Lawful Rate applicable to any Lender, such interest shall be calculated at a daily rate equal to the Maximum Lawful
Rate divided by the number of days in the year in which such calculation is made.


 






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		3.	SECURITY
                                         INTEREST GRANT / POSSESSORY COLLATERAL / FURTHER ASSURANCES.



 


3.1          Grant
of Security Interest. To secure the full payment and performance
of all of the Obligations, each Loan Party hereby assigns to Lender and grants to Lender a continuing security interest in all
property of such Loan Party, whether tangible or intangible, real or personal, now or hereafter owned, existing, acquired or arising
and wherever now or hereafter located, and whether or not eligible for lending purposes, including: (a) all Accounts and all Goods
whose sale, lease or other disposition by such Loan Party has given rise to Accounts and have been returned to, or repossessed
or stopped in transit by, such Loan Party; (b) all Chattel Paper (including Electronic Chattel Paper), Instruments, Documents,
and General Intangibles (including all patents, patent applications, trademarks, trademark applications, trade names, trade secrets,
goodwill, copyrights, copyright applications, registrations, licenses, software, franchises, customer lists, tax refund claims,
claims against carriers and shippers, guarantee claims, contracts rights, payment intangibles, security interests, security deposits
and rights to indemnification); (c) all Inventory (whether or not Eligible Inventory); (d) all Goods (other than Inventory), including
Equipment, Farm Products, Health-Care-Insurance Receivables, vehicles, and Fixtures; (e) all Investment Property, including, without
limitation, all rights, privileges, authority, and powers of such Loan Party as an owner or as a holder of Pledged Equity, including,
without limitation, all economic rights, all control rights, authority and powers, and all status rights of such Loan Party as
a member, equity holder or shareholder, as applicable, of each Issuer; (f) all Deposit Accounts, bank accounts, deposits and cash;
(g) all Letter-of-Credit Rights; (h) all Commercial Tort Claims listed in Section 2 of the Disclosure Schedule; (i) all Supporting
Obligations; (j) any other property of such Loan Party now or hereafter in the possession, custody or control of Lender or any
agent or any parent, Affiliate or Subsidiary of Lender or any Participant with Lender in the Loans, for any purpose (whether for
safekeeping, deposit, collection, custody, pledge, transmission or otherwise), and (k) all additions and accessions to, substitutions
for, and replacements, products and Proceeds of the foregoing property, including proceeds of all insurance policies insuring
the foregoing property, and all of such Loan Party’s books and records relating to any of the foregoing and to such Loan
Party’s business.


 






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3.2          Possessory
Collateral. Promptly, but in any event no later than five
(5) Business Days after any Loan Party’s receipt of any portion of the Collateral evidenced by an agreement, Instrument
or Document, including any Tangible Chattel Paper and any Investment Property consisting of certificated securities, such Loan
Party shall deliver the original thereof to Lender together with an appropriate endorsement or other specific evidence of assignment
thereof to Lender (in form and substance acceptable to Lender). If an endorsement or assignment of any such items shall not be
made for any reason, Lender is hereby irrevocably authorized, as attorney and agent-in-fact (coupled with an interest) for each
Loan Party, to endorse or assign the same on such Loan Party’s behalf.


 


3.3          Further
Assurances.


 


(a)           Each
Loan Party will, at the time that any Loan Party forms any direct or indirect Subsidiary, acquires any direct or indirect Subsidiary
after the Closing Date, within ten days of such event (or such later date as permitted by Lender in its sole discretion) (i) cause
such new Subsidiary to become a Loan Party and to grant Lender a first priority Lien (subject to Permitted Liens) in and to the
assets of such newly formed or acquired Subsidiary), (ii) provide, or cause the applicable Loan Party to provide, to Lender a
pledge agreement and appropriate certificates and powers or financing statements, pledging all of the direct or beneficial ownership
interest in such new Subsidiary in form and substance reasonably satisfactory to Lender (which pledge, if reasonably requested
by Lender, shall be governed by the laws of the jurisdiction of such Subsidiary), and (iii) provide to Lender all other documentation,
including one or more opinions of counsel reasonably satisfactory to Lender, which, in its opinion, is appropriate with respect
to the execution and delivery of the applicable documentation referred to above (including policies of title insurance, flood
certification documentation or other documentation with respect to all Real Property owned in fee and subject to a mortgage).
Any document, agreement, or instrument executed or issued pursuant to this Section 3.3 shall constitute a Loan Document.


 


(b)           Each
Loan Party will, and will cause each of the other Loan Parties to, at any time upon the reasonable request of Lender, execute
or deliver to Lender any and all financing statements, fixture filings, security agreements, pledges, assignments, mortgages,
deeds of trust, opinions of counsel, and all other documents (the “Additional Documents”) that Lender
may reasonably request in form and substance reasonably satisfactory to Lender, to create, perfect, and continue to be perfected
or to better perfect Lender’s Liens in all of the assets of each of the Loan Parties (whether now owned or hereafter arising
or acquired, tangible or intangible, real or personal), to create and perfect Liens in favor of Lender in any Real Property acquired
by any other Loan Party with a fair market value in excess of $100,000, and in order to fully consummate all of the transactions
contemplated hereby and under the other Loan Documents. To the maximum extent permitted by applicable law, if any Borrower or
any other Loan Party refuses or fails to execute or deliver any reasonably requested Additional Documents within a reasonable
period of time following the request to do so, each Borrower and each other Loan Party hereby authorizes Lender to execute any
such Additional Documents in the applicable Loan Party’s name and authorizes Lender to file such executed Additional Documents
in any appropriate filing office.


 






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(c)           Each
Loan Party shall, at its own cost and expense, promptly and duly take, execute, acknowledge and deliver (and/or use commercially
reasonable efforts to cause such other applicable Person to take, execute, acknowledge and deliver) all such further acts, documents,
agreements and instruments as Lender shall deem reasonably necessary in order to (i) carry out the intent and purposes of the
Loan Documents and the transactions contemplated thereby, (ii) establish, create, preserve, protect and perfect a first priority
lien (subject only to Permitted Liens) in favor of Lender in all Collateral (wherever located) from time to time owned by the
Loan Parties, (iii) cause each Loan Party to guarantee all of the Obligations, all pursuant to documentation that is in form and
substance satisfactory to Lender in its Permitted Discretion and (iv) facilitate the collection of the Collateral. Without limiting
the foregoing, each Loan Party shall, at its own cost and expense, promptly and duly take, execute, acknowledge and deliver (and/or
use commercially reasonable efforts to cause such other applicable Person to take, execute, acknowledge and deliver) to Lender
all promissory notes, security agreements, agreements with landlords, mortgagees and processors and other bailees, subordination
and intercreditor agreements and other agreements, instruments and documents, in each case in form and substance reasonably acceptable
to Lender, as Lender may request from time to time to perfect, protect, and maintain Lender’s security interests in the
Collateral, including the required priority thereof, and to fully carry out the transactions contemplated by the Loan Documents.


 


3.4          UCC
Financing Statements. Each Loan Party authorizes Lender to file,
transmit, or communicate, as applicable, from time to time, Uniform Commercial Code financing statements, along with amendments
and modifications thereto, in all filing offices selected by Lender, listing such Loan Party as the debtor and Lender as the secured
party, and describing the collateral covered thereby in such manner as Lender may elect, including using descriptions such as
“all personal property of debtor” or “all assets of debtor” or words of similar effect. Each Loan Party
also hereby ratifies its authorization for Lender to have filed in any filing office any financing statements filed prior to the
date hereof.


 






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		4.	CERTAIN
                                         PROVISIONS REGARDING ACCOUNTS, INVENTORY, COLLECTIONS, APPLICATIONS OF PAYMENTS, INSPECTION
                                         RIGHTS, AND APPRAISALS.



 


4.1          Lock
Boxes and Blocked Accounts. Each Loan Party hereby represents
and warrants that all Deposit Accounts and all other depositary and other accounts maintained by each Loan Party as of the Closing
Date are described in Section 3 of the Disclosure Schedule, which description includes for each such account the name of the Loan
Party maintaining such account, the name, of the financial institution at which such account is maintained, the account number,
and the purpose of such account. After the Closing Date, no Loan Party shall open any new Deposit Accounts or any other depositary
or other accounts without the prior written consent of Lender and without updating Section 3 of the Disclosure Schedule to reflect
such Deposit Accounts or other accounts, as applicable. No Deposit Accounts or other accounts of any Loan Party shall at any time
constitute a Restricted Account other than accounts expressly indicated on Section 3 of the Disclosure Schedule as being a Restricted
Account (and each Loan Party hereby represents and warrants that each such account shall at all times meet the requirements set
forth in the definition of Restricted Account to qualify as a Restricted Account). Each Loan Party will, at its expense, establish
(and revise from time to time as Lender may require) procedures acceptable to Lender, in Lender’s Permitted Discretion,
for the collection of checks, wire transfers and all other proceeds of all of such Loan Party’s Accounts, including proceeds
from any credit card processor, PayPal, Amazaon, proceeds of Indebtedness and issuance of Equity and other Collateral (“Collections”),
which shall include (a) directing all Account Debtors to send all Account proceeds directly to a post office box designated by
Lender either in the name of such Loan Party (but as to which Lender has exclusive access) or, at Lender’s option, in the
name of Lender (a “Lock Box”), and/or (b) depositing all Collections received by such Loan Party into
one or more bank accounts maintained in the name of such Loan Party (but as to which Lender has exclusive access) or, at Lender’s
option, in the name of Lender (each, a “Blocked Account”), under an arrangement acceptable to Lender
with a depository bank acceptable to Lender, pursuant to which all funds deposited into each Blocked Account are to be transferred
to Lender in such manner, and with such frequency, as Lender shall specify, and/or (d) a combination of the foregoing. Each Loan
Party agrees to execute, and to cause its depository banks and other account holders to execute, such Lock Box and Blocked Account
control agreements and other documentation as Lender shall require from time to time in connection with the foregoing, all in
form and substance acceptable to Lender, and in any event such arrangements and documents must be in place on the date hereof
with respect to accounts in existence on the date hereof, or prior to any such account being opened with respect to any such account
opened after the date hereof, in each case excluding Restricted Accounts. Each Loan Party shall provide Lender with online read-only
access to such Loan Party’s Deposit Accounts, provide Lender with its ID, user names and passwords for its PayPal accounts
and maintain such access in effect for Lender throughout the term of this Agreement and until all Obligations have been paid in
full, all in a manner acceptable to Lender in its Permitted Discretion. Prior to the Closing Date, Borrowing Agent shall deliver
to Lender a complete and executed Authorized Accounts form regarding Borrowers’ operating account(s) into which the proceeds
of Loans are to be paid in the form of Exhibit D annexed hereto. Notwithstanding anything to the contrary in this Section 4.1,
(a) PhoneX shall maintain two separate Deposit Accounts in which it deposits Collections with one such Deposit Account containing
amounts owed to PhoneX and the other containing amounts due to Brightstar or other third parties who use the services of PhoneX;
(b) PhoneX shall cause the amounts in the Deposit Account containing amounts due to PhoneX to be remitted on each Business Day
to Lender’s Bank; (c) following the occurrence of an Event of Default, Lender may cause all of the amounts in the Deposit
Accounts of PhoneX to be remitted to Lender’s Bank; and (d) each Loan Party shall direct that all amounts due from PayPal,
Amazon, any credit card processor or any other third party be remitted to a Blocked Account.


 


4.2          Application
of Payments. All amounts paid to or received by Lender in respect
of the monetary Obligations, from whatever source (whether from any Borrower or any other Loan Party pursuant to such other Loan
Party’s guaranty of the Obligations, any realization upon any Collateral, or otherwise) shall, unless otherwise directed
by Borrowing Agent with respect to any particular payment (unless an Event of Default shall then be continuing, in which event
Lender may disregard Borrowing Agent’s direction), be applied by Lender to the Obligations in such order as Lender may elect,
and absent such election shall be applied as follows:


 


(a)           FIRST,
to reimburse Lender for all out-of-pocket costs and expenses, and all indemnified losses, incurred by Lender which are reimbursable
to Lender in accordance with this Agreement and/or any of the other Loan Documents,


 






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(b)           SECOND,
to any accrued but unpaid interest on any Protective Advances,


 


(c)           THIRD,
to the outstanding principal of any Protective Advances,


 


(d)           FOURTH,
to any accrued but unpaid fees owing to Lender under this Agreement and/or any other Loan Documents,


 


(e)           FIFTH,
to any unpaid accrued interest on the Obligations,


 


(f)            SIXTH,
to the outstanding principal of the Obligations, and, to the extent required by this Agreement, to cash collateralize the Letter
of Credit Balance, and


 


(g)           SEVENTH,
to the payment of any other outstanding Obligations; and after payment in full in cash of all of the outstanding monetary Obligations,
any further amounts paid to or received by Lender in respect of the Obligations (so long as no monetary Obligations are outstanding)
shall be paid over to Borrowers or such other Person(s) as may be legally entitled thereto. For purposes of determining the Borrowing
Base, such amounts will be credited to the Loan Account and the Collateral balances to which they relate upon Lender’s receipt
of an advice from Lender’s Bank (set forth in Section 4 of Schedule A) that such items have been credited to Lender’s
account at Lender’s Bank (or upon Lender’s deposit thereof at Lender’s Bank in the case of payments received
by Lender in kind), in each case subject to final payment and collection. However, for purposes of computing interest on the Obligations,
such items shall be deemed applied by Lender three Business Days after Lender’s receipt of advice of deposit thereof at
Lender’s Bank.


 


4.3          Notification;
Verification. Lender or its designee may, from time to time,
whether or not a Default or Event of Default has occurred: (a) verify directly with the Account Debtors of the Loan Parties (or
by any reasonable manner and through any reasonable medium Lender considers advisable in the exercise of its Permitted Discretion)
the validity, amount and other matters relating to the Accounts and Chattel Paper of the Loan Parties, by means of mail, telephone
or otherwise, either in the name of the applicable Loan Party or Lender or such other name as Lender may choose and (b) notify
Account Debtors of the Loan Parties that Lender has a security interest in the Accounts of the Loan Parties. Lender or its designee
may, from time to time after the occurrence and during the continuance of an Event of Default: (x) require any Loan Party to cause
all invoices and statements which it sends to Account Debtors or other third parties to be marked, in a manner satisfactory to
Lender, to reflect Lender’s security interest therein and payment instructions acceptable to Lender (y) direct such Account
Debtors to make payment thereof directly to Lender; such notification to be sent on the letterhead of such Loan Party and substantially
in the form of Exhibit E annexed hereto; and (z) demand, collect or enforce payment of any Accounts and Chattel Paper (but without
any duty to do so). Each Loan Party hereby authorizes Account Debtors to make payments directly to Lender and to rely on notice
from Lender without further inquiry. Lender may on behalf of each Loan Party endorse all items of payment received by Lender that
are payable to such Loan Party for the purposes described above.


 






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4.4          Power
of Attorney.


 


Each
Loan Party hereby grants to Lender an irrevocable power of attorney, coupled with an interest, authorizing and permitting Lender
(acting through any of its officers, employees, attorneys or agents), at Lender’s option (and solely with respect to any
actions taken by Lender under Section 4.4(a) below, in the exercise of its Permitted Discretion), but without obligation, with
or without prior notice to such Loan Party, and at such Loan Party’s expense, to do any or all of the following, in such
Loan Party’s name or otherwise:


 


(a)           (i)
execute on behalf of such Loan Party any documents that Lender may deem advisable in order to perfect, protect and maintain Lender’s
security interests, and priority thereof, in the Collateral (including such financing statements and continuation financing statements,
and amendments or other modifications thereto, as Lender shall deem necessary or appropriate); (ii) endorse such Loan Party’s
name on all checks and other forms of remittances received by Lender; (iii) pay any sums required on account of such Loan Party’s
taxes or to secure the release of any Liens therefor; (iv) pay any amounts necessary to obtain, or maintain in effect, any of
the insurance described in Section 5.14; (v) receive and otherwise take control in any manner of any cash or non-cash items of
payment or Proceeds of Collateral; (vi) receive, open and process all mail addressed to such Loan Party at any post office box/lockbox
maintained by Lender for such Loan Party or at any other business premises of Lender with Collections to be promptly transferred
to the Blocked Account and any mail unrelated to Collections to be promptly remitted to such Loan Party along with copies of all
other mail addressed to such Loan Party and received by Lender; and (vii) endorse or assign to Lender on such Loan Party’s
behalf any portion of Collateral evidenced by an agreement, Instrument or Document if an endorsement or assignment of any such
items is not made by Borrowers pursuant to Section 3.2; and


 


(b)           After
the occurrence and during the continuance of an Event of Default and subject to the terms and conditions of Section 7 of this
Agreement: (i) execute on behalf of such Loan Party any document exercising, transferring or assigning any option to purchase,
sell or otherwise dispose of or lease (as lessor or lessee) any real or personal property which is part of the Collateral or in
which Lender has an interest; (ii) execute on behalf of such Loan Party any invoices relating to any Accounts, any draft against
any Account Debtor, any proof of claim in bankruptcy, any notice of Lien or claim, and any assignment or satisfaction of mechanic’s,
materialman’s or other Lien; (iii) except as otherwise provided in Section 4.3(i) hereof, execute on behalf of such Loan
Party any notice to any Account Debtor; (iv) pay, contest or settle any Lien, charge, encumbrance, security interest and adverse
claim in or to any of the Collateral, or any judgment based thereon, or otherwise take any action to terminate or discharge the
same; (v) grant extensions of time to pay, compromise claims relating to, and settle Accounts, Chattel Paper and General Intangibles
for less than face value and execute all releases and other documents in connection therewith; (vi) settle and adjust, and give
releases of, any insurance claim that relates to any of the Collateral and obtain payment therefor; (vii) instruct any third party
having custody or control of any Collateral or books or records belonging to, or relating to, such Loan Party to give Lender the
same rights of access and other rights with respect thereto as Lender has under this Agreement or any other Loan Document; (viii)
change the address for delivery of such Loan Party’s mail; (ix) vote any right or interest with respect to any Investment
Property; and (x) instruct any Account Debtor to make all payments due to such Loan Party directly to Lender.


