Exhibit 10.1

CREDIT AGREEMENT

THIS CREDIT AGREEMENT (this “ Agreement ”) is executed as of June 22, 2017 (the “ Effective Date ”), by and between FIFTH THIRD BANK , an Ohio banking corporation (“ Lender ”), and JETPAY PAYMENT SERVICES, FL, LLC , a Delaware limited liability company (“ Borrower ”).

RECITALS :

A.           WHEREAS, Borrower has applied to Lender for a draw/term loan facility to finance software integration costs related specifically to a contract with the State of Illinois, and Lender is willing to make such loan upon the terms and conditions hereinafter set forth.

B.            NOW, THEREFORE , in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1.            Definitions and Interpretation .

1.1            Exhibits Incorporated . All exhibits to this Agreement, as now existing and as the same may from time to time be modified, are fully incorporated herein by this reference.

1.2            Defined Terms . All capitalized terms used in this Agreement and not otherwise defined in this Agreement shall have the following meanings:

“ Affiliate ” means, with respect to any Person, (a) any other Person which directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, (i) such Person or (ii) any general partner or managing member of such Person; (b) any other Person 50% or more of the equity interest of which is held beneficially or of record by (i) such Person or (ii) any general partner or managing member of such Person, and (c) any general partner, limited partner or member of (i) such Person or (ii) any general partner or managing member of such Person.

“ Applicable Laws ” means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Agency applicable to Borrower and/or the Property.

“ Business Day ” means (i) with respect to all notices and determinations in connection with the LIBOR Rate, any day (other than a Saturday or Sunday) on which commercial banks are open in London, England, New York, New York, and Cincinnati, Ohio for dealings in deposits in the London Interbank Market; and (ii) in all other cases, any day on which commercial banks in Cincinnati, Ohio are required by law to be open for business; provided that, notwithstanding anything to the contrary in this definition of “Business Day”, at any time during which a Rate Management Agreement with Lender is then in effect with respect to all or a portion of the Note, then the definitions of “Business Day” and “Banking Day”, as applicable, pursuant to such Rate Management Agreement shall govern with respect to all applicable notices and determinations in connection with such portion of the Note subject to such Rate Management Agreement.

“ Capitalized Lease Obligations ” means, for any period, the aggregate of all expenditures (including that portion of Capitalized Lease Obligations attributable to that period) made in respect of the purchase, construction or rehabilitation or fixed or capital assets, determined in accordance with GAAP.

“ Closing ” means execution and delivery of the Loan Documents.

“ Closing Date ” means the date upon which the Closing occurs.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Collateral ” shall have the meaning set forth in the Security Agreement.

“ Collective Debt ” means, for any Person, without duplication: (a) all indebtedness of such Person for borrowed money, for amounts drawn under a letter of credit, or for the deferred purchase price of property or services for which such Person or its assets is liable, other than accounts payable arising in the ordinary course of business, (b) all unfunded amounts under a credit agreement, loan agreement, letter of credit, or other credit facility for which such Person would be liable, if such amounts were advanced under such agreement or credit facility or if such letter of credit was issued, (c) all amounts required by such Person as a guaranteed payment to partners or a preferred or special dividend, including any mandatory redemption of shares or interests, (d) all indebtedness guaranteed by such Person, directly or indirectly, (e) all obligations under Capitalized Lease Obligations for which such Person is liable, and (f) except as otherwise conditioned herein, all obligations of such Person under interest rate swaps, caps, floors, collars and other interest hedge agreements, in each case whether such Person is liable contingently or otherwise, as obligor, guarantor or otherwise, or in respect of which obligations such Person otherwise assures a creditor against loss.

“ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“ Control ” and any derivative of such term, including “ Controlling ” and “ Controlled ”, means, when used with respect to any Person, (i) the direct or indirect beneficial ownership of fifty percent (50%) or more of the outstanding voting securities or voting equity of such Person or (ii) the power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

“ Default ” means the occurrence of any event, circumstance or condition which constitutes a breach of or a default under this Agreement or any other Loan Document and which, after the giving of any required notice and/or the passage of any applicable cure period, would constitute an Event of Default under this Agreement or any other Loan Document.

“ Default Rate ” means a per annum interest rate that is equal to the rate of interest per annum applicable under the Note plus three percent (3%).

“ Draw/Term Loan ” means that certain term loan granted by Lender to Borrower in the maximum principal amount of the Draw/Term Loan Amount.

“ Draw/Term Loan Amount ” means an amount not to exceed $1,600,000.00.

“ Draw/Term Note ” means that certain Promissory Note dated as of even date herewith made by Borrower to the order of Lender in the stated principal amount of the Draw/Term Loan Amount.

“ EBITDA ” means, on a consolidated basis, the amount of Borrower’s earnings before interest, taxes, depreciation, amortization, and noncash expenses for the measurement period.

“ Environmental Laws ” means all local, state, federal, and foreign laws, programs, permits, guidance, orders, and consent decrees, now or later in effect and relating to health, safety, or environmental matters or pollution and the protection of the environment or the release of any materials into the environment, including the Comprehensive Environmental Response Compensation and Liability Act.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.

“ Event of Default ” means any event so designated in Section 8.1 , or any other section or provision, of this Agreement.

“ Excluded Swap Obligation(s) ” means, with respect to any guarantor of a Swap Obligation, including the grant of a security interest to secure the guaranty of such Swap Obligation, any Swap Obligation if, and to the extent that, such Swap Obligation is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty or grant of such security interest becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Swap Obligation or security interest is or becomes illegal.

“ Fiscal Year ” means Borrower’s fiscal year, ending on December 31 ^st of each calendar year.

“ Fixed Charge Coverage Ratio ” means the ratio of: (a) Borrower’s EBITDA plus rent and operating lease payments, less distributions, dividends, increases in loans to Guarantor and capital expenditures (other than capital expenditures: (w) incurred with respect to the Magic Platform, (x) financed with equity contributions funded to Borrower by Guarantor, (y) financed with proceeds of the purchase money indebtedness or capital leases to the extent permitted under the Loan Documents, or (z) incurred with respect to the Illinois Contract) and other extraordinary items during the applicable test period, divided by (b) the consolidated sum of (i) Borrower’s interest expense, plus (ii) all scheduled principal payments (but excluding principal that is payable upon the Maturity Date) with respect to indebtedness paid or due and payable by the Constituent Entities during the applicable period plus rent and operating lease expenses incurred in the same such period. For purposes of the definition of Fixed Charge Coverage Ratio, (i) the term “Magic Platform” shall mean capital expenditures of up to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) incurred by Borrower for the creation or implementation of its ‘Magic’ software and operating platform during the period of June 1, 2016 to December 31, 2016 and (ii) the term “Illinois Contract” shall mean capital expenditures of up to One Million and No/100 Dollars ($1,000,000.00) incurred by Borrower for the purpose of securing equipment or funding software integration required under a contract with the State of Illinois during the period of January 1, 2017 to December 31, 2017.

“ Funded Indebtedness to EBITDA ” means the ratio of: (a) indebtedness (excluding Subordinated Indebtedness) (i) in respect of money borrowed, or (ii) evidenced by a note, debenture or other like written obligation to pay money, or (iii) in respect of rent or hire of property under leases or lease arrangements which under GAAP are required to be capitalized, or (iv) in respect of obligations under conditional sales or other title retention agreements to, (b) EBITDA for the measurement period.

“ GAAP ” means generally accepted accounting principles in the United States set forth 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 such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

“ Guarantor ” means JetPay Corporation, a Delaware corporation.

“ Guaranty Agreement ” means that certain Guaranty Agreement dated on or about the date hereof by the Guarantor for the benefit of Lender guaranteeing the obligations of Borrower under the Loan and the Loan Documents.

“ Governmental Agency ” means any governmental or quasi-governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility.

“ Hazardous Materials ” means urea, asbestos, radon gas, pesticides, hydrocarbons, petroleum substances, flammable explosives, paint containing lead, natural or synthetic gas, solid, liquid, or gaseous wastes, polychlorinated biphenyls (PCBs), formaldehyde foam insulation, discharges of sewage or effluent, any material containing hydrated silicate (including amosite, actinolite, tremolite, chrysolite, crocidolite, and anthophylite, whether friable or non-friable), and all toxic, hazardous, and radioactive wastes, chemicals, materials, pollutants, substances, and contaminants that are regulated or controlled by any Environmental Law, whether or not defined, classified, or identified as hazardous under those laws .

“ Intercreditor Agreement ” means that certain Intercreditor Agreement by and between Lender and Junior Creditor dated October 18, 2016.

“ Junior Creditor ” means LHLJ, Inc., a Delaware corporation.

“Junior Debt” has the meaning ascribed to such term in the Intercreditor Agreement.

“ Lender ” means Fifth Third Bank, an Ohio banking corporation.

“ Loan ” means the Draw/Term Loan made hereunder.

“ Loan Commitment Fee ” means, with respect to the Draw/Term Loan, the sum of Eight Thousand and 00/100 Dollars ($8,000.00),

“ Loan Documents ” means, collectively, this Agreement, the Security Agreement, the Guaranty Agreement, any Subordination Agreements, and any other agreement, document or instrument evidencing and/or securing the obligations of Borrower to Lender that Lender requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement, including, without limitation, any Rate Management Agreement, together with all amendments, restatements, supplements and modifications thereof.

“ Loan Expenses ” means all interest, charges, costs and reasonable, documented, out-of-pocket expenses incurred by Lender in connection with the Loan, including, but not limited to: (a) any points, loan fees, service charges, commitment fees or other fees due to Lender in connection with the Loan; (b) all amounts due under any Rate Management Agreement; (c) all title examination, survey, escrow, filing, search, recording and registration fees and charges; (d) all fees and disbursements of architects, engineers and consultants engaged by Borrower and Lender; (e) all documentary stamp and other taxes and charges imposed by law on the issuance or recording of any of the Loan Documents; (f) all Collateral appraisal fees; (g) all title, casualty, liability, payment, performance or other insurance or bond premiums; (h) all fees and disbursements of legal counsel engaged by Lender in connection with the Loan, including, without limitation, counsel engaged in connection with the enforcement, negotiation, preparation or administration of this Agreement or any of the Loan Documents; (i) all fees associated with field examination of Collateral and (i) any amounts required to be paid by Borrower under this Agreement, the Security Agreement or any Loan Document after the occurrence of an Event of Default.

“ Loan Proceeds ” means all amounts advanced as part of the Loan, whether advanced directly to Borrower or otherwise.

“ Material Adverse Change ” means any development, event, condition, obligation, liability or circumstance or set of events, conditions, obligations, liabilities or circumstances or any change(s) which, as determined by Lender in good faith:

(a)          has prevented, impeded or limited the enforceability or validity of any Loan Document, the perfection or priority of any lien created under any Loan Document or the remedies of Lender under any Loan Document;

(b)          has been, or reasonably could be expected to be, material and adverse to the ownership, use enjoyment or value of any of the Collateral or to the business, operations, prospects, properties, assets, liabilities or condition (financial or otherwise) of Borrower;

(c)          has materially impaired the ability of Borrower to perform any of the Obligations, or to consummate the transactions, under the Loan Documents.

“ Note ” means the Draw/Term Note.

“ Obligations ” means (i) the payment when and as due and payable of the principal of and interest on the Loan or so much thereof as may be advanced from time to time, and any and all late charges, Additional Costs (as defined in the Note), and all other indebtedness, loans, advances, and each and every obligation and liability evidenced by, owing, arising under or in connection with the Loan, the Security Agreement, the Note, and/or any of the other Loan Documents, together with any extensions, modifications, renewals or refinancings of any of the foregoing; (ii) the payment of all other expenses, costs, advances and indebtedness which the Security Agreement by its terms secures; (iii) the performance and observance of the covenants and agreements contained in the Security Agreement, the Note and each of the other Loan Documents; (iv) the Rate Management Obligations, except for Rate Management Obligations that constitute Excluded Swap Obligations; (v) all obligations to perform or forbear from performing acts, and agreements, Agreements and documents evidencing, guarantying, securing or otherwise executed in connection with any of the foregoing, together with any amendments, modifications and restatements thereof, and all expenses and attorneys’ fees incurred by Lender hereunder or any other document, Agreement or agreement related to any of the foregoing to the extent required to be paid or reimbursed by Borrower thereunder; and (vi) all other loans, advances, indebtedness and each and every other obligation or liability of Borrower owed to each of Lender and/or any affiliate of Fifth Third Bancorp or its successors, however created, of every kind and description whether now existing or hereafter arising and whether direct or indirect, primary or as guarantor or surety, absolute or contingent, liquidated or unliquidated, matured or unmatured, participated in whole or in part, created by trust agreement, lease overdraft, agreement or otherwise, whether or not secured by additional collateral, whether originated with Lender or owed to others and acquired by Lender by purchase, assignment or otherwise, and all obligations to perform or forbear from performing acts, and agreements, Agreements and documents evidencing, guarantying, securing or otherwise executed in connection with any of the foregoing, together with any amendments, modifications and restatements thereof, and all expenses and attorneys’ fees incurred by Lender hereunder or any other document, instrument or agreement related hereto or to any of the foregoing, to the extent required to be paid or reimbursed by Borrower thereunder.

“ OFAC ” means the U.S. Department of Treasury’s Office of Foreign Asset Control.

“ Party ” means any Person (other than Lender) who is a party or signatory to any Loan Document.

“ Permitted Indebtedness ” means (a) the Obligations; (b) indebtedness under Hedging Agreements entered into for the sole purpose of hedging in the normal course of business and not for speculative purposes; (c) purchase money indebtedness (including Capitalized Lease Obligations) hereafter incurred by Borrower to finance the purchase of fixed assets, provided that such indebtedness incurred shall not exceed in the aggregate One Million and No/100 Dollars ($1,000,000.00) so long as the Loan Documents remain in effect, other than as set forth on Schedule 1.2 ; (d) indebtedness existing on the Effective Date that is identified and described on Schedule 1.2 attached hereto and made a part hereof, including refinancing, replacement and renewals of such indebtedness, provided that any refinancing shall not exceed the amount then outstanding; (e) indebtedness incurred in the ordinary course of business for surety bonds and performance bonds obtained in connection with workers’ compensation, unemployment insurance and other social security legislation; (f) indebtedness representing deferred compensation or reimbursable expenses owed to officers, directors, employees or agents of Borrower in the ordinary course of business; and (g) the Junior Debt in accordance with the Intercreditor Agreement.

“ Permitted Liens ” means (a) liens securing taxes, assessments or governmental charges or levies for amounts that are not yet due and payable; (b) liens of suppliers, carriers, materialmen, warehousemen, workmen or mechanics and other similar liens, in each case imposed by law or arising in the ordinary course of business and for amounts that are not yet due and payable; (c) liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance, social security and other like laws (excluding liens arising under ERISA); (d) pledges or cash deposits made in the ordinary course of business (i) to secure the performance of bids, tenders, leases, sales or other trade contracts (other than for the repayment of borrowed money or the payment of a deferred purchase price for property or services) or (ii) made in lieu of, or to secure the performance of, surety, customs, reclamation or performance bonds (in each case not related to judgments or litigation); (e) liens of landlords and mortgagees of landlords (i) with respect to any landlord, solely arising by statute or, with respect to any mortgagee arising by statute or under any contractual obligations entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and (iv) for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP; (f) non-exclusive intellectual property licenses granted in the ordinary course of business; (g) liens in favor of collecting banks arising under Section 4-210 of the Uniform Commercial Code and other banker’s liens arising by operation of law; (h) liens on fixed assets securing purchase money indebtedness, provided that, (i) such lien attached to such assets concurrently, or within twenty (20) days of the acquisition thereof, and only to the assets so acquired, and (ii) a description of the asset is furnished to Lender; (i) liens existing on the Effective Date and shown on Schedule 1.2 attached hereto and made a part hereof; (j) other liens in favor of Lender under the Loan Documents or in connection with other financing made available to Borrower from Lender; (k) liens securing appeal bonds and judgments with respect to judgments that do not otherwise result in or cause an Event of Default; and (l) liens securing the Junior Debt in accordance with the Intercreditor Agreement.

