Exhibit 10.6


 


THIS NOTE IS ISSUED WITH ORIGINAL ISSUE
DISCOUNT. BEGINNING NO LATER THAN 10 DAYS AFTER THE ISSUE DATE OF THIS NOTE, USELL.COM, INC., A DELAWARE CORPORATION, LOCATED AT
171 MADISON AVENUE, 17TH FLOOR, NEW YORK, NEW YORK 10016, SHALL PROMPTLY MAKE AVAILABLE TO THE HOLDER OR HOLDERS OF
THIS NOTE UPON REQUEST THE INFORMATION DESCRIBED IN TREASURY REGULATION SECTION 1.1275-3(b)(1)(i).


 


THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION
IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.


 


THIS NOTE IS REGISTERED WITH THE AGENT
PURSUANT TO SECTION 13.5(b) OF THE PURCHASE AGREEMENT (AS DEFINED BELOW). TRANSFER OF ALL OR ANY PORTION OF THIS NOTE IS PERMITTED
SUBJECT TO THE PROVISIONS SET FORTH IN SUCH SECTION 13.5 WHICH REQUIRE, AMONG OTHER THINGS, THAT NO TRANSFER IS EFFECTIVE UNTIL
THE TRANSFEREE IS REFLECTED AS SUCH ON THE REGISTRY MAINTAINED WITH THE AGENT PURSUANT TO SUCH SECTION 13.5(b).


 


SECURED TERM NOTE


 


FOR VALUE RECEIVED, each
of USELL.COM, INC., a Delaware corporation (“USELL”), BST DISTRIBUTION, INC., a New York corporation (“BST”),
WE SELL CELLULAR LLC, a Delaware limited liability company (“WE SELL”; together with USELL and BST, the “Companies”
and each a “Company”), hereby promises to pay to XXXX, a Delaware limited liability company (the “Holder”)
or its registered assigns or successors in interest, the sum of EIGHT MILLION SIX HUNDRED SIXTY THOUSAND DOLLARS ($8,660,000),
together with any accrued and unpaid interest hereon subject to the terms and conditions set forth herein.


 


Capitalized terms used
herein without definition shall have the meanings ascribed to such terms in that certain Note Purchase Agreement, dated as January
13, 2017 (as amended, restated, modified and/or supplemented from time to time, the “Purchase Agreement”) among
Companies, the Holder, each other Purchaser and XXXX, as agent for the Purchasers (the “Agent” and together
with the Purchasers (including the Holder), collectively, the “Creditor Parties”), pursuant to which this Secured
Term Note was issued.


 




     


     


    

 


The following term shall
apply to this Secured Term Note (this “Note”):


 


“Maturity Date”
shall mean January 13, 2020.


 


ARTICLE
I



CONTRACT RATE AND AMORTIZATION


 


1.1           Contract
Rate. Subject to Sections 1.7 and 2.9, interest payable on the outstanding principal amount of this Note (the “Principal
Amount”) shall accrue at a rate per annum equal to thirteen and one-quarter percent (13.25%) (the “Contract
Rate”). Interest shall be (i) calculated on the basis of a 365 day year and the actual number of days elapsed, and (ii)
payable monthly, in arrears, commencing on February 1, 2017, and on the first business day of each consecutive calendar month thereafter
through and including the Maturity Date, and on the Maturity Date, whether by acceleration or otherwise (each, an “Interest
Payment Date”).


 


1.2           Contract
Rate Payments. The Contract Rate shall be paid on each Interest Payment Date with respect to the number of days from, but excluding,
the prior Interest Payment Date (or the issuance date with respect to the first Interest Payment Date) through and including the
applicable Interest Payment Date. Interest shall also be paid in cash on the date of any payment or prepayment of this Note with
respect to the Principal Amount being paid at such time.