 






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Any
and all sums paid, and any and all costs, expenses, liabilities, obligations and reasonable attorneys’ fees incurred, by
Lender with respect to the foregoing shall be added to and become part of the Obligations, shall be payable on demand, and shall
bear interest at a rate equal to the highest interest rate applicable to any of the Obligations at such time. Each Loan Party
agrees that Lender’s rights under the foregoing power of attorney and/or any of Lender’s other rights under this Agreement
or the other Loan Documents shall not be construed to indicate that Lender is in control of the business, management or properties
of such Loan Party.


 


4.5          Disputes.
Each Loan Party shall promptly notify Lender of all disputes or claims relating to its Accounts and Chattel Paper. Each Loan Party
agrees that it will not, without Lender’s prior written consent, compromise or settle any of its Accounts or Chattel Paper
for less than the full amount thereof, grant any extension of time for payment of any of its Accounts or Chattel Paper, release
(in whole or in part) any Account Debtor or other person liable for the payment of any of its Accounts or Chattel Paper or grant
any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of its Accounts or Chattel
Paper; except (unless otherwise directed by Lender during the existence of a Default or an Event of Default) such Loan Party may
take any of such actions in the ordinary course of its business consistent with past practices, provided, that Borrowers
promptly report the same to Lender.


 


4.6          Inventory.


 


(a)           Returns.
No Loan Party will accept returns of any Inventory from any Account Debtor except in the ordinary course of its business. In the
event the value of returned Inventory in any one calendar month exceeds $400,000 (collectively for all Loan Parties), Borrowers
will immediately notify Lender (which notice shall specify the value of all such returned Inventory, the reasons for such returns,
and the locations and the condition of such returned Inventory).


 


(b)           Third
Party Locations. Loan Parties shall give Lender 30 days prior written notice of such Loan Party’s intent to store Inventory
at any location other than a location set forth on Section 1(d) of the Disclosure Schedule. For the avoidance of doubt, no such
Inventory stored at any location other than a location previously set forth on Section 1(d) of the Disclosure Schedule shall be
considered by Lender for compliance with the criteria set forth in clause (d) of the defined term Eligible Inventory unless Lender
shall have received (x) thirty (30) days prior written notice of such Inventory being moved or located at such other location,
(y) a fully-executed landlord’s, warehouseman or bailee’s waiver, as applicable (or in lieu thereof a rent reserve
equal to three (3) months’ rent for such location has been applied by Borrowers in the calculation of the Borrowing Base)
and (z) an updated Borrowing Base Certificate in form and substance satisfactory to Lender.


 


(c)           Sale
on Return, etc. No Loan Party shall sell any Inventory on a sale-or-return or right of return except a Loan Party may sell
such Loan Party’s Inventory with a thirty (30) day right of return. No Loan Party shall sell Inventory owned by a third
party except for PhoneX or accept returns of such Inventory.


 






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(d)           Fair
Labor Standards Act. Each Loan Party represents and warrants, and covenants that at all times, that all of the Inventory of
each Loan Party has been, at all times will be, produced only in accordance with the Fair Labor Standards Act of 1938 and all
rules, regulations and orders promulgated thereunder.


 


4.7          Access
to Collateral, Books and Records. At reasonable times and upon
reasonable notice to the applicable Loan Party taking into account the circumstances involved, Lender and/or its representatives
or agents shall have the right to inspect the Collateral, and the right to examine and copy each Loan Party’s books and
records. Each Loan Party agrees to give Lender access to any or all of such Loan Party’s, and each of its Subsidiaries’,
premises to enable Lender to conduct such inspections and examinations. Such inspections and examinations shall be at Borrowers’
expense and the charge therefor shall be $1,200 per person per day (or such higher amount as shall represent Lender’s then
current standard charge), plus of out-of-pocket expenses (“Collateral Inspection Fee”). Upon the occurrence
and during the continuance of an Event of Default, Lender may, at Borrowers’ expense, use each Loan Party’s personnel,
computer and other equipment, programs, printed output and computer readable media, supplies and premises for the collection,
sale or other disposition of Collateral to the extent Lender, in its sole discretion, deems appropriate. Each Loan Party hereby
irrevocably authorizes all accountants and other financial professional third parties to disclose and deliver to Lender, at Borrowers’
expense, all financial information, books and records, work papers, management reports and other information in their possession
regarding the Loan Parties. Notwithstanding the foregoing or anything contained herein to the contrary, Borrowers shall not be
required to pay a Collateral Inspection Fee in connection with Lender and/or its representatives inspection of the Collateral
or examination and copying of a Loan Party’s books and records more than four (4) times in any Contract Year, except no
such limitation shall apply once an Event of Default shall have occurred.


 


4.8          Appraisals.
Each Loan Party will permit Lender and each of its representatives or agents to conduct appraisals and valuations of the Collateral
at such times and intervals as Lender may designate. Such appraisals and valuations shall be at Borrowers’ expense.


 


		5.	REPRESENTATIONS,
                                         WARRANTIES AND COVENANTS.



 


To
induce Lender to enter into this Agreement, each Loan Party represents, warrants and covenants as follows (it being understood
and agreed that (a) each such representation and warranty (i) will be made as of the date hereof and be deemed remade as of each
date on which any Loan is made or Letter of Credit is issued (except to the extent any such representation or warranty expressly
relates only to any earlier and/or specified date, in which case such representation or warranty will be made as of such earlier
and/or specified date), and (ii) shall not be affected by any knowledge of, or any investigation by, Lender, except as otherwise
expressly set forth herein, and (b) each such covenant shall continuously apply with respect to all times commencing on the date
hereof and continuing until the Termination Date):


 






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5.1          Existence
and Authority. Each Loan Party is duly organized, incorporated,
validly existing and in good standing under the laws of its jurisdiction of organization (which jurisdiction is identified in
Section 1(a) of the Disclosure Schedule) and is qualified to do business in each jurisdiction in which the operation of its business
requires that it be qualified (which each such jurisdiction is identified in Section 1(a) of the Disclosure Schedule), except
where the failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect. Each Loan Party
will, and will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect such Person’s
valid existence and good standing in its jurisdiction of organization and, except as could not reasonably be expected to result
in a Material Adverse Effect, good standing with respect to all other jurisdictions in which it is qualified to do business and
any rights, franchises, permits, licenses, accreditations, authorizations, or other approvals material to their businesses. Each
Loan Party has all requisite power and authority to own and operate its properties, to carry on its business as now conducted
and as proposed to be conducted, to enter into the Loan Documents to which it is a party and to carry out the transactions contemplated
thereby. The execution, delivery and performance by each Loan Party of this Agreement and all of the other Loan Documents to which
such Loan Party is a party have been duly and validly authorized, do not violate such Loan Party’s Organic Documents, or
any law or any agreement or instrument or any court order which is binding upon any Loan Party or its property, do not constitute
grounds for acceleration of any Indebtedness or obligation under any agreement or instrument which is binding upon any Loan Party
or its property, and do not require the consent of any Person. No Loan Party is required to obtain any government approval, consent,
or authorization from, or to file any declaration or statement with, any Governmental Authority in connection with or as a condition
to the execution, delivery or performance of any of the Loan Documents. This Agreement and each of the other Loan Documents have
been duly executed and delivered by, and are enforceable against each of the Loan Parties who have signed them, in accordance
with their respective terms, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium
or similar laws of general applicability affecting the enforcement of creditors’ rights and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). Section 1(f)
of the Disclosure Schedule sets forth the ownership of each Borrower and their respective Subsidiaries.


 


5.2          Names;
Trade Names and Styles. The name of each Loan Party set forth
on Section 1(b) of the Disclosure Schedule is its correct and complete legal name as of the date hereof, and no Loan Party has
used any other name at any time in the past five years, or at any time will use any other name, in any tax filing made in any
jurisdiction. Listed in Section 1(b) of the Disclosure Schedule are all prior names used by each Loan Party at any time in the
past five years and all of the present and prior trade names used by any Loan Party at any time in the past five years. Borrowers
shall give Lender at least thirty (30) days’ prior written notice (and will deliver an updated Section 1(b) of the Disclosure
Schedule to reflect the same) before it or any other Loan Party changes its legal name or does business under any other name.


 


5.3          Title
to Collateral; Third Party Locations; Permitted Liens; Inactive Loan Parties. Each Loan Party has, and at all times will continue to have, good and marketable title to all of the Collateral. The Collateral
now is, and at all times will remain, free and clear of any and all Liens, except for Permitted Liens. Lender now has, and will
at all times continue to have, a first-priority perfected and enforceable security interest in all of the Collateral, and each
Loan Party will at all times defend Lender and the Collateral against all claims of others. None of the Collateral which is Equipment
is, or will at any time, be affixed to any real property that is not subject to a Mortgage in favor of Lender in such a manner,
or with such intent, as to become a fixture. Except for leases or subleases as to which Borrowers have delivered to Lender a landlord’s
waiver in form and substance satisfactory to Lender, no Loan Party is or will be a lessee or sublessee under any real property
lease or sublease. Except for warehouses as to which Borrowers have delivered to Lender a warehouseman’s waiver in form
and substance satisfactory to Lender, no Loan Party is or will at any time be a bailor of any Goods at any warehouse or otherwise.
Prior to causing or permitting any Collateral to at any time be located upon premises in which any third party (including any
landlord, warehouseman, or otherwise) has an interest, Borrowers shall notify Lender and the applicable Loan Party shall cause
each such third party to execute and deliver to Lender, in form and substance acceptable to Lender, such waivers, collateral access
agreements, and subordinations as Lender shall specify, so as to, among other things, ensure that Lender’s rights in the
Collateral are, and will at all times continue to be, superior to the rights of any such third party and that Lender has access
to such Collateral. Each applicable Loan Party will keep at all times in full force and effect, and will comply at all times with
all the terms of, any lease of real property where any of the Collateral now or in the future may be located. No Loan Party that
has been designated as an Inactive Loan Party has ceased to satisfy all the requirements for an Inactive Loan Party. If at any
time any Loan Party that has previously been designated as an Inactive Loan Party shall cease to satisfy any of the requirements
for an Inactive Loan Party, Borrowers shall promptly give written notice of such occurrence to Lender.


 






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5.4          Accounts,
Chattel Paper and Inventory.


 


(a)           As
of each date reported by Borrowers, all Accounts which Borrowers have then reported to Lender as then being Eligible Accounts,
if any, comply in all respects with the criteria for eligibility set forth in the definition of Eligible Accounts. All such Accounts
and Chattel Paper are genuine and in all respects what they purport to be, arise out of a completed, bona fide and unconditional
and non-contingent sale and delivery of goods or rendition of services by Borrowers in the ordinary course of its business and
in accordance with the terms and conditions of all purchase orders, contracts or other documents relating thereto, to the knowledge
of the Borrowers each Account Debtor thereunder had the capacity to contract at the time any contract or other document giving
rise to such Accounts and Chattel Paper were executed, and the transactions giving rise to such Accounts and Chattel Paper comply
with all applicable laws and governmental rules and regulations.


 


(b)           As
of each date reported by Borrowers, all Inventory which Borrowers have then reported to Lender as then being Eligible Inventory
complies in all respects with the criteria for eligibility set forth in the definition of Eligible Inventory, and all Inventory
which Borrowers have then reported to Lender as then being Eligible In-Transit Inventory comply in all respects with the criteria
for eligibility set forth in the definition of Eligible Inventory.


 


5.5          Electronic
Chattel Paper. To the extent that any Loan Party obtains or
maintains any Electronic Chattel Paper, such Loan Party shall at all times create, store and assign the record or records comprising
the Electronic Chattel Paper in such a manner that (a) a single authoritative copy of the record or records exists which is unique,
identifiable and except as otherwise provided below, unalterable, (b) the authoritative copy identifies Lender as the assignee
of the record or records, (c) the authoritative copy is communicated to and maintained by Lender or its designated custodian,
(d) copies or revisions that add or change an identified assignee of the authoritative copy can only be made with the participation
of Lender, (e) each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy that is not the authoritative
copy and (f) any revision of the authoritative copy is readily identifiable as an authorized or unauthorized revision.


 






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5.6          Capitalization;
Investment Property.


 


(a)           No
Loan Party, directly or indirectly, owns, or shall at any time own, any Equity Interests of any other Person except as set forth
in Sections 1(f) and 1(g) of the Disclosure Schedule, which such Sections of the Disclosure Schedule list all Investment Property
owned by each Loan Party, except in each case for Permitted Investments.


 


(b)           None
of the Pledged Equity has been issued or otherwise transferred in violation of the Securities Act, or other applicable laws of
any jurisdiction to which such issuance or transfer may be subject. The Pledged Equity pledged by each Loan Party hereunder constitutes
all of the issued and outstanding Equity Interests of each Issuer owned by such Loan Party.


 


(c)           All
of the Pledged Equity has been duly and validly issued and is fully paid and non-assessable, and the holders thereof are not entitled
to any preemptive, first refusal, or other similar rights. Except as set forth on Schedule F, there are no outstanding options,
warrants or similar agreements, documents, or instruments with respect to any of the Pledged Equity.


 


(d)           Intentionally
Omitted.


 


(e)           Each
Loan Party will take any and all actions required or reasonably requested by Lender, from time to time, to (i) cause Lender to
obtain exclusive control of any Investment Property in a manner acceptable to Lender and (ii) obtain from any Issuers and such
other Persons as Lender shall specify, for the benefit of Lender, written confirmation of Lender’s exclusive control over
such Investment Property and take such other actions as Lender may reasonably request to perfect Lender’s security interest
in any Investment Property. For purposes of this Section 5.6, Lender shall have exclusive control of Investment Property if (A)
pursuant to Section 3.2, such Investment Property consists of certificated securities and the applicable Loan Party delivers such
certificated securities to Lender (with all appropriate endorsements); (B) such Investment Property consists of uncertificated
securities and either (x) the applicable Loan Party delivers such uncertificated securities to Lender or (y) the Issuer thereof
agrees, pursuant to documentation in form and substance satisfactory to Lender, that it will comply with instructions originated
by Lender without further consent by the applicable Loan Party, and (C) such Investment Property consists of security entitlements
and either (x) Lender becomes the entitlement holder thereof or (y) the appropriate securities intermediary agrees, pursuant to
documentation in form and substance satisfactory to Lender, that it will comply with entitlement orders originated by Lender without
further consent by the applicable Loan Party. Each Loan Party that is a limited liability company or a partnership hereby represents
and warrants that it has not, and at no time will, elect pursuant to the provisions of Section 8-103 of the UCC to provide that
its Equity Interests are securities governed by Article 8 of the UCC.


 






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(f)            No
Loan Party owns, or has any present intention of acquiring, any “margin security” or any “margin stock”
within the meaning of Regulations T, U or X of the Board of Governors of the Federal Reserve System (herein called “margin
security” and “margin stock”). None of the proceeds of the Loans will be used, directly or indirectly, for the
purpose of purchasing or carrying, or for the purpose of reducing or retiring any Indebtedness which was originally incurred to
purchase or carry, any margin security or margin stock or for any other purpose which might constitute the transactions contemplated
hereby a “purpose credit” within the meaning of said Regulations T, U or X, or cause this Agreement to violate any
other regulation of the Board of Governors of the Federal Reserve System or the Exchange Act, or any rules or regulations promulgated
under such statutes.


 


(g)           No
Loan Party shall vote to enable, or take any other action to cause or to permit, any Issuer to issue any Equity Interests of any
nature, or to issue any other securities or interests convertible into or granting the right to purchase or exchange for any Equity
Interests of any nature of any Issuer.


 


(h)           No
Loan Party shall take, or fail to take, any action that would in any manner impair the value or the enforceability of Lender’s
Lien on any of the Investment Property, or any of Lender’s rights or remedies under this Agreement or any other Loan Document
with respect to any of the Investment Property.


 


(i)            In
the case of any Loan Party which is an Issuer, such Issuer agrees that the terms of Section 7.3(g)(iii) of this Agreement shall
apply to such Loan Party with respect to all actions that may be required of it pursuant to such Section 7.3(g)(iii) regarding
the Investment Property issued by it.


 


5.7          Commercial
Tort Claims. No Loan Party has any Commercial Tort Claims pending
other than those listed in Section 2 of the Disclosure Schedule, and each Loan Party shall promptly (but in any case no later
than five (5) Business Days thereafter) notify Lender in writing upon incurring or otherwise obtaining a Commercial Tort Claim
after the date hereof against any third party. Such notice shall constitute such Loan Party’s authorization to amend such
Section 2 to add such Commercial Tort Claim and shall automatically be deemed to amend such Section 2 to include such Commercial
Tort Claim.


