Exhibit 10.28


 


SECOND
AMENDMENT TO LOAN AND SECURITY AGREEMENT


 


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


 


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


 


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


 


WHEREAS,
Borrower has advised Lender that Borrower’s independent public accountants will not issue an accountant’s opinion
which does not contain a “going concern qualification” unless there is a sufficient extension of the Maturity Date;
and


 


WHEREAS,
the Lender is willing to provide an extension to the Maturity Date subject to the terms and conditions of the Loan Agreement as
amended by this Amendment, and subject to the terms and conditions set forth in this Amendment.


 


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


 


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



 


		(a)	Section
                                         1.2(c) is amended and restated so that, as so amended and restated, it shall read in
                                         its entirety as follows:



 


“(c)
In the event that Borrower wishes to receive any Revolving Loan, Borrower shall give notice thereof in writing to the Lender of
the requested amount thereof (which together with all other then outstanding Revolving Loans shall not exceed the Revolving Loan
Limit), the intended use of the proceeds thereof and the proposed maturity date thereof. The Lender shall have the absolute and
sole discretion as to whether or not to make any Revolving Loan and if the Lender decides to make any Revolving Loan, to determine
the amount and maturity date thereof. Subject to the terms and conditions of this Agreement (including the discretion of the Lender
as to whether or not to make a Revolving Loan in each case), Revolving Loans may be made and repaid but from and after November
12, 2017 may not be remade. Any Revolving Loan shall be made in accordance with Section 2.”;


 






     


     


    

 


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



 


		(c)	Schedule
                                         A is hereby amended by adding the following definitions, in appropriate alphabetical
                                         order:



 


		i)	“Second
                                         Amendment” means the Second Amendment to Loan and Security Agreement dated
                                         as of November 13, 2017, among Borrower and Lender.”; and



 


		ii)	“Second
                                         Amendment Effective Date” shall have the meaning specified therefor in Section
                                         4 of the Second Amendment.”; and



 


		(d)	Schedule
                                         A is hereby amended by amending the definition of Loan Documents by inserting immediately
                                         after the phrase “and from and after the First Amendment Effective Date, the First
                                         Amendment,” the phrase “and from and after the Second Amendment Effective
                                         Date, the Second Amendment and the Second Amendment Warrant (as defined in the Second
                                         Amendment)”.



 


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



 


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



 






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



 


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



 


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



 


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



 






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



 


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



 


		i)	this
                                         Amendment, duly executed by each Borrower;



 


		ii)	the
                                         Allonge in the form of Exhibit A hereto, duly executed by each Borrower;



 


		iii)	a
                                         Warrant to Purchase Common Stock of CRI (the “Second Amendment Warrant”)
                                         in substantially the same form as the Extension Warrant and providing the recipient with
                                         the right to purchase 5,882,352 shares of common stock of CRI; provided however the expiration
                                         date of the Second Amendment Warrant shall be on the fifth anniversary of the date of
                                         issuance of the Second Amendment Warrant, the Second Amendment Warrant duly executed
                                         by CRI; and



 


		iv)	a
                                         certificate of an authorized officer of each Borrower, certifying as to the matters set
                                         forth in subsections (a) and (b) of this Section 3.



 


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



 






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



 


		6.	Miscellaneous.



 


		a)	Borrower
                                         will pay on demand all reasonable and documented out-of-pocket fees, costs and expenses
                                         of the Lender, including, without limitation, fees, costs and expenses of the Office
                                         of Andrew Ross, counsel to the Lender, in connection with the structuring, preparation,
                                         negotiation, execution and delivery of (i) this Amendment and the transactions and all
                                         documents contemplated herein, and (ii) the proposed amendment by the Lender and the
                                         Borrower of Borrower’s Secured Promissory Notes and related transactions, and all
                                         documents with respect thereto.