 


1.3           Principal
Payments. The outstanding Principal Amount together with any accrued and unpaid interest and any and all other unpaid amounts
which are then owing by Companies to the Holder under this Note, the Purchase Agreement and/or any other Related Agreement shall
be due and payable on the Maturity Date, whether by acceleration or otherwise.


 


1.4           Optional
Prepayment. Companies may redeem the outstanding principal balance of this Note in whole, but not in part, at any time after
July 13, 2018, upon at least fifteen (15) days’ prior written notice delivered to Agent and the Holder, at the prepayment
price of 103% of the outstanding Principal Amount of this Note so redeemed plus all accrued but unpaid interest hereunder.


 


To exercise its right to
prepay this Note as provided in this Section 1.4, Companies must deliver written notice of such election to the Agent and each
Purchaser at least fifteen (15) days prior to the repayment date, as set forth in such notice, and Companies must take the same
action with respect to all of the holders of any other Notes.


 




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1.5           Mandatory
Prepayment Events. Unless waived in writing by the Agent, Companies shall prepay the Notes (a) from the net proceeds of any
incurrence of Indebtedness or other capital raising or financing transaction (other than net proceeds of any Indebtedness incurred
as permitted by clause (e)(i) of Section 8.24 of the Purchase Agreement), (b) from the net proceeds of any insurance claims relating
to any of the Collateral (unless (i) no Event of Default has occurred and is continuing, (ii) such proceeds are not greater than
$1,000,000 and (iii) such proceeds are not used to replace, restore or repair such Collateral), (c) from the net proceeds of any
sale of Collateral (other than as permitted by clause (e)(vi) of Section 8.24 of the Purchase Agreement) and/or (d) in the event
USELL elects to dissolve the SPE under Section 9.1(c) of the LLC Agreement, each a “Mandatory Prepayment Event.”
Notwithstanding the foregoing, in the event Companies raise capital solely through the issuance of equity or receives cash proceeds
from the exercise of outstanding warrants (“Equity Raise”), such Equity Raise shall not subject Companies to
a Mandatory Prepayment Event, provided that no Event of Default exists at the time of the Equity Raise or would have occurred but
for the passage of time or the giving of notice, or both, in which case the Equity Raise would create a Mandatory Prepayment Event.
Any prepayments made by Companies pursuant to a Mandatory Prepayment Event shall be applied to the outstanding principal balance
of all of the Notes then outstanding on a pro rata basis (based upon the respective outstanding principal amounts thereof). All
Principal Amounts required to be prepaid due to a Mandatory Prepayment Event are required to be prepaid at a prepayment price of
103% of the outstanding Principal Amount of this Note so redeemed plus accrued but unpaid interest hereunder.


 


1.6           Events
of Default. The occurrence of any of the following events set forth in this Section 1.6 shall constitute an event of default
(“Event of Default”) hereunder:


 


(a)          Failure
to Pay. Any Company fails to pay when due any installment of principal, interest or other fees hereon in accordance herewith,
or any Company fails to pay any of the other Liabilities (under and as defined in the Security Agreement) within three (3) business
days of when due;


 


(b)          Breach
of Covenant. Any Company or any of its Subsidiaries breaches any covenant or any other term or condition of this Note, the
Purchase Agreement or any Related Agreement in any material respect and such breach, if subject to cure, continues for a period
of fifteen (15) days after the occurrence thereof;


 


(c)          Breach
of Representations and Warranties. Any representation, warranty or statement made or furnished by any Company or any of its
Subsidiaries in this Note, the Purchase Agreement or any other Related Agreement shall at any time be false or misleading in any
material respect on the date as of which made or deemed made;


 


(d)          Default
Under Other Agreements. The occurrence of any default (or similar term) or other event relating to any Indebtedness or Contingent
Obligation of any Company or any of such Company’s Subsidiaries beyond the period of grace (if any), (i) the effect of which
default or other event is to cause, or permit the holder or holders of such indebtedness or beneficiary or beneficiaries of such
Contingent Obligation to cause, such Indebtedness to become due prior to its stated maturity or any such Contingent Obligation
to become payable and (ii) (x) the aggregate amount of any such Indebtedness to become due prior to its stated maturity and any
such Contingent Obligations to become payable is in excess of $100,000, or (y) such default or other event is reasonably likely
to result in a Material Adverse Effect;