 


5.8          Jurisdiction
of Organization; Location of Collateral. Sections 1(c) and 1(d)
of the Disclosure Schedule set forth (a) each place of business of each Loan Party (including its chief executive office), (b)
all locations where all Inventory, Equipment, and other Collateral owned by each Loan Party is kept, and (c) whether each such
Collateral location and/or place of business (including each Loan Party’s chief executive office) is owned by a Loan Party
or leased (and if leased, specifies the complete name and notice address of each lessor). No Collateral is located outside the
United States or in the possession of any lessor, bailee, warehouseman or consignee, except as expressly indicated in Sections
1(c) and 1(d) of the Disclosure Schedule. Each Loan Party will give Lender at least thirty (30) days’ prior written notice
before changing its jurisdiction of organization, opening any additional place of business, changing its chief executive office
or the location of its books and records, and will execute and deliver all financing statements, landlord waivers, collateral
access agreements, mortgages, and all other agreements, instruments and documents which Lender shall require in connection therewith
prior to making such change, all in form and substance satisfactory to Lender. Without the prior written consent of Lender, no
Loan Party will at any time (x) change its jurisdiction of organization or (y) allow any Collateral to be located outside of the
continental United States of America.


 






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5.9          Financial
Statements and Reports; Solvency.


 


(a)           All
financial statements delivered to Lender by or on behalf of any Loan Party have been, and at all times will be, prepared in conformity
with GAAP and completely and fairly reflect, in all material respects, the financial condition of each Loan Party and its Subsidiaries
covered thereby, at the times and for the periods therein stated.


 


(b)           As
of the date hereof (after giving effect to the Loans and Letters of Credit to be made or issued on the date hereof, and the consummation
of the transactions contemplated hereby), and as of each other day that any Loan or Letter of Credit is made or issued (after
giving effect thereof), (i) the fair saleable value of all of the assets and properties of each Loan Party, individually, exceeds
the aggregate liabilities and Indebtedness of each such Loan Party (including contingent liabilities), (ii) each Loan Party, individually,
is solvent and able to pay its debts as they come due, (iii) each Loan Party, individually, has sufficient capital to carry on
its business as now conducted and as proposed to be conducted, (iv) no Loan Party (other than Inactive Loan Parties) is contemplating
either the liquidation of all or any substantial portion of its assets or property, or the filing of any petition under any state,
federal, or other bankruptcy or insolvency law, and (v) no Loan Party has knowledge of any Person contemplating the filing of
any such petition against any Loan Party.


 


5.10       Tax
Returns and Payments; Pension Contributions. Each Loan Party
has timely filed all tax returns and reports required by applicable law, has timely paid all applicable Taxes, assessments, deposits
and contributions owing by such Loan Party and will timely pay all such items in the future as they became due and payable. Each
Loan Party may, however, defer payment of any contested taxes; provided, that such Loan Party (a) in good faith
contests its obligation to pay such Taxes by appropriate proceedings promptly and diligently instituted and conducted; (b) notifies
Lender in writing of the commencement of, and any material development in, the proceedings; (c) posts bonds or takes any other
commercially reasonable steps required to keep the contested taxes from becoming a Lien upon any of the Collateral and (d) maintains
adequate reserves therefor in conformity with GAAP. No Loan Party is aware of any claims or adjustments proposed for any prior
tax years that could result in additional taxes becoming due and payable by any Loan Party. Each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code and other applicable laws. Each Plan that is intended to be
a qualified plan under Section 401(a) of the Code has received a favorable determination letter or opinion letter from the Internal
Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto
has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Code, or
an application for such a letter is currently being processed by the Internal Revenue Service. To the best knowledge of each Loan
Party, nothing has occurred that would prevent or cause the loss of such tax-qualified status. There are no pending or, to the
best knowledge of any Loan Party or any ERISA Affiliate, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could reasonably be expected to result in liabilities individually or in the aggregate
in excess of $50,000 on any Loan Party. There has been no prohibited transaction or violation of the fiduciary responsibility
rules with respect to any Plan that has resulted or could reasonably be expected to result in liabilities individually or in the
aggregate on any Loan Party in excess of $50,000. No ERISA Event has occurred, and no Loan Party or any ERISA Affiliate is aware
of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to
any Pension Plan, in each case that could reasonably be expected to result in liabilities individually or in the aggregate in
excess of $50,000. Each Loan Party and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules
in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied
for or obtained, in each case except as could not reasonably be expected to result in liabilities individually or in the aggregate
to any Loan Party or any ERISA Affiliate in excess of $50,000. As of the most recent valuation date for any Pension Plan, the
funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and no Loan Party or any ERISA
Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage
for any such plan to drop below 60% as of the most recent valuation date; no Loan Party nor any ERISA Affiliate has incurred any
liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are
unpaid, except as could not reasonably be expected to result in liabilities individually or in the aggregate to any Loan Party
or ERISA Affiliate in excess of $50,000. No Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject
to Section 4069 or Section 4212(c) of ERISA except as could not reasonably be expected to result in liabilities individually or
in the aggregate to the Loan Parties in excess of $50,000. No Pension Plan has been terminated by the plan administrator thereof
nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute
proceedings under Title IV of ERISA to terminate any Pension Plan except as could not reasonably be expected to result in liabilities
individually or in the aggregate to the Loan Parties in excess of $50,000.


 






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5.11       Compliance
with Laws; Intellectual Property; Licenses.


 


(a)           Each
Loan Party has complied, and will continue at all times to comply, in all material respects with all provisions of all applicable
laws and regulations, including those relating to the ownership, use or operations of real or personal property, the conduct and
licensing of each Loan Party’s business, the payment and withholding of Taxes, ERISA and other employee matters, and safety
and environmental matters.


 


(b)           No
Loan Party has received written notice of default or violation, nor is any Loan Party in default or violation, with respect to
any judgment, order, writ, injunction, decree, demand or assessment issued by any court or any federal, state, local, municipal
or other Governmental Authority relating to any aspect of any Loan Party’s business, affairs, properties or assets. No Loan
Party has received written notice of or been charged with, or is, to the knowledge of any Loan Party, under investigation with
respect to, any violation in any material respect of any provision of any applicable law. No Loan Party or any real property owned,
leased or used in the operation of the business of any Loan Party is subject to any federal, state or local investigation to determine
whether any remedial action is needed to address any hazardous materials or an environmental release (as that term is defined
under environmental and health and safety laws) at, on, or under any real property currently leased, owned or used by a Loan Party
nor is a Loan Party liable for any environmental release identified or under investigation at, on or under any real property previously
owned, leased or used by a Loan Party. No Loan Party has any contingent liability with respect to any environmental release, environmental
pollution or hazardous material on any real property now or previously owned, leased or operated by it.


 






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(c)           No
Loan Party owns any Intellectual Property, except as set forth in Section 4 of the Disclosure Schedule. Except as set forth in
Section 4 of the Disclosure Schedule, none of the Intellectual Property owned by any Loan Party is the subject of any licensing
or franchise agreement pursuant to which such Loan Party is the licensor or franchisor. Each Loan Party shall promptly (but in
any event within thirty (30) days thereafter) notify Lender in writing of any additional Intellectual Property rights acquired
or arising after the Closing Date and shall submit to Lender a supplement to Section 4 of the Disclosure Schedule to reflect such
additional rights (provided, that such Loan Party’s failure to do so shall not impair Lender’s security
interest therein). Each Loan Party shall execute a separate security agreement granting Lender a security interest in such Intellectual
Property (whether owned on the Closing Date or thereafter), in form and substance acceptable to Lender and suitable for registering
such security interest in such Intellectual Property with the United States Patent and Trademark Office and/or United States Copyright
Office, as applicable (provided, that such Loan Party’s failure to do so shall not impair Lender’s security
interest therein). Each Loan Party owns or has, and will at all times continue to own or have, the valid right to use all material
patents, trademarks, copyrights, software, computer programs, equipment designs, network designs, equipment configurations, technology
and other Intellectual Property used, marketed and sold in such Loan Party’s business, and each Loan Party is in compliance,
and will continue at all times to comply, in all material respects with all licenses, user agreements and other such agreements
regarding the use of Intellectual Property. No Loan Party has any knowledge that, or has received any notice claiming that, any
of such Intellectual Property infringes upon or violates the rights of any other Person.


 


(d)           Each
Loan Party has and will continue at all times to have, all federal, state, local and other licenses and permits required to be
maintained in connection with such Loan Party’s business operations, and its ownership, use and operation of any real property,
and all such licenses and permits, necessary for the operation of the business are valid and will remain and in full force and
effect. Each Loan Party has, and will continue at all times to have, complied with the requirements of such licenses and permits
in all material respects, and has received no written notice of any pending or threatened proceedings for the suspension, termination,
revocation or limitation thereof. No Loan Party is aware of any facts or conditions that could reasonably be expected to cause
or permit any of such licenses or permits to be voided, revoked or withdrawn.


 


(e)           In
addition to and without limiting the generality of clause (a) above, (i) comply in all material respects with applicable provisions
of ERISA and the IRC with respect to all Plans, (ii) without the prior written consent of Lender, not take any action or fail
to take action the result of which could result in a Loan Party or ERISA Affiliate incurring a material liability to the PBGC
or to a Multiemployer Plan (other than to pay contributions or premiums payable in the ordinary course), (iii) allow any facts
or circumstances to exist with respect to one or more Plans that, in the aggregate, reasonably could be expected to result in
a Material Adverse Effect, (iv) not participate in any prohibited transaction that could result in other than a de minimis civil
penalty excise tax, fiduciary liability or correction obligation under ERISA or the IRC, (v) operate each Plan in such a manner
that will not incur any material tax liability under the IRC (including Section 4980B of the IRC), and (vi) furnish to Lender
upon Lender’s written request such additional information about any Plan for which any Loan Party or ERISA Affiliate could
reasonably expect to incur any material liability. With respect to each Pension Plan (other than a Multiemployer Plan) except
as could not reasonably be expected to result in liability to the Loan Parties, the Loan Parties and the ERISA Affiliates shall
(y) satisfy in full and in a timely manner, without incurring any late payment or underpayment charge or penalty and without giving
rise to any Lien, all of the contribution and funding requirements of the IRC and of ERISA, and (z) pay, or cause to be paid,
to the PBGC in a timely manner, without incurring any late payment or underpayment charge or penalty, all premiums required pursuant
to ERISA.


 






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5.12       Litigation. Section 1(e) of the Disclosure Schedule discloses all claims,
proceedings, litigation or investigations pending or (to the best of each Loan Party’s knowledge) threatened against any
Loan Party as of the Closing Date. There is no claim, suit, litigation, proceeding or investigation pending or (to the best of
each Loan Party’s knowledge) threatened by or against or affecting any Loan Party in any court or before any Governmental
Authority (or any basis therefor known to any Loan Party) which may result, either separately or in the aggregate, in liability
in excess of $50,000 for the Loan Parties, in any Material Adverse Effect, or in any material impairment in the ability of any
Loan Party to carry on its business in substantially the same manner as it is now being conducted.


 


5.13       Use
of Proceeds. All proceeds of all Loans and Letters of Credit
shall be used by Borrowers solely (a) with respect to Loans made on the Closing Date, to repay in full Indebtedness to TCUS Financial
LLC, (b) to pay other outstanding Indebtedness (including at least $1,200,000 due to Brightstar), (c) to pay the fees, costs,
and expenses incurred in connection with this Agreement, the other Loan Documents, and the transactions contemplated hereby and
thereby, (d) for Borrowers’ working capital purposes and (e) for such other purposes as specifically permitted pursuant
to the terms of this Agreement. All proceeds of all Loans and Letters of Credit will be used solely for lawful business purposes.


 


5.14       Insurance.


 


(a)           Each
Loan Party will at all times carry property, liability and other insurance, with insurers acceptable to Lender, in such form and
amounts, and with such deductibles and other provisions, as Lender shall reasonably require, and Borrowers will provide Lender
with evidence satisfactory to Lender that such insurance is, at all times, in full force and effect. A true and complete listing
of such insurance as of the Closing Date, including issuers, coverages and deductibles, is set forth in Section 5 of the Disclosure
Schedule. Each property insurance policy shall name Lender as loss payee and shall contain a lender’s loss payable endorsement
in form reasonably acceptable to Lender, each liability insurance policy shall name Lender as an additional insured, and each
business interruption insurance policy shall be collaterally assigned to Lender, all in form and substance reasonably satisfactory
to Lender. All policies of insurance shall provide that they may not be cancelled or changed without at least thirty (30) days’
prior written notice to Lender, and shall otherwise be in form and substance reasonably satisfactory to Lender. Borrowers shall
advise Lender promptly of any policy cancellation, non-renewal, reduction, or material amendment with respect to any insurance
policies maintained by any Loan Party or any receipt by any Loan Party of any notice from any insurance carrier regarding any
intended or threatened cancellation, non-renewal, reduction or material amendment of any of such policies, and Borrowers shall
promptly deliver to Lender copies of all notices and related documentation received by any Loan Party in connection with the same.


 






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(b)           Borrowers
shall deliver to Lender no later than fifteen (15) days prior to the expiration of any then current insurance policies, insurance
certificates evidencing renewal of all such insurance policies required by this Section 5.14. Borrowers shall deliver to Lender,
upon Lender’s request, certificates evidencing such insurance coverage in such form as Lender shall reasonably specify.
If any Loan Party fails to provide Lender with a certificate of insurance or other evidence of the continuing insurance coverage
required by this Agreement within the time period set forth in the first sentence of this Section 5.14(b), Lender may purchase
insurance required by this Agreement at Borrowers’ expense. This insurance may, but need not, protect any Loan Party’s
interests.


 


5.15       Financial,
Collateral and Other Reporting / Notices. Each Loan Party has
kept and will at all times keep adequate records and books of account with respect to its business activities and the Collateral
in which proper entries are made in accordance with GAAP reflecting all its financial transactions. Each Loan Party will cause
to be prepared and furnished to Lender, in each case in a form and in such detail as is acceptable to Lender the following items
(the items to be provided under this Section 5.15 shall be delivered to Lender by posting on Passport 6.0 (or, if requested by
Lender, by another form of Approved Electronic Communication or in writing)).


 


(a)           Annual
Financial Statements. Not later than ninety (90) days after the close of each Fiscal Year, unqualified audited financial statements
of uSell and its Subsidiaries on a consolidated basis, including balance sheet, income statement, and statement of cash flow for
such Fiscal Year, audited and certified (without qualification) by a firm of independent certified public accountants of recognized
standing selected by Borrowers but reasonably acceptable to Lender, together with a copy of any management letter issued in connection
therewith. Notwithstanding the foregoing, Lender acknowledges and agrees that Borrowers’ current independent certified accountants,
Marcum, LLP, are acceptable to Lender. Concurrently with the delivery of such financial statements, Borrowing Agent shall deliver
to Lender a Compliance Certificate, indicating whether (i) Borrowers are in compliance with each of the covenants specified in
Section 5.25, if any, and setting forth a detailed calculation of such covenants, and (ii) any Default or Event of Default is
then in existence;


 


(b)           Interim
Financial Statements. Not later than thirty (30) days after the end of each month hereafter, including the last month of each
Fiscal Year, (i) the Monthly Financial Model and (ii) unaudited interim financial statements of each Loan Party as of the end
of such month and of the portion of such Fiscal Year then elapsed, including balance sheet, income statement, statement of cash
flow, and results of their respective operations during such month and the then-elapsed portion of the Fiscal Year, together with
comparative figures for the same periods in the immediately preceding Fiscal Year and the corresponding figures from the budget
for the Fiscal Year covered by such financial statements, in each case on a consolidated and consolidating basis, certified by
an Authorized Officer of Borrowing Agent as prepared in accordance with GAAP and fairly presenting the consolidated financial
position and results of operations (including management discussion and analysis of such results) of each Loan Party for such
month and period subject only to changes from ordinary course year-end audit adjustments and except that such statements need
not contain footnotes. Concurrently with the delivery of such financial statements, Borrowing Agent shall deliver to Lender a
Compliance Certificate, indicating whether (i) Borrowers are in compliance in all with each of the covenants specified in Section
5.25, if any, and setting forth a detailed calculation of such covenants, and (ii) any Default or Event of Default is then in
existence;


 






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(c)           Borrowing
Base / Collateral Reports / Insurance Certificates / Disclosure Schedules / Other Items. The items described on Schedule D
hereto by the respective dates set forth therein.


 


(d)           Projections,
Etc. Not later than thirty (30) days prior to the end of each Fiscal Year, monthly business projections for the following
Fiscal Year for the Loan Parties on a consolidated and consolidating basis, which projections shall include for each such period
Borrowing Base projections, profit and loss projections, balance sheet projections, income statement projections and cash flow
projections, together with appropriate supporting details and a statement of underlying assumptions used in preparing such projections;


 


(e)           Shareholder
Reports, Etc. To the extent the following are not publicly available on the website of the Securities and Exchange Commission,
promptly after the sending or filing thereof, as the case may be, copies of any proxy statements, financial statements or reports
which each Loan Party has made available to its shareholders and copies of any regular, periodic and special reports or registration
statements which any Loan Party files with the Securities and Exchange Commission or any Governmental Authority which may be substituted
therefor, or any national securities exchange;


 


(f)            ERISA
Reports. Copies of any annual report to be filed pursuant to the requirements of ERISA in connection with each plan subject
thereto promptly upon request by Lender and in addition, each Loan Party shall promptly notify Lender upon having knowledge of
any ERISA Event; and


 


(g)           Tax
Returns. Upon request from Lender, each federal and state income tax return filed by any Loan Party or Other Obligor promptly,
together with such supporting documentation as is supplied to the applicable tax authority with such return and proof of payment
of any amounts owing with respect to such return.