“ Person ” means any entity, whether an individual, trustee, corporation, partnership, limited liability company, trust, unincorporated organization, Governmental Agency or otherwise.

“ Personal Property ” means all of Borrower’s right, title and interest, whether now existing or hereafter acquired, in and to all furniture, furnishings, fixtures, machinery, equipment, inventory and other personal property of every kind, tangible and intangible as described in the Security Agreement.

“ Premises ” means the property located at 316 Baylen Street, Suite 590, Pensacola, Florida 32502.

“ Property ” means any interest in any kind of asset or property, whether real, personal, or mixed, tangible or intangible, or choate or inchoate.

“ Rate Management Agreement ” means any agreement, device or arrangement providing for payments which are related to fluctuations of interest rates, exchange rates, forward rates, or equity prices, including, but not limited to, dollar-denominated or cross-currency interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate options, puts and warrants, and any agreement pertaining to equity derivative transactions (e.g., equity or equity index swaps, options, caps, floors, collars and forwards), including without limitation any ISDA Master Agreement between Borrower and Lender or any affiliate of Fifth Third Bancorp, and any schedules, confirmations and documents and other confirming evidence between the parties confirming transactions thereunder, all whether now existing or hereafter arising, and in each case as amended, modified or supplemented from time to time.

“ Rate Management Obligations ” means any and all obligations of Borrower to Lender or any affiliate of Fifth Third Bancorp, whether absolute, contingent or otherwise and howsoever and whensoever (whether now or hereafter) created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefore), under or in connection with (i) any and all Rate Management Agreements, and (ii) any and all cancellations, buy-backs, reversals, terminations or assignments of any Rate Management Agreement.

“ Security Agreement ” means that certain Security Agreement of even date herewith from Borrower, as debtor, to and for the benefit of Lender, as secured party, given in connection with the Loan, encumbering the Collateral described therein.

“ Subordinated Indebtedness ” means (x) the Junior Debt, and (y) any other Collective Debt that is subordinated to the Obligations owed to Lender, in a manner satisfactory to Lender in form and substance, including but not limited to such subordinated debt as of the Effective Date as more particularly described on Schedule 1.2 , attached hereto.

“Subordination Agreement” means, (x) with respect to the Junior Debt, the Intercreditor Agreement, and (y) with respect to Subordinated Indebtedness other than the Junior Debt, any subordination agreement entered into by Borrower and Lender with any junior creditor made in connection with the Loan.

“ Swap Obligation ” means any Rate Management Obligation that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act, as amended from time to time.

“ Taxes ” means all taxes, assessments, levies and charges imposed by any public or quasi-public authority having jurisdiction over the Property which are or may affect, or become a lien upon, the Property, or interest therein, or imposed by any Governmental Authority upon Borrower or Lender by reason of their respective interests in the Property or by reason of any payment, or portion thereof, made to Lender hereunder or pursuant to any Obligation or any of the other Loan Documents, other than taxes which are measured by and imposed upon Lender’s general net income.

1.3          Singular and Plural Terms . Any defined term used in the plural in any Loan Document shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class.

1.4          Accounting Principles . Any accounting term used and not specifically defined in any Loan Document shall be construed in conformity with, and all financial data required to be submitted under any Loan Document shall be prepared in conformity with, GAAP applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to Lender.

1.5          References and Other Terms . Any reference to any Loan Document or other document shall include such document both as originally executed and as it may from time to time be amended, restated, modified or supplemented and in effect from time to time. References herein to Articles, Sections and Exhibits shall be construed as references to this Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term “document” is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms “including” and “include” mean “including (include) without limitation.”

2.            The LoanS .

2.1          Agreement to Borrow and Lend . Borrower agrees to borrow from Lender, and Lender agrees to lend to Borrower, amounts not to exceed the Draw/Term Loan Amount on the terms of and subject to the conditions of this Agreement.

2.2          Interest . Interest on funds advanced hereunder shall be due and payable by Borrower to Lender in the manner set forth in the Draw/Term Note.

2.3          Principal Payments; Maturity Date . The principal of the Loan shall be paid in the manner set forth in the Draw/Term Note. The Maturity Date of the Draw/Term Note is June 22, 2021.

2.4          Prepayment . The Loan shall be prepayable only in accordance with the terms and conditions of the Note.

2.5          Draw/Term Loan . The Draw/Term Loan is a limited draw facility to be converted into a term loan as further described in the Draw/Term Note, and Borrower shall have the right to request advances of any portion of the principal balance of the Draw/Term Loan during the Draw Period (as defined in the Draw/Term Note) subject to the conditions of this Agreement and the Draw/Term Note.

3.            Conditions to Closing .

3.1          Conditions to Closing . As a condition precedent to the Closing, Borrower shall furnish to Lender the following, all of which must be strictly satisfactory to Lender and Lender’s counsel in form, content and execution:

(a)           Loan Documents . Fully executed original copies of each of the Loan Documents.

(b)           Subordination Agreements . Subordination Agreements with respect to the Subordinated Indebtedness shown on Schedule 1.2 , if any, containing terms and conditions, including but not limited to, full standstill rights, blockage rights, and inability to block Lender from exercising any and all rights pursuant to the Loan Documents. All other conditions will be satisfactory in all respects to Lender.

(c)           Loan Expenses . All Loan Expenses due and owing hereunder and the Loan Commitment Fee.

(d)           Searches . A report from a national search company acceptable to Lender indicating that, other than Permitted Liens, no material judgments, tax or other liens, security interests, leases of personalty, financing statements or other encumbrances (other than liens and security interests in favor of Lender or otherwise approved by Lender in writing) are of record or on file encumbering any portion of the Property, and that there are no material judgments, tax liens, pending litigation or bankruptcy actions outstanding with respect to Borrower or Guarantor (or explanations satisfactory to Lender of any judgments or pending litigation in existence).

(e)           Intentionally Omitted.

(f)            Attorney’s Opinion . An opinion of one or more counsel for Borrower and Guarantor addressing such issues as Lender may reasonably request, including the following propositions and questions of law (in each case, subject to customary qualifications and exceptions):

(i)          that each of Borrower and Guarantor is duly organized, validly existing and in good standing to do business in the state of its organization and in the State of Florida;

(ii)         that each of Borrower and Guarantor has all necessary legal right, power and authority to conduct its business, to own and operate the Property and to enter into and perform its obligations under this Agreement and the Loan Documents;

(iii)        that all necessary corporate, shareholder, membership, partnership approvals, resolutions and directions have been obtained for the execution of this Agreement and the Loan Documents;

(iv)        that the execution and delivery of this Agreement and the Loan Documents, and the performance thereunder by Borrower and Guarantor will comply with all Applicable Laws and will not violate or conflict with the instruments under which Borrower and Guarantor are organized; and

(v)         that the Loan Documents and this Agreement have been duly and validly executed and delivered, are enforceable in accordance with their respective terms (subject to customary qualifications and exceptions).

(g)           Organizational Documents . A certified copy (certified, where applicable, by the state office in which such documents were filed, and in all other cases by an appropriate representative of the entity) of:

(i)          The organizational documents (for corporations, articles of incorporation and bylaws; for general partnerships, partnership agreement; for limited partnerships, partnership agreement and certificate of limited partnership; for limited liability companies, articles of organization and operating agreement) of Borrower and Guarantor and each entity whose authorization is necessary to authorize the execution, delivery and performance of the Loan Documents, or whose authorization is necessary to authorize any other entity whose authorization is necessary in respect thereto, certified by the appropriate officer of representative. For purposes hereof, Borrower, Guarantor and all such other entities are referred to herein below as the “ Constituent Entities ”;

(ii)         Resolutions by the applicable Constituent Entities authorizing the execution and delivery of the documents evidencing and securing the Loan, certified by an appropriate representative of the Constituent Entities;

(iii)        An incumbency certificate, including specimen signatures for all individuals executing any of the Loan Documents, for each Constituent Entity executing any of the Loan Documents, certified by the secretary or other appropriate representative of such entity;

(iv)        Certificates of existence for all limited partnerships and certificates of good standing for all corporations or limited liability companies that are Constituent Entities from their state of formation, and, if Borrower was not formed in the State of Florida, a certificate of good standing or existence, as applicable, from the State of Florida; and

(v)         All other instruments and documents concerning the formation and existence of the Constituent Entities, and the execution and delivery of the Loan Documents by the Constituent Entities, required by Lender.

(h)           Financial Statements . All financial information requested by Lender with respect to Borrower and Guarantor.

(i)            Consent of Junior Creditor .  Junior Creditor’s consent to the transactions contemplated by this Agreement to the extent required by the Intercreditor Agreement.

(j)            Additional Documents . Such other papers and documents regarding Borrower, Guarantor or the Collateral as Lender may require.

(k)          A compliance certificate in the form attached hereto as Exhibit A .

3.2          Termination of Agreement . Borrower agrees that all conditions precedent to the Closing will be complied with on or prior to the Closing Date. If all of the conditions precedent to the Closing hereunder shall not have been performed on or before the Closing Date, Lender, at its option at any time prior to the Closing, may terminate this Agreement and all of its obligations hereunder by giving a written notice of termination to Borrower. In the event of such termination, Borrower shall pay all Loan Expenses which have accrued or been charged prior to such date.

4.            Representations and Warranties . As a material inducement to Lender’s entry into this Agreement, Borrower represents and warrants to Lender that:

4.1          Good Standing . Borrower is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware. Guarantor is a corporation duly formed, validly existing and in good standing under the laws of the State of Delaware.

4.2          Execution and Performance of Loan Documents .

(a)          Each of Borrower and Guarantor has full power and authority to conduct its business as presently conducted, to enter into this Agreement and the other Loan Documents (as applicable) and to perform all of its duties and obligations under this Agreement and the Loan Documents to which they are a party. Such execution and performance have been duly authorized by all necessary action pursuant to such entity’s organizational documents.

(b)          The execution and delivery by Borrower and Guarantor of, and the performance by Borrower and Guarantor of each such entity’s respective obligations under, each Loan Document do not and will not:

(i)          require any consent or approval not heretofore obtained of any Person having any interest in Borrower or Guarantor;

(ii)         violate any provision of, or require any consent or approval not heretofore obtained under, any partnership agreement, articles of incorporation, bylaws, operating agreement or other governing document applicable to Borrower or Guarantor;

(iii)        result in or require the creation of any lien, claim, charge or other right of others of any kind (other than under or as provided for in the Loan Documents) on or with respect to any property now or hereafter owned or leased by Borrower or Guarantor;

(iv)        violate any provision of any Applicable Law presently in effect; or

(v)         constitute a breach or default under, or permit the acceleration of obligations owed under, any contract, credit agreement, loan agreement, lease or other agreement or document to which Borrower or Guarantor is a party or by which Borrower, Guarantor or any of such entity’s property is bound.

(c)          Neither Borrower nor Guarantor is in default, in any respect that is adverse to Lender’s interests in or under the Loan Documents or that would result in a Material Adverse Change, under any Applicable Law, contract, lease or other agreement or document described in subparagraph (ii) or (v) of the previous subsection.

4.3          Financial and Other Information . All financial information furnished to Lender with respect to Borrower and Guarantor in connection with the Loan (a) accurately presents the financial condition of Borrower and Guarantor as of the date or dates indicated (or if no date or dates are indicated, then as of the date of delivery); and (b) has been prepared in accordance with GAAP subject to, in the case of unaudited financial statements, customary year-end adjustments and the absence of footnotes or in accordance with such other principles or methods as are reasonably acceptable to Lender. All other documents and information furnished to Lender with respect to Borrower and Guarantor in connection with the Loan are correct in all material respects as of the date or dates indicated (or if no date or dates are indicated, then as of the date of delivery) and do not contain any material misstatement of fact or omits to state any material fact necessary to make the statements therein, taken as a whole, in light of the circumstances under which they were made, not misleading. Neither Borrower nor Guarantor has any material liability or contingent liability not disclosed to Lender in writing and there is no material lien, claim, charge or other right of others of any kind (including liens or retained security titles of conditional vendors) on any property of any such Person not disclosed in such financial statements or otherwise disclosed to Lender in writing.

4.4          No Material Adverse Change . There has been no material adverse change in the condition, financial or otherwise, or the properties or businesses of Borrower or Guarantor since the date of the latest financial statements furnished to Lender. Since those dates, neither Borrower nor Guarantor has entered into any material transaction whether or not disclosed in such financial statements or otherwise disclosed to Lender in writing. Further, there are no existing Defaults under any of the Loan Documents, nor do there exist any circumstances or conditions that with the passage of time or giving of notice or both would result in an Event of Default under any of the Loan Documents.

4.5          Enforceability . The Loan Documents, and any other documents and instruments required to be executed and delivered in connection with the Loan to which Borrower and/or Guarantor is a party have been duly authorized, executed and delivered by or on behalf of Borrower and Guarantor (as applicable) as a party thereto, and when executed and delivered, will constitute the duly authorized, valid and legally binding obligations of the party required to execute the same and may be enforced strictly in accordance with their respective terms (except to the extent that enforceability may be affected or limited by applicable bankruptcy, insolvency and other similar debtor relief laws affecting the enforcement of creditors’ rights generally or general principles of equity). No basis presently exists for any claim against Lender under this Agreement, under the Loan Documents or with respect to the Loan, and the Loan Documents and enforcement thereof are not subject to, and neither Borrower nor Guarantor has asserted any right of rescission, set-off, counterclaim or defense, including the defense of usury. The Security Agreement, together with any UCC Financing Statements required to be filed in connection therewith, will create a valid, perfected first priority lien on Borrower’s interest in the Collateral, subject to Permitted Liens. All mortgage, recording, stamp, intangible or other similar taxes required to be paid by any Person under Applicable Laws in connection with the execution, delivery, recordation, filing, registration, perfection and/or enforcement of any of the Loan Documents have been paid, or have been paid by Borrower to an escrow agent authorized to make such payment upon recordation.

4.6          Consents . No approval of, or consent from, any Governmental Authority or any other Person not holding a direct or indirect ownership interest in Borrower or Guarantor is required in connection with the execution and delivery by Borrower or Guarantor of this Agreement or any of the other Loan Documents to which each is a party, or compliance by Borrower or Guarantor with the Loan Documents to which each is a party, or the consummation of the transactions contemplated hereby and thereby, other than those which have been obtained by Borrower and Guarantor and are in full force and effect.

4.7          Environmental Matters . To the knowledge of Borrower, no claim or proceeding under any Environmental Law has been instituted or threatened raising any such claim against Borrower or any portion of the Property now or formerly owned, leased, or operated by it or other assets, alleging any damage to the environment or violation of any Environmental Laws. To the knowledge of Borrower, there are no facts that would give rise to any such claim, public or private, of a violation of any Environmental Law or damage to the environment emanating from, occurring on, or in any way related to real properties now or formerly owned, leased, or operated by Borrower or to other assets or their use. Borrower has not stored any Hazardous Materials on any real Property now or formerly owned, leased, or operated by any of them and has not disposed of any Hazardous Materials in a manner contrary to any Environmental Law except as would not reasonably be expected to result in a Material Adverse Change. To the knowledge of Borrower, all buildings on all real properties owned, leased, or operated by Borrower are in compliance with applicable Environmental Laws. There are no Liens, nor has Borrower received notice of any potential liens, arising under any Environmental Law against any of the real properties owned, leased, or operated by it.

4.8          Tax Liability . Each of Borrower and Guarantor have filed all required material federal, state and local tax returns and has paid, prior to delinquency, all material taxes payable by it (including interest and penalties, but subject to lawful extensions disclosed to Lender in writing) other than taxes being contested in good faith and by appropriate proceedings. Borrower agrees to maintain adequate reserves for tax liabilities (including contested liabilities) in accordance with generally accepted accounting principles or in accordance with such other principles or methods as are reasonably acceptable to Lender.

