Exhibit 10.2


 


 


 


Loan
and Security Agreement


 


by
and among


 


Gadsden
Growth Properties, L.P.


 


As
Borrower,


 


and


 


FC
Global Realty Incorporated


 


As
Guarantor,


 


and


 


The
Lenders Party To This Agreement,


 


as
Lenders


 


dated
as of


 


August
2, 2019


 


 




     


     


    

 


TABLE
OF CONTENTS


 





	Section 1.	DEFINITIONS.	1
	 	 	 
	Section 2.	TERMS OF LENDING.	11
	 	 	 
	Section 3.	CONDITIONS PRECEDENT.	13
	 	 	 
	Section 4.	NOTE EVIDENCING LOAN.	14
	 	 	 
	Section 5.	CONTINUING GUARANTY.	14
	 	 	 
	Section 6.	SECURITY FOR THE OBLIGATIONS.	16
	 	 	 
	Section 7.	REPRESENTATIONS AND WARRANTIES.	19
	 	 	 
	Section 8.	AFFIRMATIVE COVENANTS.	23
	 	 	 
	Section 9.	NEGATIVE COVENANTS.	31
	 	 	 
	Section 10.	EVENTS OF DEFAULT.	33
	 	 	 
	Section 11.	REMEDIES.	35
	 	 	 
	Section 12.	INDEMNIFICATION.	38
	 	 	 
	Section 13.	WARRANT BONUS FEE	39
	 	 	 
	Section 14.	MISCELLANEOUS.	40


 




    i


     


    

 


LOAN
AND SECURITY AGREEMENT


 


This
LOAN AND SECURITY AGREEMENT, dated as of August 2, 2019 (the “Agreement”), is executed by and among Gadsden
Growth Properties, L.P., a Delaware limited partnership (the “Borrower”), FC Global Realty Incorporated, a
Nevada corporation (the “Guarantor”), which have their principal office located at 15150 N. Hayden Road, Suite
235, Scottsdale, AZ 85260, and lenders that are from time to time party to this Agreement (the “Lenders” and,
each, a “Lender”).


 


RECITALS:


 


A. The
Borrower desires to borrow funds and obtain other financial accommodations from the Lenders.


 


B. Pursuant
to the Borrower’s request, the Lenders are willing to extend such financial accommodations to the Borrower under the terms
and conditions set forth herein.


 


NOW
THEREFORE, in consideration of the premises, and the mutual covenants and agreements set forth herein, the Borrower agrees to
borrow from the Lenders, and the Lenders agree to lend to the Borrower, subject to and upon the following terms and conditions:


 


AGREEMENTS:


 


Section
1. DEFINITIONS.


 


1.1 Defined
Terms.


 


For
the purposes of this Agreement, the following capitalized words and phrases shall have the meanings set forth below.


 


“Acquisition
Debt” shall mean any Debt that is incurred by the Borrower or any Subsidiary with respect to the acquisition of,
or investment in, real estate or property, including assets that are related thereto and costs, fees and expenses that are paid
at or after the closing from the proceeds of such Debt.


 


“Affiliate”
of any Person shall mean (a) any other Person which, directly or indirectly, controls or is controlled by or is under common control
with such Person, (b) any executive officer or director of such Person, and (c) with respect to the Lenders, any entity administered
or managed by the Lenders, or an Affiliate or investment advisor thereof. A Person shall be deemed to be “controlled by”
any other Person if such Person possesses, directly or indirectly, power to direct or cause the direction of the management and
policies of such Person whether by contract, ownership of voting securities, membership interests or otherwise.


 


“Approved
Budget” shall have the meaning set forth in Section 2.1(a) hereof.


 


“Bankruptcy
Code” shall mean the United States Bankruptcy Code, as now existing or hereafter amended.


 


“Borrower
Organizational Documents” means the Certificate of Limited Partnership of the Borrower dated as of November 7, 2016,
and the amended and restated limited partnership agreement of the Borrower in effect on the date of this Agreement, as each may
be and may from time to time be amended, modified, supplemented or restated.


 






    1


     


    

 


“Business
Day” shall mean any day other than a Saturday, Sunday or a legal holiday on which banks are authorized or required
to be closed for the conduct of commercial banking business in New York, New York.


 


“Capital
Lease” shall mean, as to any Person, a lease of any interest in any kind of property or asset, whether real, personal
or mixed, or tangible or intangible, by such Person, as lessee, that is, or should be, in accordance with Financial Accounting
Standards Board’s Accounting Standard Codification (“ASC”) 840, as amended from time to time, or, if
such standard is not then in effect, such standard as may be applicable, recorded as a “capital lease” on the financial
statements of such Person prepared in accordance with GAAP.


 


“Capital
Securities” shall mean, with respect to any Person, all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person’s capital, whether now outstanding or issued or acquired after
the date hereof, including common shares, preferred shares, membership interests in a limited liability company, limited or general
partnership interests in a partnership or any other equivalent of such ownership interest.


 


“Capitalized
Lease Obligations” shall mean, as to any Person, all rental obligations of such Person, as lessee under a Capital
Lease which are or will be required to be capitalized on the books of such Person.


 


“Cash
Equivalent Investment” shall mean, at any time, (a) any evidence of Debt, maturing not more than one year after
such time, issued or guaranteed by the United States government or any agency thereof, (b) commercial paper, maturing not more
than one year from the date of issue, or corporate demand notes, in each case (unless issued by the Lenders or its holding company)
rated at least A-l by Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. or P-1 by Moody’s
Investors Service, Inc., (c) any certificate of deposit, time deposit or banker’s acceptance, maturing not more than one
year after such time, or any overnight Federal Funds transaction that is issued or sold by a commercial banking institution that
is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000,
(d) any repurchase agreement entered into with the Lenders, or other commercial banking institution of the nature referred to
in clause (c), which (i) is secured by a fully perfected security interest in any obligation of the type described in any of clauses
(a) through (c) above, and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100%
of the repurchase obligation of the Lenders, or other commercial banking institution, thereunder, (e) money market accounts or
mutual funds which invest exclusively in assets satisfying the foregoing requirements, and (f) other short term liquid investments
approved in writing by the Lenders.


 


“Change
in Control” shall mean the occurrence of any of the following events: (a) Guarantor shall cease to control the Borrower;
or (b) any one Person becomes the beneficial owner of more than 50% of the Common Stock of Guarantor (determined on a fully diluted
basis) or the right to vote or elect a majority of the board of directors of the Guarantor. For the purpose hereof, the terms
“control” or “controlling” shall mean the possession of the power to direct, or cause the direction of,
the management and policies of the Borrower by contract or voting of securities or ownership interests.


 


“Claims
and Losses” shall have the meaning set forth in Section 12.1 hereof.


 


“Collateral”
shall have the meaning set forth in Section 6.1 hereof.


 






    2


     


    

 


“Common
Stock” shall mean the Common Stock, $0.01 par value per share, of the Guarantor.


 


“Contingent
Liability” and “Contingent Liabilities” shall mean, respectively, each obligation and
liability of the Borrower and all such obligations and liabilities of the Borrower incurred pursuant to any agreement, undertaking
or arrangement by which the Borrower: (a) guarantees, endorses or otherwise becomes or is contingently liable upon (by direct
or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness, dividend, obligation or other liability of any other
Person in any manner (other than by endorsement of instruments in the course of collection), including without limitation, any
indebtedness, dividend or other obligation which may be issued or incurred at some future time; (b) guarantees the payment of
dividends or other distributions upon the shares or ownership interest of any other Person; (c) undertakes or agrees (whether
contingently or otherwise): (i) to purchase, repurchase, or otherwise acquire any indebtedness, obligation or liability of any
other Person or any property or assets constituting security therefor, (ii) to advance or provide funds for the payment or discharge
of any indebtedness, obligation or liability of any other Person (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise), or to maintain solvency, assets, level of income, working capital or other financial condition of
any other Person, or (iii) to make payment to any other Person other than for value or services received; (d) agrees to lease
property or to purchase securities, property or services from such other Person with the purpose or intent of assuring the owner
of such indebtedness or obligation of the ability of such other Person to make payment of the indebtedness or obligation; (e)
to induce the issuance of, or in connection with the issuance of, any letter of credit for the benefit of such other Person; or
(f) undertakes or agrees otherwise to assure a creditor against loss. The amount of any Contingent Liability shall (subject to
any limitation set forth herein) be deemed to be the outstanding principal amount (or maximum permitted principal amount, if larger)
of the indebtedness, obligation or other liability guaranteed or supported thereby.


 


“Debt”
shall mean, as to any Person, without duplication, (a) all indebtedness of such Person; (b) all borrowed money of such Person
(including principal, interest, fees and charges), whether or not evidenced by bonds, debentures, notes or similar instruments;
(c) all obligations to pay the deferred purchase price of property or services; (d) all obligations, contingent or otherwise,
with respect to the maximum face amount of all letters of credit (whether or not drawn), bankers’ acceptances and similar
obligations issued for the account of such Person (including the Letters of Credit), and all unpaid drawings in respect of such
letters of credit, bankers’ acceptances and similar obligations; (e) all indebtedness secured by any Lien on any property
owned by such Person, whether or not such indebtedness has been assumed by such Person (provided, however, if such Person has
not assumed or otherwise become liable in respect of such indebtedness, such indebtedness shall be deemed to be in an amount equal
to the fair market value of the property subject to such Lien at the time of determination); (f) the aggregate amount of all Capitalized
Lease Obligations of such Person; (g) all Contingent Liabilities of such Person, whether or not reflected on its balance sheet;
(h) all Hedging Obligations of such Person; (i) all Debt of any partnership of which such Person is a general partner; and (j)
all monetary obligations of such Person under (i) a so-called synthetic, off-balance sheet or tax retention lease, or (ii) an
agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but
which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard
to accounting treatment). Notwithstanding the forgoing, Debt shall not include trade payables and accrued expenses incurred by
such Person in accordance with customary practices and in the ordinary course of business.


 


“Debt
Instrument” shall mean a negotiable Instrument or any other writing that evidences Borrower’s right to the
payment of a monetary obligation.


 






    3


     


    

 


“Default
Rate” shall mean a per annum rate of interest equal to the Interest Rate plus five percent (5%).


 


“Employee
Plan” includes any pension, stock bonus, employee stock ownership plan, retirement, profit sharing, deferred compensation,
stock option, bonus or other incentive plan, whether qualified or nonqualified, or any disability, medical, dental or other health
plan, life insurance or other death benefit plan, vacation benefit plan, severance plan or other employee benefit plan or arrangement,
including, without limitation, those pension, profit-sharing and retirement plans of the Borrower described from time to time
in the financial statements of the Borrower and any pension plan, welfare plan, Defined Benefit Pension Plans (as defined in ERISA)
or any multi-employer plan, maintained or administered by the Borrower or to which the Borrower is a party or may have any liability
or by which the Borrower is bound.


 


“Environmental
Laws” shall mean all present or future federal, state or local laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative or judicial orders, consent agreements, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any governmental authority, in each case relating to any matter arising out
of or relating to public health and safety, or pollution or protection of the environment or workplace, including any of the foregoing
relating to the presence, use, production, generation, handling, transport, treatment, storage, disposal, distribution, discharge,
emission, release, threatened release, control or cleanup of any Hazardous Substance.


 


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.


 


“Escrow
Agent” means Signature Bank.


 


“Escrow
Account” means the escrow account established by the Guarantor and the Placement Agent with the Escrow Agent in
which all proceeds from the Loans will be deposited.


 


“Event
of Default” shall mean any of the events or conditions which are set forth in Section 10 hereof.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Existing
Debt” shall mean any Debt that encumbers or is associated with any investment by the Borrower or any of its Subsidiaries
in real estate or property, including assets that are related thereto, to the extent such Debt exists prior to or as of the date
of such investment.


 


“GAAP”
shall mean accounting principles generally accepted in the United States, set forth from time to time in the opinions and pronouncements
of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of the date of determination, provided, however, that
interim financial statements or reports shall be deemed in compliance with GAAP despite the absence of footnotes and fiscal year-end
adjustments as required by GAAP.


 






    4


     


    

 


“Hazardous
Substances” shall mean (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that
is or could become friable, urea formaldehyde foam insulation, dielectric fluid containing levels of polychlorinated biphenyls,
radon gas and mold; (b) any chemicals, materials, pollutant or substances defined as or included in the definition of “hazardous
substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous substances”,
“restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”,
“pollutants” or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material
or substance, the exposure to, or release of which is prohibited, limited or regulated by any governmental authority or for which
any duty or standard of care is imposed pursuant to, any Environmental Law.


 


“Hedging
Agreement” shall mean any interest rate, currency or commodity swap agreement, cap agreement or collar agreement,
and any other agreement or arrangement designed to protect a Person against fluctuations in interest rates, currency exchange
rates or commodity prices.


 


“Hedging
Obligation” shall mean, with respect to any Person, any liability of such Person under any Hedging Agreement.


 


“Indemnified
Party” and “Indemnified Parties” shall mean, respectively, each of the Lenders and any
Affiliate or Subsidiary of the Lenders, and each of their Related Parties.


 


“Intellectual
Property” shall mean the collective reference to all rights, priorities and privileges relating to intellectual
property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, patents, service
marks and trademarks, and all registrations and applications for registration therefor and all licensees thereof, trade names,
domain names, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.


 


“Interest
Rate” means a non-compounded per annum rate of interest equal to ten percent (10%) or, if lower, the maximum amount
permitted by applicable law.


 


“Interest
Share Amount” means the total number of shares of Common Stock issuable in connection with the payment of accrued
interest, which shall be equal to (x) the total amount of accrued and unpaid interest divided by (y) a price per share equal to
the VWAP per share of Common Stock during the twenty (20) consecutive Trading Days prior to the interest payment date or Maturity
Date, as applicable, rounded up to the nearest whole share of Common Stock.


 


“Investment”
shall mean, with respect to any Person, any investment in another Person, whether by acquisition of any debt or equity security,
by making any loan or advance, by becoming obligated with respect to a Contingent Liability in respect of obligations of such
other Person (other than travel and similar advances to employees in the ordinary course of business).


 


“Liabilities”
shall mean at all times all liabilities of the Borrower that would be shown as such on a balance sheet or in the notes to the
financial statements of the Borrower prepared in accordance with GAAP.


 


“Lien”
shall mean, with respect to any Person, any interest granted by such Person in any real or personal property, asset or other right
owned or being purchased or acquired by such Person (including, without limitation, an interest in respect of a Capital Lease)
which secures payment or performance of any obligation and shall include any mortgage, lien, encumbrance, title retention lien,
charge or other security interest of any kind, whether arising by contract, as a matter of law, by judicial process or otherwise.


 


“Liquidity
Event” means (a) any sale, lease or other disposition of any asset of the Borrower or any subsidiary thereof (other
than a sale, lease or other disposition to a wholly-owned subsidiary or Affiliate of the Borrower), whether alone or in the aggregate
with other sales, leases or other dispositions, resulting in net cash proceeds payable to the Borrower or Guarantor of at least
$25,000,000.00 in the aggregate or (b) one or more debt or equity financings by the Borrower or the Guarantor resulting in net
cash proceeds to the Borrower or Guarantor of at least $25,000,000.00 in the aggregate.


 






    5


     


    

 


“Loan(s)”
shall mean the aggregate amount of all amounts loaned by the Lenders to the Borrower, under and pursuant to this Agreement.


 


“Loan
Commitment” shall mean the aggregate Lender Commitment Amounts which may be increased as additional Lenders become
parties to this Agreement.


 


“Loan
Documents” shall mean each of the agreements, documents, instruments and certificates set forth in Section 3.1
hereof, and any and all such other instruments, documents, certificates and agreements from time to time executed and delivered
by the Borrower or the Guarantor for the benefit of the Lenders pursuant to any of the foregoing, and all amendments, restatements,
supplements and other modifications thereto.