 


(h)           Notification
of Certain Changes. Borrowers will promptly (and in no case later than the earlier of (y) three (3) Business Days after the
occurrence of any of the following and (z) such other date that such information is required to be delivered pursuant to this
Agreement or any other Loan Document) notify Lender in writing of: (i) the occurrence of any Default or Event of Default, (ii)
the occurrence of any event that has had, or may reasonably be expected to have, a Material Adverse Effect, (iii) any change in
any Loan Party’s Senior Officers or directors, (iv) any material investigation, action, suit, proceeding or claim (or any
material development with respect to any existing investigation, action, suit, proceeding or claim) relating to any Loan Party,
any officer or director of a Loan Party, the Collateral or which may result in an adverse impact upon any Loan Party’s business,
assets or financial condition, (v) any violation or asserted violation of any applicable law (including OSHA or any Environmental
Laws), if an adverse resolution could have a Material Adverse Effect or otherwise result in material liability to any Loan Party,
(vi) any event or the existence of any circumstance that has resulted in, or could reasonably be expected to result in, any material
adverse change in the business or financial affairs of any Loan Party, any Default, or any Event of Default, or which would make
any representation or warranty previously made by any Loan Party to Lender untrue in any material respect or constitute a material
breach if such representation or warranty was then being made, (vii) any actual or alleged breaches of any Material Contract or
termination or threat to terminate any Material Contract or any material amendment to or modification of a Material Contract,
or the execution of any new Material Contract by any Loan Party, (viii) any change in any Loan Party’s certified accountant.
In the event of each such notice under this Section 5.15(h), Borrowers shall give notice to Lender of the action or actions that
each Loan Party has taken, is taking, or proposes to take with respect to the event or events giving rise to such notice obligation.


 






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(i)           Other
Information. Promptly upon request, such other data and information (financial and otherwise) as Lender, from time to time,
may reasonably request, bearing upon or related to the Collateral or each Loan Party’s and each Other Obligor’s business
or financial condition or results of operations.


 


5.16       Litigation
Cooperation. Should any third-party suit, regulatory action,
or any other judicial, administrative, or similar proceeding be instituted by or against Lender with respect to any Collateral
or in any manner relating to any Loan Party, this Agreement, any other Loan Document or the transactions contemplated hereby,
each Loan Party shall, without expense to Lender, make available each Loan Party, such Loan Party’s officers, employees
and agents, and any Loan Party’s books and records, without charge, to the extent that Lender may deem them reasonably necessary
in order to prosecute or defend any such suit or proceeding.


 


5.17       Maintenance
of Collateral, Etc. Each Loan Party will maintain all of the
Collateral in good working condition, ordinary wear, tear, damage and casualty incurred in the ordinary course of business excepted,
and no Loan Party will use the Collateral for any unlawful purpose.


 


5.18       Material
Contracts. Except as expressly disclosed in Section 1(h) of
the Disclosure Schedule, no Loan Party is (a) a party to any contract which has had or could reasonably be expected to have a
Material Adverse Effect or (b) in default in the performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (x) any contract to which it is a party or by which any of its assets or properties is bound, which default,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or result in liabilities in excess
of $100,000 or (y) any Material Contract. Except for the contracts and other agreements listed in Section 1(h) of the Disclosure
Schedule, no Loan Party is party, as of the Closing Date, to any (a) employment agreements covering the management of any Loan
Party, (b) collective bargaining agreements or other labor agreements covering any employees of any Loan Party, (c) agreements
for managerial, consulting or similar services to which any Loan Party is a party or by which it is bound, (d) agreements regarding
any Loan Party, its assets or operations or any investment therein to which any of its equity holders is a party, (e) patent licenses,
trademark licenses, copyright licenses or other lease or license agreements to which any Loan Party is a party, either as lessor
or lessee, or as licensor or licensee, (f) distribution, marketing or supply agreements to which any Loan Party is a party, (g)
customer agreements to which any Loan Party is a party (in each case with respect to any contract of the type described in the
preceding clauses (a), (c), (d), (e), (f) and (g) requiring payments of more than $100,000 in the aggregate in any Fiscal Year),
(h) partnership agreements to which any Loan Party is a partner, limited liability company agreements to which any Loan Party
is a member or manager, or joint venture agreements to which any Loan Party is a party, (i) real estate leases, or (j) any other
contract to which any Loan Party is a party where the (x) the breach, nonperformance or cancellation of which, could reasonably
be expected to have a Material Adverse Effect; (each such contract and agreement, described in the immediately preceding clauses
(a) to (j), a “Material Contract”).


 






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5.19       No
Default. No Default or Event of Default has occurred and is
continuing.


 


5.20       No
Material Adverse Change. Since August 31, 2018 there has
been no material adverse change in the financial condition, business, prospects, operations, or properties of any Loan Party or
any Other Obligor.


 


5.21       Full
Disclosure. No written report, notice, certificate, information or other statement delivered or made (including, in
electronic form) by or on behalf of any Loan Party, any Other Obligor or any of their respective Affiliates to Lender in connection
with this Agreement or any other Loan Document contains or will at any time contain any untrue statement of a material fact, or
omits or will at any time omit to state any material fact necessary to make any statements contained herein or therein not misleading.
Except for matters of a general economic or political nature which do not affect any Loan Party or any Other Obligor uniquely,
to the knowledge of the Borrowers there is no fact presently known to any Loan Party which has not been disclosed to Lender, which
has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.


 


5.22       Sensitive
Payments. No Loan Party (a) has made or will at any time make any contributions, payments or gifts to or for the private
use of any governmental official, employee or agent where either the payment or the purpose of such contribution, payment or gift
is illegal under the applicable laws of the United States or the jurisdiction in which made or any other applicable jurisdiction,
(b) has established or maintained or will at any time establish or maintain any unrecorded fund or asset for any purpose or made
any false or artificial entries on its books, (c) has made or will at any time make any payments to any Person with the intention
that any part of such payment was to be used for any purpose other than that described in the documents supporting the payment,
or (d) has engaged in or will at any time engage in any “trading with the enemy” or other transactions violating any
rules or regulations of the Office of Foreign Assets Control or any similar applicable laws, rules or regulations.


 


5.23      
Subordinated Debt.


 


(a)           Borrowers
have furnished Lender a true, correct and complete copy of each of the Subordinated Debt Documents. No statement or representation
made in any of the Subordinated Debt Documents by Borrowers or any other Loan Party or, to Borrowers’ knowledge, any other
Person, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading
in any material respect as of the time that such statement or representation is made. Each of the representations and warranties
of the Loan Parties set forth in each of the Subordinated Debt Documents are true and correct in all material respects.


 






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(b)           The
provisions of the Subordinated Debt Subordination Agreement are enforceable against each holder of the Subordinated Debt. Each
Borrower and each other Loan Party acknowledges that Lender is entering into this Agreement and extending credit and making the
Loans in reliance upon the Subordinated Debt Subordination Agreement and this Section 5.23. All Obligations constitute senior
Indebtedness entitled to the benefits of the subordination provisions contained in the Subordinated Debt Documents.


 


5.24       Negative
Covenants. No Loan Party shall, and no Loan Party shall permit any other Loan Party that is a Subsidiary to, without
Lender’s prior written consent:


 


(a)           merge
or consolidate with another Person, enter into a plan of division under Delaware law (or any comparable event under a different
jurisdiction’s” laws), form any new Subsidiary or acquire any interest in any Person;


 


(b)           acquire
any assets except in the ordinary course of business and as otherwise expressly permitted by this Agreement;


 


(c)           enter
into any transaction outside the ordinary course of business that is not expressly permitted by this Agreement;


 


(d)           sell,
transfer, return, or dispose of any Collateral or other assets with an aggregate value in excess of $25,000 in any calendar month,
except that each Loan Party may sell Inventory in the ordinary course of its business;


 


(e)           make
any loans to, or investments in, any Affiliate or other Person in the form of money or other assets; provided, that
(i) Borrowers may make loans and investments in their respective wholly-owned domestic Subsidiaries that are Loan Parties, (ii)
Parent may make investments in Loan Parties, and (iii) wholly-owned domestic Subsidiaries that are Loan Parties may make loans
and investments amongst themselves;


 


(f)            incur
any Indebtedness other than the Obligations and Permitted Indebtedness;


 


(g)           create,
incur, assume or suffer to exist any Lien or other encumbrance of any nature whatsoever, other than in favor of Lender to secure
the Obligations, on any of the Collateral whether now or hereafter owned, other than Permitted Liens;


 


(h)           guaranty
or otherwise become liable with respect to the obligations of any Person other than (i) the Obligations and (ii) guarantees in
respect of Permitted Indebtedness;


 






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(i)            pay
or declare any dividends or other distributions on any Loan Party’s Equity Interests (except for dividends payable solely
in capital stock or other Equity Interests of such Loan Party) and dividends and distributions to Borrower;


 


(j)            redeem,
retire, purchase or otherwise acquire, directly or indirectly, any of Loan Party’s Equity Interests;


 


(k)           make
any change in any Loan Party’s capital structure from that in place on the Closing Date;


 


(l)           dissolve
or elect to dissolve (except of the dissolution or election to dissolve, in each case, any Inactive Loan Party, so long Lender
receives ten (10) Business Days’ prior written notice thereof and all of the assets of such Inactive Loan Party are contributed
to a Borrower or Parent);


 


(m)          engage,
directly or indirectly, in a business other than the business which is being conducted on the date hereof or any business reasonably
related, incidental or ancillary thereto, wind up its business operations or cease substantially all, or any material portion,
of its normal business operations, or suffer any material disruption, interruption or discontinuance of a material portion of
its normal business operations;


 


(n)           pay
any principal or other amount on any Indebtedness that is contractually subordinated to Lender in violation of the applicable
subordination or intercreditor agreement or optionally prepay, redeem, defease, purchase, or otherwise acquire any Indebtedness
of any Loan Party or its Subsidiaries, other than the Obligations in accordance with this Agreement;


 


(o)           enter
into any transaction with an Affiliate other than on arms-length terms disclosed to Lender in writing;


 


(p)           change
its jurisdiction of organization or enter into any transaction which has the effect of changing its jurisdiction of organization
except as provided for in Section 5.8;


 


(q)           agree,
consent, permit or otherwise undertake to amend or otherwise modify any of the terms or provisions of any Loan Party’s Organic
Documents, except for such amendments or other modifications required by applicable law or that are not adverse to Lender, and
then, only to the extent such amendments or other modifications are fully disclosed in writing to Lender no less than five (5)
Business Days prior to being effectuated;


 


(r)            enter
into or assume any agreement prohibiting the creation or assumption of any Lien on the Collateral to secure the Obligations upon
its properties or assets, whether now owned or hereafter acquired;


 


(s)           create
or otherwise cause or suffer to exist or become effective any encumbrance or restriction (other than any Loan Documents) of any
kind on the ability of any such Person to pay or make any dividends or distributions to Borrowers, to pay any of the Obligations,
to make loans or advances or to transfer any of its property or assets to Borrowers, except customary terms and conditions in
respect of any Permitted Indebtedness or Permitted Liens; or


 






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(t)           agree,
consent, permit or otherwise undertake to amend or otherwise modify any of the terms or provisions of any Subordinated Debt Document
in violation of the Subordinated Debt Subordination Agreement.


 


5.25       Financial
Covenants. Each Loan Party shall at all times comply with the Financial Covenants described on Schedule E.


 


5.26       Employee
and Labor Matters. There is (a) no unfair labor practice complaint pending or, to the knowledge of any Borrower, threatened
against any Loan Party or its Subsidiaries before any Governmental Authority and no grievance or arbitration proceeding pending
or threatened against any Loan Party or its Subsidiaries which arises out of or under any collective bargaining agreement and
that could reasonably be expected to result in a material liability, (b) no strike, labor dispute, slowdown, stoppage or similar
action or grievance pending or threatened in writing against any Loan Party or its Subsidiaries that could reasonably be expected
to result in a material liability, or (c) to the knowledge of any Borrower, after due inquiry, no union representation question
existing with respect to the employees of any Loan Party or its Subsidiaries and no union organizing activity taking place with
respect to any of the employees of any Loan Party or its Subsidiaries. None of any Loan Party or its Subsidiaries has incurred
any liability or obligation under the Worker Adjustment and Retraining Notification Act or similar state law, which remains unpaid
or unsatisfied. The hours worked and payments made to employees of each Loan Party and its Subsidiaries have not been in violation
of the Fair Labor Standards Act or any other applicable legal requirements. All material payments due from any Loan Party or its
Subsidiaries on account of wages and employee health and welfare insurance and other benefits have been paid or accrued as a liability
on the books of Borrowers, except where the failure to do so could not, individually or in the aggregate, reasonably be expected
to result in a material liability.


 


		6.	RELEASE,
                                         LIMITATION OF LIABILITY AND INDEMNITY.



 


6.1         Release.
Each Borrower and each other Loan Party on behalf of itself and its successors, assigns, heirs, and other legal representatives,
hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges Lender and any and all Participants,
their successors and assigns, their Affiliates, their respective directors, officers, employees, attorneys and agents and any
other Person affiliated with or representing Lender (the “Released Parties”) of and from any and all
liability, including all actual or potential claims, demands or causes of action of any kind, nature or description whatsoever,
whether arising in law or equity or under contract or tort or under any state or federal law or otherwise which each Borrower
or any Loan Party or any of their successors, assigns, or other legal representatives has had, now has or has made claim to have
against any of the Released Parties for or by reason of any act, omission, matter, cause or thing whatsoever, including any liability
arising from acts or omissions pertaining to the transactions contemplated by this Agreement and the other Loan Documents, whether
based on errors of judgment or mistake of law or fact, from the beginning of time to and including the Closing Date, whether such
claims, demands and causes of action are matured or known or unknown, except any liability arising solely as the result of the
gross negligence or willful misconduct of such Released Parties, as finally determined by a court of competent jurisdiction. Notwithstanding
any provision in this Agreement to the contrary, this Section 6.1 shall remain operative even after the Termination Date and shall
survive the payment in full of all of the Loans. Such release is made on the date hereof and remade upon each request for a Loan
or Letter of Credit by Borrowers.


 






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6.2         Limitation
of Liability. In no circumstance will any of the Released Parties be liable for lost profits or other special, punitive,
or consequential damages. Notwithstanding any provision in this Agreement to the contrary, this Section 6.2 shall remain operative
even after the Termination Date and shall survive the payment in full of all of the Loans.


 


6.3         Indemnity/Currency
Indemnity.


 


(a)           Each
Loan Party hereby agrees to indemnify the Released Parties and hold them harmless from and against any and all claims, debts,
liabilities, losses, demands, obligations, actions, causes of action, fines, penalties, costs and expenses (including attorneys’
fees and consultants’ fees), of every nature, character and description (including, without limitation, natural resources
damages, property damage and claims for personal injury), which the Released Parties may sustain or incur based upon or arising
out of any of the transactions contemplated by this Agreement or any other Loan Documents or any of the Obligations, including
any transactions or occurrences relating to the issuance of any Letter of Credit, any Collateral relating thereto, any drafts
thereunder and any errors or omissions relating thereto (including, without limitation, any loss or claim due to any action or
inaction taken by the issuer of any Letter of Credit or Lender) (and for this purpose any charges to Lender by any issuer of Letters
of Credit shall be conclusive as to their appropriateness and may be charged to the Loan Account), or any other matter, including
any breach of any covenant or representation or warranty relating to any environmental and health and safety laws or an environmental
release, cause or thing whatsoever occurred, done, omitted or suffered to be done by Lender relating to any Loan Party or the
Obligations (except any such amounts sustained or incurred solely as the result of the gross negligence or willful misconduct
of such Released Parties, as finally determined by a court of competent jurisdiction). Notwithstanding any provision in this Agreement
to the contrary, this Section 6.3 shall remain operative even after the Termination Date and shall survive the payment in full
of all of the Obligations.


 


(b)           If,
for the purposes of obtaining or enforcing judgment in any court in any jurisdiction with respect to this Agreement or any Loan
Document, it becomes necessary to convert into the currency of such jurisdiction (the “Judgment Currency”)
any amount due under this Agreement or under any Loan Document in any currency other than the Judgment Currency (the “Currency
Due”) (or for the purposes of Section 1.7(c)), then, to the extent permitted by law, conversion shall be made at
the exchange rate reasonably selected by Lender on the Business Day before the day on which judgment is given (or for the purposes
of Section 1.7(c), on the Business Day on which the payment was received by the Lender). In the event that there is a change in
such exchange rate between the Business Day before the day on which the judgment is given and the date of receipt by the Lender
of the amount due, each Loan Party shall to the extent permitted by law, on the date of receipt by Lender, pay such additional
amounts, if any, or be entitled to receive reimbursement of such amount, if any as may be necessary to ensure that the amount
received by Lender on such date is the amount in the Judgment Currency which (when converted at such exchange rate on the date
of receipt by Lender in accordance with normal banking procedures in the relevant jurisdiction) is the amount then due under this
Agreement or such Loan Document in the Currency Due. If the amount of the Currency Due (including any Currency Due for purposes
of Section 1.7(c)) which the Lender is so able to purchase is less than the amount of the Currency Due (including any Currency
Due for purposes of Section 1.7(c)) originally due to it, each Loan Party shall to the extent permitted by law jointly and severally
indemnify and save Lender harmless from and against loss or damage arising as a result of such deficiency.


 






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		7.	EVENTS
                                         OF DEFAULT AND REMEDIES.