 


(e)          Bankruptcy.
Any Company or any of its Subsidiaries shall (i) apply for, consent to or suffer to exist the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) make
a general assignment for the benefit of creditors, (iii) commence a voluntary case under the federal bankruptcy laws (as now or
hereafter in effect), (iv) be adjudicated a bankrupt or insolvent, (v) file a petition seeking to take advantage of any other
law providing for the relief of debtors, (vi) acquiesce to, without challenge within fifteen (15) days of the filing thereof, or
failure to have dismissed, within forty-five (45) days, any petition filed against it in any involuntary case under such bankruptcy
laws, or (vii) take any action for the purpose of effecting any of the foregoing;


 




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(f)          Judgments.
Attachments or levies are made upon any Company’s or any of its Subsidiary’s assets or a judgment is rendered against
any Company or any of its Subsidiaries or any of its or their property involving a liability which is in excess of $100,000 in
the aggregate with any other such liability (other than liability covered under available insurance) or could reasonably be expected
to have a Material Adverse Effect and which shall not have been vacated, discharged, stayed or bonded within thirty (30) days from
the entry thereof;


 


(g)          Insolvency.
Any Company or any of its Subsidiaries shall admit in writing its inability, or be generally unable, to pay its debts as they become
due or cease operations of its present business;


 


(h)          Change
of Control. A Change of Control (as defined below) shall occur with respect to any Company or any Guarantor, unless the Agent
shall have expressly consented to such Change of Control in writing. A “Change of Control” shall mean (i) any event
or circumstance as a result of which any “Person” or “group” (as such terms are defined in Sections 13(d)
and 14(d) of the Exchange Act, as in effect on the date hereof), other than a Holder of a Note, is or becomes the “beneficial
owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of 20% or more on a fully
diluted basis of the then outstanding voting equity interests of any Company or any Guarantor (other than a “Person”
or “group” that beneficially owns 20% or more of such outstanding voting equity interests of any Company or any Guarantor
on the Closing Date), (ii) any event or circumstance as a result of which USELL shall at any time own less than 100% of all issued
and outstanding equity interests of any of the following entities: HD Capital Holdings LLC, Upstream Phone Company USA, Inc., BST
Distribution, Inc. and/or Upstream Holdings, Inc., (iii) any event or circumstance as a result of which BST Distribution, Inc.
shall at any time own less than 100% of all issued an outstanding equity interests of We Sell Cellular, LLC, (iv) any change in
the composition of the Board of Directors of any Company or any Guarantor (the “Board”) such that the Continuing
Directors (as defined below) cease for any reason to constitute at least a majority of the Board (as used herein, “Continuing
Directors” means those individuals who as of the Closing Date constituted the Board and each other director that was
elected by at least 66 2/3% of the Continuing Directors, or as applicable, such director’s nomination for election to the
Board is recommended by 66 2/3% of the Continuing Directors), (v) any Company or any of the Guarantors merges or consolidates with,
or sells all or substantially all of its assets to, any other Person, or (vi) the consummation of a purchase, tender or exchange
offer made to, and accepted by, the holders of more than a majority of the outstanding shares of common stock of any Company or
any Guarantor;


 


(i)          Failure
of Liens. The Agent’s lien on any Collateral deemed material by Agent shall fail or cease to be a first priority validly
perfected security interest; or


 




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(j)          Breach
of Covenant. The Company or any of its Subsidiaries breaches any covenant set forth in Section 5 or 8 of the Purchase Agreement.