 


“Material
Adverse Effect” shall mean (a) a material impairment of the ability of the Borrower to perform any of the Obligations
under any of the Loan Documents, or (b) a material adverse effect on (i) the legality, validity, binding effect or enforceability
against the Borrower of any of the Loan Documents, (ii) the perfection or priority of any Lien granted to the Lenders under any
Loan Document, or (iii) the rights or remedies of the Lenders under any Loan Document.


 


“Maturity
Date” shall mean the earlier of (x) June 30, 2021 and (y) two (2) Business Days following a Liquidity Event, unless
extended by the Lender pursuant to any modification, extension or renewal note executed by the Borrower and accepted by the Required
Lenders in their sole and absolute discretion in substitution for the Note.


 


“Net
Income” shall mean, with respect to the Borrower for any period, the consolidated net income (or loss) of the Borrower
for such period as determined in accordance with GAAP, excluding any extraordinary gains and any gains from discontinued operations.


 


“Note”
shall mean a promissory note in the form acceptable to the Lenders, dated as of the date hereof, in the amount of the Loan Commitment
and maturing on the Maturity Date, duly executed by the Borrower and payable to the order of the Lenders, together with any and
all renewal, extension, modification or replacement notes executed by the Borrower and delivered to the Lenders and given in substitution
therefor.


 


“Obligations”
shall mean the Loans, as evidenced by any Note, all interest accrued thereon (including interest which would be payable as post-petition
in connection with any bankruptcy or similar proceeding, whether or not permitted as a claim thereunder), any fees due the Lenders
hereunder, any expenses incurred by the Lenders hereunder and any and all other liabilities and obligations of the Borrower to
the Lenders under this Agreement and any other Loan Document, including any reimbursement obligations of the Borrower in respect
of Letters of Credit and surety bonds, all Hedging Obligations of the Borrower which are owed to the Lenders or any Affiliate
of the Lenders, and all Lenders, all in each case howsoever created, arising or evidenced, whether direct or indirect, absolute
or contingent, now or hereafter existing, or due or to become due, together with any and all renewals or extensions thereof. The
term “Obligations” shall not however, refer to the obligations under Section 14 hereof.


 


“Obligor”
shall mean the Borrower, Guarantor, and any other party liable with respect to the Obligations.


 






    6


     


    

 


“Operating
Expense Debt” shall mean any Debt or Contingent Liability that is incurred by a Person in connection with the conduct
of its business for the payment of goods or services, each solely to the extent contemplated by the Approved Budget, after giving
effect to Permitted Budget Variances.


 


“Organizational
Identification Number” means, with respect to Borrower, the organizational identification number assigned to Borrower
by the applicable governmental unit or agency of the jurisdiction of organization of the Borrower.


 


“Other
Taxes” shall mean any present or future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from the execution, delivery, enforcement or registration of, or otherwise with respect to, this
Agreement or any of the other Loan Documents.


 


“Partnership
and LLC Collateral” means any and all limited liability and general partnership interests, limited liability company
interests or other Capital Securities of any type or nature (including any such interests in any of the Borrower’s direct
or indirect Subsidiaries now or hereafter owned by the Borrower), whether now existing or hereafter acquired or arising.


 


“Payment
Shares” means all of the issued and outstanding shares of the ownership interests, whether certificated or uncertificated,
of the Borrower’s direct or indirect Subsidiaries now or hereafter owned by the Borrower.


 


“Permitted
Budget Variance” means any variance in any of specified cost, expense or disbursement in the Approved Budget if
after giving effect to such variance and all other expected variances to the Approved Budget, the aggregate amount of costs, expenses
and disbursements are reasonably expected to not exceed the aggregate costs, expenses and disbursements in the Approved Budget
plus 10%.


 


“Permitted
Indebtedness” means (a) Operating Expense Debt, Acquisition Debt, Existing Debt or trade payables and accrued expenses
incurred by such Person in connection with the preparation and filing of reports or registration statements with the SEC or related
matters and (b) Debt owed by the Borrower or any of its Affiliates as of the date of this Agreement.


 


“Permitted
Liens” shall mean (a) Liens for Taxes, assessments or other governmental charges not at the time delinquent or thereafter
payable without penalty or being contested in good faith by appropriate proceedings and, in each case, for which the Borrower
maintains adequate reserves in accordance with GAAP and in respect of which no Lien has been filed; (b) Liens arising in the ordinary
course of business (such as (i) Liens imposed by law, and (ii) Liens in the form of deposits or pledges incurred in connection
with worker’s compensation, unemployment compensation and other types of social security (excluding Liens arising under
ERISA) or in connection with surety bonds, bids, performance bonds and similar obligations) for sums not overdue or being contested
in good faith by appropriate proceedings and not involving any advances or borrowed money or the deferred purchase price of property
or services, which do not in the aggregate materially detract from the value of the property or assets of the Borrower or materially
impair the use thereof in the operation of the Borrower’s business and, in each case, for which it maintains adequate reserves
in accordance with GAAP and in respect of which no Lien has been filed; (c) attachments, appeal bonds, judgments and other similar
Liens, for sums not exceeding One Hundred Thousand and 00/100 Dollars ($100,000.00) arising in connection with court proceedings,
provided the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings and to the extent such judgments or awards are not final and non-appealable;
(e) easements, rights of way, restrictions, minor defects or irregularities in title and other similar Liens not interfering in
any material respect with the ordinary conduct of the business of the Borrower; (f) Liens arising in connection with Capitalized
Lease Obligations (and attaching only to the property being leased) to the extent such are Acquisition Debt or Existing Debt;
(g) Liens that constitute purchase money security interests on any property securing Debt incurred for the purpose of financing
all or any part of the cost of acquiring such property, provided that any such Lien attaches to such property within twenty (20)
days of the acquisition thereof and attaches solely to the property so acquired and that such are Acquisition Debt or Existing
Debt; (h) Liens granted to the Lenders hereunder and under the Loan Documents; and (i) any Liens incurred in connection with any
Acquisition Debt or Existing Debt.


 






    7


     


    

 


“Permitted
Private Sale” shall mean a sale of the Collateral that is: (i) marketed by a nationally recognized real estate brokerage
company; (ii) that is retained at the expense of the Borrower; (iii) selected by the Borrower and approved by the Required Lenders,
which approval shall not be unreasonably withheld, delayed or conditioned; (iv) marketed on customary terms; and (v) provides
for a sale of the Collateral at a minimum price that is not less than the fair value as reasonably determined by the Borrower.


 


“Person”
shall mean any natural person, partnership, limited liability company, corporation, trust, joint venture, joint stock company,
association, unincorporated organization, government or agency or political subdivision thereof, or other entity, whether acting
in an individual, fiduciary or other capacity.


 


“Placement
Agent” means National Securities Corporation.


 


“Pledged
Collateral” means any and all of the following, in each case to the extent Collateral: (a) Rights to Payment with
respect to (i) Payment Shares; (ii) additional capital stock or other equity securities of the direct or indirect Subsidiaries
of the Borrower, whether certificated or uncertificated; (iii) other Investment Property of the Borrower; (iv) warrants, options
or other rights entitling the Borrower to acquire any interest in capital stock or other securities of such Subsidiaries or any
other Person; (v) Partnership and LLC Collateral; (vi) securities, property, interest, dividends and other payments and distributions
issued as an addition to, in redemption of, in renewal or exchange for, in substitution or upon conversion of, or otherwise on
account of, any of the foregoing; (vii) certificates and instruments now or hereafter representing or evidencing any of the foregoing;
(viii) rights, interests and claims with respect to the foregoing, including under any and all related agreements, instruments
and other documents, and (b) cash and non-cash proceeds of any of the foregoing, in each case whether presently existing or owned
or hereafter arising or acquired and wherever located, and as from time to time received or receivable by, or otherwise paid or
distributed to or acquired by, the Borrower.


 


“Related
Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors,
officers, partners, members, trustees, employees, agents, administrators, managers, representatives and advisors of such Person
and such Person’s Affiliates.


 


“Required
Lenders” means, at any time, Lenders having Loans representing a majority in principal amount of the aggregate amount
of Loans outstanding at the time of determination.


 


“Rights
to Payment” means any and all of the Borrower’s Accounts and any and all of the Borrower’s rights and
claims to the payment or receipt of money or other forms of consideration of any kind in, to and under or with respect to its
Payment Shares, Chattel Paper, Documents, General Intangibles, Instruments, Investment Property, Letter-of-Credit Rights, Proceeds
and Supporting Obligations or other Collateral.


 


“SEC”
means the U.S. Securities and Exchange Commission.


 






    8


     


    

 


“Subsidiary”
and “Subsidiaries” shall mean, respectively, with respect to any Person, each and all such corporations,
partnerships, limited partnerships, limited liability companies, limited liability partnerships, joint ventures or other entities
of which or in which such Person owns, directly or indirectly, such number of outstanding Capital Securities as have fifty percent
(50.00%) or more of the ordinary voting power for the election of directors or other managers of such corporation, partnership,
limited liability company or other entity. Unless the context otherwise requires, each reference to Subsidiaries herein shall
be a reference to direct or indirect Subsidiaries of the Borrower.


 


“Taxes”
shall mean any and all present and future taxes, duties, levies, imposts, deductions, assessments, charges or withholdings, and
any and all liabilities (including interest and penalties and other additions to taxes) with respect to the foregoing.


 


“Trading
Day” means a day on which the principal Trading Market is open for business.


 


“Trading
Market” means any of the NYSE, the NYSE American, NASDAQ, the OTC Bulletin Board system, the OTCQX, OTCQB or OTC
Pink market operated by OTC Markets Group or any other market on which the Common Stock may be listed or quoted for trading on
the date in question.


 


“UCC”
shall mean the Uniform Commercial Code in effect in the state of Delaware from time to time.


 


“Unmatured
Event of Default” shall mean any event which, with the giving of notice, the passage of time or both, would constitute
an Event of Default.


 


“Voidable
Transfer” shall have the meaning set forth in Section 15.17 hereof.


 


“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then
listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. or a similar
report that is generally accepted in the financial industry (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02
p.m. (New York City time)), or (b) in all other cases, the fair market value of a share of Common Stock as determined by an independent
appraiser selected in good faith by the Borrower, and reasonably acceptable to the Required Lenders, the fees and expenses of
which shall be paid by the Borrower.


 


“Warrant”
shall have the meaning set forth in Section 13.1 hereof.


 


1.2 Accounting
Terms.


 


Any
accounting terms used in this Agreement which are not specifically defined herein shall have the meanings customarily given them
in accordance with GAAP. Calculations and determinations of financial and accounting terms used and not otherwise specifically
defined hereunder and the preparation of financial statements that may be furnished to the Lenders pursuant hereto shall be made
and prepared, both as to classification of items and as to amount, in accordance with sound accounting practices and GAAP as used
in the preparation of the financial statements of the Borrower on the date of this Agreement. If any changes in accounting principles
or practices from those used in the preparation of the financial statements are hereafter occasioned by the promulgation of rules,
regulations, pronouncements and opinions by or required by the Financial Accounting Standards Board or the American Institute
of Certified Public Accountants (or any successor thereto or agencies with similar functions), which results in a material change
in the method of accounting in the financial statements required to be furnished to the Lenders hereunder or in the calculation
of financial covenants, standards or terms contained in this Agreement, the parties hereto agree to enter into good faith negotiations
to amend such provisions so as equitably to reflect such changes to the end that the criteria for evaluating the financial condition
and performance of the Borrower will be the same after such changes as they were before such changes; and if the parties fail
to agree on the amendment of such provisions, the Borrower will furnish financial statements in accordance with such changes,
but shall provide calculations for all financial covenants, perform all financial covenants and otherwise observe all financial
standards and terms in accordance with applicable accounting principles and practices in effect immediately prior to such changes.
Calculations with respect to financial covenants required to be stated in accordance with applicable accounting principles and
practices in effect immediately prior to such changes shall be reviewed and certified by the Borrower’s accountants.


 






    9


     


    

 


1.3 Other
Terms Defined in UCC.


 


All
other capitalized words and phrases used herein and not otherwise specifically defined herein shall have the respective meanings
assigned to such terms in the UCC, to the extent the same are used or defined therein.


 


1.4 Other
Interpretive Provisions.


 


(a) The
meanings of defined terms are equally applicable to the singular and plural forms of the defined terms. Whenever the context so
requires, the neuter gender includes the masculine and feminine, the single number includes the plural, and vice versa, and in
particular the word “Borrower” shall be so construed.


 


(b) Section
and Schedule references are to this Agreement unless otherwise specified. The words “hereof, “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision
of this Agreement.


 


(c) The
term “including” is not limiting, and means “including, without limitation”.


 


(d) In
the computation of periods of time from a specified date to a later specified date, the word “from” means “from
and including”; the words “to” and “until” each mean “to but excluding”, and the word
“through” means “to and including”.


 


(e) Unless
otherwise expressly provided herein, (i) references to agreements (including this Agreement and the other Loan Documents) and
other contractual instruments shall be deemed to include all subsequent amendments, restatements, supplements and other modifications
thereto, but only to the extent such amendments, restatements, supplements and other modifications are not prohibited by the terms
of any Loan Document, and (ii) references to any statute or regulation shall be construed as including all statutory and regulatory
provisions amending, replacing, supplementing or interpreting such statute or regulation.


 


(f) To
the extent any of the provisions of the other Loan Documents are inconsistent with the terms of this Loan Agreement, the provisions
of this Loan Agreement shall govern.


 


(g) This
Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and each shall be performed in accordance with its terms.


 






    10


     


    

 


Section
2. TERMS OF LENDING.


 


2.1 Loan.


 


(a) Loan
Amount. Subject to the terms and conditions of this Agreement and the other Loan Documents, and in reliance upon the representations
and warranties of the Borrower set forth herein and in the other Loan Documents, each of the Lenders agrees to make a term loan
in an amount of such Lender’s Loan Amount as set forth on the signature pages of this Agreement (the “Lender’s
Loan Amount”). The Lender shall make the loan of the Lender’s Loan Amount at a closing of the transactions contemplated
by this Agreement (each a “Closing” and, collectively, the “Closings” and the date on which
any Closing takes place a “Closing Date”). The Borrower may hold one or more Closings on and after the date
hereof through December 31, 2019, which date may be extended for up to 180 additional days at the joint election of the Guarantor
and the Placement Agent. The proceeds of the Loans shall be funded into the Escrow Account and thereafter disbursed to the Borrower
for working capital and general corporate purposes and for the acquisition of income producing retail and mixed-use properties
and related transactional expenses in accordance with the budget or payment schedule attached hereto as Exhibit A (the
“Approved Budget”) (subject to Permitted Budget Variances). The first $2,000,000 in net proceeds from the Loans
and up to 49% of the balance of the proceeds from the Loans may be used by the Borrower or the Guarantor for general corporate
and working capital purposes. Thereafter, a majority of the remaining proceeds (after the first $2,000,000 in proceeds) from the
Loans that are deposited in the Escrow Account cannot be used by the Borrower or the Guarantor unless the Guarantor and the board
of directors of the Guarantor resolve that the use of such proceeds is for the acquisition of a specific income producing retail
and mixed-use property and related transaction expenses in accordance with the Approved Budget with Permitted Budget Variances
therefrom and certify the same in writing to the Escrow Agent and the Placement Agent.


 


(b) Interest
and Payments.