 


7.1          Events
of Default. The occurrence of any of the following events shall constitute an “Event of Default”:


 


(a)           if
any warranty, representation, statement, report or certificate made or delivered to Lender by or on behalf of any Loan Party or
any Other Obligor is untrue or misleading in any material respect;


 


(b)           if
any Loan Party or any Other Obligor fails to pay to Lender, (i) when due, any principal or interest payment required under this
Agreement or any other Loan Document, or (ii) within three (3) Business Days when due, any other monetary Obligation;


 


(c)           (i)           if
any Loan Party or any Other Obligor defaults in the due observance or performance of any covenant, condition or agreement contained
in Section 3.2, 4.1, 4.6, 4.7, 4.8, 5.2 (limited to the last sentence of Section 5.2), 5.3, 5.13, 5.14, 5.15, 5.17, 5.23, 5.24
or 5.25 of this Agreement or in any provisions of the Post-Closing Agreement;


 


(ii)           if
any Loan Party or any Other Obligor defaults in the due observance or performance of any covenant, condition or agreement contained
in any provision of this Agreement or any other Loan Document and not addressed in clauses Sections 7.1(a), (b) or (c)(i), and
the continuance of such default unremedied for a period of fifteen (15) Business Days; provided, that such fifteen
(15) Business Day grace period shall not be available for any default that is not reasonably capable of being cured within such
period or for any intentional default;


 


(d)           if
one or more judgments aggregating in excess of $100,000 is obtained against any Loan Party or any Other Obligor which remains
unstayed for more than thirty (30) days or is enforced;


 


(e)           any
default with respect to any Indebtedness (other than the Obligations) of any Loan Party or any Other Obligor if (i) such default
shall consist of the failure to pay such Indebtedness when due, whether by acceleration or otherwise, subject to any notice and
cure period associated with such Indebtedness, or (ii) the effect of such default is to permit the holder, subject to all notice
and cure periods associated with such Indebtedness, to accelerate the maturity of any such Indebtedness or to cause such Indebtedness
to become due prior to the stated maturity thereof (without regard to the existence of any subordination or intercreditor agreements),;


 






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(f)            the
dissolution (other than dissolution of any Inactive Loan Party in compliance with Section 5.24(l)), death, termination of existence,
insolvency or business failure or suspension or cessation of business as usual of any Loan Party or any Other Obligor (or of any
general partner of any Loan Party or any Other Obligor if it is a partnership);


 


(g)           if
any Loan Party or any Other Obligor shall: (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator
of it or any of its properties, (ii) admit in writing its inability to pay its debts as they mature, (iii) make a general assignment
for the benefit of creditors, (iv) be adjudicated a bankrupt or insolvent or be the subject of an order for relief under the Bankruptcy
Code or under any bankruptcy or insolvency law of a foreign jurisdiction, (v) file a voluntary petition in bankruptcy, or a petition
or an answer seeking reorganization or an arrangement with creditors, (vi) take advantage of any bankruptcy, reorganization, insolvency,
readjustment of debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition
filed against it in any proceeding under any such law, or (vii) take or permit to be taken any action in furtherance of or for
the purpose of effecting any of the foregoing;


 


(h)           the
commencement of an involuntary case or other proceeding against any Loan Party or any Other Obligor seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar applicable law or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property
and the same is not dismissed within sixty (60) days, or if an order for relief is entered against any Loan Party or any Other
Obligor under any bankruptcy insolvency or other similar applicable law as now or hereafter in effect;


 


(i)            the
actual or attempted revocation or termination of, or limitation or denial of liability under, any guaranty of any of the Obligations,
or any security document securing any of the Obligations, by any Loan Party or Other Obligor;


 


(j)            if
any Loan Party or Other Obligor makes any payment on account of any Indebtedness or obligation which has been contractually subordinated
to the Obligations other than payments which are not prohibited by the applicable subordination provisions pertaining thereto,
or if any Person who has subordinated such Indebtedness or obligations attempts to limit or terminate any applicable subordination
provisions pertaining thereto;


 


(k)           if
there is any actual indictment or conviction of any Borrower, any Guarantor or any of their respective Senior Officers under any
criminal statute in each case related to a felony committed in the direct conduct of any Borrower’s, or such Guarantor’s
business, as applicable;


 


(l)            (i)
any Person not affiliated (defined as any Person who owns less than 3% of the voting Equity Interests of Parent on the Closing
Date) with Parent acquires, directly or indirectly, through one or a series of related transactions, control over more than fifty
percent (50%) of the outstanding voting Equity Interests of Parent on a fully diluted basis, (ii) except in connection with the
dissolution of an Inactive Loan Party as permitted pursuant to this Agreement, Parent shall cease to directly own and control
100% of each class of the outstanding Equity Interests of PhoneX, BCT, Upstream Holding and HD Capital, (iii) a change in the
majority of the board of directors (or similar governing body) of Parent from those directors in place on the Closing Date, (iv)
except in connection with the dissolution of an Inactive Loan Party, Upstream Holdings shall cease to, directly or indirectly,
own and control 100% of each class of the outstanding Equity Interests of Upstream, (v) except in connection with the dissolution
of an Inactive Loan Party, BST shall cease to, directly or indirectly, own and control 100% of each class of the outstanding Equity
Interests of WeSell, or (vi) following the dissolution of an Inactive Loan Party, Parent shall cease to, directly or indirectly,
own and control 100% of each class of the outstanding Equity Interests of the each Subsidiary that was owned by the dissolved
Inactive Loan Party;


 






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(m)          if
(i) Nikhil Raman ceases to be employed as, and actively perform the duties of, the chief executive officer and chief financial
officer of each Loan Party, (ii) Scott Tepfer ceases to be employed as, and actively perform the duties of, the head of sales
of each Loan Party, (iii) Dan Coyne ceases to be employed as, and actively perform the duties of, the head of purchasing of each
Loan Party or (iv) Yasemin Kaya ceases to be employed as, and actively perform the duties of, the controller of each Loan Party,
in each case unless a successor is appointed within sixty (60) days after the termination of such Person’s employment, and
such successor is reasonably satisfactory to Lender;


 


(n)           if
any Lien purported to be created by any Loan Document shall cease to be a valid perfected first priority Lien (subject only to
any priority accorded by law to Permitted Liens) on any material portion of the Collateral, or any Loan Party or any Other Obligor
shall assert in writing that any Lien purported to be created by any Loan Document is not a valid perfected first priority lien
(subject only to any priority accorded by law to Permitted Liens) on the assets or properties purported to be covered thereby;


 


(o)           if
any of the Loan Documents shall cease to be in full force and effect (other than as a result of the discharge thereof in accordance
with the terms thereof or by written agreement of all parties thereto);


 


(p)           if
Lender determines in good faith that the Collateral is insufficient to fully secure the Obligations or that the prospect of payment
or performance of the Obligations is impaired;


 


(q)           if
(A) the outstanding balance of all Revolving Loans and the Letter of Credit Balance exceeds, at any time, the lesser of (x) the
Maximum Revolving Facility Amount and (y) the Borrowing Base or (B) any of the Loan Limits for Revolving Loans are, at any time,
exceeded;


 


(r)           
(i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of any Loan Party or any
ERISA Affiliate under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$50,000, (ii) the existence of any Lien under Section 430(k) or Section 6321 of the Code or Section 303(k) or Section 4068 of
ERISA on any assets of a Loan Party or any ERISA Affiliate, or (iii) a Loan Party or any ERISA Affiliate fails to pay when due,
after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $50,000;


 






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(s)           If
(i) any Loan Party is enjoined, restrained or in any way prevented by any Governmental Authority from conducting any material
part of its business, (ii) any Loan Party suffers the loss, revocation or termination of any material license, permit, lease or
agreement necessary to its business, or (iii) there is a cessation of any material part of any Loan Party’s business for
a material period of time;


 


(t)           (i)
an “Event of Default” (as defined in the Subordinated Debt Documents) has occurred, which “Event of Default”
shall not have been cured or waived within any applicable grace period; (ii) termination or breach of the Subordinated Debt Subordination
Agreement by Borrowers, (iii) the attempt by any Borrower to terminate or challenge in writing the validity of its obligations
under the Subordinated Debt Subordination Agreement or (iv) the Subordinated Debt Subordination Agreement ceases to be enforceable;


 


(u)           at
least ninety (90) days prior to its termination date, the Warehouse Lease is not extended or a new lease is not entered into,
pursuant to terms reasonably acceptable to Lender, for the same location as the Warehouse Lease or another location for which
Lender has received a fully executed landlord agreement, for a term which extends beyond the Scheduled Maturity Date;


 


(v)           at
least ninety (90) days prior to its maturity date, the maturity date of any Subordinated Debt is not extended to a maturity date
which extends at least thirty (30) days beyond the Scheduled Maturity Date;


 


(w)           if
Brightstar is not paid the amount owed under the Brightstar Agreement no later than the due date thereof and the trade payable
to Brightstar is not zero on the ninety first (91st) day following the Closing Date;


 


(x)           if
Excess Availability is less than $0 after subtracting from Excess Availability all amounts due to Brightstar which remain outstanding
beyond the due date thereof;or


 


(y)           if
any Borrower fails to maintain or loses its R2 license or status unless consented to by Lender.


 


7.2          Remedies
with Respect to Lending Commitments/Acceleration/Etc. Upon the occurrence and during the continuance of an Event of
Default Lender may, in Lender’s sole discretion (a) terminate all or any portion of its commitment to lend to or extend
credit to Borrowers under this Agreement and/or any other Loan Document, without prior notice to any Loan Party, and/or (b) demand
payment in full of all or any portion of the Obligations (whether or not payable on demand prior to such Event of Default), together
the Early Payment/Termination Premium in the amount specified in Schedule C, and demand that the Letters of Credit be cash collateralized
in the manner described in Section 1.7(c) and/or (c) take any and all other and further actions and avail itself of any and all
rights and remedies available to Lender under this Agreement, any other Loan Document, under law and/or in equity. Notwithstanding
the foregoing sentence, upon the occurrence of any Event of Default described in Section 7.1(g) or Section 7.1(h), without notice,
demand or other action by Lender all of the Obligations (including without limitation the Early Payment/Termination Premium in
the amount specified in Schedule C) shall immediately become due and payable whether or not payable on demand prior to such Event
of Default.


 






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7.3          Remedies
with Respect to Collateral. Without limiting any rights or remedies Lender may have pursuant to this Agreement, the
other Loan Documents, under applicable law or otherwise, upon the occurrence and during the continuance of an Event of Default:


 


(a)           Any
and All Remedies. Lender may take any and all actions and avail itself of any and all rights and remedies available to Lender
under this Agreement, any other Loan Document, under law or in equity, and the rights and remedies herein and therein provided
shall be cumulative and not exclusive of any rights or remedies provided by applicable law or otherwise.


 


(b)           Collections;
Modifications of Terms. Lender may but shall be under no obligation to (i) notify all appropriate parties that the Collateral,
or any part thereof, has been assigned to Lender; (ii) demand, sue for, collect and give receipts for and take all necessary or
desirable steps to collect any Collateral or Proceeds in its or any Loan Party’s name, and apply any such collections against
the Obligations as Lender may elect; (i) take control of any Collateral and any cash and non-cash Proceeds of any Collateral;
(iii) enforce, compromise, extend, renew settle or discharge any rights or benefits of each Loan Party with respect to or in and
to any Collateral, or deal with the Collateral as Lender may deem advisable; and (iv) make any compromises, exchanges, substitutions
or surrenders of Collateral Lender deems necessary or proper in its reasonable discretion, including extending the time of payment,
permitting payment in installments, or otherwise modifying the terms or rights relating to any of the Collateral, all of which
may be effected without notice to, consent of, or any other action of any Loan Party and without otherwise discharging or affecting
the Obligations, the Collateral or the security interests granted to Lender under this Agreement or any other Loan Document.


 


(c)           Insurance.
Lender may file proofs of loss and claim with respect to any of the Collateral with the appropriate insurer, and may endorse in
its own and each Loan Party’s name any checks or drafts constituting Proceeds of insurance. Any Proceeds of insurance received
by Lender may be applied by Lender against payment of all or any portion of the Obligations as Lender may elect in its reasonable
discretion.


 


(d)           Possession
and Assembly of Collateral. Lender may take possession of the Collateral and/or without removal render each Loan Party’s
Equipment unusable. Upon Lender’s request, each Loan Party shall assemble the Collateral and make it available to Lender
at a place or places to be designated by Lender.


 


(e)           Set-off.
Lender may and without any notice to, consent of or any other action by any Loan Party (such notice, consent or other action being
expressly waived), set-off or apply (i) any and all deposits (general or special, time or demand, provisional or final) at any
time held by or for the account of Lender or any Affiliate of Lender, and/or (ii) any Indebtedness at any time owing by Lender
or any Affiliate of Lender or any Participant in the Loans to or for the credit or the account of any Loan Party, to the repayment
of the Obligations irrespective of whether any demand for payment of the Obligations has been made.


 






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(f)            Disposition
of Collateral.


 


(i)            Sale,
Lease, etc. of Collateral. Lender may, without demand, advertising or notice, all of which each Loan Party hereby waives (except
as the same may be required by the UCC or other applicable law and is not waivable under the UCC or such other applicable law),
at any time or times in one or more public or private sales or other dispositions, for cash, on credit or otherwise, at such prices
and upon such terms as determined by Lender (provided such price and terms are commercially reasonable within the meaning of the
UCC to the extent such sale or other disposition is subject to the UCC requirements that such sale or other disposition must be
commercially reasonable) (A) sell, lease, license or otherwise dispose of any and all Collateral, and/or (B) deliver and grant
options to a third party to purchase, lease, license or otherwise dispose of any and all Collateral. Lender may sell, lease, license
or otherwise dispose of any Collateral in its then-present condition or following any preparation or processing deemed necessary
by Lender in its reasonable discretion. Lender may be the purchaser at any such public or private sale or other disposition of
Collateral, and in such case Lender may make payment of all or any portion of the purchase price therefor by the application of
all or any portion of the Obligations due to Lender to the purchase price payable in connection with such sale or disposition.
Lender may, if it deems it reasonable, postpone or adjourn any sale or other disposition of any Collateral from time to time by
an announcement at the time and place of the sale or disposition to be so postponed or adjourned without being required to give
a new notice of sale or disposition; provided, however, that Lender shall provide the applicable Loan Party with
written notice of the time and place of such postponed or adjourned sale or disposition. Each Loan Party hereby acknowledges and
agrees that Lender’s compliance with any requirements of applicable law in connection with a sale, lease, license or other
disposition of Collateral will not be considered to adversely affect the commercial reasonableness of any sale, lease, license
or other disposition of such Collateral.


 


(ii)           Deficiency.
Each Loan Party shall remain liable for all amounts of the Obligations remaining unpaid as a result of any deficiency of the
Proceeds of the sale, lease, license or other disposition of Collateral after such Proceeds are applied to the Obligations as
provided in this Agreement.


 


(iii)          Warranties;
Sales on Credit. Lender may sell, lease, license or otherwise dispose of the Collateral without giving any warranties and
may specifically disclaim any and all warranties, including but not limited to warranties of title, possession, merchantability
and fitness. Each Loan Party hereby acknowledges and agrees that Lender’s disclaimer of any and all warranties in connection
with a sale, lease, license or other disposition of Collateral will not be considered to adversely affect the commercial reasonableness
of any such disposition of the Collateral. If Lender sells, leases, licenses or otherwise disposes of any of the Collateral on
credit, Borrowers will be credited only with payments actually made in cash by the recipient of such Collateral and received by
Lender and applied to the Obligations. If any Person fails to pay for Collateral acquired pursuant to this Section 7.3(f) on credit,
Lender may re-offer the Collateral for sale, lease, license or other disposition.


 



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(g)          Investment
Property; Voting and Other Rights; Irrevocable Proxy.


 


(i)         All
rights of each Loan Party to exercise any of the voting and other consensual rights which it would otherwise be entitled to exercise
in accordance with the terms hereof with respect to any Investment Property, and to receive any dividends, payments, and other
distributions which it would otherwise be authorized to receive and retain in accordance with the terms hereof with respect to
any Investment Property, shall immediately, at the election of Lender (without requiring any notice) cease, and all such rights
shall thereupon become vested solely in Lender, and Lender (personally or through an agent) shall thereupon be solely authorized
and empowered, without notice, to (A) transfer and register in its name, or in the name of its nominee, the whole or any part of
the Investment Property, it being acknowledged by each Loan Party that any such transfer and registration may be effected by Lender
through its irrevocable appointment as attorney-in-fact pursuant to Section 7.3(g)(ii) and Section 4.4 of this Agreement, (B) exchange
certificates and/or instruments representing or evidencing Investment Property for certificates and/or instruments of smaller or
larger denominations, (C) exercise the voting and all other rights as a holder with respect to all or any portion of the Investment
Property (including, without limitation, all economic rights, all control rights, authority and powers, and all status rights of
each Loan Party as a member or as a shareholder (as applicable) of the Issuer), (D) collect and receive all dividends and other
payments and distributions made thereon, (E) notify the parties obligated on any Investment Property to make payment to Lender
of any amounts due or to become due thereunder, (F) endorse instruments in the name of each Loan Party to allow collection of any
Investment Property, (G) enforce collection of any of the Investment Property by suit or otherwise, and surrender, release, or
exchange all or any part thereof, or compromise or renew for any period (whether or not longer than the original period) any liabilities
of any nature of any Person with respect thereto, (H) consummate any sales of Investment Property or exercise any other rights
as set forth in Section 7.3(f) hereof, (I) otherwise act with respect to the Investment Property as though Lender was the outright
owner thereof, and (J) exercise any other rights or remedies Lender may have under the UCC, other applicable law, or otherwise.