 


1.7           Default
Interest. Following the occurrence and during the continuance of any Event of Default, Companies shall pay additional interest
on the outstanding Principal Amount of this Note, at a rate per annum which is determined by adding five percent (5.0%) per annum
to the Contract Rate (“Default Interest Rate”), and all outstanding obligations under this Note, the Purchase
Agreement and each other Related Agreement, including unpaid interest, shall continue to accrue interest at the Default Interest
Rate from the date of such Event of Default until the date such Event of Default is cured or waived in writing by the Agent.


 


1.8           Acceleration.
If any Event of Default shall have occurred and be continuing, (a) if such event is an Event of Default specified in Section
1.6(e), all of the Notes at the time outstanding shall automatically become immediately due and payable together with interest
accrued thereon, without any requirement of presentment, demand, protest or notice of any kind, all of which are hereby waived,
and (b) if such event is not an Event of Default specified in Section 1.6(e) (as a result of which the Notes have already been
accelerated), the Agent or the holders of a majority of the outstanding principal amount of the Notes may at their option, by notice
in writing to Companies, declare all of the Notes to be, and all of the Notes shall thereupon be and become, immediately due and
payable together with interest accrued thereon, without any requirement of further presentment, demand, protest or other notice
of any kind, all of which are hereby waived and with the consent of the Creditor Parties, the Agent shall exercise on behalf of
the Creditor Parties (including the holders of all of the Notes) all rights and remedies available to them under the Security Agreement
and any other Related Agreement.


 


ARTICLE
II



MISCELLANEOUS


 


2.1           Cumulative
Remedies. The remedies under this Note shall be cumulative.


 


2.2           Failure
or Indulgence Not Waiver. No failure or delay on the part of the Holder (or the Agent on behalf of the Holder) hereof in the
exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. All
rights and remedies existing hereunder are cumulative to, and not exclusive of, any rights or remedies otherwise available.


 


2.3           Notices.
Any notice herein required or permitted to be given shall be given in writing in accordance with the terms of the Purchase Agreement.


 


2.4           Amendment
Provision. The term “Note” and all references thereto, as used throughout this instrument, shall mean this
instrument as originally executed, or if later amended or supplemented, then as so amended or supplemented, and any successor instrument
as such successor instrument may be amended or supplemented.


 




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2.5           Assignability.
This Note shall be binding upon each Company and its successors and assigns, and shall inure to the benefit of the Holder and its
successors and assigns, and may be assigned by the Holder in accordance with the requirements of the Purchase Agreement. No Company
may assign any of its obligations under this Note without the prior written consent of the Holder, any such purported assignment
without such consent being null and void.


 


2.6           Cost
of Collection. In case of the occurrence of an Event of Default under this Note, Companies shall pay the Holder (and the Agent
on behalf of the Holder) the Holder’s (and the Agent’s) costs of collection, including reasonable fees associated with
the hiring of experts and reasonable attorneys’ fees.


 


2.7           Governing
Law, Jurisdiction and Waiver of Jury Trial.


 


(a)          THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.


 


(b)          EACH
COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE AND/OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL
HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY COMPANY, ON THE ONE HAND, AND THE HOLDER AND/OR
ANY OTHER CREDITOR PARTY, ON THE OTHER HAND, PERTAINING TO THIS NOTE OR ANY OF THE OTHER RELATED AGREEMENTS OR TO ANY MATTER ARISING
OUT OF OR RELATED TO THIS NOTE OR ANY OF THE RELATED AGREEMENTS; PROVIDED, THAT EACH COMPANY ACKNOWLEDGES THAT ANY APPEALS
FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK; AND FURTHER
PROVIDED, THAT NOTHING IN THIS NOTE SHALL BE DEEMED OR OPERATE TO PRECLUDE THE HOLDER AND/OR ANY OTHER CREDITOR PARTY FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION WHERE ANY OF THE COLLATERAL IS LOCATED TO COLLECT THE LIABILITIES
(AS DEFINED IN THE SECURITY AGREEMENT), TO REALIZE ON THE COLLATERAL (AS DEFINED IN THE SECURITY AGREEMENT) OR ANY OTHER SECURITY
FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE HOLDER AND/OR ANY OTHER CREDITOR PARTY. EACH
COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
COMPANY HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS. EACH COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION
OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED
TO SUCH COMPANY AT THE ADDRESS SET FORTH IN THE PURCHASE AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF SUCH COMPANY’S ACTUAL RECEIPT THEREOF OR FIVE (5) DAYS AFTER DEPOSIT IN THE U.S. MAIL, PROPER POSTAGE PREPAID.