4.9          Collective Debt . Other than Permitted Indebtedness, Borrower has no Collective Debt (whether secured or unsecured) .

4.10         Collateral . Borrower has title to the Collateral and the Collateral is adequately described in the Security Agreement and is subject to the respective liens of the Security Agreement and the other Loan Documents. The Security Agreement will, upon execution and delivery thereof, be effective to create a valid and enforceable lien on and security interest in the Collateral, subject only to Permitted Liens. All necessary documents and instruments have been (or on the Effective Date will be) recorded, filed for record, or delivered in a manner and in places required to establish those liens and to perfect and preserve perfected liens intended to be created by those documents with the priority intended by those documents and no further action (other than the filing of continuation statements as required by law) is (or will on the Effective Date be) required to maintain and preserve, or effectively to put third parties on notice of, those liens. All Taxes and filing fees that are required to be paid or are payable in connection with the execution, delivery, or recordation of those liens have (or on or before the Effective Date will have) been paid, (other than such Collateral in which a security interest cannot be perfected under the Uniform Commercial Code as in effect at the relevant time in the relevant jurisdiction by such filings).

4.11         Usury . The Loan, including interest rate, fees and charges as contemplated hereby, is a business loan. The Loan is an exempted transaction under the Truth In Lending Act, 12 U.S.C. §1601 et seq.; and the Loan does not, and when disbursed will not, violate the provisions of the usury laws of the State of Florida or the State of New York, or any consumer credit laws or usury laws of any state which may have jurisdiction over this transaction, Borrower or the Property. The Loan is not a consumer loan.

4.12         No Bankruptcy Filing . Neither Borrower nor Guarantor is contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency law or the liquidation of all or a major portion of its property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against it or against Guarantor. In addition, neither Borrower nor Guarantor has been a party to, or the subject of, any a Bankruptcy Proceeding, and neither Borrower nor Guarantor has ever made an assignment for the benefit of creditors or taken advantage of any state or federal bankruptcy or insolvency law for the benefit of debtors.

4.13         Fraudulent Transfer; Solvency . Borrower has not entered into the Loan or any Loan Document with the actual intent to hinder, delay, or defraud any creditor, and Borrower has received reasonably equivalent value in exchange for its obligations under the Loan Documents. Giving effect to the Loan and the transactions contemplated by the Loan Documents, the fair saleable value of Borrower’s assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s total probable liabilities, including subordinated, unliquidated, disputed and/or contingent liabilities, including the maximum amount of its contingent liabilities or its debts as such debts become absolute and matured. Borrower’s assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Borrower does not intend to, and does not believe that it will, incur debt and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debt and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower and the amounts to be payable on or in respect of obligations of Borrower).

4.14         Compliance with Laws . Borrower has duly complied with, and its Property, business operations, and leaseholds, if any, are in compliance in all respects with, the provisions of all Applicable Laws (except to the extent that any noncompliance with applicable law would not reasonably be expected to have a Material Adverse Change), and there have been no orders, notices, or citations of noncompliance issued to Borrower under any Applicable Law other than those that would not reasonably be expected to result in a Material Adverse Change.

4.15         Litigation . Except as set forth in Schedule 4.15 , there are no actions, investigations or proceedings pending or overtly threatened against or affecting the Property, Borrower, Guarantor or any property of any of them before any Governmental Agency . , except (a) which individually or in the aggregate could not be expected to result in a Material Adverse Change or (b) as disclosed in Guarantor’s filings with the U.S. Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended.

4.16         Name and Principal Place of Business . Borrower presently uses no trade name other than its actual name. Borrower’s principal place of business is as set forth in the UCC-1 Financing Statement to be filed with the Delaware Secretary of State.

4.17         ERISA . Borrower is not and will not be an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA. The assets of Borrower do not and will not constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Sec. 2510.3-101. Borrower is not and will not be a “governmental plan” within the meaning of Section 3(32) of ERISA. Transactions by or with Borrower are not and will not be subject to any state or other statute, regulation or other restriction regulating investments of, or fiduciary obligations with respect to, governmental plans within the meaning of Section 3(32) of ERISA which is similar to the provisions of Section 406 of ERISA or Section 4975 of the Code and which prohibit or otherwise restrict the transactions contemplated by this Agreement, including but not limited to the exercise by Lender of any of its rights under the Loan Documents. Neither Borrower, nor any member of a “controlled group of corporations” (within the meaning of Section 414 of the Code) maintains, sponsors or contributes to a “defined benefit plan” (within the meaning of Section 3(35) of ERISA) or a “multiemployer pension plan” (within the meaning of Section 3(37)(A) of ERISA).

4.18         Investment Company Act . Borrower is not (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; or (b) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

4.19         Foreign Person . Borrower is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code.

4.20         No Prohibited Persons .

(a)          Neither Borrower nor any Person Controlling or Controlled by Borrower, nor any Person having a direct or indirect beneficial interest in Borrower, nor any Person for whom Borrower is acting as agent or nominee in connection with this transaction (“ Transaction Persons ”) (i) is a Person whose property or interest in property is blocked or subject to blocking pursuant to any Anti-Terrorism Law, (ii) engages in any dealings or transactions prohibited by any applicable anti-terrorism law (“ Anti-Terrorism Law ”), or is otherwise associated with any such Person in any manner violative of any Anti-Terrorism Law, or (iii) is a Person on the list of Specially Designated Nationals and Blocked Persons or is in violation of the limitations or prohibitions under any Anti-Terrorism Law.

(b)          No part of the proceeds of the Loan will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Terrorism Law and/or the United States Foreign Corrupt Practices Act of 1977, as amended.

(c)          Borrower acknowledges by executing this Agreement that Lender has notified Borrower that, pursuant to the requirements of the Patriot Act, Lender is required to obtain, verify and record such information as may be necessary to identify Borrower and all Borrower Affiliates (including the name and address of Borrower and all Borrower Affiliates) in accordance with the Patriot Act.

(d)          Borrower has not been convicted of a felony and there are no proceedings or investigations being conducted involving criminal activities of Borrower.

4.21         Leases . Borrower is in full compliance with all of the terms of each of its respective capitalized and operating leases except to the extent noncompliance would not reasonably be expected to result in a Material Adverse Change.

4.22         Business Locations . Borrower’s chief executive office and other places of business as of the Effective Date are listed on Schedule 4.22 .

4.23         Continuing Nature of Representations and Warranties . Borrower acknowledges, understands, and agrees that the representations and warranties set forth in this Section 4 as of the Effective Date or other specified date shall be deemed to be continuing in the form and as of the date made during all times when any or all of the Obligations remains outstanding and such representations and warranties shall be restated and made effective as of each date a disbursement is requested and made in accordance herewith.

5.            Maintenance, Operation, Preservation and Repair of COLLATERAL . Borrower shall maintain the Collateral in good condition and repair, shall operate the Collateral in a businesslike manner, shall prudently preserve and protect both its own and Lender’s interests in connection with the Collateral, shall not commit or permit any waste or deterioration of the Collateral, shall not abandon any portion of the Collateral, and shall not otherwise act, or fail to act, in such a way as to unreasonably increase the risk of any damage to the Collateral or of any other impairment of Lender’s interests under the Loan Documents, except with respect to any of the foregoing, in the ordinary course of its business. Without limiting the generality of the foregoing, and except as otherwise agreed by Lender in writing from time to time, Borrower shall promptly and faithfully perform and observe each of the following provisions:

5.1          Alterations and Repair . Borrower shall not remove, demolish or materially alter any Collateral, except to make non-structural repairs which preserve or increase the Collateral’s value, and shall promptly restore, in a good and workmanlike manner, any Collateral (or other aspect or portion of the Collateral) that is damaged or destroyed from any cause.

5.2          Compliance . Borrower shall comply in all material respects with all laws and requirements of Governmental Agencies (including, without limitation, all requirements relating to the obtaining of business or operating licenses and permits), and all rights of third parties, relating to Borrower.

5.3          Books and Records . Borrower shall maintain complete books of account and other records reflecting the use of the Collateral in accordance with GAAP or in accordance with such other principles or methods as are reasonably acceptable to Lender.

5.4          Right of Inspection; Due Diligence . Lender, its agents, representatives, consultants and employees, may conduct periodic due diligence to assess the condition of the Collateral and Borrower.

6.            Other Affirmative Covenants . While any obligation of Borrower under the Loan Documents remains outstanding, the following provisions shall apply, except to the extent that Lender otherwise consents in writing:

6.1          Existence . Borrower shall maintain its existence as a limited liability company in good standing under the Applicable Laws of the State of Delaware and authorized to do business in the State of Florida.

6.2          Protection of Liens . Borrower shall maintain the lien of the Security Agreement as a valid first priority lien on the Collateral, subject only to the Permitted Liens, and take all actions, and execute and deliver to Lender all documents, reasonably required by Lender from time to time in connection therewith; and maintain the lien of the Loan Documents on the Collateral and take all actions, and execute and deliver to Lender all documents reasonably required by Lender from time to time in connection therewith, including supplemental security agreements, financing statements and other documents extending or perfecting Lender’s security interests in such collateral as they exist from time to time.

6.3          Notice of Certain Matters . Borrower shall give notice to Lender, within fifteen (15) days after Borrower obtains actual knowledge thereof, of each of the following:

(a)          any litigation or claim affecting or relating to the Collateral and involving an amount in excess of $100,000.00; and any litigation or claim that might subject Borrower to liability in excess of $250,000.00, whether covered by insurance or not;

(b)          any dispute between Borrower and any Governmental Agency relating to the Collateral, the adverse determination of which might materially affect the Collateral;

(c)          any trade name hereafter used by Borrower and any change m Borrower’s principal place of business;

(d)          any Default or Event of Default;

(e)          the creation or imposition of any lien against the Collateral, other than a Permitted Lien;

(f)           any default under any Loan Document; and/or

(g)          any Material Adverse Change in the condition of Borrower.

6.4          Additional Reports and Information . Borrower also shall deliver to Lender, in form and substance reasonably satisfactory to Lender and within fifteen (15) days of Lender’s written request therefore, all other information relating to Borrower, any guarantor from time to time obligated to Lender with respect to the Loan, the Property or the Loan (or the Collateral and security therefor) reasonably required by Lender from time to time, including but not limited to, company prepared agings of accounts.

6.5          Further Assurances . Borrower shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to Lender all documents, and take all actions, reasonably required by Lender from time to time to confirm the rights created or now or hereafter intended to be created under the Loan Documents, to protect and further the validity, priority and enforceability of the Loan Documents, to subject to the Loan Documents any property intended by the terms of any Loan Document to be covered by the Loan Documents, or otherwise to carry out the purposes of the Loan Documents and the transactions contemplated thereunder.

6.6          Financial Reporting Requirements . During the term of the Loan, Borrower shall:

(a)           Commencing as of December 31, 2017, and continuing annually thereafter within one hundred and twenty (120) days after the end of each Fiscal Year, deliver annual CPA audited year-end Financial Statements on a consolidated basis with Guarantor (to include, without limitation, a consolidated balance sheet and a profit and loss statement) as of the end of and for such year of Borrower (and its subsidiaries, if any) acceptable to Lender in reasonable detail, setting forth in comparative form the corresponding figures for the corresponding date and period in the preceding Fiscal Year.

(b)          Commencing as of June 30, 2017 and continuing quarterly thereafter, within forty-five (45) days after the end of each of Borrower’s fiscal quarters, provide to Lender, company-prepared consolidated and consolidating Financial Statements as of the end of and for such period in reasonable detail to include, without limitation, an operating statement, balance sheet, profit and loss statement, and statement of cash flows certified to Lender by an Officer of Borrower and acceptable to Lender in its sole but reasonable discretion.

(c)          Commencing as of June 30, 2017 and continuing quarterly thereafter, within forty-five (45) days after the end of each of Guarantor’s fiscal quarters, provide to Lender, company-prepared consolidated and consolidating Financial Statements as of the end of and for such period in reasonable detail to include, without limitation, an operating statement, balance sheet, profit and loss statement, and statement of cash flows and statements necessary to verify Guarantor’s Liquidity (as defined in the Guaranty) certified to Lender by an Officer of Borrower and acceptable to Lender in its sole but reasonable discretion.

(d)          Commencing as of December 31, 2017 and continuing annually thereafter, within one hundred twenty (120) days after the end of each Fiscal Year, provide to Lender on a consolidated basis, an internally prepared profit and loss projection statement (including projected balance sheets and cash flow statements) for the ensuing fiscal year, signed by an Officer of Borrower.

(e)           Within forty-five (45) days after the end of each fiscal quarter, commencing with Borrower’s fiscal quarter ending June 30, 2017 , provide to Lender a covenant compliance certificate signed by a duly authorized officer of Borrower in a form approved by Lender.

(f)            Intentionally Omitted .

(g)          Promptly upon receipt thereof, copies of all other material detailed reports (if any) submitted to Borrower by independent certified public accountants in connection with each annual or interim review of the books of Borrower by such accountants.

(h)          Promptly upon Borrower obtaining knowledge of the occurrence of any default hereunder, a notice thereof, specifying the nature thereof; and promptly upon the occurrence of any event or the discovery of any fact which would reasonably be expected to result in a Material Adverse Change, notice thereof specifying the nature thereof.

(i)           Reserved.

(j)           Borrower shall maintain proper books of accounts and records and enter therein complete and accurate entries and records of all of its transactions in accordance with generally accepted accounting principles and give representatives of Lender access thereto during normal business hours and upon reasonable prior notice, including permission to: (i) examine, copy and make abstracts from any books and records and such other information which might be helpful to Lender in evaluation the status of the Obligations as it may reasonably request from time to time, and (ii) communicate directly with any of Borrower’s officers, employers, agents, accountants or other financial advisors with respect to the business, financial conditions and other affairs of Borrower.

6.7          Fixed Charge Coverage Ratio. Borrower shall maintain a minimum Fixed Charge Coverage Ratio of 1.20 to 1.00, to be measured quarterly and tested at each quarter end, commencing June 30, 2017 and continuing each quarter thereafter for the remaining term of the Loan. This covenant shall be tested on a trailing 4-quarter basis.

6.8          Funded Indebtedness to EBITDA Ratio . At each quarter end, commencing June 30, 2017, and at the end of each quarter thereafter during the term of the Loan, Borrower shall be obligated to maintain a Funded Indebtedness to EBITDA Ratio of not greater than 2.00 to 1.00. This covenant shall be tested on a trailing 4-quarter basis.

6.9          Intentionally Omitted.

6.10         Single Purpose Entity . Borrower covenants and agrees that it has not and shall not:

(a)          merge into or consolidate with any person or entity or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure;

(b)          (i) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, (ii) dissolve or otherwise terminate, or fail to comply with the provisions of Borrower’s organizational documents, or (iii) amend or modify Borrower’s Certificate of Formation or Operating Agreement in a manner adverse to Lender;

(c)          fail to hold its assets in its own name, or commingle its assets with the assets of any of its partners, affiliates, or of any other person or entity or transfer any assets to any such person or entity other than distributions on account of equity interests in Borrower, to the extent, if any, permitted hereunder, and properly account for, and any other payments expressly permitted hereunder;

(d)          other than Permitted Indebtedness, incur any Collective Debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Loan;

(e)          fail to maintain its records, books of account and bank accounts separate and apart from those of the shareholders and any Affiliates of Borrower or its shareholders, or fail to prepare and maintain its own financial statements in accordance with GAAP and susceptible to audit;

(f)           seek dissolution or winding up, in whole or in part;

(g)          guaranty or become obligated for the Collective Debts of any other entity or person, or hold itself out to be responsible or pledge its assets or credit worthiness for the Collective Debts of another person or entity, or allow any person or entity to hold itself out to be responsible or pledge its assets or credit worthiness for the Collective Debts of Borrower (except for Guarantor, and except with respect to the Junior Debt in accordance with the Intercreditor Agreement);

(h)          fail to use separate contracts, purchase orders, stationery, invoices and checks;

(i)           fail to allocate fairly and reasonably among Borrower and any third party (excluding Guarantor) any overhead for common employees, shared office space or other overhead and administrative expenses;

(j)           allow any person or entity (other than Guarantor) to pay the salaries of Borrower’s employees or fail to maintain a sufficient number of employees for Borrower’s contemplated business operations;

(k)          fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; or

(l)           conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of Borrower or the creditors of any other Person.