 



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(ii)        EACH
LOAN PARTY HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS LENDER AS ITS PROXY AND ATTORNEY-IN-FACT FOR SUCH LOAN PARTY WITH RESPECT
TO ALL OF EACH SUCH LOAN PARTY’S INVESTMENT PROPERTY WITH THE RIGHT, DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, WITHOUT
NOTICE, TO TAKE ANY OF THE FOLLOWING ACTIONS: (A) TRANSFER AND REGISTER IN LENDER’S NAME, OR IN THE NAME OF ITS NOMINEE,
THE WHOLE OR ANY PART OF THE INVESTMENT PROPERTY, (B) VOTE THE PLEDGED EQUITY, WITH FULL POWER OF SUBSTITUTION TO DO SO, (C) RECEIVE
AND COLLECT ANY DIVIDEND OR ANY OTHER PAYMENT OR DISTRIBUTION IN RESPECT OF, OR IN EXCHANGE FOR, THE INVESTMENT PROPERTY OR ANY
PORTION THEREOF, TO GIVE FULL DISCHARGE FOR THE SAME AND TO INDORSE ANY INSTRUMENT MADE PAYABLE TO ANY LOAN PARTY FOR THE SAME,
(D) EXERCISE ALL OTHER RIGHTS, POWERS, PRIVILEGES, AND REMEDIES (INCLUDING ALL ECONOMIC RIGHTS, ALL CONTROL RIGHTS, AUTHORITY AND
POWERS, AND ALL STATUS RIGHTS OF EACH LOAN PARTY AS A MEMBER OR AS A SHAREHOLDER (AS APPLICABLE) OF THE ISSUER) TO WHICH A HOLDER
OF THE PLEDGED COLLATERAL WOULD BE ENTITLED (INCLUDING, WITH RESPECT TO THE PLEDGED EQUITY, GIVING OR WITHHOLDING WRITTEN CONSENTS
OF MEMBERS OR SHAREHOLDERS, CALLING SPECIAL MEETINGS OF MEMBERS OR SHAREHOLDERS, AND VOTING AT SUCH MEETINGS), AND (E) TAKE ANY
ACTION AND TO EXECUTE ANY INSTRUMENT WHICH LENDER MAY DEEM NECESSARY OR ADVISABLE TO ACCOMPLISH THE PURPOSES OF THIS AGREEMENT.
THE APPOINTMENT OF LENDER AS PROXY AND ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE VALID AND IRREVOCABLE UNTIL (X)
ALL OF THE OBLIGATIONS HAVE BEEN INDEFEASIBLY PAID IN FULL IN CASH IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS, (Y) LENDER HAS NO FURTHER OBLIGATIONS UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, AND (Z) THE COMMITMENTS
UNDER THIS AGREEMENT HAVE EXPIRED OR HAVE BEEN TERMINATED (IT BEING UNDERSTOOD AND AGREED THAT SUCH OBLIGATIONS WILL BE AUTOMATICALLY
REINSTATED IF AT ANY TIME PAYMENT, IN WHOLE OR IN PART, OF ANY OF THE OBLIGATIONS IS RESCINDED OR MUST OTHERWISE BE RESTORED OR
RETURNED BY LENDER FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION, AS A PREFERENCE, FRAUDULENT CONVEYANCE, OR OTHERWISE
UNDER ANY BANKRUPTCY, INSOLVENCY, OR SIMILAR LAW, ALL AS THOUGH SUCH PAYMENT HAD NOT BEEN MADE; IT BEING FURTHER UNDERSTOOD THAT
IN THE EVENT PAYMENT OF ALL OR ANY PART OF THE OBLIGATIONS IS RESCINDED OR MUST BE RESTORED OR RETURNED, ALL REASONABLE OUT-OF-POCKET
COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ALL REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS) INCURRED BY LENDER IN
DEFENDING AND ENFORCING SUCH REINSTATEMENT SHALL HEREBY BE DEEMED TO BE INCLUDED AS A PART OF THE OBLIGATIONS). SUCH APPOINTMENT
OF LENDER AS PROXY AND AS ATTORNEY-IN-FACT SHALL BE VALID AND IRREVOCABLE AS PROVIDED HEREIN NOTWITHSTANDING ANY LIMITATIONS TO
THE CONTRARY SET FORTH IN ANY ORGANIC DOCUMENTS OF ANY LOAN PARTY, ANY ISSUER, OR OTHERWISE.


 


(iii)       In
order to further effect the foregoing transfer of rights in favor of Lender, during the continuance of an Event of Default, each
Loan Party hereby authorizes and instructs each Issuer of Investment Property pledged by such Loan Party to comply with any instruction
received by such Issuer from Lender without any other or further instruction from such Loan Party, and each Loan Party acknowledges
and agrees that each Issuer shall be fully protected in so complying, and to pay any dividends, distributions, or other payments
with respect to any of the Investment Property directly to Lender.


 


(iv)       Upon
exercise of the proxy set forth herein, all prior proxies given by any Loan Party with respect to any of the Pledged Equity or
other Investment Property, as applicable (other than to Lender), are hereby revoked, and no subsequent proxies (other than to Lender)
will be given with respect to any of the Pledged Equity or any of the other Investment Property, as applicable, unless Lender otherwise
subsequently agrees in writing. Lender, as proxy, will be empowered and may exercise the irrevocable proxy to vote the Pledged
Equity and/or the other Investment Property at any and all times during the existence of an Event of Default, including, without
limitation, at any meeting of shareholders or members, as the case may be, however called, and at any adjournment thereof, or in
any action by written consent, and may waive any notice otherwise required in connection therewith. To the fullest extent permitted
by applicable law, Lender shall have no agency, fiduciary, or other implied duties to any Loan Party, any Issuer, any Loan Party,
or any other Person when acting in its capacity as such proxy or attorney-in-fact. Each Loan Party hereby waives and releases any
claims that it may otherwise have against Lender with respect to any breach, or alleged breach, of any such agency, fiduciary or
other duty.


 



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(v)        Any
transfer to Lender or its nominee, or registration in the name of Lender or its nominee, of the whole or any part of the Investment
Property shall be made solely for purposes of effectuating voting or other consensual rights with respect to the Investment Property
in accordance with the terms of this Agreement and is not intended to effectuate any transfer of ownership of any of the Investment
Property. Notwithstanding the delivery by Lender of any instruction to any Issuer or any exercise by Lender of an irrevocable proxy
or otherwise, Lender shall not be deemed the owner of, or assume any obligations or any liabilities whatsoever of the owner or
holder of, any Investment Property unless and until Lender expressly accepts such obligations in a duly authorized and executed
writing and agrees in writing to become bound by the applicable Organic Documents or otherwise becomes the owner thereof under
applicable law (including through a sale as described in Section 7.3(f) hereof). The execution and delivery of this Agreement shall
not subject Lender to, or transfer or pass to Lender, or in any way affect or modify, the liability of any Loan Party under the
Organic Documents of any Issuer or any related agreements, documents, or instruments or otherwise. In no event shall the execution
and delivery of this Agreement by Lender, or the exercise by Lender of any rights hereunder or assigned hereby, constitute an assumption
of any liability or obligation whatsoever of any Loan Party to, under, or in connection with any of the Organic Documents of any
Issuer or any related agreements, documents, or instruments or otherwise.


 


(h)          Election
of Remedies. Lender shall have the right in Lender’s sole discretion to determine which rights, security, Liens and/or
remedies Lender may at any time pursue, foreclose upon, relinquish, subordinate, modify or take any other action with respect to,
without in any way impairing, modifying or affecting any of Lender’s other rights, security, Liens or remedies with respect
to such Property, or any of Lender’s rights or remedies under this Agreement or any other Loan Document.


 


(i)           Lender’s
Obligations. Each Loan Party agrees that Lender shall not have any obligation to preserve rights to any Collateral against
prior parties or to marshal any Collateral of any kind for the benefit of any other creditor of any Loan Party or any other Person.
Lender shall not be responsible to any Loan Party or any other Person for loss or damage resulting from Lender’s failure
to enforce its Liens or collect any Collateral or Proceeds or any monies due or to become due under the Obligations or any other
liability or obligation of any Loan Party to Lender.


 


(j)           Waiver
of Rights by Loan Parties. Except as otherwise expressly provided for in this Agreement or by non-waivable applicable law,
each Loan Party waives: (i) presentment, demand and protest and notice of presentment, dishonor, notice of intent to accelerate,
notice of acceleration, protest, default, nonpayment, maturity, release, compromise, settlement, extension or renewal of any or
all commercial paper, accounts, contract rights, documents, instruments, chattel paper and guaranties at any time held by Lender
on which any Loan Party may in any way be liable, and hereby ratifies and confirms whatever Lender may do in this regard, (ii)
all rights to notice and a hearing prior to Lender’s taking possession or control of, or to Lender’s replevy, attachment
or levy upon, the Collateral or any bond or security which might be required by any court prior to allowing Lender to exercise
any of its remedies and (iii) the benefit of all valuation, appraisal, marshalling and exemption laws.


 



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		8.	LOAN GUARANTY.



 


8.1         Guaranty.
Each Loan Party hereby agrees that it is jointly and severally liable for, and absolutely and unconditionally guarantees to
Lender, the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter,
all of the Obligations and all costs and expenses, including all court costs and reasonable attorneys’ and paralegals’
fees (including allocated costs of in-house counsel and paralegals) and expenses paid or incurred by Lender in endeavoring to
collect all or any part of the Obligations from, or in prosecuting any action against, any Borrower, any Loan Party or any Other
Obligor of all or any part of the Obligations (and such costs and expenses paid or incurred shall be deemed to be included in
the Obligations). Each Loan Party further agrees that the Obligations may be extended or renewed in whole or in part without notice
to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. All
terms of this Loan Guaranty apply to and may be enforced by or on behalf of any branch or Affiliate of Lender that extended any
portion of the Obligations.


 


8.2         Guaranty
of Payment. This Loan Guaranty is a guaranty of payment and not of collection. Each Loan Party waives any right to require
Lender to sue or otherwise take action against any Borrower, any other Loan Party, any Other Obligor, or any other Person obligated
for all or any part of the Obligations, or otherwise to enforce its payment against any Collateral securing all or any part of
the Obligations.


 


8.3         No
Discharge or Diminishment of Loan Guaranty.


 


(a)       Except
as otherwise expressly provided for herein, the obligations of each Loan Party hereunder are unconditional and absolute and not
subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in
cash of all of the Obligations), including: (i) any claim of waiver, release, extension, renewal, settlement, surrender, alteration,
or compromise of any of the Obligations, by operation of law or otherwise; (ii) any change in the corporate existence, structure
or ownership of any Borrower or any other Loan Party; (iii) any insolvency, bankruptcy, reorganization or other similar proceeding
affecting any Borrower or any other Loan Party, or their assets or any resulting release or discharge of any obligation of any
Borrower or any other Loan Party; or (iv) the existence of any claim, setoff or other rights which any Loan Party may have at any
time against any Borrower, any other Loan Party, Lender, or any other Person, whether in connection herewith or in any unrelated
transactions.


 


(b)       The
obligations of each Loan Party hereunder are not subject to any defense or setoff, counterclaim, recoupment, or termination whatsoever
by reason of the invalidity, illegality, or unenforceability of any of the Obligations or otherwise, or any provision of applicable
law or regulation purporting to prohibit payment by any Borrower or any other Loan Party, of the Obligations or any part thereof.


 



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(c)       Further,
the obligations of any Loan Party hereunder are not discharged or impaired or otherwise affected by: (i) the failure of Lender
to assert any claim or demand or to enforce any remedy with respect to all or any part of the Obligations; (ii) any waiver or modification
of or supplement to any provision of any agreement relating to the Obligations; (iii) any release, non-perfection, or invalidity
of any indirect or direct security for all or any part of the Obligations or all or any part of any obligations of any Loan Party;
(iv) any action or failure to act by Lender with respect to any Collateral; or (v) any default, failure or delay, willful or otherwise,
in the payment or performance of any of the Obligations, or any other circumstance, act, omission or delay that might in any manner
or to any extent vary the risk of such Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter
of law or equity (other than the indefeasible payment in full in cash of all of the Obligations).


 


8.4         Defenses
Waived. To the fullest extent permitted by applicable law, each Loan Party hereby waives any defense based on or arising out
of any defense of any Loan Party or the unenforceability of all or any part of the Obligations from any cause, or the cessation
from any cause of the liability of any Loan Party, other than the indefeasible payment in full in cash of all of the Obligations.
Without limiting the generality of the foregoing, each Loan Party irrevocably waives acceptance hereof, presentment, demand, protest
and, to the fullest extent permitted by law, any notice not provided for herein, as well as any requirement that at any time any
action be taken by any Person against any Borrower, any other Obligor, or any other Person. Each Loan Party confirms that it is
not a surety under any state law and shall not raise any such law as a defense to its obligations hereunder. Lender may, at its
election, foreclose on any Collateral held by it by one or more judicial or nonjudicial sales, accept an assignment of any such
Collateral in lieu of foreclosure or otherwise act or fail to act with respect to any Collateral, compromise or adjust any part
of the Obligations, make any other accommodation with any Borrower or any other Loan Party or exercise any other right or remedy
available to it against any Borrower or any other Loan Party, without affecting or impairing in any way the liability of any Loan
Party under this Loan Guaranty except to the extent the Obligations have been fully and indefeasibly paid in cash. To the fullest
extent permitted by applicable law, each Loan Party waives any defense arising out of any such election even though that election
may operate, pursuant to applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy
of any Loan Party against any Borrower or any other Loan Party or any security.


 


8.5         Rights
of Subrogation. No Loan Party will assert any right, claim or cause of action, including, without limitation, a claim of subrogation,
contribution or indemnification that it has against any Borrower or any other Loan Party, or any Collateral, until the Termination
Date.


 


8.6         Reinstatement;
Stay of Acceleration. If at any time any payment of any portion of the Obligations is rescinded or must otherwise be restored
or returned upon the insolvency, bankruptcy, or reorganization of any Borrower or any other Person, or otherwise, each Loan Party’s
obligations under this Loan Guaranty with respect to that payment shall be reinstated at such time as though the payment had not
been made and whether or not Lender is in possession of this Loan Guaranty. If acceleration of the time for payment of any of
the Obligations is stayed upon the insolvency, bankruptcy or reorganization of any Borrower, all such amounts otherwise subject
to acceleration under the terms of any agreement relating to the Obligations shall nonetheless be payable by the Loan Parties
forthwith on demand by Lender. This Section 8.6 shall remain operative even after the Termination Date and shall survive the payment
in full of all of the Obligations.


 



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8.7         Information.
Each Loan Party assumes all responsibility for being and keeping itself informed of Borrowers’ financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent
of the risks that each Loan Party assumes and incurs under this Loan Guaranty, and agrees that Lender shall not have any duty
to advise any Loan Party of information known to it regarding those circumstances or risks.


 


8.8         Termination.
To the maximum extent permitted by law, each Loan Party hereby waives any right to revoke this Loan Guaranty as to future
Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Loan Party acknowledges and agrees that
(a) no such revocation shall be effective until written notice thereof has been received by Lender, (b) no such revocation shall
apply to any Obligations in existence on the date of receipt by Lender of such written notice (including any subsequent continuation,
extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (c) no such
revocation shall apply to any Obligations made or created after such date to the extent made or created pursuant to a legally
binding commitment of Lender, (d) no payment by any Borrower, any other Loan Party, or from any other source, prior to the date
of Lender’s receipt of written notice of such revocation shall reduce the maximum obligation of any Loan Party hereunder,
and (e) any payment, by any Borrower or from any source other than a Loan Party which has made such a revocation, made subsequent
to the date of such revocation, shall first be applied to that portion of the Obligations as to which the revocation is effective
and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of any
Loan Party hereunder.


 


8.9         Maximum
Liability. The provisions of this Loan Guaranty are severable, and in any action or proceeding involving any federal or state
corporate law or other law governing business entities, or any state, federal or foreign bankruptcy, insolvency, reorganization
or other law affecting the rights of creditors generally, if the obligations of any Loan Party under this Loan Guaranty would
otherwise be held or determined to be avoidable, invalid or unenforceable on account of the amount of such Loan Party’s
liability under this Loan Guaranty, then, notwithstanding any other provision of this Loan Guaranty to the contrary, the amount
of such liability shall, without any further action by the Loan Parties or Lender, be automatically limited and reduced to the
highest amount that is valid and enforceable as determined in such action or proceeding (such highest amount determined hereunder
being the relevant Loan Party’s “Maximum Liability”). This Section with respect to the Maximum
Liability of each Loan Party is intended solely to preserve the rights of Lender to the maximum extent not subject to avoidance
under applicable law, and no Loan Party nor any other Person shall have any right or claim under this Section with respect to
such Maximum Liability, except to the extent necessary so that the obligations of any Loan Party hereunder shall not be rendered
voidable under applicable law. Each Loan Party agrees that the Obligations may at any time and from time to time exceed the Maximum
Liability of each Loan Party without impairing this Loan Guaranty or affecting the rights and remedies of Lender hereunder, provided,
that, nothing in this sentence shall be construed to increase any Loan Party’s obligations hereunder beyond its Maximum
Liability.