 


(i) Except
as otherwise provided in this Section 2.1(b), the principal amount of the Loans outstanding from time to time shall bear
interest at the Interest Rate. Interest on each Loan shall accrue from the date such Loan is made, and accrued and unpaid interest
on the unpaid principal balance of all Loans outstanding from time to time, shall be due and payable quarterly on the first day
of each January, April, July and October while the Loans remain outstanding with the final payment of accrued, but unpaid, interest
being due and payable on the Maturity Date. Any amount of interest on the principal amount of the Loans which is not paid when
due shall be added to the principal balance of the Loan. Any principal amount of the Loan which is not paid when due, whether
at stated maturity, by acceleration or otherwise, shall bear interest payable on demand at the Default Rate.


 


(ii) Each
prepayment of the Loans shall be applied as follows: first, to any accrued and unpaid costs and expenses incurred by the Lenders
hereunder which are payable by the Borrower hereunder; second, to the remaining outstanding principal amount of the Loan; and
third, to accrued and unpaid interest on the principal amount of the Loans. Payments on the Loans shall be made on a pro rata
basis based on the aggregate principal amount of the Loans outstanding at the time payment is made.


 






    11


     


    

 


(c) Principal
Payments.


 


(i) Mandatory
Payments.


 


(A) All
Loans hereunder shall be repaid by the Borrower on the Maturity Date in cash, unless payable sooner pursuant to the provisions
of this Agreement.


 


(B) If,
on the 180th day following the last Closing Date any proceeds of the Loans remain in the Escrow Account, then the Borrower
shall use all of such funds to repay (1) outstanding accrued, but unpaid, interest on the Loans in cash if not otherwise paid
by the Borrower with shares of the Guarantor’s Common Stock in accordance with Section 2.2 below and (2) as much
of the principal amount of the Loans outstanding as is possible in cash. Any mandatory prepayment pursuant to this Section
2.1(c)(i)(B) shall be made on a pro rata basis to all Lenders based upon the relative outstanding principal amounts of their
respective Loans.


 


(ii) Optional
Prepayments. The Borrower may from time to time prepay the Loans in cash, in whole or in part, without any prepayment penalty,
fee or similar amount whatsoever, provided that any prepayment of principal shall include all accrued and unpaid interest thereon
to the date of such prepayment.


 


2.2 Interest
and Fee Computation; Collection of Funds.


 


Except
as otherwise set forth herein, all interest and fees shall be paid, at the Borrower’s election, in either cash or in shares
of Common Stock in an amount equal to the Interest Share Amount, calculated on the basis of a year consisting of 360 days and
shall be paid for the actual number of days elapsed. If any payment to be made by the Borrower hereunder or under any Note shall
become due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day and such extension
of time shall be included in computing any interest in respect of such payment. All payments made by the Borrower hereunder or
under any of the Loan Documents shall be made without setoff, counterclaim, or other defense.


 


2.3 Taxes.


 


(a) Except
as otherwise provided with respect to Tax Withholdings, all payments made by the Borrower under this Agreement shall be made free
and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any governmental authority, excluding net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on
any of the Lenders as a result of a present or former connection between any of the Lenders and the jurisdiction of the governmental
authority imposing such tax or any political subdivision or taxing authority thereof or therein other than any such connection
arising solely from any of the Lenders having executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document (“Lender Jurisdiction Taxes”). Notwithstanding the foregoing,
the Borrower shall withhold amounts for any payments of interest (“Tax Withholdings”) required under the Internal
Revenue Code of 1986, as amended (the “Code”) and remit such payments as required under the Code and such amounts
shall be deemed a payment of interest under this Agreement to the applicable Lender.


 


(b) The
Borrower shall pay any Other Taxes to the relevant governmental authority in accordance with applicable law.


 


(c) At
the request of the Borrower and at the Borrower’s sole cost, the applicable Lender shall take reasonable steps to (i) contest
its liability for any Other Taxes that have not been paid, or (ii) seek a refund of any Other Taxes that have been paid.


 






    12


     


    

 


(d) Whenever
any Other Taxes are payable by the Borrower, as promptly as possible thereafter the Borrower shall send to the Lenders to which
such payment was applicable a certified copy of an original official receipt received by the Borrower showing payment thereof.
If the Borrower fails to pay any Other Taxes when due to the appropriate taxing authority or fails to remit to the applicable
Lenders the required receipts or other required documentary evidence or if any governmental authority seeks to collect any Other
Tax directly from the Lenders for any other reason, the Borrower shall indemnify the applicable Lenders on an after-tax basis
for any incremental taxes, interest or penalties that may become payable by the Lenders to the extent arising from any such failure
by the Borrower.


 


(e) The
agreements in this Section shall survive the satisfaction and payment of the Obligations and the termination of this Agreement.


 


2.4 All
Loans to Constitute Single Obligation.


 


The
Loans shall constitute one general obligation of the Borrower and shall be secured by Lenders’ security interest in and
Lien upon all of the Collateral and by all other security interests, Liens, claims and encumbrances heretofore, now or at any
time or times hereafter granted by the Borrower to Lenders.


 


Section
3. CONDITIONS PRECEDENT.


 


3.1 Conditions
Precedent to Closing.


 


Notwithstanding
any other provision of this Agreement, the Lenders shall not be required to consummate the transactions contemplated by this Agreement
at any Closing unless the following conditions shall have been satisfied:


 


(a) Loan
Documents. The Borrower shall have executed and delivered to the Lenders all of the following Loan Documents, all of which
must be satisfactory to the Lenders and the Lenders’ counsel in form, substance and execution:


 


(i) Loan
Agreement. This Agreement duly executed by the Borrower.


 


(ii) Note.
A Note duly executed by the Borrower, in the form acceptable to the such Lender.


 


(iii) Organizational
and Authorization Document. The Borrower shall have provided or made available to the Lenders copies of:


 


(A) the
Borrower Organizational Documents;


 


(B) resolutions
of the general partner of the Borrower approving and authorizing the Borrower’s execution, delivery and performance of the
Loan Documents and the transactions contemplated thereby;


 


(C) signature
and incumbency certificates of the officers of the general partner of the Borrower, each of which the Borrower hereby certifies
to be true and complete, and in full force and effect without modification, it being understood that the Lenders may conclusively
rely on each such document and certificate until formally advised by the Borrower of any changes therein; and


 






    13


     


    

 


(D) good
standing certificates of the Borrower in the state of Delaware.


 


(iv) Insurance.
Evidence satisfactory to the Lenders of the existence of insurance required to be maintained pursuant to Section 8.5, together
with evidence that the Lenders, has been named as a lender’s loss payee on all such insurance policies.


 


(v) Additional
Documents. Such other certificates, financial statements, schedules, resolutions, notes and other documents which are provided
for hereunder.


 


(b) Litigation.
No litigation or governmental proceeding shall have been instituted against the Borrower or any of its officers, directors or
shareholders having a Material Adverse Effect upon the Borrower.


 


(c) Representations
and Warranties. Any representation or warranty of the Borrower contained herein or in any Loan Document shall be true and
correct as of the date of any Loan as though made on such date, except to the extent such representation or warranty expressly
relates to an earlier date.


 


(d) Additional
Materials. The Lenders shall have received any additional certificates, financial statements, schedules, resolutions, notes
and other documents which are provided for hereunder or which the Lenders shall reasonably require.


 


Section
4. NOTE EVIDENCING LOAN.


 


The
Loans shall be evidenced by a Note that are payable to the Lenders. At the time of each Closing of a Loan or a repayment made
in whole or in part thereon, a notation thereof shall be made on the books and records of the Lenders. All amounts recorded shall
be, absent manifest error, conclusive and binding evidence of (i) the principal amount of the Loans hereunder, (ii) any accrued
and unpaid interest owing on Loans, and (iii) all amounts repaid on Loans. The failure to record any such amount or any error
in recording such amounts shall not, however, limit or otherwise affect the obligations of the Borrower under the Note to repay
the principal amount of the Loans, together with all interest accruing thereon.


 


Section
5. CONTINUING GUARANTY.


 


5.1 Guaranty.
The Guarantor hereby absolutely and unconditionally guarantees, as a guaranty of payment and performance and not merely as a guaranty
of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise,
and at all times thereafter, of any and all of the Obligations, whether for principal, interest, premiums, fees, indemnities,
damages, costs, expenses or otherwise, of the Borrower to the Lender, arising hereunder or under any other Loan Document (including
all renewals, extensions, amendments, refinancings and other modifications thereof and all costs, attorneys’ fees and expenses
incurred by Lender in connection with the collection or enforcement thereof). This Guaranty shall not be affected by the genuineness,
validity, regularity or enforceability of the Obligations or any instrument or agreement evidencing any Obligations, or by the
existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance
relating to the Obligations which might otherwise constitute a defense to the obligations of the Guarantor under this Guaranty,
and the Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all
of the foregoing.


 






    14


     


    

 


5.2 Rights
of the Lender. The Guarantor consents and agrees that the Required Lenders, may, at any time and from time to time, without
notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew,
compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Obligations or any part thereof;
(b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment
of this Guaranty or any Obligations; (c) apply such security and direct the order or manner of sale thereof as the Lenders
may determine; and (d) release or substitute one or more of any endorsers or other Guarantor of any of the Obligations. Without
limiting the generality of the foregoing, the Guarantor consents to the taking of, or failure to take, any action which might
in any manner or to any extent vary the risks of the Guarantor under this Guaranty or which, but for this provision, might operate
as a discharge of any Guarantor.


 


5.3 Certain
Waivers. The Guarantor waives (a) any defense arising by reason of any disability or other defense of Borrower or any
other Guarantor, or the cessation from any cause whatsoever (including any act or omission of the Lenders) of the liability of
Borrower; (b) any defense based on any claim that the Guarantor’s obligations exceed or are more burdensome than those
of Borrower; (c) the benefit of any statute of limitations affecting the Guarantor’s liability hereunder; (d) any
right to proceed against Borrower, proceed against or exhaust any security for the Obligations, any requirement that the Lenders
marshal assets against any other party or Collateral or other property of Borrower or pursue any other remedy in the power of
the Lenders, whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by the Lenders;
and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded
by applicable law limiting the liability of or exonerating guarantors or sureties. The Guarantor expressly waives all setoffs
and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests,
notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the
Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations.


 


5.4 Obligations
Independent. The obligations of the Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent
of the Obligations and the obligations of any other guarantor, and a separate action may be brought against the Guarantor to enforce
this Guaranty whether or not the Borrower or any other person or entity is joined as a party.


 


5.5 Subrogation.
The Guarantor shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect
to any payments it makes under this Guaranty until all Obligations and any other amounts payable under this Agreement are indefeasibly
paid in full in cash. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall
be held in trust for the benefit of Lenders and shall forthwith be paid to Lenders to reduce the amount of the Obligations, whether
matured or unmatured.


 


5.6 Termination;
Reinstatement. This Guaranty is a continuing guaranty of all Obligations now or hereafter existing and shall remain in full
force and effect until all Obligations and any other amounts payable under the Loan Documents are indefeasibly paid in full in
cash. If the Guarantor elects to revoke this Guaranty, such revocation shall not become effective until 10 Business Days after
the Lenders receive written notice from the Guarantor revoking this Guaranty. If this Guaranty is revoked by the Guarantor, said
revocation shall have no effect on the continuing liability of the Guarantor to guarantee unconditionally the prompt payment of
all Obligations which are contracted or incurred prior to the fifth Business Day after receipt of the revocation notice, including
any such prior Obligations which are subsequently renewed, modified or extended after such revocation becomes effective, as well
as all extensions of credit made after revocation pursuant to any commitments made prior to such revocation. Notwithstanding the
foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf
of the Borrower or the Guarantor is made, or the Lenders exercises their right of setoff, in respect of the Obligations and such
payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any applicable law or otherwise, all as if such payment had
not been made or such setoff had not occurred and whether or not the Lenders are in possession of or have released this Guaranty
and regardless of any prior revocation, rescission, termination or reduction. The obligations of the Guarantor under this Section
shall survive termination of this Guaranty.


 






    15


     


    

 


5.7 Subordination.
The Guarantor hereby subordinates the payment of all intercompany Debt of Borrower owing to the Guarantor until such time as the
Obligations are indefeasibly paid in full in cash. Any intercompany Debt, if the Lenders so request, shall be collected, enforced
and received by the Guarantor as trustee for the Lenders and be paid over to the Lenders on account of the Obligations, but without
reducing or affecting in any manner the liability of the Borrower under the other provisions of the Loan Documents.


 


5.8 Stay
of Acceleration. If acceleration of the time for payment of any of the Obligations is stayed, in connection with any case
commenced by or against the Guarantor or Borrower under any applicable laws, or otherwise, all such amounts shall nonetheless
be payable by the Guarantor immediately upon demand by Lender.


 


5.9 Condition
of Borrower. The Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining
from Borrower such information concerning the financial condition, business and operations of Borrower as the Guarantor requires,
and that the Lenders have no duty, and the Guarantor is not relying on the any Lender at any time, to disclose to the Guarantor
any information relating to the business, operations or financial condition of Borrower.


 


Section
6. SECURITY FOR THE OBLIGATIONS.


 


6.1 Security
for Obligations.


 


As
security for the payment and performance of the Obligations, the Borrower does hereby pledge, assign, transfer and deliver to
the Lenders and does hereby grant to the Lenders, a continuing and unconditional security interest in and to any and all assets
and property of the Borrower, of any kind or description, tangible or intangible, wheresoever located and whether now existing
or hereafter arising or acquired, including, but not limited to, the following (all of which property, along with the products
and proceeds therefrom, are individually and collectively referred to as the “Collateral”):


 


(a) all
property of, or for the account of, the Borrower now or hereafter coming into the possession, control or custody of, or in transit
to, the Lenders or any agent or bailee for the Lenders or any parent, Affiliate or Subsidiary of the Lenders or any participant
with the Lenders in the Loans (whether for safekeeping, deposit, collection, custody, pledge, transmission or otherwise), including
all earnings, dividends, distributions, interest, or other rights in connection therewith and the products and proceeds therefrom,
including the proceeds of insurance thereon; and


 






    16


     


    

 


(b) the
additional property of the Borrower, whether now existing or hereafter arising or acquired, and wherever now or hereafter located,
together with all additions and accessions thereto, substitutions, betterments and replacements therefor, products and Proceeds
therefrom, and all of the Borrower’s books and records and recorded data relating thereto (regardless of the medium of recording
or storage), together with all of the Borrower’s right, title and interest in and to all computer software required to utilize,
create, maintain and process any such records or data on electronic media, identified and set forth as follows:


 


(i) All
Debt Instruments;


 


(ii) All
Accounts;


 


(iii) All
Rights to Payment including, without limitation, in connection with Borrower’s direct or indirect ownership interest in
all Pledged Collateral;


 


(iv) All
Goods, including, without limitation, embedded software, Equipment, vehicles, furniture and Fixtures;


 


(v) All
Software and computer programs;


 


(vi) All
Deposit Accounts;


 


(vii) All
Chattel Paper, Electronic Chattel Paper, Instruments, Documents, Letter of Credit Rights, all proceeds of letters of credit, Health-Care-Insurance
Receivables, Supporting Obligations, notes secured by real estate, Commercial Tort Claims, and General Intangibles, including
Payment Intangibles; and


 


(viii) All
Proceeds (whether Cash Proceeds or Noncash Proceeds) of the foregoing property, including, without limitation, all insurance policies
and proceeds of insurance payable by reason of loss or damage to the foregoing property, including unearned premiums, and of eminent
domain or condemnation awards.