6.11         Additional Banking Laws . Borrower shall (a) ensure, and cause each Affiliate to ensure, that no Person who owns a controlling interest in or otherwise controls Borrower or any Affiliate 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 Loan 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 Affiliate to comply, with all applicable bank secrecy act laws and regulations, as amended.

6.12         Tax Shelter Disclosure . Neither Borrower nor any Affiliate or subsidiary of any of the foregoing intends to treat the Loan or the transactions contemplated by this Agreement and the other Loan Documents as being a “reportable transaction” (within the meaning of Regulation Section 1.6011-4). If Borrower, or any other party determines to take any action inconsistent with such intention, Borrower shall promptly notify Lender thereof in writing. If Borrower so notifies Lender, Borrower acknowledges that Lender may treat the Loan as part of a transaction that is subject to Regulation Section 301.6112-1, and Lender will maintain the lists and other records, including the identity of the applicable party to the Loan as required by such Regulation.

6.13         Taxes .

(a)           Borrower’s Obligation for Payment of Taxes . Borrower shall pay or cause to be paid all Taxes when due and payable, except where contested in good faith and by appropriate proceedings. Borrower’s obligations under this Section 6.13 shall not be affected by any damage to, defects in or destruction of the Collateral or any other event, including obsolescence of all or any part of the Collateral.

(b)           Contest of Taxes . Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Taxes, provided that (i) such proceeding shall suspend the collection of the applicable Taxes from Borrower and from the Collateral or Borrower shall have paid all of the applicable Taxes under protest, (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder, and (iii) neither the Collateral nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost so long as the contest is being pursued.

(c)           Effect of Change in Law . If at any time any law is enacted which deducts from the value of real property, for taxation purposes, any lien thereon, or changes in any way the laws now in force for the taxation of Collective Debts secured thereby, or the manner of collection of any such taxes so as to affect any interest of Lender hereunder then Borrower shall pay such tax if it may lawfully do so. If Borrower is not permitted by Applicable Law to pay such tax, or if Borrower is not permitted by Applicable Law to immediately reimburse Lender for any such payment, then the Obligations, at the option of Lender, upon not less than the lesser of (i) ninety (90) days written notice, or (ii) such shorter period as may be required to ensure compliance by Lender with Applicable Law, shall become due and payable.

6.14         Insurance Coverage . For so long as the Security Agreement is in effect, Borrower shall continuously maintain insurance in accordance with the following provisions:

(a)          At its own cost, Borrower shall obtain and maintain at all times during the term of the Loan hazard (property) insurance on the Collateral (each a “Policy” or “Policies”) and Lender shall be identified in each Policy as a “Lender Loss Payable” or “Loss Payee” specifically described as follows: “Fifth Third Bank, its successors and/or assigns as their respective interests may appear”. Borrower shall provide Lender with evidence of all such insurance required hereunder.

(b)          The Policies to be obtained and maintained by Borrower under the provisions of this Agreement shall be issued by responsible insurance carriers with a Best’s rating of no less than A/VII, licensed to do business in the State of Florida , who are acceptable to Lender and shall be in such form and with such endorsements, waivers and deductibles as Lender shall designate or approve. Without limitation on the foregoing:

(i)          All Policies shall name Borrower as the insured, and shall name Lender as a loss payee, in form reasonably satisfactory to Lender, attached to such Policy or Policies whenever applicable, and providing, among other matters, that all Insurance Proceeds (as hereinafter defined) shall be paid to Lender).

(ii)         All Policies shall contain: (1) the agreement of the insurer to give Lender at least thirty (30) days’ written notice prior to cancellation or expiration of or change in such Policies, or any of them; (2) a waiver of subrogation rights against Lender and, if available Borrower; (3) an agreement that such Policies are primary and non-contributing with any insurance that may be carried by Lender; (4) a statement that the insurance shall not be invalidated should any insured waive in writing prior to a loss any or all right of recovery against any party for loss accruing to the property described in the Policy; and (5) if obtainable, a provision that no act or omission of Borrower shall affect or limit the obligation of the insurance carrier to pay the amount of any loss sustained. As of the date hereof, and subject to any changes in such requirements which Lender may, in its discretion, make from time to time pursuant to its rights under this Section 6.14, each Policy of property insurance hereunder shall contain a lender’s loss payable endorsement, lender clause, or other non-contributory clause of similar form and substance acceptable to Lender in favor of Lender.

(c)          Concurrently herewith, Borrower shall deliver to Lender original Policies or certificates evidencing the insurance required hereunder. Borrower shall procure and pay for renewals of such insurance (or shall cause the procurement and payment) from time to time before the expiration thereof, and Borrower shall deliver to Lender such original renewal Policies or certificates at least thirty (30) days before the expiration of any existing Policy.

(d)          Borrower, for itself, and on behalf of its insurers, hereby releases and waives any right to recover against Lender on any liability for: damages for injury to or death of persons; any loss or damage to property; any other direct or indirect loss or damage caused by fire or other risks, which loss or damage is or would be covered by the insurance required to be carried hereunder by Borrower, or is otherwise insured; or claims arising by reason of any of the foregoing, except to the extent caused solely by the gross negligence or willful misconduct of Lender.

(e)          Lender shall not, by reason of accepting, rejecting, obtaining or failing to obtain insurance, incur any liability for (i) the existence, non-existence, form, amount or legal sufficiency thereof, (ii) the solvency or insolvency of any insurer, or (iii) the payment of losses. All insurance required hereunder or carried by Borrower shall be procured at Borrower’s sole cost and expense. Borrower shall deliver to Lender receipts satisfactory to Lender evidencing full prepayment of the Premiums therefor. In the event of foreclosure on, or other transfer of title in lieu of foreclosure of, the Collateral, all of Borrower’s interest in and to any and all Policies in force shall pass to Lender, or the transferee or purchaser as the case may be, and Lender is hereby irrevocably authorized to assign in Borrower’s name to such purchaser or transferee all such Policies, which may be amended or rewritten to show the interest of such purchaser or transferee.

(f)           Approval by the Lender of any Policies shall not be deemed a representation by the Lender as to the adequacy of coverage of such Policies or the solvency of the insurer.

6.15         Casualty Loss; Proceeds of Insurance .

(a)          Borrower will give Lender prompt written notice of any material loss or damage to the Collateral, or any part thereof, by fire or other casualty.

(b)          In case of loss or damage covered by any one of the Policies in excess of $500,000.00 (the “ Insurance Threshold ”), Lender is hereby authorized to settle and adjust any claim under such Policies (and after the entry of a decree of foreclosure, or a sale or transfer pursuant thereto or in lieu thereof, the decree creditor or such purchaser or transferee, as the case may be, are hereby authorized to settle and adjust any claim under such Policies) upon consultation with, but without requiring the consent of, Borrower; and Lender shall, and is hereby authorized to, collect and receipt for any and all proceeds payable under such Policies in connection with any such loss (collectively, the “ Insurance Proceeds ”). Borrower hereby irrevocably appoints Lender as its attorney-in-fact for the purposes set forth in the preceding sentence effective if an Event of Default has occurred and is continuing. Each insurance company is hereby authorized and directed to make payment (i) of 100% of all such losses (if such loss exceeds the Insurance Threshold) directly to Lender alone, and (ii) of 100% of all such losses (if such loss is less than or equal to the Insurance Threshold) directly to Borrower alone, and in no case to Borrower and Lender jointly. All reasonable costs and expenses incurred by Lender in the adjustment and collection of any such Insurance Proceeds (including without limitation reasonable attorneys’ fees and expenses) shall be so much additional indebtedness hereunder, and shall be reimbursed to Lender upon demand or may be paid and deducted by Lender from such Insurance Proceeds prior to any other application thereof. Lender shall not be responsible for any failure to collect any Insurance Proceeds due under the terms of any policy regardless of the cause of such failure, other than the gross negligence or willful misconduct of Lender.

(c)          Net Insurance Proceeds received by Lender under the provisions of this Agreement or any instrument supplemental hereto or thereto shall be applied by Lender at its option as and for a prepayment on each Note, without a prepayment fee (whether or not the same is then due or otherwise adequately secured), or shall be disbursed for repair or replacement of such Collateral (“ Restoration ”), in which event Lender shall not be obligated to supervise Restoration work nor shall the amount so released or used be deemed a payment of the indebtedness evidenced by both Notes. If Lender elects to permit the use of Insurance Proceeds to restore such Collateral it may do all necessary acts to accomplish that purpose, including advancing additional funds and all such additional funds shall constitute part of the Obligations. If Lender elects to make the Insurance Proceeds available to Borrower for the purpose of effecting the Restoration, or, following an Event of Default, elects to restore such Collateral, any excess of Insurance Proceeds above the amount necessary to complete the Restoration shall be applied as and for a prepayment on the Loan, without a prepayment fee or premium. No interest shall be payable to Borrower upon Insurance Proceeds held by Lender.

(d)           So long as any Obligations shall be outstanding and unpaid, and whether or not Insurance Proceeds are available or sufficient therefor, Borrower shall promptly commence and complete, or cause to be commenced and completed, with all reasonable diligence, the Restoration of the Collateral as nearly as possible to the same value, condition and character which existed immediately prior to such loss or damage in accordance with the Restoration plans and in compliance with all legal requirements. Any Restoration shall be effected in accordance with procedures to be first submitted to and approved by Lender in accordance with Section 6.17 hereof. Borrower shall pay all costs of such Restoration to the extent Insurance Proceeds are not made available or are insufficient.

6.16         Primary Banking Relationship . Borrower shall establish and maintain its primary operating and depository accounts with Lender.

6.17         Disbursement of Insurance Proceeds and Awards .

(a)          All Insurance Proceeds and/or Awards received by Lender as provided in Section 6 hereof shall, after payment or reimbursement therefrom of all reasonable costs and expenses (including without limitation reasonable attorneys’ fees and expenses) incurred by Lender in the adjustment and collection thereof (collectively, the “ Net Proceeds ”), be deposited with Lender, or such other depositary as may be designated by Lender, and applied as provided in this Section 6 .

(b)          Subject to Section 6.17(c) herein below, Lender may elect to apply the Net Proceeds to prepayment of the Obligations, whether then due or not. If the Obligations are not prepaid in full, then the Net Proceeds shall be applied to the installments of principal and interest in the inverse order of maturity.

(c)          All Net Proceeds which are not applied to the payment of the Obligations shall be applied to fund the payment of the costs, fees and expenses incurred for the Restoration of the Collateral as required in this Agreement.

(d)          Any surplus which may remain out of such Net Proceeds after payment of all costs, fees and expenses of such Restoration shall be applied to prepayment of the Obligations, without the payment of a prepayment fee or prepayment premium.

7.            Other Negative Covenants . While any obligation of Borrower under the Loan Documents remains outstanding, the following provisions shall apply, except to the extent that Lender otherwise consents in writing:

7.1          Liens on Property . Except as otherwise provided in this Agreement, Borrower shall not cause or suffer to become effective any lien, restriction or other title limitation affecting any part of the Collateral other than Permitted Liens.

7.2          Installation of Collateral . Borrower shall not install in, or use in connection with, the Collateral, any personal property which any Person other than Lender has the right to remove or repossess under any circumstances, or on which any Person other than Lender has a lien, except, in each case, terminals installed with Borrower’s clients in the ordinary course of Borrower’s business.

7.3          Removal of Collateral . Borrower shall not cause or permit the removal from the Premises any items of Collateral, other than sales or installations of terminals with Borrower’s clients in the ordinary course of Borrower’s business, unless: (a) no Event of Default has occurred, and (b) Borrower promptly substitutes other items of equal or greater value, all of which items shall be free of liens (other than liens in favor of Lender or such other Person as Lender shall permit in writing) and shall be subject to the lien of the Security Agreement, and executes and delivers to Lender all documents required by Lender in connection with the attachment of such liens to such items. Borrower shall keep records of each such removal and shall make such records available to Lender upon written request from time to time.

7.4          Limitations on Additional Indebtedness; Other Prohibited Transactions .

(a)          Except as expressly permitted herein, Borrower shall not, without the prior written consent of Lender granted in its sole discretion, incur any indebtedness of any kind other than (i) indebtedness to Guarantor; and (ii) Permitted Indebtedness.

(b)          Borrower shall not, without the prior written consent of Lender, engage directly or indirectly in any off balance sheet, hedge or derivative transactions, including without limitation, interest rate swaps and interest rate caps except with Lender and its affiliates and subsidiaries .

7.5          Change in Control . No change in Control of Borrower shall occur.

7.6          Cash Distributions . Except as permitted under Section 7.7, Borrower shall not pay distributions or dividends to shareholders or otherwise disburse cash to shareholders or investors during the term of the Loan without Lender’s prior written consent.

7.7          Management Fees .           Borrower shall not pay any management fees to Guarantor without Lender’s prior written consent unless (i) Borrower is in compliance with all terms, covenants and conditions of this Agreement and the other Loan Documents and (ii) the payment of such management fees will not result in an Event of Default.

8.            Defaults and Remedies .

8.1          Events of Default . The occurrence of any one or more of the following shall constitute an “ Event of Default ” as said term is used herein, and any Event of Default which may occur hereunder shall constitute an Event of Default under each of the other Loan Documents:

(a)          Borrower fails to pay (i) any installment of principal or interest payable pursuant to the terms of the Note when due, or (ii) any other amount payable to Lender under the Note, this Agreement, the Security Agreement or any of the other Loan Documents within ten (10) days after the date when any such payment is due in accordance with the terms hereof or thereof; or

(b)          Borrower fails to perform or cause to be performed any other obligation or observe any other condition, covenant, term, agreement or provision required to be performed or observed by Borrower under the Note, this Agreement, the Security Agreement or any of the other Loan Documents and not specifically described in this Section 8.1 or in the default section of any other Loan Document; provided, however, that if such failure by its nature can be cured, then so long as the continued operation, safety and value of the Collateral, and the priority, validity and enforceability of the liens created by the Security Agreement or any of the other Loan Documents, are not impaired, threatened or jeopardized, then Borrower shall have a period (the “ Cure Period ”) of thirty (30) days after Borrower obtains actual knowledge of such failure or receives written notice of such failure to cure the same and an Event of Default shall not be deemed to exist during the Cure Period; provided further that if such failure by its nature can be cured but cannot be cured by the payment of money and Borrower commences to cure such failure during the Cure Period and is diligently and in good faith attempting to effect such cure, the Cure Period shall be extended for thirty (30) additional days, but in no event shall the Cure Period be longer than sixty (60) days in the aggregate; or

(c)          The existence of any inaccuracy or untruth in any material respect in any certification, representation or warranty contained in this Agreement or any of the other Loan Documents or of any statement or certification as to facts delivered to Lender by Borrower or Guarantor when made; provided, however, that in the case of an inaccuracy or untruth with respect to facts relating to Guarantor and not Borrower, no Event of Default shall be deemed to have occurred unless such facts are reasonably likely to result in a Material Adverse Change on Borrower; or

(d)          Borrower or Guarantor is dissolved, liquidated or terminated, or all or substantially all of the assets of Borrower are sold or otherwise transferred without Lender’s prior written consent; or

(e)          Borrower is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability (whether through repudiation or otherwise) to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Borrower applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Borrower, and the appointment continues undischarged or unstayed for sixty (60) days; or Borrower institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, custodianship, conservatorship, liquidation or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Borrower, and continues undismissed or unstayed for sixty (60) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Borrower and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; or