 



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8.10       Contribution.
In the event any Loan Party shall make any payment or payments under this Loan Guaranty or shall suffer any loss as a result
of any realization upon any collateral granted by it to secure its obligations under this Loan Guaranty (such Loan Party a “Paying
Guarantor”), each other Loan Party (each a “Non-Paying Guarantor”) shall contribute to
such Paying Guarantor an amount equal to such Non-Paying Guarantor’s “Applicable Percentage” of such payment
or payments made, or losses suffered, by such Paying Guarantor. For purposes of this Section 8.10, each Non-Paying Guarantor’s
“Applicable Percentage” with respect to any such payment or loss by a Paying Guarantor shall be determined as of the
date on which such payment or loss was made by reference to the ratio of (a) such Non-Paying Guarantor’s Maximum Liability
as of such date (without giving effect to any right to receive, or obligation to make, any contribution hereunder) or, if such
Non-Paying Guarantor’s Maximum Liability has not been determined, the aggregate amount of all monies received by such Non-Paying
Guarantor from Borrowers after the date hereof (whether by loan, capital infusion or by other means) to (b) the aggregate Maximum
Liability of all Loan Parties hereunder (including such Paying Guarantor) as of such date (without giving effect to any right
to receive, or obligation to make, any contribution hereunder), or to the extent that a Maximum Liability has not been determined
for any Loan Party, the aggregate amount of all monies received by such Loan Parties from Borrowers after the date hereof (whether
by loan, capital infusion or by other means). Nothing in this provision shall affect any Loan Party’s several liability
for the entire amount of the Obligations (up to such Loan Party’s Maximum Liability). Each of the Loan Parties covenants
and agrees that its right to receive any contribution under this Loan Guaranty from a Non-Paying Guarantor shall be subordinate
and junior in right of payment to the payment in full in cash of all of the Obligations. This provision is for the benefit of
Lender and the Loan Parties and may be enforced by any one, or more, or all of them in accordance with the terms hereof.


 


8.11       Liability
Cumulative. The liability of each Loan Party under this Section 8 is in addition to and shall be cumulative with all liabilities
of each Loan Party to Lender under this Agreement and the other Loan Documents to which such Loan Party is a party or in respect
of any obligations or liabilities of the other Loan Parties, without any limitation as to amount, unless the instrument or agreement
evidencing or creating such other liability specifically provides to the contrary.


 


		9.	PAYMENTS FREE OF TAXES; OBLIGATION TO WITHHOLD; PAYMENTS ON ACCOUNT OF TAXES.



 


(a)       Any
and all payments by or on account of any obligation of the Loan Parties hereunder or under any other Loan Document shall to the
extent permitted by applicable laws be made free and clear of and without reduction or withholding for any Taxes. If, however,
applicable laws require the Loan Parties to withhold or deduct any Tax, such Tax shall be withheld or deducted in accordance with
such laws as the case may be, upon the basis of the information and documentation to be delivered pursuant to clause (e) below.


 



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(b)       If
any Loan Party shall be required by applicable law to withhold or deduct any Taxes from any payment, then (i) such Loan Party shall
withhold or make such deductions as are required based upon the information and documentation it has received pursuant to clause
(e) below, (ii) such Loan Party shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in
accordance with the applicable law, and (iii) to the extent that the withholding or deduction is made on account of Indemnified
Taxes, the sum payable by the Loan Parties shall be increased as necessary so that after any required withholding or the making
of all required deductions (including deductions applicable to additional sums payable under this Section) the Recipient receives
an amount equal to the sum it would have received had no such withholding or deduction been made. Upon request by Lender or other
Recipient, Borrowers shall deliver to Lender or such other Recipient, as the case may be, the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment of Indemnified Taxes, a copy of any return required by applicable
law to report such payment or other evidence of such payment reasonably satisfactory to Lender or such other Recipient, as the
case may be.


 


(c)       Without
limiting the provisions of subsections (a) and (b) above, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.


 


(d)       Without
limiting the provisions of subsections (a) through (c) above, each Loan Party shall, and does hereby, on a joint and several basis
indemnify Lender and each other Recipient (and their respective directors, officers, employees, affiliates and agents) and shall
make payment in respect thereof within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes and Other
Taxes (including Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section)
paid or incurred by Lender or any other Recipient on account of, or in connection with any Loan Document or a breach by a Loan
Party thereof, and any penalties, interest and related expenses and losses arising therefrom or with respect thereto (including
the fees, charges and disbursements of any counsel or other tax advisor for Lender or any other Recipient (or their respective
directors, officers, employees, affiliates, and agents)), whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of any such payment or liability
delivered to Borrowers shall be conclusive absent manifest error. Notwithstanding any provision in this Agreement to the contrary,
this Section 9 shall remain operative even after the Termination Date and shall survive the payment in full of all of the Loans.


 


(e)       Lender
shall deliver to Borrowers and each Participant shall deliver to the applicable Lender granting the participation, at the time
or times prescribed by applicable laws, such properly completed and executed documentation prescribed by applicable laws or by
the taxing authorities of any jurisdiction and such other reasonably requested information as will permit Borrowers or Lender granting
a participation, as the case may be, to determine (i) whether or not payments made hereunder or under any other Loan Document are
subject to Taxes, (ii) if applicable, the required rate of withholding or deduction, and (iii) such Lender’s or Participant’s
entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Recipient
by the Loan Parties pursuant to this Agreement or otherwise to establish such Recipient’s status for withholding tax purposes
in the applicable jurisdiction; provided, that each Recipient shall only be required to deliver such documentation
as it may legally provide.


 



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Without limiting the generality of the
foregoing, if a Borrower is resident for tax purposes in the United States:


 


(i)         Lender
(or Participant) that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver
to Borrowers (or Lender granting a participation as applicable) an executed original of Internal Revenue Service Form W-9 or such
other documentation or information prescribed by applicable law or reasonably requested by Borrowers (or Lender granting a participation)
as will enable Borrowers (or Lender granting a participation) as the case may be, to determine whether or not such Lender (or Participant)
is subject to backup withholding or information reporting requirements under the Code; and


 


(ii)        Lender
(or Participant) that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code (a “Non-U.S.
Recipient”) shall deliver to Borrowers (and Lender granting a participation in case the Non-U.S. Recipient is
a Participant) and Lender on or prior to the date on which such Non-U.S. Person becomes a party to this Agreement or a Participant
(and from time to time thereafter upon the reasonable request of Borrowers or Lender granting the participation but only if such
Non-U.S. Recipient is legally entitled to do so), whichever of the following is applicable: (A) executed originals of Internal
Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party; (B)
executed originals of Internal Revenue Service Form W-8ECI; (C) executed originals of Internal Revenue Service Form W-8IMY and
all required supporting documentation; (D) each Non-U.S. Recipient claiming the benefits of the exemption for portfolio interest
under section 881(c) of the Code, shall provide (x) a certificate to the effect that such Non-U.S. Recipient is not (I) a “bank”
within the meaning of section 881(c)(3)(A) of the Code, (II) a “10 percent shareholder” of a Borrower within the meaning
of section 881(c)(3)(B) of the Code, or (III) a “controlled foreign corporation” described in section 881(c)(3)(C)
of the Code and (y) executed originals of Internal Revenue Service Form W-8BEN; and/or (E) executed originals of any other form
prescribed by applicable law (including FATCA) as a basis for claiming exemption from or a reduction in United States Federal withholding
tax together with such supplementary documentation as may be prescribed by applicable law to permit Borrowers or any Lender granting
a participation, to determine the withholding or deduction required to be made. Each Non-U.S. Recipient shall promptly notify Borrowers
(or any Lender granting a participation if the Non-U.S. Recipient is a Participant) of any change in circumstances which would
modify or render invalid any claimed exemption or reduction.


 



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		10.	GENERAL PROVISIONS.



 


10.1       Notices.


 


(a)       Notice
by Approved Electronic Communications.


 


Lender and each of its
Affiliates is authorized to transmit, post or otherwise make or communicate, in its sole discretion (but shall not be required
to do so), by Approved Electronic Communications in connection with this Agreement or any other Loan Document and the transactions
contemplated therein. Lender is hereby authorized to establish procedures to provide access to and to make available or deliver,
or to accept, notices, documents and similar items by posting to Passport 6.0. Each of the Loan Parties and Lender hereby acknowledges
and agrees that the use of Passport 6.0 and other Approved Electronic Communications is not necessarily secure and that there are
risks associated with such use, including risks of interception, disclosure and abuse and each indicates it assumes and accepts
such risks by hereby authorizing Lender and each of its Affiliates to transmit Approved Electronic Communications. Passport 6.0
and all Approved Electronic Communications shall be provided “as is” and “as available”. None of Lender
or any of its Affiliates or related persons warrants the accuracy, adequacy or completeness of Passport 6.0 or any other electronic
platform or electronic transmission and disclaims all liability for errors or omissions therein. No warranty of any kind is made
by Lender or any of its Affiliates or related persons in connection with Passport 6.0 or any other electronic platform or electronic
transmission, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights
or freedom from viruses or other code defects. Each Borrower and each other Loan Party executing this Agreement agrees that Lender
has no responsibility for maintaining or providing any equipment, software, services or any testing required in connection with
Passport 6.0, any Approved Electronic Communication or otherwise required for Passport 6.0 or any Approved Electronic Communication.


 


Prior to the Closing
Date, Borrowing Agent shall deliver to Lender a complete and executed Client User Form regarding Borrowing Agent’s use of
Passport 6.0 in the form of Exhibit C annexed hereto.


 


No Approved Electronic
Communications shall be denied legal effect merely because it is made electronically. Approved Electronic Communications that are
not readily capable of bearing either a signature or a reproduction of a signature may be signed, and shall be deemed signed, by
attaching to, or logically associating with such Approved Electronic Communication, an E-Signature, upon which Lender and the Loan
Parties may rely and assume the authenticity thereof. Each Approved Electronic Communication containing a signature, a reproduction
of a signature or an E-Signature shall, for all intents and purposes, have the same effect and weight as a signed paper original.
Each E-Signature shall be deemed sufficient to satisfy any requirement for a “signature” and each Approved Electronic
Communication shall be deemed sufficient to satisfy any requirement for a “writing”, in each case including pursuant
to this Agreement, any other Loan Document, the Uniform Commercial Code, the Federal Uniform Electronic Transactions Act, the Electronic
Signatures in Global and National Commerce Act and any substantive or procedural law governing such subject matter. Each party
or beneficiary hereto agrees not to contest the validity or enforceability of an Approved Electronic Communication or E-Signature
under the provisions of any applicable law requiring certain documents to be in writing or signed; provided, that
nothing herein shall limit such party’s or beneficiary’s right to contest whether an Approved Electronic Communication
or E-Signature has been altered after transmission.


 



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(b)       All
Other Notices.


 


All notices, requests,
demands and other communications under or in respect of this Agreement or any transactions hereunder, other than those approved
for or required to be delivered by Approved Electronic Communications (including via Passport 6.0 or otherwise pursuant to Section
10.1(a)), shall be in writing and shall be personally delivered or mailed (by prepaid registered or certified mail, return receipt
requested), sent by prepaid recognized overnight courier service, or by email to the applicable party at its address or email address
indicated below,


 


If to Lender:


 


Siena Lending Group LLC

9 W Broad Street, 6th Floor

Stamford, Connecticut 06902

Attention: Steve Sanicola

Email: ssanicola@sienalending.com


 


with a copy to:


 


Loeb & Loeb LLP

345 Park Avenue

New York, New York 10154

Attention: Miriam L. Cohen, Esq.

Email: mcohen@loeb.com


 


If to Borrowers or any other Loan Party:


 


uSell.com, Inc

150 Executive Dr., Suite Q

Edgewood, New York 11717

Attention: Nikhil Raman

Email: nik@usell.com


 


with a copy to:


 


Nason, Yeager, Gerson, White & Lioce, P.A.

3001 PGA Blvd., Suite 305

Palm Beach Gardens, Florida 33410

Attention: Michael D. Harris, Esq.

Email: mharris@nasonyeager.com


 


or, as to each party, at such other address
as shall be designated by such party in a written notice to the other party delivered as aforesaid. All such notices, requests,
demands and other communications shall be deemed given (i) when personally delivered, (ii) three (3) Business Days after being
deposited in the mails with postage prepaid (by registered or certified mail, return receipt requested), (iii) one (1) Business
Day after being delivered to the overnight courier service, if prepaid and sent overnight delivery, addressed as aforesaid and
with all charges prepaid or billed to the account of the sender, or (iv) when sent by email transmission to an email address designated
by such addressee and the sender receives a confirmation of transmission.


 



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10.2       Severability.
If any provision of this Agreement or any other Loan Document is held invalid or unenforceable, either in its entirety or
by virtue of its scope or application to given circumstances, such provision shall thereupon be deemed modified only to the extent
necessary to render same valid, or not applicable to given circumstances, or excised from this Agreement or such other Loan Document,
as the situation may require, and this Agreement and the other Loan Documents shall be construed and enforced as if such provision
had been included herein as so modified in scope or application, or had not been included herein or therein, as the case may be.


 


10.3       Integration.
This Agreement and the other Loan Documents represent the final, entire and complete agreement between each Loan Party party
hereto and thereto and Lender and supersede all prior and contemporaneous negotiations, oral representations and agreements, all
of which are merged and integrated into this Agreement. THERE ARE NO ORAL UNDERSTANDINGS, REPRESENTATIONS OR AGREEMENTS BETWEEN
THE PARTIES THAT ARE NOT SET FORTH IN THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.


 


10.4       Waivers.
The failure of Lender at any time or times to require any Loan Party to strictly comply with any of the provisions of this
Agreement or any other Loan Documents shall not waive or diminish any right of Lender later to demand and receive strict compliance
therewith. Any waiver of any default shall not waive or affect any other default, whether prior or subsequent, and whether or
not similar. None of the provisions of this Agreement or any other Loan Document shall be deemed to have been waived by any act
or knowledge of Lender or its agents or employees, but only by a specific written waiver signed by an authorized officer of Lender
and delivered to Borrowers. Once an Event of Default shall have occurred, it shall be deemed to continue to exist and not be cured
or waived unless specifically cured pursuant to the terms of this Agreement or waived in writing by an authorized officer of Lender
and delivered to Borrowers. Each Loan Party waives demand, protest, notice of protest and notice of default or dishonor, notice
of payment and nonpayment, release, compromise, settlement, extension or renewal of any commercial paper, Instrument, Account,
General Intangible, Document, Chattel Paper, Investment Property or guaranty at any time held by Lender on which such Loan Party
is or may in any way be liable, and notice of any action taken by Lender, unless expressly required by this Agreement, and notice
of acceptance hereof.


 


10.5       Amendment.
This Agreement may not be amended or modified except in a writing executed by Borrowers, the other Loan Parties party hereto
(to the extent such amendment is directly adverse to such Loan Party), and Lender.


 


10.6       Time
of Essence. Time is of the essence in the performance by each Loan Party of each and every obligation under this Agreement
and the other Loan Documents.


 



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10.7       Expenses,
Fee and Costs Reimbursement. Borrowers hereby agree to promptly and jointly and severally pay (a) all fees, costs and expenses
of Lender (including Lender’s underwriting fees) and (b) all out of pocket fees, costs and expenses of legal counsel to,
and appraisers, accountants, consultants and other professionals and advisors retained by or on behalf of, Lender, all of which
shall be reasonable, prior to the occurrence and continuance of an Event of Default, in connection with: (i) all loan proposals
and commitments pertaining to the transactions contemplated hereby (whether or not such transactions are consummated), (ii) the
examination, review, due diligence investigation, documentation, negotiation, and closing of the transactions contemplated by
the Loan Documents (whether or not such transactions are consummated), (iii) the creation, perfection and maintenance of Liens
pursuant to the Loan Documents, (iv) the performance by Lender of its rights and remedies under the Loan Documents, (v) the administration
of the Loans (including usual and customary fees for wire transfers and other transfers or payments received by Lender on account
of any of the Obligations) and Loan Documents, (vi) any amendments, modifications, consents and waivers to and/or under any and
all Loan Documents (whether or not such amendments, modifications, consents or waivers are consummated), (vii) any periodic public
record searches conducted by or at the request of Lender (including, title investigations and public records searches), pending
litigation and tax lien searches and searches of applicable corporate, limited liability company, partnership and related records
concerning the continued existence, organization and good standing of certain Persons), (viii) protecting, storing, insuring,
handling, maintaining, auditing, examining, valuing or selling any Collateral, (ix) any litigation, dispute, suit or proceeding
relating to any Loan Document, and (x) any workout, collection, bankruptcy, insolvency and other enforcement proceedings under
any and all of the Loan Documents (it being agreed that such costs and expenses may include the costs and expenses of workout
consultants, investment bankers, financial consultants, appraisers, valuation firms and other professionals and advisors retained
by or on behalf of Lender), and (c) without limitation of the preceding clauses (a) and (b), all out of pocket costs and expenses
of Lender in connection with Lender’s reservation of funds in anticipation of the funding of the initial Loans to be made
hereunder. Any fees, costs and expenses owing by Borrowers or any other Loan Party hereunder shall be due and payable within three
(3) days after written demand therefor. Benefit of Agreement; Assignability; Servicer.


 


(a)       The
provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors, assigns, heirs, beneficiaries
and representatives of Borrowers, each other Loan Party party hereto and Lender; provided, that neither any Borrower
nor any other Loan Party may assign or transfer any of its rights under this Agreement without the prior written consent of Lender,
and any prohibited assignment shall be void. No consent by Lender to any assignment shall release any Loan Party from its liability
for any of the Obligations. Lender shall have the right to assign all or any of its rights and obligations under the Loan Documents
to one or more other Persons, and each Loan Party agrees, to the extent applicable, to execute any agreements, instruments and
documents requested by Lender in connection with any such assignments. Notwithstanding any provision of this Agreement or any other
Loan Document to the contrary, Lender may at any time pledge or grant a security interest in all or any portion of its rights under
this Agreement and the other Loan Documents to secure obligations of Lender, including any pledge or grant to secure obligations
to a Federal Reserve Bank.