 


(c) Notwithstanding
the foregoing, solely to the extent that (i) an agreement, document or instrument that Guarantor, Borrower or any of its Subsidiaries
becomes a party or any of their respective properties becomes bound, and that governs the rights regarding any Lien (an “Existing
Restrictive Agreement”) restricts the asset subject to such Lien to be pledged as Collateral hereunder (such asset,
an “Existing Lien Restricted Asset”), or (ii) the terms of a Permitted Lien governing Acquisition Debt (a “Permitted
Restrictive Agreement”) would restrict the asset subject to such Permitted Lien from being pledged as Collateral hereunder
(such asset, together with any Existing Lien Restricted Asset, a “Restricted Asset”), then the Liens granted
hereunder with respect to such Restricted Asset shall be limited to such security interests, if any, as may be granted to Lender
in accordance with such Existing Restrictive Agreement or such Permitted Restrictive Agreement, as applicable.


 


6.2 Delivery
of Debt Instruments and Certificates Representing Payment Shares.


 


The
Borrower shall deliver to the Lenders immediately upon the Lenders’ demand, all documents, including promissory notes, evidencing
the Debt Instruments and all certificates representing Payment Shares, together with such documentation as the Lenders reasonably
require to fully assign the Debt Instruments and Payment Shares to Lenders to perfect the security interest granted under this
Agreement.


 






    17


     


    

 


6.3 Possession
and Transfer of Collateral.


 


Unless
an Event of Default exists hereunder, and subject to Borrower’s obligations as to mandatory prepayment pursuant to Section
2.1(c), the Borrower shall be entitled to possession or use of the Collateral (other than Debt Instruments or other Instruments,
Documents, Tangible Chattel Paper, Investment Property consisting of certificated securities and other Collateral required or
that may be required to be delivered to the Lenders pursuant to this Section 6). The cancellation or surrender of any Note,
upon payment or otherwise, shall not affect the right of the Lenders to retain the Collateral for any other of the Obligations.
The Borrower shall not sell, assign (by operation of law or otherwise), license, lease or otherwise dispose of, or grant any option
with respect to any of the Collateral.


 


6.4 Financing
Statements.


 


The
Borrower shall, at a Lender’s request, at any time and from time to time, execute and deliver to such Lender such financing
statements, amendments and other documents and do such acts as such Lender deems reasonably necessary in order to establish and
maintain valid, attached and perfected first priority security interests in the Collateral in favor of such Lender, free and clear
of all Liens and claims and rights of third parties whatsoever, except Permitted Liens. The Borrower hereby irrevocably authorizes
the Lenders at any time, and from time to time, to file in any jurisdiction any initial financing statements and amendments thereto
without the signature of the Borrower that (a) indicate the Collateral (i) is comprised of the Collateral, or (ii) as being of
an equal or lesser scope or within greater detail as the grant of the security interest set forth herein, and (b) contain any
other information required by Section 5 of Article 9 of the Uniform Commercial Code of the jurisdiction wherein such financing
statement or amendment is filed regarding the sufficiency or filing office acceptance of any financing statement or amendment,
including (i) whether the Borrower is an organization, the type of organization and any Organizational Identification Number issued
to the Borrower, and (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted
collateral or timber to be cut, a sufficient description of the real property to which the Collateral relates. The Borrower hereby
agrees that a photocopy or other reproduction of this Agreement is sufficient for filing as a financing statement and the Borrower
authorizes the Lenders to file this Agreement as a financing statement in any jurisdiction. The Borrower agrees to furnish any
such information to the Lenders promptly upon request. The Borrower further ratifies and affirms its authorization for any financing
statements and/or amendments thereto, executed and filed by the Lenders in any jurisdiction prior to the date of this Agreement.
In addition, the Borrower shall make appropriate entries on its books and records disclosing the Lenders’ security interests
in the Collateral.


 


6.5 Preservation
of the Collateral.


 


The
Lenders may, but are not required, to take such actions from time to time as they deem appropriate to maintain or protect the
Collateral. The Lenders shall have exercised reasonable care in the custody and preservation of the Collateral if the Lenders
take such action as the Borrower shall reasonably request in writing which is not inconsistent with the Lenders’ status
as a secured party, but the failure of the Lenders to comply with any such request shall not be deemed a failure to exercise reasonable
care; provided, however, a Lender’s responsibility for the safekeeping of the Collateral shall (i) be deemed reasonable
if such Collateral is accorded treatment substantially equal to that which the Lender accords its own property, and (ii) not extend
to matters beyond the control of the Lenders, including, without limitation, acts of God, war, insurrection, riot or governmental
actions. In addition, any failure of the Lenders to preserve or protect any rights with respect to the Collateral against prior
or third parties, or to do any act with respect to preservation of the Collateral, not so requested by the Borrower, shall not
be deemed a failure to exercise reasonable care in the custody or preservation of the Collateral. The Borrower shall have the
sole responsibility for taking such action as may be necessary, from time to time, to preserve all rights of the Borrower and
the Lenders in the Collateral against prior or third parties. Without limiting the generality of the foregoing, where Collateral
consists in whole or in part of securities, the Borrower represents to, and covenants with, the Lenders that the Borrower has
made arrangements for keeping informed of changes or potential changes affecting the securities (including, but not limited to,
rights to convert or subscribe, payment of dividends, reorganization or other exchanges, tender offers and voting rights), and
the Borrower agrees that the Lenders shall have no responsibility or liability for informing the Borrower of any such or other
changes or potential changes or for taking any action or omitting to take any action with respect thereto.


 






    18


     


    

 


6.6 Other
Actions as to any and all Collateral.


 


The
Borrower further agrees to take any other action reasonably requested by the Lenders to ensure the attachment, perfection and
first priority of, and the ability of the Lenders to enforce, the Lenders’ security interest in any and all of the Collateral
to the extent necessary to have a perfected security interest as provided in this Agreement.


 


6.7 Letter-of-Credit
Rights.


 


If
the Borrower at any time is a beneficiary under a letter of credit now or hereafter issued in favor of the Borrower, the Borrower
shall promptly notify the Lenders thereof and, at the request and option of the Lenders, the Borrower shall, pursuant to an agreement
in form and substance satisfactory to the Lenders, either (i) arrange for the issuer and any confirmer of such letter of credit
to consent to an assignment to the Lenders of the proceeds of any drawing under the letter of credit, or (ii) arrange for the
Lenders to become the transferee beneficiary of the letter of credit, with the Lenders agreeing, in each case, that the proceeds
of any drawing under the letter to credit are to be applied as provided in this Agreement.


 


Section
7. REPRESENTATIONS AND WARRANTIES.


 


To
induce the Lenders to make the Loans, the Borrower makes the following representations and warranties to each Lender, each of
which shall survive the execution and delivery of this Agreement:


 


7.1 Borrower
Organization and Name.


 


The
Borrower is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware,
with full and adequate power to carry on and conduct its business as presently conducted. The Borrower is duly licensed or qualified
in all foreign jurisdictions wherein the nature of its activities require such qualification or licensing, except for such jurisdictions
where the failure to so qualify would not have a Material Adverse Effect. The exact legal name of the Borrower is Gadsden Growth
Properties, L.P., and it currently does not conduct, nor, has it during the last five (5) years conducted, business under any
other name or trade name.


 


7.2 Authorization.


 


The
Borrower has full right, power and authority to enter into this Agreement, to make the borrowings and execute and deliver the
Loan Documents as provided herein and to perform all of its duties and obligations under this Agreement and the other Loan Documents.
The execution and delivery of this Agreement and the other Loan Documents will not, nor will the observance or performance of
any of the matters and things herein or therein set forth, violate or contravene any provision of law or of the Borrower Organizational
Documents. All necessary and appropriate action has been taken on the part of the Borrower to authorize the execution and delivery
of this Agreement and the Loan Documents.


 






    19


     


    

 


7.3 Validity
and Binding Nature.


 


This
Agreement and the other Loan Documents are the legal, valid and binding obligations of the Borrower, enforceable against the Borrower
in accordance with their terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors’
rights generally and to general principles of equity.


 


7.4 Consent:
Absence of Breach.


 


The
execution, delivery and performance of this Agreement, the other Loan Documents and any other documents or instruments to be executed
and delivered by the Borrower in connection with the Loans, and the borrowings by the Borrower hereunder, do not and will not
(a) require any consent, approval, authorization of, or filings with, notice to or other act by or in respect of, any governmental
authority or any other Person (other than any consent or approval which has been obtained and is in full force and effect); (b)
conflict with (i) any provision of law or any applicable regulation, order, writ, injunction or decree of any court or governmental
authority, (ii) the Borrower Organizational Documents, or (iii) any agreement, indenture, instrument or other document, or any
judgment, order or decree, which is binding upon the Borrower or any of their respective properties or assets; or (c) require,
or result in, the creation or imposition of any Lien on any asset of Borrower, other than Liens in favor of the Lenders created
pursuant to this Agreement.


 


7.5 Ownership
of Properties; Liens.


 


The
Borrower is the sole owner of all of its properties and assets, real and personal, tangible and intangible, of any nature whatsoever
(including patents, trademarks, trade names, service marks and copyrights), free and clear of all Liens, charges and claims (including
infringement claims with respect to patents, trademarks, service marks, copyrights and the like), other than Permitted Liens.


 


7.6 Equity
Ownership.


 


All
issued and outstanding Capital Securities of the Guarantor and Borrower are duly authorized and validly issued, fully paid, and
non-assessable, and such securities were issued in compliance with all applicable state and federal laws concerning the issuance
of securities. As of the date hereof, there are no pre-emptive or other outstanding rights, options, warrants, conversion rights
or other similar agreements or understandings for the purchase or acquisition of any Capital Securities of the Borrower or Guarantor
that would prohibit the Guarantor from issuing the Capital Securities to the Lenders pursuant to Section 13. 


 


7.7 Litigation
and Contingent Liabilities.


 


There
is no litigation, arbitration proceeding, demand, charge, claim, petition or governmental investigation or proceeding pending,
or to the knowledge of the Borrower, threatened, against the Borrower or Guarantor, which, if adversely determined, might reasonably
be expected to have a Material Adverse Effect upon the Borrower or Guarantor, except as set forth in the private placement memorandum,
dated June 10, 2019, relating to the offering of the Notes and the Warrants, under the heading “Risks Relating to Gadsden
Opco.”


 


7.8 Event
of Default.


 


No
Event of Default or Unmatured Event of Default exists or would result from the incurrence by the Borrower of any of the Obligations
hereunder or under any of the other Loan Documents, and the Borrower is not in default (without regard to grace or cure periods)
under any other contract or agreement to which it is a party.


 






    20


     


    

 


7.9 Adverse
Circumstances.


 


No
condition, circumstance, event, agreement, document, instrument, restriction, litigation or proceeding (or threatened litigation
or proceeding or basis therefor) exists which (a) would have a Material Adverse Effect, or (b) would constitute an Event of Default
or an Unmatured Event of Default.


 


7.10 Solvency,
etc.


 


As
of the date hereof, after giving effect to each Loan hereunder and the use of the proceeds thereof, including the acquisition
of real estate and related assets by Borrower or one of its Subsidiaries as contemplated by Guarantor’s business plan, (a)
the fair value of the Borrower’s assets is greater than the amount of its liabilities (including disputed, contingent and
unliquidated liabilities) as such value is established and liabilities evaluated as required under the Section 548 of the Bankruptcy
Code, (b) the present fair saleable value of the Borrower’s assets is not less than the amount that will be required to
pay the probable liability on its debts as they become absolute and matured, (c) the Borrower is able to realize upon its assets
and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal
course of business, (d) the Borrower does not intend to, and does not believe that it will, incur debts or liabilities beyond
its ability to pay as such debts and liabilities mature, and (e) the Borrower is not engaged in business or a transaction, and
is not about to engage in business or a transaction, for which its property would constitute unreasonably small capital.


 


7.11 Security
Interest.


 


This
Agreement creates a valid security interest in favor of the Lenders in the Collateral and, when properly perfected by filing in
the appropriate jurisdictions, or by possession or Control of such Collateral by the Lenders or delivery of such Collateral to
the Lenders, shall constitute a valid, perfected, security interest in such Collateral.


 


7.12 Lending
Relationship.


 


The
relationship hereby created between the Borrower, and the Lenders is and has been conducted on an open and arm’s length
basis in which no fiduciary relationship exists, and the Borrower has not relied and is not relying on any such fiduciary relationship
in executing this Agreement and in consummating the Loans. Each Lender represents that it will receive any Note payable to its
order as evidence of a bank loan.


 


7.13 Taxes.


 


Each
of the Borrower and the Guarantor has timely filed all tax returns and reports required by law to have been filed by it (after
giving effect to duly filed extensions) and has paid all taxes, governmental charges and assessments due and payable with respect
to such returns, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been set aside on its books, are insured against or bonded
over to the satisfaction of the Lenders and the contesting of such payment does not create a Lien on the Collateral which is not
a Permitted Lien. There is no controversy or objection pending, or to the knowledge of the Borrower, threatened in respect of
any tax returns of the Borrower or the Guarantor. Each of the Borrower and the Guarantor has made adequate reserves on its books
and records in accordance with GAAP for all taxes that have accrued but which are not yet due and payable.


 






    21


     


    

 


7.14 Compliance
with Regulation U.


 


No
portion of the proceeds of the Loans shall be used by the Borrower, or any Affiliate of the Borrower, either directly or indirectly,
for the purpose of purchasing or carrying any margin stock, within the meaning of Regulation U as adopted by the Board of Governors
of the Federal Reserve System or any successor thereto.


 


7.15 Governmental
Regulation.


 


The
Borrower is not, or after giving effect to any loan, will not be, subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the ICC Termination Act of 1995 or the Investment Company Act of 1940 or to any federal or
state statute or regulation limiting its ability to incur indebtedness for borrowed money.


 


7.16 Place
of Business.


 


The
principal place of business of the Borrower is set forth in the preamble to this Agreement and all Collateral and books and records
of Borrower are located at such principal place of business of Borrower. Borrower shall promptly notify the Lenders of any change
in such location. The Borrower will not remove or permit the Collateral to be removed from such location without the prior written
consent of the Lender.


 


7.17 Complete
Information.


 


This
Agreement and all financial statements, schedules, certificates, confirmations, agreements, contracts, and other materials and
information heretofore or contemporaneously herewith furnished in writing by the Borrower to the Lenders for purposes of, or in
connection with, this Agreement and the transactions contemplated hereby is, and all written information hereafter furnished by
or on behalf of the Borrower to the Lenders pursuant hereto or in connection herewith will be, when taken together (including
supplements and modifications and correction), true and accurate in every material respect as of the date of this Agreement and
the date of every Closing, and none of such information is or will be incomplete in any material respect by omitting to state
any material fact necessary to make such information not misleading in light of the circumstances under which made (it being recognized
by the Lenders that any projections and forecasts provided by the Borrower are based on good faith estimates and assumptions believed
by the Borrower to be reasonable as of the date of the applicable projections or assumptions and that actual results during the
period or periods covered by any such projections and forecasts may differ from projected or forecasted results and, further,
that Borrower and the Guarantor have substantial liabilities in excess of their assets.


 


7.18 Compliance
with Certain Laws.


 


(a) As
of the date of this Agreement, each of the Borrower and Guarantor is in full compliance with all the applicable laws and regulations
of the United States of America that prohibit, regulate or restrict financial transactions, including but not limited to, conducting
any activity or failing to conduct any activity, if such action or inaction constitutes a money laundering crime, including any
money laundering crime prohibited under the Money Laundering Control Act, 18 U.S.C. 1956, 1957, or the Lenders Secrecy Act, 31
U.S.C. 5311 et seq. and any amendments or successors thereto and any applicable regulations promulgated thereunder.