(f)           Any Guaranty is repudiated, revoked or terminated in whole or in part without Lender’s prior written consent; or Guarantor claims that his, her or its Guaranty is ineffective or unenforceable, in whole or in part and for any reason, with respect to amounts then outstanding or amounts that might in the future be outstanding; or

(g)          any material provision of this Agreement or the Loan Documents shall at any time for any reason cease to be valid and binding on Borrower, or shall be declared to be null and void, or the validity or enforceability thereof shall be successfully contested by any Governmental Agency, or Borrower shall deny that it has any or further liability or obligation under this Agreement or the Loan Documents; or

(h)          any default by Borrower in any payment of principal or interest due and owing upon any other material obligations of Borrower for borrowed money beyond any period of grace provided with respect thereto or in the performance of any other agreement, term or condition contained in any agreement under which such obligation is created, if the effect of such default is to accelerate the maturity of such indebtedness or to permit the holder thereof to cause such indebtedness to become due prior to its stated maturity; or

(i)           Guarantor fails to perform any obligation (following any applicable notice and cure period) under the Guaranty; provided, however, that no Event of Default shall be deemed to have occurred unless such failure to perform is reasonably likely to result in a Material Adverse Change on Borrower; or

(j)           All or any material portion of the Collateral is condemned, seized or appropriated by a Governmental Agency; or

(k)          The Collateral is materially damaged or destroyed by fire or other casualty unless Borrower establishes within sixty (60) days after such casualty its qualification under the Security Agreement to use any available insurance proceeds to restore the Collateral and thereafter diligently restores the Collateral in accordance with this Agreement and the Security Agreement; or

(l)            The existence of any fraud, dishonesty or bad faith by or with the acquiescence of Borrower or Guarantor which in any way relates to or affects the Loan or the Collateral; or

(m)         The occurrence of any event specifically identified as an Event of Default in any other Loan Document; or

(n)           The occurrence of a Material Adverse Change in the financial condition of Borrower; or

(o)           Either Borrower or Guarantor shall have a judgment entered against it in excess of $250,000.00 in any civil, administrative or other proceeding, which judgment is not fully covered by insurance, and such judgment remains unpaid, unvacated, unbonded or unstayed by appeal or otherwise for a period of thirty (30) days from the date of its entry; or

(p)          The occurrence of a default under any Rate Management Agreement; or

(q)          Borrower defaults in any loan obligation to Lender other than in connection with the Loan, subject to any applicable cure period(s); or

(r)            The failure to deliver any of the financial statements or compliance certificates pursuant to Section 6.6 of this Agreement and such default continues unremedied for ten (10) Business Days; or

(s)           Borrower fails to comply with the financial covenants contained in Section 6.7 or Section 6.8 of this Agreement; provided, however, if and only if Borrower’s failure to comply with the financial covenant contained in Section 6.8 of this Agreement is caused solely by the balance of that certain $1,000,000.00 overdraft Amended and Restated Revolving Promissory Note made by Borrower in favor of Lender dated of even date herewith, such failure shall not be an Event of Default unless it continues unremedied for a period of ten (10) days after Borrower obtains actual knowledge of such failure .

8.2          Remedies Upon Default . Upon the occurrence of any Event of Default, Lender shall take such action or actions as Lender may direct, at Lender’s option and in its absolute discretion, including, but not limited to, any or all of the following actions:

(a)          Terminate any obligation or responsibility on the part of Lender to make further advances of Loan Proceeds or of any other amounts held by Lender and constituting security for the Obligations pursuant to this Agreement or any other Loan Document;

(b)          Declare the outstanding principal balance of the Loan, together with all accrued interest thereon and other amounts owing in connection therewith, to be immediately due and payable in full, regardless of any other specified due date, and in the event of the occurrence of an Event of Default under Section 8.1(e) such principal and interest shall become immediately due automatically;

(c)          In its own right or by a court-appointed receiver, take possession of the Property, enter into contracts for and otherwise pay the costs thereof out of the proceeds of the Loan; and in the event that such costs exceed the total of such funds, Lender shall have the right but not the obligation to pay such excess costs by expenditure of their own respective funds; and/or

(d)          Exercise any of its rights under the Loan Documents and any rights provided by Applicable Law, including the right to foreclose on any security and exercise any other rights with respect to any security, all in such order and manner as Lender elects in its absolute discretion.

8.3          Cumulative Remedies, No Waiver . Lender’s rights and remedies under the Loan Documents are cumulative and in addition to all rights and remedies provided by Applicable Law from time to time. The exercise or direction to exercise by Lender of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice Lender in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by Lender to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any subsequent breach of the same provision. The consent by Lender to any act by Borrower requiring further consent or approval shall not be deemed to waive or render unnecessary Lender’s consent to or approval of any subsequent act. Lender’s acceptance of the late performance of any obligation shall not constitute a waiver by Lender of the right to require prompt performance of all further obligations; Lender’s acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of Lender’s right to proceed with the exercise of remedies for any unfulfilled obligations; and Lender’s acceptance of any partial performance shall not constitute a waiver by Lender of any rights relating to the unfulfilled portion of the applicable obligation.

9.            Miscellaneous .

9.1          Nonliability . Borrower acknowledges and agrees that:

(a)          notwithstanding any other provision of any Loan Document: (i)  Lender is not and shall be deemed a partner, joint venturer, alter-ego, manager, controlling person or other business associate or participant of any kind of Borrower and Lender does not intend to ever assume any such status; (ii)  Lender does not intend to ever assume any responsibility to any Person for the quality or safety of the Property, and (iii)  Lender shall not be deemed responsible for or a participant in any acts, omissions or decisions of Borrower;

(b)          Lender shall not be directly or indirectly liable or responsible in any way for any loss, cost, damage, penalty, expense, liabilities or injury of any kind to any Person or property resulting from any development, occupancy, ownership, management, operation, possession, condition or use of, the Collateral (except to the extent proximately caused by Lender’s proven gross negligence or willful misconduct), including without limitation those resulting or arising directly or indirectly from: (i) any defect in any building or other onsite or offsite improvement; (ii) any act or omission of Borrower or any of Borrower’s agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the Collateral or any fire or other casualty or hazard; and

(c)          By accepting or approving anything required to be performed or given to Lender under the Loan Documents, including any certificate, financial statement, appraisal or insurance policy, Lender shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by Lender to anyone.

9.2          Indemnification of Lender .

(a)          To the fullest extent permitted by law, Borrower agrees to indemnify, hold harmless and defend Lender, and each of its officers, members, directors, officials, employees, attorneys and agents (collectively, the “ Indemnified Parties ”), against any and all losses, damages, claims, actions, liabilities, costs and expenses of any conceivable nature, kind or character (including, without limitation, reasonable attorneys’ fees, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments) to which the Indemnified Parties, or any of them, may become subject under or any statutory law (including federal or state securities laws) or at common law or otherwise, arising out of or based upon or in any way relating to:

(i)          (A) the making of the Loan; (B) a claim, demand or cause of action that any Person has or asserts against Borrower; (C) the payment of any commission, charge or brokerage fee incurred in connection with the Loan; (D) any act or omission of Borrower, any of its agents, employees, licensees with respect to the Loan or the Collateral; (E) the development, ownership, occupancy, management, operation, possessing condition or use of the Collateral; (F) the Loan Documents or the execution or amendment thereof, or in connection with any of the transactions contemplated thereby, including without limitation, the making of the Loan; and (G) any lien or charge upon payments by Borrower to Lender hereunder, or any taxes (including, without limitation, ad valorem taxes and sales taxes), assessments, impositions and other charges imposed in respect of all or any portion of the Collateral; and

(ii)         any act or omission of Borrower or any of its agents, contractors, servants, employees or licensees, the operation of the Collateral, or the condition, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition or any part thereof; and

(iii)        any lien or charge upon payments by Borrower to Lender hereunder, or any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges imposed on Lender in respect of any portion of the Collateral; and

(iv)        any claim or action raised by, filed or brought by or in the name of any Governmental Agency with respect to non-payment of State of Florida documentary stamp taxes and/or non-recurring intangible taxes against Lender, its directors, officers, agents or employees in connection with the Loan; and except (A) in the case of the foregoing indemnification of Lender or any its officers, members, directors, officials, employees, attorneys and agents, to the extent such damages are caused by the gross negligence or willful misconduct of such Indemnified Party, or (B) in the case of the foregoing indemnification of the Lender or any of its officers, members, directors, officials, employees, attorneys and agents, to the extent such damages are caused by the willful misconduct of such Indemnified Party; and provided that this Section is not intended to give rise to a right of Lender to claim payment of the principal and accrued interest with respect to the Loan as a result of an Indemnified Party claim. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought hereunder, Borrower, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment of counsel selected by the Indemnified Party, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same in its sole discretion; provided that the Indemnified Party shall have the right to review and approve or disapprove any such compromise or settlement which consent shall not be unreasonably conditioned, withheld or delayed. Each Indemnified Party shall have the right to employ separate counsel in any such action or proceeding and participate in the investigation and defense thereof, and Borrower shall pay the reasonable fees and expenses of such separate counsel; provided, however, that such Indemnified Party may only employ separate counsel at the expense of Borrower if in the reasonable judgment of such Indemnified Party a conflict of interest exists by reason of common representation or if all parties commonly represented do not reasonably agree as to the action (or inaction) of counsel.

(b)          The rights of any persons to indemnity hereunder and rights to payment of fees and reimbursement of expenses pursuant to this Agreement shall survive the final repayment of the Loan. The provisions of this Section shall survive the termination of this Agreement.

9.3          Reimbursement of Lender . Borrower shall reimburse Lender for all Loan Expenses immediately upon written demand. Such reimbursement obligations shall bear interest following written demand at the Default Rate, and shall be secured by the Loan Documents. Such reimbursement obligations shall survive the cancellation of the Note and the release and reconveyance of the Loan Documents.

9.4          Obligations Unconditional and Independent . Notwithstanding the existence at any time of any obligation or liability of Lender to Borrower, or any other claim by Borrower against Lender in connection with the Loan or otherwise, Borrower hereby waives any right it might otherwise have (a) to offset any such obligation, liability or claim against Borrower’s obligations under the Loan Documents or (b) to claim that the existence of any such outstanding obligation, liability or claim excuses the nonperformance by Borrower of any of its obligations under the Loan Documents.

9.5          Notices . Any notices, communications and waivers under this Agreement shall be in writing and shall be (a) delivered in person, (b) mailed, postage prepaid, either by registered or certified mail, return receipt requested, or (c) sent by overnight express carrier, addressed in each case as follows:

or to any other address as to any of the parties hereto, as such party shall designate in a written notice to the other party hereto. All notices sent pursuant to the terms of this Section shall be deemed received (i) if personally delivered, then on the date of delivery, (ii) if sent by overnight, express carrier, then on the next Business Day immediately following the day sent, or (iii) if sent by registered or certified mail, then on the earlier of the third Business Day following the day sent or when actually received.

9.6          Survival of Representations and Warranties . All representations and warranties of Borrower in the Loan Documents shall survive the making of the Loan and have been or will be relied on by Lender and Lender notwithstanding any investigation made by Lender or Lender, as the case may be.

9.7          No Third Parties Benefited . This Agreement is made for the purpose of setting forth rights and obligations of Borrower and Lender, and no other Person shall have any rights hereunder or by reason hereof.

9.8          Binding Effect, Assignment of Obligations . This Agreement shall bind, and shall inure to the benefit of, Borrower and Lender and their respective successors and assigns. Borrower shall not assign any of its rights or obligations under any Loan Document without the prior written consent of Lender, which consent may be withheld in Lender’s absolute discretion. Any such assignment without such consent shall be void.

9.9          Counterparts . Any Loan Document may be executed in counterparts, all of which, taken together, shall be deemed to be one and the same document.

9.10         Prior Agreements; Amendments; Consents . This Agreement (together with the other Loan Documents) contains the entire agreement among Lender and Borrower with respect to the Loan, and all prior negotiations, understandings and agreements are superseded by this Agreement and such Loan Documents. No modification of any Loan Document (including waivers of rights and conditions) shall be effective unless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance and for the specific purpose given. Notwithstanding the foregoing, Lender shall have the right to waive or modify, conditionally or unconditionally, the conditions to its approvals and consents hereunder, without the consent of any party. Consents and approvals to be obtained from Lender shall be in writing.

9.11         Governing Law . All of the Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of New York without regard to the conflicts of laws principles thereof; provided that if Lender has greater rights or remedies under federal law, then such right and/or remedies under federal law shall also be available to Lender.

9.12         Severability of Provisions . No provision of any Loan Document that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of the Loan Documents are hereby declared to be severable.

9.13         Headings . Article and section headings are included in the Loan Documents for convenience of reference only and shall not be used in construing the Loan Documents.

9.14         Conflicts . In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, this Agreement shall prevail; provided however that, with respect to any matter addressed in both such documents, the fact that one document provides for greater, lesser or different rights or obligations than the other shall not be deemed a conflict unless the applicable provisions are inconsistent and could not be simultaneously enforced or performed.

9.15         Time of the Essence . Time is of the essence of all of the Loan Documents.

9.16         Rights to Share Information . Lender shall have the right to discuss the affairs of Borrower with any officer thereof, and to discuss the financial condition of Borrower and the Property, and to disclose any non-confidential information received by Lender regarding Borrower, the Property or any officer of Borrower with any other officer of Borrower, singularly or together, as Lender may choose in its sole and absolute discretion.

9.17         Pledge to Federal Reserve . Anything in this Agreement to the contrary notwithstanding, without notice to or consent of any party or the need to comply with any of the formal or procedural requirements of this Agreement, Lender and/or any transferee, assignee, purchaser or participant may (to the fullest extent permitted under Applicable Law) at any time and from time to time pledge and assign any or all of its right, title and interest in, to and under all or any of the Loan or the Loan Documents to a Federal Reserve Bank .

9.18         Waiver of Right to Trial by Jury . TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

9.19         Consent to Jurisdiction . TO INDUCE LENDER TO ENTER INTO THIS AGREEMENT, BORROWER IRREVOCABLY AGREES THAT, SUBJECT TO LENDER’S SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY ARISING OUT OF OR RELATED TO THE LOAN DOCUMENTS MAY BE LITIGATED IN COURTS HAVING SITUS IN HILLSBOROUGH COUNTY, FLORIDA OR HAMILTON COUNTY, OHIO. BORROWER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY COURT LOCATED WITHIN HILLSBOROUGH COUNTY, FLORIDA AND HAMILTON COUNTY, OHIO AND WAIVES PERSONAL SERVICE OF PROCESS UPON BORROWER.

9.20         Patriot Act . Lender (for itself and not on behalf of any other party) hereby notifies Borrower that, pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56, signed into law October 26, 2001 (“ Act ”), it is required to obtain, verify and record information that identifies Borrower, which information includes the name and address of Borrower and other information that will allow Lender to identify Borrower in accordance with the Act.

9.21         Right of Setoff . Borrower grants to Lender a contractual security interest in, and hereby assigns, conveys, delivers, pledges, and transfers to Lender all Borrower’s right, title and interest in and to, Borrower’s accounts with Lender (whether checking, savings, or some other account), including without limitation all accounts held jointly with someone else and all accounts Borrower may open in the future, excluding however all IRA and Keogh accounts, and all trust accounts for which the grant of a security interest would be prohibited by law. Borrower authorizes Lender, to the extent permitted by Applicable Law, to charge or setoff all Obligations against any and all such accounts if an Event of Default has occurred and is continuing.

[SIGNATURE PAGE TO FOLLOW]

IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be duly executed as of the date first written above.

STATE OF Pennsylvania

COUNTY OF Lehigh

The foregoing document was acknowledged before me this 22nd day of June, 2017, by Gregory M. Krzemien as Chief Financial Officer of JETPAY CORPORATION , the sole member of JETPAY PAYMENT SERVICES, FL, LLC , a Delaware limited liability company. He/she is personally known to me or has produced ____ Known___________________________ as identification.