 




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(c)          EACH
COMPANY DESIRES THAT ITS DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND/OR OF ARBITRATION, EACH COMPANY HERETO WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE HOLDER AND/OR ANY
OTHER CREDITOR PARTY, ON THE ONE HAND, AND EACH COMPANY, ON THE OTHER HAND, ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS NOTE, ANY OTHER RELATED AGREEMENT OR THE TRANSACTIONS RELATED
HERETO OR THERETO.


 


2.8           Severability.
In the event that any provision of this Note is invalid or unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with
such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision of this Note.


 


2.9           Maximum
Payments. Nothing contained herein shall be deemed to establish or require the payment of a rate of interest or other charges
in excess of the maximum permitted by applicable law. In the event that the rate of interest required to be paid or other charges
hereunder exceed the maximum rate permitted by such law, any payments in excess of such maximum rate shall be credited against
amounts owed by Companies to the Holder and thus refunded to Companies.


 


2.10         Security
Interest. The Agent, for the ratable benefit of the Creditor Parties, has been granted a security interest in certain assets
of Companies and the Guarantors as more fully described in the Security Agreement and the other Related Agreements.


 


2.11         Construction;
Counterparts. Each party acknowledges that its legal counsel participated in the preparation of this Note and, therefore, stipulates
that the rule of construction that ambiguities are to be resolved against the drafting party shall not be applied in the interpretation
of this Note to favor any party against the other. Unless the context otherwise requires, (i) words in the singular or plural include
the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine,
feminine and neuter, (ii) the words “hereof,” “herein” and words to similar effect refer to this Note in
its entirety, and (iii) the use of the word “including” in this Note shall be by way of example rather than limitation.
This Note may be executed by the parties hereto in one or more counterparts, each of which shall be deemed an original and all
of which when taken together shall constitute one and the same instrument. Any signature delivered by a party by facsimile or electronic
transmission shall be deemed to be an original signature hereto.


 


2.12         Registered
Obligation. This Note shall be registered (and such registration shall thereafter be maintained) as set forth in Section 13.5(b)
of the Purchase Agreement. Notwithstanding any document, instrument or agreement relating to this Note to the contrary, transfer
of this Note (or the right to any payments of principal or stated interest thereunder) may only be effected by (i) surrender of
this Note and either the reissuance by Companies of this Note to the new holder or the issuance by Companies of a new instrument
to the new holder or (ii) registration of such holder as an assignee in accordance with Section 13.5 of the Purchase Agreement.


 


[Balance of page intentionally left blank; signature
page follows]


 




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IN WITNESS WHEREOF,
each Company has caused this Secured Term Note to be signed in its name effective as of this 13 day of January, 2017.


 


	 	USELL.COM, INC.
	 	 	 
	 	By:	 
	 	 	Name:  Nikhil Raman
	 	 	Title:  Chief Executive Officer
	 	 	 
	 	BST DISTRIBUTION, INC.
	 	 	 
	 	By:	 
	 	 	Name:  Brian Tepfer
	 	 	Title:  Chief Executive Officer
	 	 	 
	 	WE SELL CELLULAR LLC
	 	 	 
	 	By:	 
	 	 	Name:  Nikhil Raman
	 	 	Title:  Manager


 


SIGNATURE PAGE TO

SECURED TERM NOTE