 






    22


     


    

 


(b) The
Borrower and Guarantor represent and warrant that: (a) neither it, he, nor she, nor any of their owners, or any officer, director
or employee, is named as a “Specially Designated National and Blocked Person” as designated by the United States Department
of the Treasury’s Office of Foreign Assets Control or as a person, group, entity or nation designated in Executive Order
13224 as a person who commits, threatens to commit, or supports terrorism; (b) it is not owned or controlled, directly or indirectly,
by the government of any country that is subject to a United States Embargo; and (c) it is not acting, directly or indirectly,
for or on behalf of any person, group, entity or nation named by the United States Treasury Department as a “Specially Designated
National and Blocked Person,” or for or on behalf of any person, group, entity or nation designated in Gadsden Executive
Order 13224 as a person who commits, threatens to commit, or supports terrorism; and that it is not engaged in this transaction
directly or indirectly on behalf of, or facilitating this transaction directly or indirectly on behalf of, any such person, group,
entity or nation.


 


(c) The
Borrower and Guarantor acknowledge that it/he/she understands and has been advised by its own legal counsel on the requirements
of the applicable laws referred to above, including the Money Laundering Control Act, 18 U.S.C. 1956, 1957, the Lender Secrecy
Act, 31 U.S.C. 5311 et seq., the applicable regulations promulgated thereunder, and the Foreign Assets Control Regulations, 31
C.F.R. Section 500 et seq.


 


(d) Neither
the Borrower, the Guarantor, nor any of its respective affiliates is an “enemy” or an “ally of the enemy”
within the meaning of Section 2 of the Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), as amended. Neither
the Borrower nor any of its respective Affiliates is in violation of, nor will the use of the Loan violate, the Trading with the
Enemy Act, as amended, or any executive orders, proclamations or regulations issued pursuant thereto, including, without limitation,
regulations administered by the Office of Foreign Asset Control of the Department of the Treasury (31 C.F.R. Subtitle B, Chapter
V).


 


Section
8. AFFIRMATIVE COVENANTS.


 


Until
all Obligations (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted)
have been paid in full in cash, the Borrower covenants and agrees as follows:


 


8.1 Borrower
Existence.


 


The
Borrower shall at all times preserve and maintain (a) its existence and good standing in the jurisdiction of its organization,
and (b) its qualification to do business and good standing in each jurisdiction where the nature of its business makes such qualification
necessary (other than such jurisdictions in which the failure to be qualified or in good standing could not reasonably be expected
to have a Material Adverse Effect), and shall at all times continue as a going concern in the business which the Borrower is presently
conducting.


 


8.2 Use
of Proceeds; Compliance with Laws.


 


The
Borrower shall use the proceeds of the Loans solely for the purposes set forth in Section 2.1(a) and in accordance with
the Approved Budget, subject to Permitted Budget Variances, and not in contravention of any requirements of law and not in violation
of this Agreement, and shall comply in all respects, including the conduct of its business and operations and the use of its properties
and assets, with all applicable laws, rules, regulations, decrees, orders, judgments, licenses and permits, except where failure
to comply could not reasonably be expected to have a Material Adverse Effect. In addition, and without limiting the foregoing
sentence, the Borrower shall (a) ensure that no person who owns a controlling interest in or otherwise controls the Borrower is
or shall be listed on the Specially Designated Nationals and Blocked Person List or other similar lists maintained by the Office
of Foreign Assets Control (“OFAC”), the Department of the Treasury or included in any Executive Orders, (b)
not use or permit the use of the proceeds of the Loans to violate any of the foreign asset control regulations of OFAC or any
enabling statute or Executive Order relating thereto, and (c) comply, and cause each Subsidiary to comply, with all applicable
Lender Secrecy Act (“BSA”) laws and regulations, as amended.


 






    23


     


    

 


8.3 Payment
of Taxes and Liabilities.


 


The
Borrower shall pay and discharge, prior to delinquency and before penalties accrue thereon, all property and other taxes, and
all governmental charges or levies against it or any of the Collateral, as well as claims of any kind which, if unpaid, could
become a Lien on any of its property; provided that the foregoing shall not require the Borrower to pay any such tax or charge
so long as it shall contest the validity thereof in good faith by appropriate proceedings and shall set aside on its books adequate
reserves with respect thereto in accordance with GAAP and, in the case of a claim which could become a Lien on any of the Collateral,
such contest proceedings stay the foreclosure of such Lien or the sale of any portion of the Collateral to satisfy such claim.


 


8.4 Maintain
Property.


 


The
Borrower shall at all times maintain, preserve and keep its properties and Equipment, including, but not limited to, any Collateral,
in good repair, working order and condition, and shall from time to time make all needful and proper repairs, renewals, replacements,
and additions thereto so that at all times the efficiency thereof shall be fully preserved and maintained. The Borrower shall
permit the Lenders to reasonably examine and reasonably inspect such properties and Equipment, including, but not limited to,
any Collateral, at all reasonable times.


 


8.5 Maintain
Insurance.


 


The
Borrower shall maintain the insurance coverage described on the Acord certificate delivered to the Lenders prior to the initial
funding of the Loans under Section 3.1.


 


8.6 ERISA
Liabilities; Employee Plans.


 


The
Borrower shall (i) keep in full force and effect any and all Employee Plans which are presently in existence or may, from time
to time, come into existence under ERISA, and not withdraw from any such Employee Plans, unless such withdrawal can be effected
or such Employee Plans can be terminated without liability to the Borrower; (ii) make contributions to all of such Employee Plans
in a timely manner and in a sufficient amount to comply with the standards of ERISA; including the minimum funding standards of
ERISA; (iii) comply with all material requirements of ERISA which relate to such Employee Plans; (iv) notify the Lenders immediately
upon receipt by the Borrower of any notice concerning the imposition of any withdrawal liability or of the institution of any
proceeding or other action which may result in the termination of any such Employee Plans or the appointment of a trustee to administer
such Employee Plans; (v) promptly advise the Lenders of the occurrence of any “Reportable Event” or “Prohibited
Transaction” (as such terms are defined in ERISA), with respect to any such Employee Plans; and (vi) amend any Employee
Plan that is intended to be qualified within the meaning of Section 401 of the Internal Revenue Code of 1986 to the extent necessary
to keep the Employee Plan qualified, and to cause the Employee Plan to be administered and operated in a manner that does not
cause the Employee Plan to lose its qualified status.


 






    24


     


    

 


8.7 Financial
Statements.


 


The
Borrower and Guarantor shall at all times maintain a standard and modern system of accounting, on the accrual basis of accounting
and in all respects in accordance with GAAP, and shall furnish to the Lenders or its authorized representatives such information
regarding the business affairs, operations and financial condition of the Borrower and the Guarantor, including, but not limited
to:


 


(a) promptly
when and if available, and in any event, within ninety (90) days after the close of each of its fiscal years ending on or after
December 31, 2018, a copy of the annual reviewed financial statements of the Borrower, including consolidated balance sheet, statement
of income and retained earnings, statement of cash flows for the fiscal year then ended, certified by an independent certified
public accountant of recognized standing, selected by the Borrower; and


 


(b) a
copy of all financial and other statements that are filed by Guarantor with the SEC.


 


8.8 Other
Reports.


 


The
Borrower shall, within such period of time as the Lenders may specify, deliver to the Lenders such other financial schedules and
reports as the Lenders may reasonably require.


 


8.9 Collateral
Records.


 


The
Borrower shall keep full and accurate books and records relating to the Collateral and shall mark such books and records to indicate
the Lenders’ Lien in the Collateral.


 


8.10 Notice
of Proceedings.


 


The
Borrower, promptly upon becoming aware, shall give written notice to the Lenders of any litigation, arbitration or governmental
investigation or proceeding not previously disclosed by the Borrower to the Lenders which has been instituted or, to the knowledge
of the Borrower, is threatened against the Borrower or to which any of its properties is subject which might reasonably be expected
to have a Material Adverse Effect.


 


8.11 Notice
of Event of Default or Material Adverse Effect. The Borrower shall, immediately after the commencement thereof, give notice
to the Lenders in writing of the occurrence of any Event of Default or any Unmatured Event of Default, or the occurrence of any
condition or event having a Material Adverse Effect.


 


8.12 Environmental
Matters.


 


If
any release or threatened release or other disposal of Hazardous Substances shall occur or shall have occurred on any real property
or any other assets of the Borrower, the Borrower shall cause the prompt containment and removal of such Hazardous Substances
and the remediation of such real property or other assets as necessary to comply with all Environmental Laws and to preserve the
value of such real property or other assets. Without limiting the generality of the foregoing, the Borrower shall comply with
any Federal or state judicial or administrative order requiring the performance at any real property of the Borrower of activities
in response to the release or threatened release of a Hazardous Substance. To the extent that the transportation of Hazardous
Substances is permitted by this Agreement, the Borrower shall dispose of such Hazardous Substances, or of any other wastes, only
at licensed disposal facilities operating in compliance with Environmental Laws.


 






    25


     


    

 


8.13 Administration
of the Rights to Payment and Pledged Collateral.


 


(a) Collection
of Rights to Payment. Until the Lenders exercise Lenders’ rights hereunder to collect Rights to Payment with respect
to the Collateral of the Lenders, the Borrower shall endeavor in the first instance to diligently collect all amounts due or to
become due on or with respect to the Rights to Payment.


 


(b) Voting
Prior to an Event of Default. Unless an Event of Default shall have occurred and is continuing (i) subject to Section 2.1(c),
the Borrower shall be entitled to receive and retain for its own account any cash dividend on or other cash distribution, if any,
in respect of the Pledged Collateral, to the extent consistent with the Loan Documents; and (ii) the Borrower shall have the right
to vote the Pledged Collateral and to give consents, ratifications and waivers in respect thereof, and shall retain the power
to control the direction, management and policies of any Person comprising the Pledged Collateral to the same extent as the Borrower
would if the Pledged Collateral were not pledged to the Lenders pursuant to this Agreement; provided, however, that no vote shall
be cast or consent, waiver or ratification given or action taken which would have the effect of materially impairing the position
or interest of the Lenders in respect of the Pledged Collateral or which would alter the voting rights with respect to the stock
or other ownership interest in or of any such Person or be inconsistent with or violate any provision of this Agreement or any
other Loan Documents. If applicable, the Borrower shall be deemed the beneficial owner of all Pledged Collateral for purposes
of Sections 13 and 16 of the Exchange Act and agrees to file all reports required to be filed by beneficial owners of securities
thereunder.


 


(c) General
Authority upon an Event of Default. Upon the occurrence and during the continuance of any Event of Default:


 


(i) the
Lenders shall be entitled to receive all distributions and payments of any nature with respect to the Collateral, to be held by
the Lenders as part of such Collateral; and


 


(ii) the
Lenders shall have the right following prior written notice to the Borrower to vote or consent to take any action with respect
to the Collateral and exercise all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining
to such Collateral, as if the Lenders were the absolute owner thereof.


 


(d) Distributions
to Be Held for Lenders. Upon the occurrence and during the continuance of any Event of Default, distributions and other payments
which are received by the Borrower but which it is not entitled to retain as a result of the operation of this Section 8.13
shall be held in trust for the benefit of the Lenders, be segregated from the other property or funds of the Borrower, and
be forthwith paid over or delivered to the Lenders in the same form as so received.


 


8.14 Further
Assurances.


 


The
Borrower shall take such actions as are necessary or as the Lenders may reasonably request from time to time to ensure that the
Obligations are secured by substantially all of the assets of the Borrower, in each case as the Lenders may determine, including
(a) the execution and delivery of security agreements, pledge agreements, mortgages, deeds of trust, financing statements and
other documents, and the filing or recording of any of the foregoing, and (b) the delivery of certificated securities and other
collateral with respect to which perfection is obtained by possession.


 






    26


     


    

 


8.15 Registration
Rights. The Guarantor hereby grants the following registration rights to the Lenders.


 


(a) Registration
Statement. The Guarantor shall file with the SEC not later than thirty (30) days after the last Closing Date hereunder
a registration statement on an appropriate form (the “Registration Statement”) covering the resale of (i) the
shares of Guarantor’s Common Stock underlying the Warrants and (ii) the aggregate Interest Share Amount issuable to the
Lenders hereunder (collectively, the “Registrable Securities”) and shall use its commercially reasonable efforts
to cause the Registration Statement to be declared effective as soon as practicable thereunder and maintain such Registration
Statement effective during the Effectiveness Period (as defined below). Notwithstanding anything to the contrary herein, at any
time, the Guarantor may delay the disclosure of material, non-public information concerning the Guarantor the disclosure of which
at the time is not, in the good faith opinion of the Board of Directors of the Guarantor, in the best interest of the Guarantor
and otherwise required (a “Grace Period”); provided, that the Guarantor shall promptly: (i) notify the
Lenders in writing of the existence of material, non-public information giving rise to a Grace Period (provided that in each notice
the Guarantor will not disclose the content of such material, non-public information to the Lender) and the date on which the
Grace Period will begin, and (ii) use commercially reasonable efforts to resolve any issue that makes disclosure of the material,
non-public information not in the best interests of the Guarantor. For purposes hereof, “Effectiveness Period”
means, as to any Registration Statement required to be filed pursuant to this Section 8.15, the period commencing on the
effective date of such Registration Statement and ending on (a) the date that all of the Registrable Securities covered by such
Registration Statement have been publicly sold by the Lenders holding such Registrable Securities included therein, or (b) such
time as all of the Registrable Securities covered by such Registration Statement may be sold by the Lenders holding such Registrable
Securities without volume restrictions pursuant to Rule 144 of the Securities Act as determined by the counsel to the Guarantor
pursuant to a written opinion letter to such effect, addressed and acceptable to the Guarantor’s transfer agent and the
affected Lenders.


 


(b) Registration
Procedures. In connection with the Registration Statement, the Guarantor will:


 


(i) Prepare
and file with the SEC such amendments and supplements to the Registration Statement and the prospectus used in connection therewith
as may be necessary to keep such Registration Statement effective with respect to the Lenders until all the Registrable Securities
owned by such the Lenders may be resold without restriction under the Securities Act; and


 


(ii) Immediately
notify the Lenders when the prospectus included in the Registration Statement is required to be delivered under the Securities
Act, of the happening of any event of which the Guarantor has knowledge as a result of which the prospectus contained in such
Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. If
the Guarantor notifies the Lenders to suspend the use of any prospectus until the requisite changes to such prospectus have been
made, then the Lenders shall suspend use of such prospectus. In such event, the Guarantor will use its commercially reasonable
efforts to update such prospectus as promptly as is practicable.


 






    27


     


    

 


(iii) Provision
of Documents etc. In connection with the Registration Statement, the Lenders will furnish to the Guarantor in writing
such information and representation letters with respect to itself and the proposed distribution by it as reasonably shall be
necessary in order to assure compliance with federal and applicable state securities laws. The Guarantor may require the Lenders,
upon five business days’ notice, to furnish to the Guarantor a certified statement as to, among other things, the number
of Registrable Securities and the number of other shares of the Guarantor’s Common Stock beneficially owned by such Lender
and the person that has voting and dispositive control over such shares. The Lenders covenant and agree that each of them will
comply with the prospectus delivery requirements of the Securities Act, if applicable, in connection with sales of Registrable
Securities pursuant to the Registration Statement.


 


(iv) Expenses.
All expenses incurred by the Guarantor in complying with this article, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent public accountants for the Guarantor, fees of transfer
agents and registrars are called “Registration Expenses.” All underwriting discounts and selling commissions
applicable to the sale of the Registrable Securities, including any fees and disbursements of any counsel to the Lenders, are
called “Selling Expenses.” The Guarantor will pay all Registration Expenses in connection with the Registration
Statement. Selling Expenses in connection with the Registration Statement shall be borne by the applicable Lender.


 


(c) Indemnification
and Contribution.