[SIGNATURE OF LENDER APPEARS ON FOLLOWING PAGE]

Signature Page to Credit Agreement

STATE OF FLORIDA

COUNTY OF Hillsborough

The foregoing instrument was acknowledged before me this _ 22nd ___ day of June, 2017, by Brian Holliday, as Vice President of FIFTH THIRD BANK, an Ohio banking corporation, on behalf of the bank. He is personally known to me or has produced known __________________ as identification.

Signature Page to Credit Agreement

EXHIBIT “A”

Compliance Certificate

SCHEDULE 1.2

Subordinated Debt as of Effective Date

None.

SCHEDULE 4.15

Litigation

None.

SCHEDULE 4.22

Business Locations

Chief Executive Office :

JetPay Corporation

3939 West Drive

Center Valley, PA 18069

ATTN: Gregory Krzemien

Places of Business:

316 South Baylen Street, Suite 590

Pensacola, Florida 32502

Exhibit 10.2

$1,600,000.00

promissory NOTE

THIS PROMISSORY NOTE (this “ Note ”) is made as of June 22, 2017 (the “ Effective Date ”) in the principal amount of ONE MILLION SIX HUNDRED THOUSAND and NO/100 Dollars ($1,600,000.00).

Recitals

A.           This Note is made by JETPAY PAYMENT SERVICES, FL, LLC, a Delaware limited liability company (“ Borrower ”), and is payable to the order of FIFTH THIRD BANK , an Ohio banking corporation, its successors and assigns (“ Lender ”) pursuant to the terms and conditions set forth in that certain Credit Agreement dated of even date herewith by and between Borrower and Lender (the “ Credit Agreement ”). The amount disbursed by Lender to Borrower, repayment of which is evidenced by this Note, is referred to as the “ Loan ”.

B.           This Note is secured by, among other items, (i) that certain Security Agreement dated of even date herewith by and between Borrower and Lender (the “ Security Agreement ”) encumbering the Collateral (as defined therein); and (ii) certain other documents securing repayment of this Note, including, without limitation, the Credit Agreement (this Note, the Credit Agreement, the Security Agreement and all other documents evidencing or securing the Loan are hereinafter collectively referred to herein as the “ Loan Documents ”). All of the agreements, conditions, covenants, provisions and stipulations contained in the Security Agreement and other Loan Documents are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein and Borrower covenants and agrees to keep and perform them, or cause them to be kept and performed, strictly in accordance with their terms.

1.            Agreement to Pay . Borrower hereby promises to pay to the order of Lender the principal sum of ONE MILLION SIX HUNDRED THOUSAND and NO/100 Dollars ($1,600,000.00), or so much thereof as may be outstanding hereunder, in lawful money of the United States of America on or before the earlier of June 22, 2021 (the “ Maturity Date ”) or upon acceleration of the Note, together with interest thereon at the rate or rates herein below set forth.

2.            Defined Terms . In addition to the terms defined elsewhere in this Note, the following terms shall have the following meanings when used in this Note. All capitalized terms used in this Note and not otherwise defined shall have the meanings ascribed thereto in the Credit Agreement.

A.           “ Conversion Date ” shall mean June 22, 2018.

NOTE TO TAX EXAMINER: THIS NOTE HAS BEEN MADE, EXECUTED AND DELIVERED OUTSIDE THE STATE OF FLORIDA AND IS NOT SECURED BY A MORTGAGE ON FLORIDA REAL PROPERTY. NO DOCUMENTARY STAMP TAXES ARE DUE ON THIS NOTE.

B.           “ Default ” shall mean when used in reference to this Note or any other document, or in reference to any provision or obligation under this Note or any other document, the occurrence of an event or the existence of a condition which, with the passage of time or the giving of notice, or both, would constitute an Event of Default under this Note or such other document, as the case may be.

C.           “ Default Rate ” shall be as defined in Section 6 hereof.

D.           “ Draw Period ” shall mean the twelve (12) month period commencing on the Effective Date through the day prior to the Conversion Date.

E.           “ Event of Default ” shall mean (i) when used in reference to this Note, one or more of the events or occurrences referred to in Section 10.A. of this Note; and (ii) when used in reference to any other document, a default or event of default under such document that has continued after the giving of any applicable notice and the expiration of any applicable grace or cure periods.

3.            Computation of Interest . Moneys deposited by Lender in an escrow shall be deemed to have been disbursed as of, and shall bear interest from, the date of deposit in escrow. Interest on amounts disbursed under this Note shall accrue commencing on the day on which the disbursement of proceeds of the Loan or applicable portion thereof is made. Payments of interest that are periodically required pursuant to the terms of this Note shall include interest accrued to but not including the day on which the payment is made. Payments of principal on this Note shall include interest on the amount paid to but not including the date of payment if payment is received prior to 2:00 P.M. Eastern Time, and if payment is received after such time, payment of principal on this Note shall include interest to and including the day of payment.

4.            Interest Rate Terms .

A.            Additional Defined Terms . In addition to the terms defined elsewhere in this Note, the following terms shall have the following meanings when used in this Note:

“ Adjusted LIBOR Rate ” shall mean a floating rate equal to (i) the then applicable LIBOR Rate plus (ii) the LIBOR Rate Margin per annum.

“ Adjusted Prime Rate ” shall mean, for any day, the rate equal to (i) the floating rate of interest established from time to time by Fifth Third Bank at its principal office as its “Prime Rate”, whether or not Fifth Third Bank shall at times lend to borrowers at lower rates of interest or, if there is no such Prime Rate, then such other rate as may be substituted by Fifth Third Bank for such Prime Rate plus (ii) 100 basis points.

“ Business Day ” shall mean any day other than a Saturday, Sunday, federal holiday or other day on which the New York Stock Exchange is regularly closed. (i) with respect to all notices and determinations in connection with the LIBOR Rate, any day (other than a Saturday or Sunday) on which commercial banks are open in London, England, New York, New York, and Cincinnati, Ohio for dealings in deposits in the London Interbank Market; and (ii) in all other cases, any day on which commercial banks in Cincinnati, Ohio are required by law to be open for business; provided that, notwithstanding anything to the contrary in this definition of “Business Day”, at any time during which a Rate Management Agreement (as defined in the Credit Agreement) with Lender is then in effect with respect to all or a portion of this Note, then the definitions of “Business Day” and “Banking Day”, as applicable, pursuant to such Rate Management Agreement shall govern with respect to all applicable notices and determinations in connection with such portion of this Note subject to such Rate Management Agreement.

“ Interest Rate ” shall mean the Adjusted LIBOR Rate; provided that, the reference to “Adjusted LIBOR Rate” shall be deemed to be a reference to “Adjusted Prime Rate” at all times during which the LIBOR Rate is unavailable pursuant to, and in accordance with, Section 4(F) .

“ LIBOR Rate ” shall mean, as of any date of determination in accordance with this Note, the rate of interest rounded upwards, if necessary, to the next 1/8th of one percent (1%) and adjusted for reserves if Lender is required to maintain reserves with respect to relevant advances fixed by ICE Benchmark Administration Limited (or any successor thereto, or replacement thereof, approved by Lender, each an “ Alternate LIBOR Source ”) at approximately 11:00 a.m., London, England time (or the relevant time established by ICE Benchmark Administration Limited, an Alternate LIBOR Source, or Lender, as applicable), two Business Days prior to such date of determination, relating to quotations for the one month London InterBank Offered Rates on U.S. Dollar deposits, displayed by Bloomberg LP (or any successor thereto, or replacement thereof, as approved by Lender, each an “ Approved Bloomberg Successor ”), or if no longer displayed by Bloomberg LP (or any Approved Bloomberg Successor), such rate as shall be determined in good faith by Lender from such sources as it shall determine to be comparable to Bloomberg LP (or any Approved Bloomberg Successor), all as determined by Lender in accordance with this Note and Lender’s loan systems and procedures periodically in effect. Notwithstanding anything to the contrary contained herein, in no event shall the LIBOR Rate be less than 0% as of any date (the “ LIBOR Rate Minimum ”); provided that, at any time during which a Rate Management Agreement with Lender is then in effect with respect to all or a portion of the Obligations, the LIBOR Rate Minimum shall be disregarded and no longer of any force and effect with respect to such portion of the Obligations subject to such Rate Management Agreement. Each determination by Lender of the LIBOR Rate shall be binding and conclusive in the absence of manifest error.

Notwithstanding anything herein contained to the contrary, if Lender, by written or telephonic notice, notifies Borrower that:

(a)           any change in any law, regulation or official directive, or in the interpretation thereof, by any governmental body charged with the administration thereof, has made it unlawful for Lender to fund or maintain its funding in Eurodollars of any portion of any advance subject to the LIBOR Rate or otherwise give effect to Lender’s obligations as contemplated hereby; or

(b)           (i) LIBOR deposits for periods of one month are not readily available in the London Offered Rate Market, (ii) by reason of circumstances affecting such market or other economic conditions, adequate and reasonable methods do not exist for ascertaining the rate of interest applicable to such deposits, or (iii) the LIBOR Rate as determined by Lender will not adequately and fairly reflect the cost to Lender of making or maintaining advances under this Note bearing interest with reference to the LIBOR Rate (including inaccurate or inadequate reflection of actual costs resulting from the calculation of rates by reporting sources)

then, in any of such events: (A) Lender’s obligations in respect of the LIBOR Rate shall terminate forthwith, (B) the LIBOR Rate with respect to Lender shall forthwith cease to be in effect, (C) Borrower’s right to utilize LIBOR Rate index pricing as set forth in this Note shall be terminated forthwith, and (D) amounts outstanding hereunder shall, on and after such date, bear interest at a rate per annum equal to the Adjusted Prime Rate. Each determination by Lender of the Prime Rate shall be binding and conclusive in the absence of manifest error. In the event of a change in the Prime Rate, the interest rate accruing hereunder based upon the Prime Rate shall be changed immediately with such change to be based upon such new Prime Rate.

“ LIBOR Rate Loan ” shall mean each portion of the outstanding principal balance of the Loan that is bearing interest at the Adjusted LIBOR Rate.

“ LIBOR Rate Margin ” shall mean three percent (3.00%) per annum.

“ Prime Rate ” shall mean, for any day, the floating rate of interest established from time to time by Lender at its principal office as its “Prime Rate”, whether or not Lender shall at times lend to borrowers at lower rates of interest or, if there is no such prime rate, then such other rate as may be substituted by Lender for the prime rate. Each determination by Lender of the Prime Rate shall be binding and conclusive in the absence of manifest error.

“ Prime Rate Loan ” shall mean any portion of the outstanding principal amount of the Loan that is bearing interest at the Adjusted Prime Rate.

B.            Interest Accrual .

(i)           Interest on the Loan shall accrue on the outstanding principal balance of this Note commencing on the date of the initial disbursement of the Loan until the Loan has been fully paid and satisfied in cash.

(ii)          Interest on any LIBOR Rate Loan or Prime Rate Loan shall be calculated based on a 360-day year and charged for the actual number of days elapsed.

C.            Interest Rate Determinations .

(i)           Subject to the terms hereof, the outstanding principal balance of this Note shall bear interest at the Adjusted LIBOR Rate during the Draw Period.

(ii)          Borrower shall have the right on any Business Day to request Lender to provide a good faith estimate of the then current LIBOR Rate quotation and Lender shall promptly provide such estimate.

(iii)         The Adjusted LIBOR Rate: (a) shall initially be determined as of the date of this Note and (b) shall adjust automatically on the first calendar day of each calendar month thereafter (each of the foregoing being a “ LIBOR Adjustment Date ”). Any change in the Adjusted LIBOR Rate resulting from a change in the LIBOR Rate shall become effective as of each such LIBOR Adjustment Date in accordance with this Note and Lender’s loan systems and procedures periodically in effect. Lender shall not be required to notify Borrower of any adjustment in the LIBOR Rate; however , Borrower may request a quote of the prevailing LIBOR Rate on any Business Day.

(iv)         The Adjusted Prime Rate: (a) shall initially be determined as of the date of this Note and (b) shall adjust automatically with each change in the Prime Rate occurring thereafter. Any change in the Adjusted Prime Rate resulting from a change in the Prime Rate shall become effective as of the date of each change in the Prime Rate in accordance with Lender’s loan systems and procedures periodically in effect. Lender shall not be required to notify Borrower of any adjustment in the Prime Rate; however , Borrower may request a quote of the prevailing Prime Rate on any Business Day.

D.            Prepayments . The outstanding principal balance of this Note may be prepaid, either in whole or in part, without penalty or premium, at any time and from time to time upon two (2) Business Days prior written notice to Lender.

E.            Additional Costs . Borrower hereby irrevocably agrees to reimburse and indemnify Lender from all increased costs and fees incurred by Lender in connection with this Note subsequent to the date of the initial advance of funds to Borrower under this Note and relating to or arising from ( x ) the offering of rates of interest based upon the LIBOR Rate or ( y ) a change in government regulation. Without limiting the generality of the foregoing, if (any of the following being a “ Change ”): (i) any law, rule, regulation, guideline, or directive (in each case whether or not having the force of law) is passed, enacted, promulgated, ordered, issued or adopted after the date of the initial advance of funds to Borrower under this Note, (ii) there is any change after the date of the initial advance of funds to Borrower under this Note in any law, rule, regulation, guideline, or directive (in each case whether or not having the force of law and including, without limitation, any request, rule, guideline or directive (A) in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act (as amended, the “ Dodd-Frank Act ”) or (B) enacted, promulgated, adopted, issued or implemented by the Bank of International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority), or the United States or foreign financial regulatory authorities), or in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation, application or administration of any of the foregoing, or (iii) Lender complies with any request or directive made after the date of the initial advance of funds to Borrower under this Note regarding capital adequacy (whether or not having the force of law) from any such authority, central bank or comparable agency, and such Change shall:

(x)          increase the cost to Lender, by an amount which Lender deems to be material, of making, converting into, continuing or maintaining any portion of any advance subject to the LIBOR Rate, or reduce any amount receivable hereunder in respect thereof, or

(y)          have the effect of reducing the rate of return on Lender’s capital as a consequence of its obligations hereunder, with respect to any LIBOR Rate Loan or Prime Rate Loan, to a level below that which Lender could have achieved but for such Change by an amount deemed by Lender to be material,

then, in any and each such case, after submission by Lender to Borrower of a written request therefor, Borrower shall pay Lender any additional amounts necessary to compensate Lender for such increased cost or reduction. Lender’s reasonable determination of the amount of such reimbursement shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary contained herein, for all purposes of this Note, all requests, rules, guidelines and directives (I) in connection with the Dodd-Frank Act or (II) enacted, promulgated, adopted, issued or implemented by the Bank of International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority), or the United States or foreign financial regulatory authorities shall, in each case, be deemed to constitute a Change whether or not such request, rule, guideline or directive has the force of law and regardless of the date on which such request, rule, guideline or directive was enacted, promulgated, adopted, issued or implemented. Notwithstanding the foregoing, Borrower shall not be required to compensate Lender pursuant to this Section for any increased costs incurred more than 180 days prior to the date that Lender notifies Borrower, in writing, of the increased costs and of Lender’s intention to claim compensation thereof; provided , further , that if the circumstance giving rise to such increased costs is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

F.            Unavailability of LIBOR . Notwithstanding anything herein contained to the contrary, if Lender, by written or telephonic notice, notifies Borrower that:

(i)           any change in any law, regulation or official directive, or in the interpretation thereof, by any governmental body charged with the administration thereof, has made it unlawful for Lender to fund or maintain its funding in Eurodollars of any portion of any advance subject to the LIBOR Rate or otherwise give effect to Lender’s obligations as contemplated hereby, or

(ii)          (a) LIBOR deposits for periods of one month are not readily available in the London Interbank Offered Rate Market, (b) by reason of circumstances affecting such market or other economic conditions, adequate and reasonable methods do not exist for ascertaining the rate of interest applicable to such deposits, or (c) the LIBOR Rate as determined by Lender will not adequately and fairly reflect the cost to Lender of making or maintaining advances under this Note bearing interest with reference to the LIBOR Rate (including inaccurate or inadequate reflection of actual costs resulting from the calculation of rates by reporting sources),

then, in any of such events: (I) Lender’s obligations in respect of the LIBOR Rate shall terminate forthwith, (II) the LIBOR Rate with respect to Lender shall forthwith cease to be in effect, (III) Borrower’s right to utilize LIBOR Rate index pricing as set forth in this Note shall be terminated forthwith, and (IV) amounts outstanding hereunder shall, on and after such date, bear interest at the Adjusted Prime Rate in accordance with the terms and provisions of this Note.