 



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(b)       In
the event of any assignment by Lender of its rights and obligations under the Loan Documents to an Affiliate of Lender (an “Affiliate
Assignee”) and at all times thereafter, Servicer shall be deemed to act as servicer and agent for the applicable
Affiliate Assignee, and Servicer will retain the sole right to enforce this Agreement and the other Loan Documents, to approve
any amendment, restatement, modification, supplement or waiver of any provision of this Agreement or any other Loan Document, and
to receive or collect all payments with respect to the Obligations. By acceptance of any such assignment, each Affiliate Assignee
irrevocably appoints Servicer as servicer and agent for the purposes of servicing and managing the Loans, and authorizes Servicer
to take such actions and to exercise such powers on behalf of such Affiliate Assignee as are reasonably necessary or advisable
and incidental thereto, including the sole and exclusive authority to: (i) possess, keep and maintain books and records with respect
to the Loans, (ii) receive, process, account for, deliver or arrange for the delivery of, all Collections in accordance with the
terms of this Agreement; (iii) monitor and pursue payment of all Obligations; (iv) monitor, manage and perfect security interests
in all Collateral for the Obligations, including without limitation, to make the determination of whether any Accounts and Inventory
constitute Eligible Accounts or Eligible Inventory, as applicable, or whether to impose, modify or release any Reserve; (v) exercise
any rights or remedies with respect to the Obligations and the Collateral available under law or in equity, including, without
limitation, any non-judicial and judicial enforcement, liquidation and collection of the Obligations, and the engagement of attorneys
and other professionals for such purpose; and (vi) take all lawful actions and procedures required to (A) cause Borrowers to promptly
and diligently comply with Borrowers’ obligations under the Loan Documents; (B) maximize the value of the Collateral; and
(C) collect and enforce payment of all Obligations. Each Affiliate Assignee agrees that any action taken by Servicer in accordance
with the terms of this Agreement or the other Loan Documents, and the exercise by Servicer of its powers set forth herein or therein,
together with such other powers that are reasonably incidental thereto, shall be authorized by and binding upon all of the Affiliate
Assignees. Servicer’s exercise of its discretion in connection with the foregoing matters, if exercised in good faith, shall
exonerate Servicer from liability to any Affiliate Assignee and other Person for any error in judgment. Servicer may perform any
and all of its duties and exercise its rights and powers by or through any one or more agents appointed by Servicer. Servicer shall
not be liable to any Affiliate Assignee for any action taken or omitted to be taken under the Loan Documents, except for losses
directly and solely caused by the Servicer’s gross negligence or willful misconduct, as finally determined by a court of
competent jurisdiction, and Servicer does not assume any responsibility for any failure or delay in performance or any breach by
any Loan Party or any other Person of any obligations under the Loan Documents. In the event that a petition seeking relief under
Title 11 of the United States Code or any other Federal, state or foreign bankruptcy, insolvency, liquidation or similar law is
filed by or against any Loan Party, or any other Person obligated under any Loan Document, Servicer is authorized, to the fullest
extent permitted by applicable law, to act on behalf of the Affiliate Assignees in connection with such proceeding, including,
without limitation, to file proofs of claim on behalf of itself and the Affiliate Assignees in such proceeding for the total amount
of obligations owed by Loan Parties, or any of them, or any other Person under any Loan Document.


 



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(c)       Servicer
may resign on sixty (60) days written notice to Lender and Borrowing Agent and upon such resignation, Lender will promptly designate
a successor Servicer reasonably satisfactory to Borrowers (provided that no such approval by Borrowers shall be required (i) in
any case where the successor Servicer is one of the Lender or an Affiliate or Subsidiary of the Lender or (ii) after the occurrence
and during the continuance of any Event of Default). Any such successor Servicer shall succeed to the rights, powers and duties
of Servicer, and shall in particular succeed to all of Servicer’s right, title and interest in and to all of the Liens in
the Collateral securing the Obligations created hereunder or any other Loan Document (including the Pledge Agreement and all account
control agreements), and the term “Servicer” shall mean such successor Servicer effective upon its appointment, and
the former Servicer’s rights, powers and duties as Servicer shall be terminated, without any other or further act or deed
on the part of such former Servicer. However, notwithstanding the foregoing, if at the time of the effectiveness of the new Servicer’s
appointment, any further actions need to be taken in order to provide for the legally binding and valid transfer of any Liens in
the Collateral from former Servicer to new Servicer and/or for the perfection of any Liens in the Collateral as held by new Servicer
or it is otherwise not then possible for new Servicer to become the holder of a fully valid, enforceable and perfected Lien as
to any of the Collateral, former Servicer shall continue to hold such Liens solely as Servicer for perfection of such Liens on
behalf of new Servicer until such time as new Servicer can obtain a fully valid, enforceable and perfected Lien on all Collateral,
provided that Servicer shall not be required to or have any liability or responsibility to take any further actions after such
date as such Servicer for perfection to continue the perfection of any such Liens (other than to forego from taking any affirmative
action to release any such Liens). After any Servicer’s resignation as Servicer, the provisions of this Section 10.8, and
any indemnification rights under this Agreement, including without limitation, rights arising under Section 10.7 hereof, shall
inure to its benefit as to any actions taken or omitted to be taken by it while it was Servicer under this Agreement (and in the
event resigning Servicer continues to hold any Liens pursuant to the provisions of the immediately preceding sentence, the provisions
of this Section 10.8 and any indemnification rights under this Agreement, including without limitation, rights arising under Article
6 hereof, shall inure to its benefit as to any actions taken or omitted to be taken by it in connection with such Liens).


 


10.8       Recordation
of Assignment. In respect of any assignment of all or any portion of any Lender’s interest in this Agreement and/or
any other Loan Documents at any time and from time to time, the following provisions shall be applicable:


 


(a)       Borrowers,
or any agent appointed by Borrowers, shall maintain a register (the “Register”) in which there shall
be recorded the name and address of each Person holding any Loans or any commitment to lend hereunder, and the principal amount
and stated interest payable to such Person hereunder or committed by such Person under such Person’s lending commitment.
Borrowers hereby irrevocably appoint Lender (and/or any subsequent Lender appointed by Lender then maintaining the Register) as
Borrowers’ non-fiduciary agent for the purpose of maintaining the Register.


 


(b)       In
connection with any negotiation, transfer or assignment as aforesaid, the transferor/assignor shall deliver to Lender then maintaining
the Register an assignment and assumption agreement executed by the transferor/assignor and the transferee/assignee, setting forth
the specifics of the subject transaction, including but not limited to the amount and nature of Obligations and/or lending commitments
being transferred or assigned (and being assumed, as applicable), and the proposed effective date of such transfer or assignment
and the related assumption (if applicable).


 


(c)       Subject
to receipt of any required tax forms reasonably required by Lender, such Person shall record the subject transfer, assignment and
assumption in the Register. Anything contained in this Agreement or other Loan Document to the contrary notwithstanding, no negotiation,
transfer or assignment shall be effective until it is recorded in the Register pursuant to this Section 10.9(c). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest error; and each Borrower and each Lender shall treat
each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement and the other Loan
Documents. The Register shall be available for inspection by each Borrower and each Lender at any reasonable time and from time
to time upon reasonable prior notice.


 



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10.9       Participations.
Anything in this Agreement or any other Loan Document to the contrary notwithstanding, Lender may, at any time and from time
to time, without in any manner affecting or impairing the validity of any Obligations, sell to one or more Persons participating
interests in its Loans, commitments and/or other interests hereunder and/or under any other Loan Document (any such Person, a
“Participant”). In the event of a sale by Lender of a participating interest to a Participant, (a) such
Lender’s obligations hereunder and under the other Loan Documents shall remain unchanged for all purposes, (b) Borrowers
and Lender shall continue to deal solely and directly with each other in connection with Lender’s rights and obligations
hereunder and under the other Loan Documents and (c) all amounts payable by Borrowers shall be determined as if Lender had not
sold such participation and shall be paid directly to Lender, provided, however, a Participant shall be entitled
to the benefits of Section 9 as if it were a Lender if Borrowers are notified of the Participation and the Participant complies
with Section 9(e). Borrowers agree that if amounts outstanding under this Agreement or any other Loan Document are due and payable
(as a result of acceleration or otherwise), each Participant shall be deemed to have the right of set-off in respect of its participating
interest in amounts owing under this Agreement and the other Loan Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement; provided, that such right of set-off
shall not be exercised without the prior written consent of Lender and shall be subject to the obligation of each Participant
to share with Lender its share thereof. Borrowers also agree that each Participant shall be entitled to the benefits of Section
10.9 as if it were Lender. Notwithstanding the granting of any such participating interests: (x) Borrowers shall look solely to
Lender for all purposes of this Agreement, the Loan Documents and the transactions contemplated hereby, (y) Borrowers shall at
all times have the right to rely upon any amendments, waivers or consents signed by Lender as being binding upon all of the Participants,
and (z) all communications in respect of this Agreement and such transactions shall remain solely between Borrowers and Lender
(exclusive of Participants) hereunder. Lender granting a participation hereunder shall maintain, as a non-fiduciary agent of Borrowers,
a register as to the participations granted and transferred under this Section containing the same information specified in Section
10.9 on the Register as if each Participant were a Lender to the extent required to cause the Loans to be in registered form for
the purposes of Sections 163(f), 165(j), 871, 881, and 4701 of the Code.


 


10.10     Headings;
Construction. Section and subsection headings are used in this Agreement only for convenience and do not affect the meanings
of the provisions that they precede.


 


10.11     USA
PATRIOT Act Notification. Lender hereby notifies the Loan Parties that pursuant to the requirements of the USA PATRIOT Act,
it may be required to obtain, verify and record certain information and documentation that identifies such Person, which information
may include the name and address of each such Person and such other information that will allow Lender to identify such Persons
in accordance with the USA PATRIOT Act.


 



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10.12     Counterparts;
Email Signatures. This Agreement may be executed in any number of counterparts, all of which shall constitute one and the
same agreement. This Agreement may be executed by signatures delivered by electronic mail, each of which shall be fully binding
on the signing party.


 


10.13     GOVERNING
LAW. THIS AGREEMENT, ALONG WITH ALL OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED OTHERWISE IN SUCH OTHER LOAN DOCUMENT)
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED THEREIN WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES (EXCEPT SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATION
LAW). FURTHER, THE LAW OF THE STATE OF NEW YORK SHALL APPLY TO ALL DISPUTES OR CONTROVERSIES ARISING OUT OF OR CONNECTED TO OR
WITH THIS AGREEMENT AND ALL SUCH OTHER LOAN DOCUMENTS WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES (EXCEPT SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATION LAW).


 


10.14     WAIVERS
AND JURISDICTION.


 


(a)       CONSENT
TO JURISDICTION; WAIVER OF JURY TRIAL; CONSENT TO SERVICE OF PROCESS. ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK IN THE COUNTY OF
NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR IN ANY OTHER COURT (IN ANY JURISDICTION)
SELECTED BY THE LENDER IN ITS SOLE DISCRETION, AND EACH BORROWER AND EACH OTHER LOAN PARTY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFOREMENTIONED COURTS. EACH BORROWER AND EACH OTHER LOAN
PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, OR BASED ON UPON 28 U.S.C. §
1404, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING AND ADJUDICATION OF ANY SUCH ACTION, SUIT OR PROCEEDING IN ANY OF THE
AFOREMENTIONED COURTS AND AMENDMENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. EACH
BORROWER AND EACH OTHER LOAN PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING
ANY RIGHTS UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR UNDER ANY AMENDMENT, WAIVER, AMENDMENT, INSTRUMENT, DOCUMENT OR
OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY FINANCING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE OTHER TRANSACTION DOCUMENTS, AND AGREES
THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH BORROWER AND EACH OTHER
LOAN PARTY HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON ANY BORROWER OR ANY OTHER LOAN PARTY AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE BORROWERS’ NOTICE ADDRESS
(ON BEHALF OF THE BORROWERS OR SUCH LOAN PARTY) SET FORTH IN SECTION 10.1 HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED
FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE MAIL, OR, AT THE LENDER’S OPTION, BY SERVICE UPON BORROWERS
OR ANY OTHER LOAN PARTY IN ANY OTHER MANNER PROVIDED UNDER THE RULES OF ANY SUCH COURTS.


 



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10.15     Publication.
Each Borrower and each other Loan Party consents to the publication by Lender of a tombstone, press releases or similar advertising
material relating to the financing transactions contemplated by this Agreement, and Lender reserves the right to provide to industry
trade organizations information necessary and customary for inclusion in league table measurements.


 


10.16     Confidentiality.
Lender agrees to use commercially reasonable efforts not to disclose Confidential Information to any Person without the prior
consent of Borrowers; provided, however, that nothing herein contained shall limit any disclosure of the tax structure
of the transactions contemplated hereby, or the disclosure of any information (a) to the extent required by applicable law, statute,
rule, regulation or judicial process or in connection with the exercise of any right or remedy under any Loan Document, or as
may be required in connection with the examination, audit or similar investigation of the Lender or any of its Affiliates, (b)
to examiners, auditors, accountants or any regulatory authority, (c) to the officers, partners, managers, directors, employees,
agents and advisors (including independent auditors, lawyers and counsel) of the Lender or any of its Affiliates, (d) in connection
with any litigation or dispute which relates to this Agreement or any other Loan Document to which the Lender is a party or is
otherwise subject, (e) to a subsidiary or Affiliate of the Lender, (f) to any assignee or participant (or prospective assignee
or participant) which agrees to be bound by this Section 10.17 and (g) to any lender or other funding source of the Lender (each
reference to Lender in the foregoing clauses shall be deemed to include the actual and prospective assignees and participants
referred to in clause (f) and the lenders and other funding sources referred to in clause (g), as applicable for purposes of this
Section 10.17), and provided further, that in no event shall the Lender be obligated or required to return any materials
furnished by or on behalf of Borrowers or any other Loan Party or Other Obligor. The obligations of the Lender under this Section
10.17 shall supersede and replace the obligations of the Lender under any confidentiality letter or provision in respect of this
financing or any other financing previously signed and delivered by the Lender to Borrowers or any of their respective Affiliates.


 



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10.17     Borrowing
Agency Provisions.


 


(a)       Each
Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to (i) borrow, (ii) request
advances, (iii) request the issuance of Letters of Credit, (iv) sign and endorse notes, (v) execute and deliver all instruments,
documents, applications, security agreements, reimbursement agreements and letter of credit agreements for Letters of Credit and
all other certificates, notice, writings and further assurances now or hereafter required hereunder, (vi) make elections regarding
interest rates, (vii) give instructions regarding Letters of Credit and agree with the issuer thereof upon any amendment, extension
or renewal of any Letter of Credit and (viii) otherwise take action under and in connection with this Agreement and the other Loan
Documents, all on behalf of and in the name such Borrower, and hereby authorizes Lender to pay over or credit all Loan proceeds
hereunder in accordance with the request of Borrowing Agent.


 


(b)       The
handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is
solely as an accommodation to the Borrowers and at their request. Lender shall not incur liability to any Borrower as a result
thereof. To induce Lender to do so and in consideration thereof, each Borrower hereby indemnifies Lender and holds Lender harmless
from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Lender by any
Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance
by Lender on any request or instruction from Borrowing Agent or any other action taken by Lender with respect to this Section 10.18
except due to willful misconduct or negligence by the indemnified party (as determined by a court of competent jurisdiction in
a final and non-appealable judgment).


 


(c)       All
Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration
or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals
and forbearance granted by Lender to any Borrower, failure of Lender to give any Borrower notice of borrowing or any other notice,
any failure of Lender to pursue or preserve its rights against any Borrower, the release by Lender of any Collateral now or thereafter
acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional
and unaffected by prior recourse by Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the
lack thereof. Each Borrower waives all suretyship defenses.


 


[signature page follows]


 



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IN WITNESS WHEREOF,
Borrowers, each other Loan Party signatory hereto, and Lender have signed this Agreement as of the date first set forth above.


 


	BORROWERS:	 	LENDER:
	 	 	 
	WE SELL CELLULAR LLC	 	SIENA LENDING GROUP LLC
	 	 	 
	By:	/s/ Nikhil Raman	 	By:	/s/ James Persico
	 	Name: Nikhil Raman	 	 	Name: James Persico
	 	Title: Manager	 	 	Title: Authorized Signatory
	 	 	 
	UPSTREAM PHONE COMPANY USA, INC.	 	By:	/s/ Steve Sanicola
	 	 	 	Name: Steve Sanicola
	 	 	 	Title: Authorized Signatory
	By:	/s/ Nikhil Raman	 	 
	 	Name: Nikhil Raman	 	 
	 	Title: Chief Executive Officer	 	 



 


	PHONEX, INC.	 
	 	 
	By:	 /s/ Nikhil Raman	 
	 	Name: Nikhil Raman	 
	 	Title: Chief Executive Officer	 
	 	 
	GUARANTORS:	 
	 	 
	USELL.COM, INC.	 
	 	 
	By:	/s/ Nikhil Raman	 
	 	Name: Nikhil Raman	 
	 	Title: Chief Executive Officer	 
	 	 
	BST DISTRIBUTION, INC.	 
	 	 
	By:	/s/ Nikhil Raman	 
	 	Name: Nikhil Raman	 
	 	Title: Chief Executive Officer	 



 



     


     


    

 


	UPSTREAM PHONE HOLDINGS, INC.	 
	 	 
	By:	/s/ Nikhil Raman	 
	 	Name: Nikhil Raman	 
	 	Title: Chief Executive Officer	 
	 	 
	HD CAPITAL HOLDINGS, LLC	 
	 	 
	By:	/s/ Daniel Brauser	 
	 	Name: Daniel Brauser	 
	 	Title: Manager