 


(i) The
Guarantor will, to the extent permitted by law, indemnify and hold harmless the Lenders, and, as applicable, each officer of each
Lender, each director of each Lender, and each other person, if any, who controls each Lender within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to which such Lender or such other person (a “controlling
person”) may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) (“Claims”) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement at the time of its effectiveness, any preliminary prospectus
or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances when made, and will, subject to the limitations herein, reimburse such Lender and
each such controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending
any such Claim; provided, however, that the Guarantor shall not be liable to a Lender to the extent that any Claim arises out
of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in conformity with information
furnished by such Lender or any such controlling person in writing specifically for use in the Registration Statement or related
prospectus, as amended or supplemented.


 


(ii) The
Lender will, to the extent permitted by law, indemnify and hold harmless the Guarantor, and each person, if any, who controls
the Guarantor within the meaning of the Securities Act, each underwriter, each officer of the Guarantor who signs the Registration
Statement and each director of the Guarantor against all Claims to which the Guarantor or such officer, director, underwriter
or controlling person may become subject under the Securities Act or otherwise, insofar as such Claims arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement thereof, or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and
will reimburse the Guarantor and each such officer, director, underwriter and controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action, provided,
however, that such Lender will be liable hereunder in any such case if and only to the extent that any such Claim arises out of
or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in
conformity with information pertaining to such Lender, as such, furnished in writing to the Guarantor by such Lender specifically
for use in the Registration Statement or related prospectus, as amended or supplemented.


 






    28


     


    

 


(iii) Promptly
after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof,
but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to such indemnified
party other than under this Section and shall only relieve it from any liability which it may have to such indemnified party under
this Section except and only if and to the extent the indemnifying party is materially prejudiced by such omission. In case any
such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense
thereof with counsel satisfactory to such indemnified party, and, after notice from the indemnifying party to such indemnified
party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section for any legal expenses subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation and of liaison with counsel so selected; provided, however, that, if the
defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be reasonable defenses available to it which are different from or additional to those available
to the indemnifying party or if the interests of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified parties, as a group, shall have the right to select one separate counsel and to assume
such legal defenses and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such
separate counsel and other expenses related to such participation to be reimbursed by the indemnifying party as incurred. The
indemnifying party shall not be liable for any settlement of any such proceeding affected without its written consent, which consent
shall not be unreasonably withheld.


 


(iv) In
order to provide for just and equitable contribution in the event of joint liability under the Securities Act in any case in which
either (i) the Lender, or any controlling person of the Lender, makes a claim for indemnification pursuant to this Section but
it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding
the fact that this Section provides for indemnification in such case, or (ii) contribution under the Securities Act may be required
on the part of the Lender or controlling person of the Lender in circumstances for which indemnification is not provided under
this Section, then, and in each such case, the Guarantor and each of the Lenders will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution from others) in a manner that reflects, as near as practicable,
the economic effect of the foregoing provisions of this Section. Notwithstanding the foregoing, no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 10(f) of the Securities Act) will be entitled to contribution from
any person or entity who was not guilty of such fraudulent misrepresentation.


 






    29


     


    

 


(d) Delivery
of Unlegended Shares. Within three business days (such business day, the “Unlegended Shares Delivery Date”)
after the business day on which the Guarantor has received (i) a notice that Registrable Securities have been sold either pursuant
to, and in compliance with, the Registration Statement or Rule 144 under the Securities Act (“Rule 144”) and
(ii) in the case of sales under Rule 144, customary representation letters of the Lender and Lender’s broker regarding compliance
with the requirements of Rule 144, the Guarantor at its expense, (A) shall deliver the Registrable Securities so sold without
any restrictive legends relating to the Securities Act (the “Unlegended Shares”); and (B) shall cause the transmission
of the certificates representing the Unlegended Shares together with a legended certificate representing the balance of the unsold
Registrable Securities, if any, to the Lender at the address specified in the notice of sale, via express courier, by electronic
transfer or otherwise on or before the Unlegended Shares Delivery Date. Transfer fees shall be the responsibility of the Lender.
In lieu of delivering physical certificates representing the Unlegended Shares, if the Guarantor’s transfer agent is participating
in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer program, upon request of a Lender,
so long as the certificates therefor do not bear a legend and the Lender is not obligated to return such certificate for the placement
of a legend thereon, the Guarantor shall use its best efforts to cause its transfer agent to electronically transmit the Unlegended
Shares by crediting the account of the Lender’s broker with DTC through its Deposit/Withdrawal at Custodian system. Such
delivery must be made on or before the Unlegended Shares Delivery Date but is subject to the cooperation of the Lender’s
broker (the so-called DTC participant). Each of the Lenders agrees that the removal of the restrictive legend from certificates
representing the Registrable Securities as set forth in this Section is predicated upon the Guarantor’s reliance that the
Lender will sell any Registrable Securities pursuant to either the registration requirements of the Securities Act, including
any applicable prospectus delivery requirements, or an exemption therefrom.


 


(e) Rule
144. The Guarantor agrees that until all the Registrable Securities have been sold under a Registration Statement or pursuant
to Rule 144 or other available exemption from Securities Act registration requirements, it shall use its reasonable commercial
efforts to keep current in filing all reports, statements and other materials required to be filed with the SEC to permit the
Lenders to sell the Registrable Securities under Rule 144. The Guarantor shall use commercially reasonable efforts to facilitate
sales of the Registrable Securities under Rule 144, including the delivery of customary transfer agent instructions to the Guarantor’s
transfer agent and causing its counsel to deliver any required opinion to the Guarantor’s transfer agent if resales under
Rule 144 are permissible under the Securities Act.


 


(f) Piggy-Back
Registrations. If at any time during the Effectiveness Period there is not an effective Registration Statement covering all
of the Registrable Securities and the Guarantor shall determine to prepare and file with the SEC a registration statement relating
to an offering for its own account or the account of others under the Securities Act of any of its equity securities, other than
on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities
to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with
stock option or other employee benefit plans, then the Guarantor shall send to each Lender written notice of such determination
and, if within fifteen calendar days after receipt of such notice, any such Lender shall so request in writing, the Guarantor
shall include in such registration statement all or any part of such Registrable Securities such holder requests to be registered,
subject to customary underwriter cutbacks applicable to all holders of registration rights.


 






    30


     


    

 


Section
9. NEGATIVE COVENANTS.


 


Until
all Obligations (other than contingent indemnification Obligations to the extent no claim giving rise thereto has been asserted)
have been paid in full in cash, Borrower will observe, perform, and comply with each of the covenants set forth below in this
Section 9.


 


9.1 Debt.
Without the written consent of the Required Lenders, the Borrower shall not incur, and Borrower will not permit any of its Subsidiaries
to incur, additional Debt other than Permitted Indebtedness as provided herein. 


 


9.2 Encumbrances.
The Borrower shall not, and shall cause each of its direct and indirect Subsidiaries not to, either directly or indirectly, create,
assume, incur or suffer or permit to exist any Lien or charge of any kind or character upon any asset of the Borrower or such
Subsidiary, whether owned at the date hereof or hereafter acquired, except for Permitted Liens.


 


9.3 Investments.


 


The
Borrower shall not, either directly or indirectly, make or have outstanding any Investment, except:


 


(e) Investments
in any direct or indirect Subsidiary, including the payment for any Contingent Liability of such Person;


 


(f) Investments
in any real estate asset owned directly or indirectly by the Borrower;


 


(a) Cash
Equivalent Investments;


 


(b) bank
deposits in the ordinary course of business;


 


provided,
however, that no Investment otherwise permitted by subsections (a) or (b) shall be permitted to be made if, immediately before
or after giving effect thereto, any Event of Default or Unmatured Event of Default exists.


 


9.4 Transfer;
Merger; Sales.


 


Except
for the proposed merger of Gadsden Growth Properties, Inc. with and into the Borrower or a subsidiary of the Borrower, the Borrower
shall not, whether in one transaction or a series of related transactions, without the written consent of the Required Lenders,
(a) be a party to any merger or consolidation, or purchase or otherwise acquire all or substantially all of the assets or any
Capital Securities of any class of, or, (b) effect a Liquidity Event, sell, transfer, convey or lease all or any substantial part
of its assets or Capital Securities, or (c) sell or assign, with or without recourse, any receivables.


 


Without
the written consent of the Required Lenders, the Borrower shall not transfer, by sale, exclusive license or otherwise, any material
property rights of the Borrower, other than the sale of real properties or interests in real properties sold in the ordinary course
of business.


 






    31


     


    

 


9.5 Related
Party Distributions; Dividends.


 


Except
as provided in the Approved Budget the Borrower shall not, (a) make any distribution or dividend (other than stock dividends),
in cash to any of its equity holders other than to the extent required for the Guarantor to continue to qualify under the Code
as a real estate investment trust, if applicable, (b) purchase or redeem any of its equity interests or other Capital Securities
or any warrants, options or other rights in respect thereof, except in accordance with equity incentive plans approved by the
board that permit the purchase of equity interests upon the termination of employment or service with the Borrower of its employees
or consultants, (c) pay any management fees or similar fees to any of its equity holders or any Affiliate thereof, or (d) set
aside funds for any of the foregoing, in each case, other than as contemplated by the Approved Budget.


 


Without
the written consent of the Required Lenders, the Borrower shall not declare or pay any cash dividend or make any cash distribution
on any equity interests or subordinated or junior debt of the Borrower other than (i) the Note, (ii) dividends required to be
paid or accrued on outstanding shares of preferred stock, if any, or (iii) upon the Borrower becoming a Real Estate Investment
Trust under the Internal Revenue Code (“REIT”), other than the payment of dividends required to maintain the
status of the Borrower as a REIT.


 


9.6 Transactions
with Affiliates.


 


Without
the written consent of the Required Lenders, the Borrower shall not, directly or indirectly, enter into or permit to exist any
transaction with any of its Affiliates or with any director, officer or employee of the Borrower other than transactions in the
ordinary course of, and pursuant to the reasonable requirements of, the business of the Borrower and upon fair and reasonable
terms which are fully disclosed to the Lenders and are no less favorable to the Borrower than would be obtained in a comparable
arm’s length transaction with a Person that is not an Affiliate of the Borrower, subject to certain customary exceptions
and the consolidation and closure of subsidiaries in accordance with the Borrower’s current plan of liquidation for such
subsidiaries.


 


9.7 Cancellation
of Debt.


 


The
Borrower shall not cancel any claim or debt owing to it, except for reasonable consideration or in the ordinary course of business.


 


9.8 Inconsistent
Agreements.


 


The
Borrower shall not enter into any agreement containing any provision which would (a) be violated or breached by any borrowing
by the Borrower hereunder or by the performance by the Borrower or any Subsidiary of any of its Obligations hereunder or under
any other Loan Document, (b) prohibit the Borrower from granting to the Lenders a Lien on any of its assets.


 


9.9 Business
Activities; Change of Legal Status and Organizational Documents.


 


The
Borrower shall not, without the written consent of the Required Lenders, (a) engage in any line of business other than that currently
described in the Guarantor’s reports as filed with the SEC or as described in the private placement memorandum, dated June
10, 2019, relating to the offering of the Notes and the Warrants, (b) change its name, its Organizational Identification Number,
if it has one, its type of organization, its jurisdiction of organization or other legal structure, or (b) permit any Borrower
Organizational Documents to be amended or modified in any way which would reasonably be expected to materially adversely affect
the interests of the Lenders.


 






    32


     


    

 


9.10 
Appointment of Executive. Without the written consent of the Required Lenders, the Borrower shall not appoint a new Executive
Officer.


 


9.11 Repurchase;
Redemption. Without the written consent of the Required Lenders, the Borrower shall not repurchase or redeem any securities,
except for the redemption of the Notes and the repurchase of securities of FDHC, LLC, the entity from which the Borrower acquired
the property known as Mission Hills Square, in accordance with the related transaction documents, and the repurchase of equity
securities of employees and consultants to the Borrower in accordance with the Borrower’s equity incentive plan.


 


9.12 Equity
Incentive Plan. Without the written consent of the Required Lenders, the Borrower shall not amend, modify or adopt any option
or equity incentive plan.


 


9.13 Rights
Under the Notes. Without the written consent of the Required Lenders, the Borrower shall not amend, waive, alter or repeal
the preferences, rights, privileges or powers of the Notes.


 


9.14 Loans.
Without the written consent of the Required Lenders, other than guarantees in respect of Acquisition Debt, the Borrower shall
not make any loans in excess of $250,000.


 


Section
10. EVENTS OF DEFAULT.


 


The
Borrower, without notice or demand of any kind, shall be in default under this Agreement upon the occurrence of any of the following
events (each an “Event of Default”).


 


10.1 Nonpayment
of Obligations.


 


Any
amount due and owing on the Note or any of the Obligations, whether by its terms or as otherwise provided herein, is not paid
when due.


 


10.2 Misrepresentation.


 


Any
written warranty, representation, certificate or statement of any Obligor in this Agreement, the other Loan Documents or any other
agreement with the Lenders shall, when considered in the aggregate, be false in any material respects when made, or if any financial
data or any other information now or hereafter furnished to the Lenders by or on behalf of any Obligor shall when made be false,
inaccurate or misleading in any material respect.


 


10.3 Nonperformance.


 


Any
failure to perform or default in the performance of any covenant, condition or agreement contained in this Agreement and, if capable
of being cured, such failure to perform or default in performance continues for a period of fifteen (15) Business Days after the
Borrower receives written notice of such failure to perform or default in performance, or in the other Loan Documents or any other
agreement with the Lenders and such failure to perform or default in performance continues beyond any applicable grace or cure
period.


 


10.4 Default
under Loan Documents.


 


A
default under any of the other Loan Documents, which default continues after the cure or grace period specified therein or for
a period of thirty (30) days if no such period is specified.


 






    33


     


    

 


10.5 Default
under Other Debt.


 


Other
than defaults on: (i) Existing Debt which are continuing on the date the relevant investment or acquisition is made, or (ii) the
Debt of Guarantor (collectively, the “Existing Defaults”), any default by any Obligor or of any of the Borrower’s
direct or indirect Subsidiaries in the payment of any Debt in an amount that exceeds $500,000 for any other obligation beyond
any period of grace provided with respect thereto or in the performance of any other term, condition or covenant contained in
any agreement (including, but not limited to any capital or operating lease or any agreement in connection with the deferred purchase
price of property) under which any such obligation is created, the effect of which default is to cause or permit the holder of
such obligation (or the other party to such other agreement) to cause such obligation to become due prior to its stated maturity
or terminate such other agreement.


 


10.6 Other
Material Obligations.


 


Other
than the Existing Default, any default in the payment when due, or in the performance or observance of, any material obligation
of, or condition agreed to by, any Obligor or any direct or indirect Subsidiary of Borrower with respect to any material purchase
or lease of goods or services where such default, singly or in the aggregate with all other such defaults, would reasonably be
expected to have a Material Adverse Effect.


 


10.7 Bankruptcy,
Insolvency, etc.


 


Any
Obligor admits in writing its inability or refusal to pay, debts as they become due; or any Obligor applies for, consents to,
or acquiesces in the appointment of a trustee, receiver or other custodian for such Obligor or any property thereof, or makes
a general assignment for the benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee,
receiver or other custodian is appointed for any Obligor or for a substantial part of the property of any thereof and is not discharged
within one hundred and twenty (120) days; or any bankruptcy, reorganization, debt arrangement, or other case or proceeding under
any bankruptcy or insolvency law, or any dissolution or liquidation proceeding, is commenced in respect of any Obligor, and if
such case or proceeding is not commenced by such Obligor, it is consented to or acquiesced in by such Obligor, or remains undismissed
for one hundred and twenty (120) days; or any Obligor takes any action to authorize, or in furtherance of, any of the foregoing.


 


10.8 Change
in Control.


 


The
occurrence of any Change in Control.