G.            Rounding and Rate Management Agreement . At any time during which a Rate Management Agreement is then in effect with respect to this Note, the provisions contained in this Note which round up the LIBOR Rate to the nearest 1/8th shall be disregarded and no longer of any force and effect, notwithstanding anything to the contrary contained in this Note.

5.            Payment Terms .

A.            Commencing on the first (1 ^st ) day of August, 2017 and on the first (1 ^st ) day of each successive month thereafter (subject to earlier prepayment as provided in Section 10 hereof or as otherwise provided herein or in any other Loan Document), until the Loan has been fully paid and satisfied in cash, Borrower shall make payments to Lender of interest on the outstanding principal balance of the indebtedness evidenced by this Note.

B.            Commencing on the Conversion Date and continuing on the same day of each succeeding calendar month through and including the Maturity Date, fixed principal payments plus all accrued interest along with any other sums due thereon shall be due and payable in monthly installments in an amount necessary to fully amortize the total amount outstanding under this Note based upon a three (3) year amortization, as calculated by Lender in its reasonable discretion.

C.            The Loan shall be due and payable, and Borrower hereby promises to pay the outstanding principal amount of the Loan to Lender, together with all accrued interest thereon then remaining unpaid and all other unpaid amounts, charges, fees and expenses outstanding under this Note or under any of the other Loan Documents, on the Maturity Date, subject to earlier prepayment as provided in Section 10 hereof or as otherwise provided herein or in any other Loan Document.

6.            Late Payments; Default Rate; Fees . If any payment is not paid when due (whether by acceleration or otherwise) or within ten (10) days thereafter due under this Note or any of the other Loan Documents, Borrower agrees to pay to Lender a late payment fee of five percent (5%) of the payment amount , with a minimum fee of $20.00. After an Event of Default, Borrower agrees to pay to Lender a fixed charge of $25.00, or Borrower agrees that Lender may, without notice, increase the Interest Rate by three percentage points (3%) (the “ Default Rate ”), whichever is greater. Lender may impose a non-sufficient funds fee for any check that is presented for payment that is returned for any reason. In addition, Lender may charge loan documentation fees as may be reasonably determined by the Lender.

7.            Maximum Interest Rate . Notwithstanding any provisions of this Note or any instrument securing payment of the indebtedness evidenced by this Note to the contrary, it is the intent of Borrower and Lender that Lender shall never be entitled to receive, collect or apply, as interest on principal of the indebtedness, any amount in excess of the maximum rate of interest permitted to be charged by applicable law; and if under any circumstance whatsoever, fulfillment of any provision of this Note, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by applicable law, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and in the event Lender ever receives, collects or applies as interest any such excess, such amount which would be excess interest shall be deemed a permitted partial prepayment of principal without penalty or premium and treated hereunder as such; and if the principal of the indebtedness evidenced hereby is paid in full, any remaining excess funds shall forthwith be paid to Borrower. In determining whether or not interest of any kind payable hereunder exceeds the highest lawful rate, Borrower and Lender shall, to the maximum extent permitted under applicable law, (a) characterize any non-principal payment as an expense, fee or premium rather than as interest, and (b) amortize, prorate, allocate and spread such payment so that the interest on account of such indebtedness does not exceed the maximum amount permitted by applicable law; provided that if the amount of interest received for the actual period of existence thereof exceeds the maximum lawful rate, Lender shall refund to Borrower the amount of such excess. Lender shall not be subject to any penalties provided by any laws for contracting for, charging or receiving interest in excess of the maximum lawful rate.

8.            Non-Revolving Loan; Advances . No amount repaid or prepaid on this Note may be borrowed again. Notwithstanding the foregoing, during the Draw Period only, Lender agrees to make direct advances of the proceeds of this Note (each, an “ Advance ”) to Borrower for the sole purpose of financing the software integration costs related specifically to a contract with the State of Illinois, subject to the terms and conditions of this Note and the other Loan Documents, at such times as Borrower may from time to time request and in such amounts as Borrower may from time to time request. This Note evidences a non-revolving line of credit during the Draw Period and a term loan commencing on the Conversion Date until the Maturity Date and evidences the aggregate unpaid principal amount of all Advances made or to be made by Lender to Borrower under this Note. Notwithstanding anything herein to the contrary, in no event shall (a) the outstanding principal balance of this Note at any time exceed $1,600,000.00, or (b) the aggregate amount of all Advances made from time to time hereunder exceed $1,600,000.00.

9.            Advance Requirements . During the Draw Period, the proceeds of this Note shall be made in the form of direct Advances. The proceeds of each Advance shall be made available at the office of Lender by credit to the account of Borrower or by other means requested by Borrower and reasonably acceptable to Lender. Each Advance shall be made available to Borrower subject to satisfaction of the following requirements:

A.           Borrower shall send a written draw request (the “ Draw Request ”) to Lender (i) stating the amount of the Advance to be disbursed, which amount shall not exceed one hundred percent (100%) of the software integration costs to be paid, (ii) certifying that no Default or Event of Default exists under the Loan Documents as of the date of the Draw Request and that the amount of the Advance does not exceed one hundred percent (100%) of the software integration costs to be paid, and (iii) certifying that no Default or Event of Default will result from Lender’s funding of the Draw Request; and

B.            No Default or Event of Default under this Note or any of the other Loan Documents exists.

10.          Default and Remedies .

A.          An “ Event of Default ” shall occur under this Note upon the occurrence of (a) the failure of Borrower to make any principal or interest payment owing hereunder on the date which is ten (10) days after the date when due, (b) the failure by Borrower to pay any other amount payable to Lender under this Note within ten (10) days after the date when any such payment is due in accordance with the terms hereof, (c) a breach by Borrower of any of the covenants, agreements, representations, warranties or other provisions hereof, which is not cured within the grace or cure period, if any, applicable thereto, or (d)  the occurrence of any Event of Default under any of the other Loan Documents. An Event of Default under this Note shall also be deemed an Event of Default under the other Loan Documents.

B.           If an Event of Default has occurred and is continuing, Lender shall have the option, without demand or notice, other than specified herein or in the other Loan Documents, to declare the unpaid principal of this Note, together with all accrued interest, prepayment premium, if any, and other sums secured by the Security Agreement, or other Loan Documents, at once due and payable to the extent permitted by law, to foreclose the Security Agreement and the other liens or security interests securing the payment of this Note, and to exercise any and all other rights and remedies available at law or in equity under the Security Agreement or the other Loan Documents.

C.           The remedies of Lender, as provided herein or in the Security Agreement or any of the other Loan Documents shall be cumulative and concurrent, and may be pursued singularly, successively or together, at the sole discretion of Lender, and may be exercised as often as occasion therefor shall arise. No act of omission or commission of Lender, including specifically any failure to exercise any right, remedy or recourse, shall be deemed to be a waiver or release of the same, such waiver or release to be effected only through a written document executed by Lender and then only to the extent specifically recited therein. A waiver or release with reference to any one event shall not be construed as continuing, as a bar to, or as a waiver or release of, any subsequent right, remedy or recourse as to a subsequent event.

11.          Costs and Attorneys’ Fees . If any Event of Default under this Note shall occur, or if Lender incurs any expenses or costs in connection with the protection or realization of any collateral, whether or not suit is filed thereon or on any instrument granting a security interest in said collateral, Borrower promises to pay all costs of collection of every kind, including but not limited to all appraisal costs, reasonable attorneys’ fees, court costs, and expenses of every kind, incurred by Lender in connection with such collection or the protection or enforcement of any or all of the security for this Note, whether or not any lawsuit is filed with respect thereto.

12.          Waiver . Borrower, and each guarantor and endorser hereon waives grace, notice, notice of intent to accelerate, notice of default, protest, demand, presentment for payment and diligence in the collection of this Note, and in the filing of suit hereon, and agrees that his or its liability and the liability of his or its heirs, beneficiaries, successors and assigns for the payment hereof shall not be affected or impaired by any release or change in the security or by any increase, modification, renewal or extension of the indebtedness or its mode and time of payment. It is specifically agreed by the undersigned that the Lender shall have the right at all times to decline to make any such release or change in any security given to secure the payment hereof and to decline to make any such increase, modification, renewal or extension of the indebtedness or its mode and time of payment.

13.          Notices . All notices or other communications required or permitted hereunder shall be delivered in the manner set forth in the Credit Agreement.

14.          Application of Payments . All payments on account of the indebtedness evidencing the Note shall first be applied to late charges and costs and fees incurred by Lender in enforcing its rights hereunder or under the Security Agreement and the other Loan Documents, second to accrued interest on the unpaid principal balance, and third to reduce unpaid principal in inverse chronological order of maturity. All payments shall be applied in the manner set forth in this Section 14 .

15.          BillPayer Service; Late Payments; Fees . Any payments and other amounts owing under this Note shall be initiated by Lender in accordance with the terms of this Note from Borrower’s account through Auto BillPayer (or Lender’s then current automated billing paying service) (“ BillPayer Service ”). Borrower hereby authorizes Lender to initiate such payments from Borrower’s primary depository account with Lender. Borrower acknowledges and agrees that use of the BillPayer Service shall be governed by the then current standard terms and conditions thereof, and Borrower hereby acknowledges receipt of such Terms and Conditions as in effect on the date hereof. Borrower further acknowledges and agrees to maintain payments hereunder through the BillPayer Service throughout the term of this Note (to the extent Lender and its affiliates continue to provide such service). If the BillPayer Service is cancelled at any time, Borrower may be required to pay Lender the then current amount of the difference between Lender’s customary Note processing fee and the discounted Note processing fee received by Borrower in consideration of its use of the BillPayer Service.

16.          Miscellaneous .

A.          The headings of the paragraphs of this Note are inserted for convenience only and shall not be deemed to constitute a part hereof.

B.           All payments under this Note shall be payable in lawful money of the United States which shall be legal tender for public and private debts at the time of payment; provided that a check will be deemed sufficient payment so long as it clears when presented for payment. Each payment of principal or interest under this Note shall be paid not later than 2:00 P.M. Eastern Time on the date due therefor and funds received after that hour shall be deemed to have been received by Lender on the following Business Day. If any payment of principal, interest or any other amount due under this Note shall become due on a day which is not a Business Day, the due date for such payment shall be automatically extended to the next succeeding Business Day, and, in the case of a principal payment, such extension of time shall be included in computing interest on such principal. If an Event of Default has occurred and remains uncured, Lender is hereby authorized to charge any account of Borrower maintained with Lender for each payment of principal, interest and other amounts due under this Note, when each such payment becomes due. All amounts payable under this Note and the other Loan Documents shall be paid by Borrower without offset or other reduction.

C.           The obligations and liabilities under this Note of Borrower shall be binding upon and enforceable against Borrower and its heirs, legatees, legal representatives, successors and assigns. This Note shall inure to the benefit of and may be enforced by Lender, its successors and assigns.

D.           If any provision of this Note or any payments pursuant to the terms hereof shall be invalid or unenforceable to any extent, the remainder of this Note and any other payments hereunder shall not be affected thereby and shall be enforceable to the greatest extent permitted by law.

E.           If this Note is executed by more than one party, the obligations and liabilities of each Borrower under this Note shall be joint and several and shall be binding upon and enforceable against each Borrower and their respective successors and assigns.

F.           Lender may at any time assign its rights in this Note and the Loan Documents, or any part thereof and transfer its rights in any or all of the collateral, and Lender thereafter shall be relieved from all liability with respect to such collateral. In addition, the Lender may at any time sell one or more participations in the Note. Borrower may not assign its interest in this Note, or any other agreement with Lender or any portion thereof, either voluntarily or by operation of law, without the prior written consent of Lender.

G.           Time is of the essence of this Note and of each and every provision hereof.

H.           This Note, together with the other Loan Documents, sets forth all of the covenants, promises, agreements, conditions and understandings of the parties relating to the subject matter of this Note, and there are no covenants, promises, agreements, conditions or understandings, either oral or written between them relating to the subject matter of this Note or other than as are set forth herein and in the other Loan Documents. This Note and the other Loan Documents supersede all prior written and oral commitments and agreements relating to the Loan. Borrower acknowledges that it is executing this Note without relying on any statements, representations or warranties, either oral or written, that are not expressly set forth herein or in the other Loan Documents.

I.            This Note and each provision hereof may be modified, amended, changed, altered, waived, terminated or discharged only by a written instrument signed by the party sought to be bound by such modification, amendment, change, alteration, waiver, termination or discharge.

J.            Each party to this Note and the legal counsel to each party have participated in the drafting of this Note, and accordingly the general rule of construction to the effect that any ambiguities in a contract are to be resolved against the party drafting the contract shall not be employed in the construction and interpretation of this Note.

K.          Borrower certifies that the proceeds of this Loan are to be used for business purposes.

L.           Borrower does hereby irrevocably confirm, ratify and approve all Advances by Lender and does hereby indemnify Lender against all reasonable losses and expenses (including court costs, reasonable attorneys' and paralegals' fees) in connection with all such Advances, and shall hold Lender harmless with respect thereto, in each case subject to the limitations set forth in Section 9.2 of the Credit Agreement.

17.          Choice of Laws . This Note shall be governed by and construed in accordance with the laws of the State of New York.

18.          JURY WAIVER . BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG BORROWER AND LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS NOTE, ANY OTHER LOAN DOCUMENT, OR ANY RELATIONSHIP BETWEEN BORROWER AND LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE LOAN DESCRIBED HEREIN AND IN THE OTHER LOAN DOCUMENTS.

19.          JURISDICTION AND VENUE . BORROWER HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS INITIATED BY BORROWER AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS NOTE MAY BE LITIGATED IN COURTS HAVING SITUS IN HILLSBOROUGH COUNTY, FLORIDA, HAMILTON COUNTY, OHIO, OR THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA OR, IF LENDER INITIATES SUCH ACTION, ANY COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION AND WHICH HAS JURISDICTION. BORROWER HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY LENDER IN ANY OF SUCH COURTS, AND HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO BORROWER AT THE ADDRESS TO WHICH NOTICES ARE TO BE SENT PURSUANT TO THE SECURITY INSTRUMENT. BORROWER WAIVES ANY CLAIM THAT HILLSBOROUGH COUNTY, FLORIDA, HAMILTON COUNTY, OHIO OR THE MIDDLE DISTRICT OF FLORIDA IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE. SHOULD BORROWER, AFTER BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE MAILING THEREOF, BORROWER SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY LENDER AGAINST BORROWER AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE EXCLUSIVE CHOICE OF FORUM FOR BORROWER SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT BY LENDER OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING BY LENDER OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND BORROWER HEREBY WAIVES THE RIGHT, IF ANY, TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.

20.          Loan Fee . In consideration of Lender’s agreement to make the Loan, Borrower shall pay to Lender a non-refundable fee in the amount of Eight Thousand and 00/100 Dollars ($8,000.00), which shall be due and payable in full as a condition precedent to the first disbursement of proceeds under this Note.

21.          Patriot Act . Lender hereby notifies 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 ”), it is required to obtain, verify and record information that identifies Borrower, which information includes the name and address of Borrower and other information that will allow Lender to identify Borrower in accordance with the Act.

[SIGNATURE APPEARS ON FOLLOWING PAGE]

IN WITNESS WHEREOF , Borrower has executed, sealed and delivered this Note as of the Effective Date.