 


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



 


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



 


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



 


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



 






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



 


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



 


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



 


		10.	Submission
                                         To Jurisdiction; Waiver Of Jury Trial.



 


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



 


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



 






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


 





	BORROWER:	 	LENDER:
	 	 	 	 	 
	CREATIVE
    REALITIES, INC.	 	SLIPSTREAM
    COMMUNICATIONS, LLC
	 	 	 	 	 
	By:	/s/
    Richard Mills	 	By:	/s/
Alec Machiels
	 	Rick
    Mills, Chief Executive
    Officer	 	Name:	Alec
    Machiels
	 	 	 	Title:	Manager
	CREATIVE
REALITIES, LLC	 	 	 
	 	 	 	Address
    for Notice:
	By:	/s/ Richard
Mills	 	850
    3rd Avenue, 18th Floor
	 	Rick
    Mills, Chief Executive
    Officer	 	New
    York, NY 10022
	 	 	 	Attn:
    Mr. Alec Machiels
	CONEXUS
    WORLD GLOBAL, LLC	 	 	 
	 	 	 	 	 
	By:	/s/
    Richard Mills	 	 	 
	 	Rick
    Mills, Chief Executive
    Officer	 	 	 
	 	 	 	 	 
	Address
    for Notice (for all Borrowers):	 	 	 
	Creative
    Realities, Inc.	 	 	 
	Attention:
    Chief Financial Officer	 	 	 
	22
    Audrey Place	 	 	 
	Fairfield,
    NJ 07004	 	 	 
	 	 	 	 	 
	[Signature
    Page to Second Amendment to Loan and Security Agreement]	 	 	 



 






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	EXHIBIT
    A TO SECOND AMENDMENT OF LOAN AND SECURITY AGREEMENT	 




 


 


ALLONGE


 


This
Allonge (“Allonge”), dated November 13, 2017, is to the Amended and Restated Secured Term Promissory Note, dated as
of August 16, 2016 in the initial principal amount of $3,000,000.00 (the “Term Note”) and the Secured Revolving Promissory
Note dated as of December 12, 2016 in the maximum principal amount outstanding at any time of $1,000,000.00 (the “Revolving
Note” and together with the Term Note, the “Notes”) made by Creative Realities, Inc., a Minnesota corporation,
Creative Realities, LLC, a Delaware limited liability company, and Conexus World Global, LLC, a Kentucky limited liability company,
jointly and severally (each, and together herein referred to as “Maker”), payable to the order of Slipstream Communications,
LLC, an Anguillan limited liability company (the “Holder”).


 


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


 


The
Notes currently mature on August 17, 2018. Each of the Notes is hereby amended as follows:


 


(a)
The phrase in the preamble to each Note “on or prior to August 17, 2017 (subject to the right of extension set forth in
Section 1(b) below, the “Maturity Date”)” is hereby amended and restated to read “on or
prior to August 17, 2019 (“Maturity Date”); and


 


(b)
Section 1(b) of each of the Notes is hereby amended and restated to read in its entirety as follows: “Term and Payment;
Application. The principal amount of this Note, together with all accrued but unpaid interest and any other sums owed hereunder,
shall be due and payable at the close of business on the Maturity Date. All payments and prepayments shall be applied first to
any costs payable under this Note or the Loan and Security Agreement, second to accrued but unpaid interest, and third to principal.”


 


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


 


[REST
OF PAGE INTENTIONALLY LEFT BLANK]


 






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


 


		MAKERS
	 	 	 
	 	CREATIVE
                    REALITIES, INC.


CREATIVE
REALITIES, LLC


CONEXUS
WORLD GLOBAL, LLC



	 	 	 
	 	By:	/s/Richard
                                         Mills
	 	Name:	RICK
                                         MILLS
	 	Title:	CHIEF
                                         EXECUTIVE OFFICER
	 	 	 
	 	HOLDER
	 	 
	 	SLIPSTREAM COMMUNICATIONS, LLC
	 	 	 
	 	By:	/s/
                                         Alec Machiels
	 	 	Alec
                   Machiels



 


 


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