 


10.9 Use
of Proceeds.


 


Subject
to Permitted Budget Variances, the failure by the Borrower to utilize the proceeds of the Loan in accordance with the Approved
Budget.


 


10.10 Collateral
Impairment.


 


The
entry of any judgment, decree, levy, attachment, garnishment or other process, or the filing of any Lien against, any of the Collateral
or any collateral under a separate security agreement securing any of the Obligations.


 






    34


     


    

 


10.11 Guaranty.


 


There
is a discontinuance by the Guarantor of the Guaranty, or the Guarantor shall contest the validity of the Guaranty.


 


Section
11. REMEDIES.


 


11.1 General
Remedies.


 


Upon
the occurrence of an Event of Default, the Lenders shall have all rights, powers and remedies set forth in the Loan Documents,
in any written agreement or instrument (other than this Agreement or the Loan Documents) relating to any of the Obligations or
any security therefor, as a secured party under the UCC or as otherwise provided at law or in equity. Without limiting the generality
of the foregoing, upon the occurrence of an Event of Default, the Required Lenders may declare all commitments to the Borrower
hereunder to be terminated and all Obligations to be immediately due and payable, provided, however, that upon the
occurrence of an Event of Default, under Section 10.7, all commitments of the Lenders to the Borrower shall immediately
terminate and all Obligations shall be automatically due and payable, all without demand, notice or further action of any kind
required on the part of the Lenders. The Borrower hereby waives any and all presentment, demand, notice of dishonor, protest,
and all other notices and demands in connection with the enforcement of Lenders’ rights under the Loan Documents, and hereby
consents to, and waives notice of release, with or without consideration, of any of the Borrower, the Guarantor or of any Collateral,
notwithstanding anything contained herein or in the Loan Documents to the contrary. In addition to the foregoing:


 


11.2 Possession
and Assembly of Collateral.


 


The
Lenders may, without notice, demand or legal process of any kind, take possession of any or all of the Collateral (in addition
to Collateral of which the Lenders already have possession), wherever it may be found, and for that purpose may pursue the same
wherever it may be found, and may at any time enter into any of the Borrower’s premises where any of the Collateral may
be or is supposed to be, and search for, take possession of, remove, keep and store any of the Collateral until the same shall
be sold or otherwise disposed of and the Lenders shall have the right to store and conduct a sale of the same in any of the Borrower’s
premises without cost to the Lenders. At the Lenders’ request, the Borrower will, at the Borrower’s sole expense,
assemble the Collateral and make it available to the Lenders at a place or places to be designated by the Lenders which is reasonably
convenient to the Lenders and the Borrower.


 


11.3 Sale
of Collateral.


 


The
Lenders may sell any or all of the Collateral at public or Permitted Private Sale in accordance with the UCC, upon such terms
and conditions as the Lenders may deem proper and the Lenders may purchase any or all of the Collateral at any such sale. The
Borrower acknowledges that the Lenders may be unable to affect a public sale of all or any portion of the Collateral because of
certain legal and/or practical restrictions and provisions which may be applicable to the Collateral and, therefore, may be compelled
to resort to one or more Permitted Private Sales to a restricted group of offerees and purchasers. The Borrower consents to any
such Permitted Private Sale so made even though at places and upon terms less favorable than if the Collateral were sold at public
sale. The Lenders shall have no obligation to clean-up or otherwise prepare the Collateral for sale. The Lenders may apply the
net proceeds, after deducting all costs, expenses, attorneys’ and paralegals’ fees incurred or paid at any time in
the collection, protection and sale of the Collateral and the Obligations, to the payment of the Note and/or any of the other
Obligations, returning the excess proceeds, if any, to the Borrower. The Borrower shall remain liable for any amount remaining
unpaid after such application, with interest at the Default Rate. Any notification of intended disposition of the Collateral required
by law shall be conclusively deemed reasonably and properly given if given by the Lenders at least ten (10) Business Days before
the date of such disposition. The Borrower hereby confirms, approves and ratifies all acts and deeds of the Lenders relating to
the foregoing, and each part thereof, and expressly waives any and all claims of any nature, kind or description which it has
or may hereafter have against the Lenders, or their respective Related Parties, by reason of taking, selling or collecting any
portion of the Collateral. The Borrower consents to releases of the Collateral at any time (including prior to default) and to
sales of the Collateral in groups, parcels or portions, or as an entirety, as the Lenders shall deem appropriate and commercially
reasonable. The Borrower expressly absolves the Lenders and their respective Related Parties from any loss or decline in market
value of any Collateral by reason of delay in the enforcement or assertion or nonenforcement of any rights or remedies under this
Agreement.


 






    35


     


    

 


11.4 Standards
for Exercising Remedies.


 


Borrower
and Lenders agree that in exercising remedies provided by the UCC or other applicable law that impose duties on the Lenders to
exercise such remedies in a commercially reasonable manner: (a) the Lenders shall not be required to incur expenses incident to
the preparation of Collateral for disposition if it is unlikely Lenders will recover such expenses in connection with the disposition;
(b) the Lenders shall not be required to obtain any third party consents for access to Collateral or, if not required by other
law, shall not be required to obtain governmental or third party consents for the collection or disposition of Collateral to be
collected or disposed of; (c) Lenders may determine in its reasonable discretion whether to exercise collection remedies against
Account Debtors either directly or through collection agencies or to remove adverse claims against the Collateral; (d) the Lenders
shall not be required to privately contact other potential acquirers of the Collateral, to retain an auctioneer for public sale
or procure the services of other professionals; (e) Lenders may utilize internet auction sites, (f) Lenders may offer the Collateral
for sale in its entirely or as divisible units; (g) Lenders may disclaim disposition warranties, including, without limitation,
any warranties of title; and (h) Lenders may, at their sole expense, purchase insurance or credit enhancements to insure the Lenders
against risks of loss, collection or disposition of Collateral or to provide to the Lenders a guaranteed return from the collection
or disposition of Collateral. The Borrower acknowledges that the purpose of this Section is to provide non-exhaustive indications
of what actions or omissions by the Lenders would be commercially reasonable in the Lenders’ exercise of remedies against
the Collateral and that other actions or omissions by the Lenders shall not be deemed commercially unreasonable solely on account
of not being indicated in this Section. Without limitation upon the foregoing, nothing contained in this Section shall be construed
to grant any rights to the Borrower or to impose any duties on the Lenders that would not have been granted or imposed by this
Agreement or by applicable law in the absence of this Section.


 


11.5 UCC
and Offset Rights.


 


The
Lenders may exercise, from time to time, any and all rights and remedies available to it under the UCC or under any other applicable
law in addition to, and not in lieu of, any rights and remedies expressly granted in this Agreement or in any other agreements
between any Obligor and the Lenders, and may, without demand or notice of any kind, notwithstanding anything herein to the contrary,
appropriate and apply toward the payment of such of the Obligations, whether matured or unmatured, including costs of collection
and attorneys’ and paralegals’ fees, and in such order of application as the Lenders may, from time to time, elect,
any indebtedness of the Lenders to any Obligor, however created or arising, including, but not limited to, balances, credits,
deposits, accounts or moneys of such Obligor in the possession, control or custody of, or in transit to the Lenders. The Borrower,
on behalf of itself and each Obligor, hereby waives the benefit of any law that would otherwise restrict or limit the Administrative
gent, acting on behalf of the Lenders, in the exercise of its right, which is hereby acknowledged, to appropriate at any time
hereafter any such indebtedness owing from the Lenders to any Obligor.


 






    36


     


    

 


11.6 Additional
Remedies.


 


The
Lenders, shall have the rights and powers to:


 


(a) instruct
the Borrower, at its own expense, to notify any parties obligated on any of the Collateral, including, but not limited to, the
applicable Account Debtors, to make payment directly to the Lenders of any amounts due or to become due thereunder, or the Lenders
may directly notify such obligors of the security interest of the Lenders, and/or of the assignment to the Lenders of the Collateral
and direct such obligors to make payment to the Lenders of any amounts due or to become due with respect thereto, and thereafter,
collect any such amounts due on the Collateral directly from such Persons obligated thereon;


 


(b) enforce
collection of any of the Collateral, including, but not limited to, any Accounts, by suit or otherwise, or make any compromise
or settlement with respect to any of the Collateral, or surrender, release or exchange all or any part thereof, or compromise,
extend or renew for any period (whether or not longer than the original period) any indebtedness thereunder;


 


(c) take
possession or control of any proceeds and products of any of the Collateral, including the proceeds of insurance thereon;


 


(d) extend,
renew or modify for one or more periods (whether or not longer than the original period) any Note, any other of the Obligations,
any obligation of any nature of any other obligor with respect to any Note or any of the Obligations;


 


(e) grant
releases, compromises or indulgences with respect to the Note, any of the Obligations, any extension or renewal of any of the
Obligations, any security therefor, or to any other obligor with respect to any Note or any of the Obligations;


 


(f) transfer
the whole or any part of securities which may constitute Collateral into the name of the Lenders or the Lenders’ nominee
without disclosing, if the Required Lenders so desire, that such securities so transferred are subject to the security interest
of the Lenders, and any corporation, association, or any of the managers or trustees of any trust issuing any of such securities,
or any transfer agent, shall not be bound to inquire, in the event that the Lenders or such nominee makes any further transfer
of such securities, or any portion thereof, as to whether the Lenders or such nominee has the right to make such further transfer,
and shall not be liable for transferring the same;


 


(g) vote
the Collateral;


 


(h) make
an election with respect to the Collateral under Section 1111 of the Bankruptcy Code or take action under Section 364 or any other
section of the Bankruptcy Code; provided, however, that any such action of the Lenders as set forth herein shall not, in any manner
whatsoever, impair or affect the liability of the Borrower hereunder, nor prejudice, waive, nor be construed to impair, affect,
prejudice or waive the Lenders’ rights and remedies at law, in equity or by statute, nor release, discharge, nor be construed
to release or discharge, the Borrower, any guarantor or other Person liable to the Lenders for the Obligations; and


 


(i) at
any time, and from time to time, accept additions to, releases, reductions, exchanges or substitution of the Collateral, without
in any way altering, impairing, diminishing or affecting the provisions of this Agreement, the Loan Documents, or any of the other
Obligations, or the Lenders’ rights hereunder, under any Note or under any of the other Obligations.


 


The
Borrower hereby ratifies and confirms whatever the Lenders may do with respect to the Collateral and agrees that the Lenders shall
not be liable for any error of judgment or mistakes of fact or law with respect to actions taken in connection with the Collateral.


 






    37


     


    

 


11.7 No
Marshaling.


 


The
Lenders shall not be required to marshal any present or future collateral security (including but not limited to this Agreement
and the Collateral) for, or other assurances of payment of, the Obligations or any of them or to resort to such collateral security
or other assurances of payment in any particular order. To the extent that it lawfully may, the Borrower hereby agrees that it
will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of the Lenders’
rights under this Agreement or under any other instrument creating or evidencing any of the Obligations or under which any of
the Obligations is outstanding or by which any of the Obligations is secured or payment thereof is otherwise assured, and, to
the extent that it lawfully may, the Borrower hereby irrevocably waives the benefits of all such laws.


 


11.8 Application
of Proceeds.


 


The
Lenders will within two (2) Business Days after receipt of cash or solvent credits from collection of items of payment, proceeds
of Collateral or any other source, apply the whole or any part thereof against the Obligations secured hereby. The Lenders shall
further have the exclusive right to determine how, when and what application of such payments and such credits shall be made on
the Obligations, and such determination shall be conclusive upon the Borrower. Any proceeds of any disposition by the Lenders
of all or any part of the Collateral may be first applied by the Lenders to the payment of expenses incurred in connection with
the Collateral, including attorneys’ fees and legal expenses.


 


11.9 No
Waiver.


 


No
Event of Default shall be waived by the Lenders except in writing. No failure or delay on the part of any Lender in exercising
any right, power or remedy hereunder shall operate as a waiver of the exercise of the same or any other right at any other time;
nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. There shall be no obligation on the part of the Lenders to exercise
any remedy available to the Lenders in any order. The remedies provided for herein are cumulative and not exclusive of any remedies
provided at law or in equity. The Borrower agrees that in the event that the Borrower fails to perform, observe or discharge any
of its Obligations or liabilities under this Agreement or any other agreements with the Lenders, no remedy of law will provide
adequate relief to the Lenders, and further agrees that the Lenders shall be entitled to temporary and permanent injunctive relief
in any such case without the necessity of proving actual damages.


 


Section
12. INDEMNIFICATION.


 


12.1 Obligation
to Indemnify.


 


The
Borrower agrees to defend, protect, indemnify, exonerate and hold harmless each Indemnified Party from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and distributions of
any kind or nature (including, without limitation, the disbursements and the reasonable fees of counsel for each Indemnified Party
thereto, which shall also include, without limitation, reasonable attorneys’ fees and time charges of attorneys who may
be employees of any Indemnified Party but which shall be limited to one counsel for all Indemnified Parties), which may be imposed
on, incurred by, or asserted against, any Indemnified Party (whether direct, indirect or consequential and whether based on any
federal, state or local laws or regulations, including, without limitation, securities laws, Environmental Laws, commercial laws
and regulations, under common law or in equity, or based on contract or otherwise, but excluding any Lender Jurisdiction Taxes
and Tax Withholdings (collectively, “Claims and Losses”) in any manner relating to or arising out of this Agreement
or any of the Loan Documents, or any act, event or transaction related or attendant thereto, the preparation, execution and delivery
of this Agreement and the Loan Documents, including, but not limited to, the making or issuance and management of the Loans, the
use or intended use of the proceeds of the Loans, the enforcement of the Lenders’ rights and remedies under this Agreement,
the Loan Documents, any Note, any other instruments and documents delivered hereunder, or under any other agreement between the
Borrower and the Lenders; provided, however, the Borrower shall not have any obligations hereunder to any Indemnified Party
with respect to matters caused by or resulting from the willful misconduct or gross negligence of such Indemnified Party.


 






    38


     


    

 


12.2 Contribution.


 


To
the extent that the undertaking to indemnify set forth in the preceding sentence may be unenforceable because it violates any
law or public policy, the Borrower shall satisfy such undertaking to the maximum extent permitted by applicable law.


 


12.3 Payment
of Obligation.


 


Any
liability, obligation, loss, damage, penalty, cost or expense or other Claims and Losses covered by this indemnity shall be paid
to each Indemnified Party on demand, and failing prompt payment, together with interest thereon at the Default Rate from the date
incurred by each Indemnified Party until paid by the Borrower, shall be added to the Obligations of the Borrower and be secured
by the Collateral.


 


12.4 Survival.


 


The
provisions of this Section shall survive the satisfaction and payment of the other Obligations and the termination of this Agreement
for a period of eighteen (18) months.


 


Section
13. WARRANT BONUS FEE


 


13.1 Issuance
of Warrant


 


The
Guarantor shall issue warrants in the form of Exhibit B (each a “Warrant” and, collectively, the “Warrants”)
to purchase shares of common stock, par value $0.01 per share (“Common Stock”) as provided in this Section
13. On the date that is 30 Trading Days after the applicable Closing, the Guarantor will issue to each of the Lenders who
participated in such Closing a Warrant for the purchase of the number of shares of Common Stock equal to the following: (i) the
principal amount of all Loans made by such Lender divided by (ii) the volume weighted average closing price of the Common Stock
on the Trading Market for the 20 trading days after the applicable Closing. The Warrant, and, upon the exercise of the Warrant,
the shares of Common Stock issued to each Lender thereunder shall be duly authorized, fully paid and non-assessable. The issuance
of the Warrants by the Guarantor to the Borrower shall be treated as a capital contribution to the Borrower and then a transfer
of such Warrants by the Borrower to the Lender as additional fees or interest under this Agreement. Each Lender acknowledges that
the Warrant and the underlying shares of Common Stock are “restricted securities” under the Securities Act of 1933,
as amended (the “Securities Act”). Each Lender agrees that, as a condition to being issues and such Warrant
and, upon exercise of the Warrant, the shares of Common Stock underlying the Warrant, such Lender shall provide such other additional
information about such Lender to Guarantor so that Guarantor may comply with applicable federal and state securities laws and
that such Lender shall provide such representations and warranties so that Guarantor may issues such shares of Common stock in
compliance with applicable federal and state securities laws, such as that such Lender is not taking such Warrant, or upon exercise
of such Warrant, the shares of Common Stock underlying the Warrant as part of a distribution of such shares and providing to Guarantor
the tax identification number and other registration details for such shares.


 






    39


     


    

 


13.2 Reservation
of Shares.


 


The
Guarantor shall reserve from its authorized and unissued shares of Common Stock such number of shares of Common Stock that are
sufficient to satisfy the obligations in Section 14.1 hereof.


 


13.3 Survival.


 


The
obligations of the Borrower and Guarantor under this Section 13 shall survive and repayment of the Loans.


 


Section
14. MISCELLANEOUS.


 


14.1 Obligations
Absolute.


 


None
of the following shall affect the Obligations of the Borrower to the Lenders under this Agreement or the Lenders’ rights
with respect to the Collateral:


 


(a) acceptance
or retention by the Lenders of other property or any interest in property as security for the Obligations;


 


(b) release
by the Lenders of any of the Borrower, the Guarantor, or of all or any part of the Collateral or of any party liable with respect
to the Obligations;


 


(c) release,
extension, renewal, modification or substitution by the Lenders of any Note, or any note evidencing any of the Obligations, or
the compromise of the liability of the Guarantor of the Obligations; or


 


(d) failure
of the Lenders to resort to any other security or to pursue the Borrower or any other obligor liable for any of the Obligations
before resorting to remedies against the Collateral


 


14.2 Usury
Savings Clause.


 


Nothing
contained herein or in the Loan Documents shall be deemed to require the payment of interest or other charges by Borrower in excess
of the amounts that may be lawfully charged to the Borrower pursuant to the Loan Documents or under the applicable usury laws.
In the event a Lender shall collect monies which are deemed to constitute interest which would increase the effective interest
rate to a rate in excess of that permitted to be charged by applicable law, all such sums deemed to constitute interest in excess
of the legal rate shall, upon such determination, at the option of such Lender, be returned to Borrower or credited against the
principal balance of any obligation secured hereby then outstanding.


 






    40


     


    

 


14.3 Entire
Agreement.


 


This
Agreement and the other Loan Documents (i) are valid, binding and enforceable against the Borrower, Guarantor and the Lenders
in accordance with their respective provisions and no conditions exist as to their legal effectiveness; (ii) constitute the entire
agreement among the parties with respect to the subject matter hereof and thereof; and (iii) are the final expression of the intentions
of the Borrower, Guarantor and the Lenders. No promises, either expressed or implied, exist among the Borrower, Guarantor and
the Lenders, unless contained herein or therein. This Agreement, together with the other Loan Documents, supersedes all negotiations,
representations, warranties, commitments, term sheets, discussions, negotiations, offers or contracts (of any kind or nature,
whether oral or written) prior to or contemporaneous with the execution hereof with respect to any matter, directly or indirectly
related to the terms of this Agreement and the other Loan Documents. This Agreement and the other Loan Documents are the result
of negotiations among the Lenders, the Borrower and the other parties thereto, and have been reviewed (or have had the opportunity
to be reviewed) by counsel to all such parties and are the products of all parties. Accordingly, this Agreement and the other
Loan Documents shall not be construed more strictly against any party merely because of such party’s involvement in their
preparation.


 


14.4 Amendments;
Waivers.


 


No
delay on the part of the Lenders in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any
single or partial exercise by the Lenders of any right, power or remedy preclude other or further exercise thereof, or the exercise
of any other right, power or remedy. No amendment, modification or waiver of, or consent with respect to, any provision of this
Agreement or the other Loan Documents shall in any event be effective unless the same shall be in writing and acknowledged by
the Lenders, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.


 


14.5 WAIVER
OF DEFENSES.


 


THE
BORROWER, ON BEHALF OF ITSELF AND THE GUARANTOR OF ANY OF THE OBLIGATIONS, WAIVES EVERY PRESENT AND FUTURE DEFENSE, CAUSE OF ACTION,
COUNTERCLAIM OR SETOFF WHICH THE BORROWER MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY THE LENDER IN ENFORCING THIS AGREEMENT.
PROVIDED THE LENDER ACTS IN GOOD FAITH AND IN A COMMERCIALLY REASONABLE MANNER, THE BORROWER RATIFIES AND CONFIRMS WHATEVER THE
LENDER MAY DO PURSUANT TO THE TERMS OF THIS AGREEMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER GRANTING ANY FINANCIAL
ACCOMMODATION TO THE BORROWER.


 


14.6 FORUM
SELECTION AND CONSENT TO JURISDICTION.


 


ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT
AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE LENDER FROM BRINGING SUIT OR TAKING
OTHER LEGAL ACTION IN ANY OTHER JURISDICTION. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE
OF ANY SUCH LITIGATION AS SET FORTH ABOVE. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.


 






    41


     


    

 


14.7 Limitations on Actions by Lenders. Upon
the occurrence of any of the following events with respect to the Note: (a) during the continuance of any Event of Default; or
(b) following the final maturity date of the Note if a Lender alleges a claim of breach by the Borrower of the terms of the Note
(each of (a) or (b) being a “Breach Claim”), then, if any Lender in the Notes (an “Initiating
Lender”) expresses a bona fide interest in making a claim against the Borrower with respect to such Note and sets forth
in writing the reasons behind such interest, then the Borrower shall furnish to each of the Lenders (i) a copy of such Lender’s
request and (ii) a response from the Borrower.  The Borrower shall, in such Lender communication, request that each Lender
indicate whether it desires to join the Initiating Lender in pursuing the claim described by the Initiating Lender. If the Required
Lenders (which, for purposes of this Section 14.6 may include the Initiating Lender) indicate an affirmative desire to
join with the Initiating Lender (the “Designating Lenders”), then the Borrower shall furnish to such Designating
Lenders the name, address and email address of each such Designating Lender (an “Information Notice”) for the
purpose of their selecting a Lender Representative as described below. No Lender may pursue any remedy with respect to such Notes
unless and until the Required Lenders indicate a desire to collectively pursue such remedy. If a group of Designating Lenders
is formed, then the Designating Lenders shall, within thirty (30) days of the Borrower’s delivery of the Information Notice
designate a single Lender (the “Lender Representative”) to represent their interests and notify the Borrower
of such designation. After a Lender Representative has been designated, no Lender other than the Lender Representative may pursue
any remedy with respect to such Notes in connection with an Event of Default or a Breach Claim. The Lender Representative may
direct the time, method and place of conducting any proceeding for any remedy against the Borrower arising in connection with
a Breach Claim with respect to a Note. The Lender Representative may, on behalf of all the Designating Lenders, agree to a waiver
of a Breach Claim or any amendment or waiver of any provision of the Notes. When a default is waived, it is deemed cured, but
no such waiver shall: (A) extend to any subsequent or other Event of Default or (B) impair any consequent right.


 


14.8 Assignability.


 


Each
of the Lenders may at any time assign such Lenders’s rights in this Agreement, the other Loan Documents, the Obligations,
or any part thereof and transfer such Lender’s rights in any or all of the Collateral, and such Lender thereafter shall
be relieved from all liability with respect to such Collateral. In addition, the Lenders may at any time sell one or more participations
in the Loans. The Borrower may not sell or assign this Agreement, or any other agreement with the Lenders or any portion thereof,
either voluntarily or by operation of law, without the prior written consent of the Required Lenders. This Agreement shall be
binding upon the Lenders and the Borrower and their respective legal representatives and successors. All references herein to
the Borrower shall be deemed to include any successors, whether immediate or remote.


 


14.9 Additional
Lenders.


 


The
Borrower may offer the right to make Loans to other Persons and such other Persons may become a Lender under this Agreement by
executing a delivering a supplement hereto agreeing to the rights and obligations of a Lender under the Loan Documents. Any such
additional Lender shall pay the pro rata amount of the Loans funded on or prior to the date such Person becomes a Lender together
with accrued and unpaid interest thereon to the Persons that are then Lenders (pro rata on the basis of the Loans that they then
funded) or for the additional Lender to fund a new Loan so that the pro rata amount is then equalized on the basis of the Loan
of the Lenders (and the additional Lender) or any combination of such actions.


 






    42


     


    

 


14.10 Confirmations.


 


The
Borrower and the Lenders agree from time to time, upon written request received by it from the other, to confirm to the other
in writing the aggregate unpaid principal amount of the Loans then outstanding under such Note.


 


14.11 Binding
Effect.


 


This
Agreement shall become effective upon execution by the Borrower, the Guarantor and the Lenders. If this Agreement is not dated
or contains any blanks when executed by the Borrower and the Guarantor, the Lender is hereby authorized, without notice to the
Borrower or the Guarantor, to date this Agreement as of the date when it was executed by the Borrower and the Guarantor, and to
complete any such blanks according to the terms upon which this Agreement is executed.


 


14.12 Governing
Law.


 


This
Agreement, the Loan Documents and any Note shall be delivered and accepted in and shall be deemed to be contracts made under and
governed by the internal laws of the State of New York.


 


14.13 Enforceability.


 


Wherever
possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by, unenforceable or invalid under any jurisdiction, such provision
shall as to such jurisdiction, be severable and be ineffective to the extent of such prohibition or invalidity, without invalidating
the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.


 


14.14 Survival
of Borrower Representations.


 


All
covenants, agreements, representations and warranties made by the Borrower and Guarantor herein shall, notwithstanding any investigation
by the Lenders, be deemed material and relied upon by the Lenders and shall survive the making and execution of this Agreement
and the Loan Documents and the issuance of any Note, and shall be deemed to be continuing representations and warranties until
such time as the Borrower has fulfilled all of its Obligations to the Lenders, and each Lender has been indefeasibly paid in full
in cash. Each Lender, in extending financial accommodations to the Borrower, is expressly acting and relying on the aforesaid
representations and warranties.


 


14.15 Extensions
of Loans.


 


This
Agreement shall secure and govern the terms of (i) any extensions or renewals of any of the Lender’s commitment hereunder,
and (ii) any replacement note executed by the Borrower and accepted by the Lender in its sole and absolute discretion in substitution
for any Note.


 






    43


     


    

 


14.16 Time
of Essence.


 


Time
is of the essence in making payments of all amounts due the Lenders under this Agreement and in the performance and observance
by the Borrower of each covenant, agreement, provision and term of this Agreement.


 


14.17 Counterparts;
Facsimile Signatures.


 


This
Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts and each
such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Agreement.
Receipt of an executed signature page to this Agreement by facsimile or other electronic transmission shall constitute effective
delivery thereof. Electronic records of executed Loan Documents maintained by the Lenders shall deemed to be originals thereof.


 


14.18 Notices.


 


Except
as otherwise provided herein, the Borrower waives all notices and demands in connection with the enforcement of the Lenders’
rights hereunder. All notices, requests, demands and other communications provided for hereunder shall be in writing and addressed
as follows:


 


	 	If to the Borrower:	Gadsden Growth Properties, L.P.
	 	 	 
	 	 	15150 N. Hayden Road
	 	 	 
	 	 	Suite 220
	 	 	 
	 	 	Scottsdale, AZ 85260
	 	 	 
	 	 	Attention:  John Hartman, CEO
	 	 	 
	 	If to the Lenders:	To the Lender
	 	 	 
	 	 	at the address provided by the Lender
	 	 	 
	 	 	to the Borrower


 


or,
as to each party, at such other address as shall be designated by such party in a written notice to each other party complying
as to delivery with the terms of this subsection. All notices addressed as above shall be deemed to have been properly given (i)
if served in person, upon acceptance or refusal of delivery; (ii) if mailed by certified or registered mail, return receipt requested,
postage prepaid, on the third (3rd) day following the day such notice is deposited in any post office station or letter
box; or (iii) if sent by recognized overnight courier, on the first (1st) day following the day such notice is delivered
to such carrier. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances.


 


14.19 Costs,
Fees and Expenses. 


 


Each
party shall pay their own costs and expenses. Notwithstanding the foregoing, the Borrower shall pay the Lenders on demand all
costs, fees and expenses incurred after an Event of Default incurred by the Lenders in connection with the enforcement of their
rights under the Loan Documents whether in any action, suit or litigation, or any bankruptcy, insolvency or other similar proceeding
affecting creditors’ rights generally (but limited to the costs, fees and expenses of one counsel and one accounting firm
representing the Required Lenders).


 






    44


     


    

 


14.20 Revival
and Reinstatement of Obligations. 


 


If
the incurrence or payment of the Obligations by any Obligor or the transfer to the Lenders of any property should for any reason
subsequently be declared to be void or voidable under any state or federal law relating to creditors’ rights, including
provisions of the Bankruptcy Code relating to fraudulent conveyances, preferences, or other voidable or recoverable payments of
money or transfers of property (collectively, a “Voidable Transfer”), and if any Lender is required to repay
or restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the reasonable advice of its counsel, then,
as to any such Voidable Transfer, or the amount thereof that the Lender is required or elects to repay or restore, and as to all
reasonable costs, expenses, and attorney’s fees of the Lenders, the Obligations shall automatically shall be revived, reinstated,
and restored and shall exist as though such Voidable Transfer had never been made.


 


14.21 Customer
Identification – USA Patriot Act Notice.


 


The
Lenders hereby notify the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56, signed
into law October 26, 2001) (the “Act”), and the Lenders’ policies and practices, the Lenders are required
to obtain, verify and record certain information and documentation that identifies the Borrower, which information includes the
name and address of the Borrower and such other information that will allow the Lenders to identify the Borrower in accordance
with the Act.


 


[Signature
Page Follows]


 




    45


     


    

 


IN
WITNESS WHEREOF, the Borrower, the Guarantor, and the Lenders have executed this Loan and Security Agreement as of the date first
above written.


 





	 	BORROWER:
	 	 
	 	GADSDEN GROWTH PROPERTIES, L.P.
	 	 
	 	a Delaware limited partnership
	 	 	 	 
	 	By: 	FC Global Realty Incorporated,
	 	 	its general partner
	 	 	 	 
	 	By:	 	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	GUARANTOR:
	 	 
	 	FC GLOBAL REALTY INCORPORATED,
	 	 
	 	a Nevada corporation
	 	 	 	 
	 	By: 	      	 
	 	 	Name:	 
	 	 	Title:	 


 


Signature Page to


 


Loan and Security Agreement


 




     


     


    

 


IN
WITNESS WHEREOF, the Borrower, the Guarantor and the Lenders have executed this Loan and Security Agreement as of the date first
above written.


 


	 	Agreed and accepted:
	 	 	 
	 	LENDER:
	 	 	 
	 	 	 
	 	Print Name Above
	 	 	 
	 	 	 
	 	Sign Above
	 	 	 
	 	IF Lender is an Entity, specify name and title below:
	 	 
	 	Name: 	 
	 	 	 
	 	Title:	 


 


Signature Page to


 


Loan and Security Agreement




 




     


     


    

 


ANNEX
I


Loan Amounts


 


	Lender:	Amount:
	 	 
	 	[$________________]


 




     


     


    

 


EXHIBIT
A


 


Approved
Budget


 


(See
Attached)


 




     


     


    

 


EXHIBIT
B


 


Form
of Warrant


 


(See
Attached)