Signature Page to $1,600,000.00 Promissory Note

Exhibit 10.3

SECOND MODIFICATION OF CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS

THIS SECOND MODIFICATION OF CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS (this " Amendment ") is made as of the 22nd day of June, 2017, by and among JETPAY PAYMENT SERVICES, FL, LLC , a Delaware limited liability company f/k/a CSI ACQUISITION SUB ONE, LLC, a Delaware limited liability company (" Borrower "), JETPAY CORPORATION , a Delaware corporation (" Guarantor "), and FIFTH THIRD BANK , an Ohio banking corporation (" Lender ").

RECITALS

A.           Lender made a term loan to Borrower in the amount of One Million Sixty-Eight Thousand Nine Hundred Sixty and 30/100 Dollars ($1,068,960.30) and a revolving line of credit loan to Borrower in the amount of Five Hundred Thousand and No/100 Dollars ($500,000.00) (collectively, the " Loan ") pursuant to the terms and conditions of a Credit Agreement dated as of June 1, 2016 by and between Borrower and Lender (the " Credit Agreement "), as modified by that certain Modification of Credit Agreement and Other Loan Documents dated March 23, 2017 (the “ Modification Agreement ”). The Loan is evidenced by a Promissory Note dated June 2, 2016 in the original principal amount of One Million Sixty-Eight Thousand Nine Hundred Sixty and 30/100 Dollars ($1,068,960.30) executed by Borrower and made payable to Lender (the “ Revolving Note ”) and a Promissory Note dated June 1, 2016 in the original principal amount of Five Hundred Thousand and No/100 Dollars ($500,000.00) executed by Borrower and made payable to Lender, as increased, amended and restated by that certain Amended and Restated Revolving Promissory Note dated of even date herewith in the original principal amount of One Million and No/100 Dollars ($1,000,000.00) executed by Borrower and made payable to Lender (the “ Overdraft Note ” and together with the Revolving Note, collectively, the " Note ").

B.           The Loan is secured by (i) a Security Agreement dated June 1, 2016 executed by Borrower to and for the benefit of Lender (the “ Security Agreement ”); (ii) a Continuing Guaranty Agreement dated June 1, 2016 executed by Guarantor in favor of Lender (the " Guaranty "); and (iii) certain other loan documents (the Note, the Security Agreement, the Guaranty, the Credit Agreement, the Modification Agreement and the other documents evidencing, securing and guarantying the Loan, in their original form and as amended from time to time, are sometimes collectively referred to herein as the " Loan Documents ").

C.           Borrower has requested that Lender modify various terms in the Credit Agreement, and Lender has agreed to such modification subject to the terms and conditions herein provided.

NOW, THEREFORE , in consideration of the Recitals set forth above, the agreements by Lender to modify the Credit Agreement, as provided herein, the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower, Guarantor and Lender hereby agree as follows:

1.            Affirmation of Recitals . The recitals set forth above are true and correct and are incorporated herein by this reference.

2.            Definitions . Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to such terms in the Credit Agreement.

3.            Modifications to Credit Agreement . The Credit Agreement is hereby modified as follows:

(a)          Subsection (i) in the first WHEREAS clause in the Recitals of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

(i) a term loan in the amount of One Million Sixty-Eight Thousand Nine Hundred Sixty and 30/100 Dollars ($1,068,960.30); and

(b)          Section 1.2 of the Credit Agreement is hereby amended to amend and restate the following definitions in their entirety:

“EBITDA” means, on a consolidated basis, the amount of Borrower’s earnings before interest, taxes, depreciation, amortization, and noncash expenses for the measurement period.

“Fixed Charge Coverage Ratio” means the ratio of: (a) Borrower’s EBITDA plus rent and operating lease payments, less distributions, dividends, increases in loans to Guarantor and capital expenditures (other than capital expenditures: (w) incurred with respect to the Magic Platform, (x) financed with equity contributions funded to Borrower by Guarantor, (y) financed with proceeds of the purchase money indebtedness or capital leases to the extent permitted under the Loan Documents, or (z) incurred with respect to the Illinois Contract) and other extraordinary items during the applicable test period, divided by (b) the consolidated sum of (i) Borrower’s interest expense, plus (ii) all scheduled principal payments (but excluding principal that is payable upon the Maturity Date) with respect to indebtedness paid or due and payable by the Constituent Entities during the applicable period plus rent and operating lease expenses incurred in the same such period. For purposes of the definition of Fixed Charge Coverage Ratio, (i) the term “Magic Platform” shall mean capital expenditures of up to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) incurred by Borrower for the creation or implementation of its ‘Magic’ software and operating platform during the period of June 1, 2016 to December 31, 2016 and (ii) the term “Illinois Contract” shall mean capital expenditures of up to One Million and No/100 Dollars ($1,000,000.00) incurred by Borrower for the purpose of securing equipment or funding software integration required under a contract with the State of Illinois during the period of January 1, 2017 to December 31, 2017.

“Note” means, individually or collectively: (i) that certain Promissory Note in the stated principal amount of One Million Sixty-Eight Thousand Nine Hundred Sixty and 30/100 Dollars ($1,068,960.30) dated June 2, 2016 made by Borrower in favor of Lender and (ii) that certain Amended and Restated Revolving Promissory Note in the stated principal amount of One Million and No/100 Dollars ($1,000,000.00) dated on or about June 22, 2017 made by Borrower in favor of Lender.

“Permitted Indebtedness” means: (a) the Indebtedness; (b) indebtedness under Hedging Agreements entered into for the sole purpose of hedging in the normal course of business and not for speculative purposes; (c) purchase money indebtedness (including Capitalized Lease Obligations) hereafter incurred by Borrower to finance the purchase of fixed assets, provided that such Indebtedness incurred which shall not exceed in the aggregate One Million and No/100 Dollars ($1,000,000.00) so long as the Loan Documents remain in effect, other than as set forth on Schedule 1.2; (d) indebtedness existing on the Effective Date that is identified and described on Schedule 1.2 attached hereto and made part hereof, including refinancing, replacement and renewals of such indebtedness, provided that any refinancing shall not exceed the amount then outstanding; (e) indebtedness incurred in the ordinary course of business for surety bonds and performance bonds obtained in connection with workers’ compensation, unemployment insurance and other social security legislation, (f) indebtedness representing deferred compensation or reimbursable expenses owed to officers, directors, employees or agents of the Borrower in the ordinary course of business, and (g) the Junior Debt in accordance with the Intercreditor Agreement.

“Permitted Liens” means (a) Liens securing taxes, assessments or governmental charges or levies for amounts that are not yet due and payable; (b) Liens of suppliers, carriers, materialmen, warehousemen, workmen or mechanics and other similar Liens, in each case imposed by law or arising in the ordinary course of business and for amounts that are not yet due and payable; (c) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance, social security and other like laws (excluding Liens arising under ERISA); (d) pledges or cash deposits made in the ordinary course of business (i) to secure the performance of bids, tenders, leases, sales or other trade contracts (other than for the repayment of borrowed money or the payment of a deferred purchase price for property or services,) or (ii) made in lieu of, or to secure the performance of, surety, customs, reclamation or performance bonds (in each case not related to judgments or litigation); (e) Liens of landlords and mortgagees of landlords (i) with respect to any landlord, solely arising by statute or, with respect to any mortgagee arising by statute or under any contractual obligations entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and (iv) for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP; (f) non-exclusive intellectual property licenses granted in the ordinary course of business; (g) Liens in favor of collecting banks arising under Section 4-210 of the UCC and other banker’s liens arising by operation of law; (h) Liens on fixed assets securing purchase money indebtedness, provided that, (i) such Lien attached to such assets concurrently, or with twenty (20) days of the acquisition thereof, and only to the assets so acquired, and (ii) a description of the asset is furnished to the Lender; (i) Liens existing on the Effective Date and shown on Schedule 1.2(c) attached hereto and made part hereof; (j) other Liens in favor of Lender under the Loan Documents; (k) Liens securing appeal bonds and judgments with respect to judgments that do not otherwise result in or cause an Event of Default; and (l) Liens securing the Junior Debt in accordance with the Intercreditor Agreement.

(c)          Section 1.2 of the Credit Agreement is hereby amended to include the following additional definitions:

“ Funded Indebtedness to EBITDA ” means the ratio of: (a) indebtedness ( i) in respect of money borrowed, or (ii) evidenced by a note, debenture (excluding Subordinated Indebtedness) or other like written obligation to pay money, or (iii) in respect of rent or hire of property under leases or lease arrangements which under GAAP are required to be capitalized, or (iv) in respect of obligations under conditional sales or other title retention agreements to, (b) EBITDA for the measurement period.

“Intercreditor Agreement” means that certain Intercreditor Agreement by and between Lender and Junior Creditor dated October 18, 2016.

“Junior Creditor” means LHLJ, Inc., a Delaware corporation.

“Junior Debt” has the meaning ascribed to such term in the Intercreditor Agreement.

“ Subordinated Indebtedness ” means (x) the Junior Debt, and (y) any other Debt that is subordinated to the Obligations owed to Lender, in a manner satisfactory to Lender in form and substance.

(d)          Section 6.5 of the Credit Agreement is hereby amended and restated in its entirety as follows:

6.5           Additional Reports and Information . Borrower also shall deliver to Lender, in form and substance reasonably satisfactory to Lender and within fifteen (15) days of Lender’s written request therefore, all other information relating to Borrower, any guarantor from time to time obligated to Lender with respect to the Loan, the Property or the Loan (or the Collateral and security therefor) reasonably required by Lender from time to time, including but not limited to, company prepared agings of accounts.

(e)          Section 6.7 of the Credit Agreement is hereby amended and restated in its entirety as follows:

6.7           Financial Reporting Requirements . During the term of the Loan, Borrower shall:

(a)           Commencing as of December 31, 2017, and continuing annually thereafter within one hundred and twenty (120) days after the end of each Fiscal Year, deliver annual CPA audited year-end Financial Statements on a consolidated basis with Guarantor (to include, without limitation, a consolidated balance sheet and a profit and loss statement) as of the end of and for such year of Borrower (and its subsidiaries, if any) acceptable to Lender in reasonable detail, setting forth in comparative form the corresponding figures for the corresponding date and period in the preceding Fiscal Year.

(b)          Commencing as of June 30, 2017 and continuing quarterly thereafter, within forty-five (45) days after the end of each of Borrower’s fiscal quarters, provide to Lender, company-prepared consolidated and consolidating Financial Statements as of the end of and for such period in reasonable detail to include, without limitation, an operating statement, balance sheet, profit and loss statement, and statement of cash flows certified to Lender by an Officer of Borrower and acceptable to Lender in its sole but reasonable discretion.

(c)          Commencing as of June 30, 2017 and continuing quarterly thereafter, within forty-five (45) days after the end of each of Guarantor’s fiscal quarters, provide to Lender, company-prepared consolidated and consolidating Financial Statements as of the end of and for such period in reasonable detail to include, without limitation, an operating statement, balance sheet, profit and loss statement, and statement of cash flows and statements necessary to verify Guarantor’s Liquidity (as defined in the Guaranty) certified to Lender by an Officer of Borrower and acceptable to Lender in its sole but reasonable discretion.

(d)          Commencing as of December 31, 2017 and continuing annually thereafter, within one hundred twenty (120) days after the end of each Fiscal Year, provide to Lender on a consolidated basis, an internally prepared profit and loss projection statement (including projected balance sheets and cash flow statements) for the ensuing fiscal year, signed by an Officer of Borrower.

(e)           Within forty-five (45) days after the end of each fiscal quarter, commencing with Borrower’s fiscal quarter ending June 30, 2017 , provide to Lender a covenant compliance certificate signed by a duly authorized officer of Borrower in a form approved by Lender.

(f)            Intentionally Omitted.

(g)          Promptly upon receipt thereof, copies of all other material detailed reports (if any) submitted to Borrower by independent certified public accountants in connection with each annual or interim review of the books of Borrower by such accountants.

(h)          Promptly upon Borrower obtaining knowledge of the occurrence of any default hereunder, a notice thereof, specifying the nature thereof; and promptly upon the occurrence of any event or the discovery of any fact which would reasonably be expected to result in a Material Adverse Change, notice thereof specifying the nature thereof.

(i)           Borrower shall maintain proper books of accounts and records and enter therein complete and accurate entries and records of all of its transactions in accordance with generally accepted accounting principles and give representatives of Lender access thereto during normal business hours and upon reasonable prior notice, including permission to: (i) examine, copy and make abstracts from any books and records and such other information which might be helpful to Lender in evaluation the status of the Obligations as it may reasonably request from time to time, and (ii) communicate directly with any of Borrower’s officers, employers, agents, accountants or other financial advisors with respect to the business, financial conditions and other affairs of Borrower.

(f)           Section 6.8 of the Credit Agreement is hereby amended and restated in its entirety as follows:

6.8            Fixed Charge Coverage Ratio . Borrower shall maintain a minimum Fixed Charge Coverage Ratio of 1.20 to 1.00, to be measured quarterly and tested at each quarter end, commencing June 30, 2017 and continuing each quarter thereafter for the remaining term of the Loan. This covenant shall be tested on a trailing 4-quarter basis.

(g)          Section 6.10 is hereby amended by amending and restating clause (g) thereof in its entirety as follows:

(g)          guaranty or become obligated for the Debts of any other entity or person, or hold itself out to be responsible or pledge its assets or credit worthiness for the Debts of another person or entity, or allow any person or entity to hold itself out to be responsible or pledge its assets or credit worthiness for the Debts of Borrower (except for Guarantor, and except with respect to the Junior Debt in accordance with the Intercreditor Agreement);

(h)          Section 6.18 is hereby added to the Credit Agreement reading as follows:

6.18         Funded Indebtedness to EBITDA Ratio . At each quarter end, commencing June 30, 2017, and at the end of each quarter thereafter during the term of the Loan, Borrower shall be obligated to maintain a Funded Indebtedness to EBITDA Ratio of not greater than 2.00 to 1.00. This covenant shall be tested on a trailing 4-quarter basis.

(i)           Section 7.2 of the Credit Agreement is hereby amended and restated in its entirety as follows:

7.2           Installation of Collateral . Borrower shall not install in, or use in connection with, the Collateral, any personal property which any Person other than Lender has the right to remove or repossess under any circumstances, or on which any Person other than Lender has a lien, except, in each case, terminals installed with Borrower’s clients in the ordinary course of Borrower’s business.

(j)           Section 7.3 of the Credit Agreement is hereby amended and restated in its entirety as follows:

7.3           Removal of Collateral . Borrower shall not cause or permit the removal from the Premises any items of Collateral, other than sales or installations of terminals with Borrower’s clients in the ordinary course of Borrower’s business, unless: (a) no Event of Default has occurred, and (b) Borrower promptly substitutes other items of equal or greater value, all of which items shall be free of liens (other than liens in favor of Lender or such other Person as Lender shall permit in writing) and shall be subject to the lien of the Security Agreement, and executes and delivers to Lender all documents required by Lender in connection with the attachment of such liens to such items. Borrower shall keep records of each such removal and shall make such records available to Lender upon written request from time to time

(j)           Section 8.1(t) of the Credit Agreement is hereby amended and restated in its entirety as follows:

(t)           Borrower fails to comply with the financial covenants contained in Section 6.8 or Section 6.18 of this Agreement; provided, however, if and only if Borrower’s failure to comply with the financial covenant contained in Section 6.18 of this Agreement is caused solely by the balance of that certain $1,000,000.00 overdraft Amended and Restated Revolving Promissory Note made by Borrower in favor of Lender dated __________, 2017, such failure shall not be an Event of Default unless it continues unremedied for a period of ten (10) days after Borrower obtains actual knowledge of such failure.

4.            Modifications to Guaranty . The Guaranty is hereby amended to include new Section 9, reading as follows:

9.            Minimum Liquidity . Until such time as the Loan has been indefeasibly paid in full, Guarantor and its wholly-owned and controlled consolidated subsidiaries shall maintain a minimum, unrestricted and unpledged Liquidity of Two Million and No/100 Dollars ($2,000,000.00), which shall be tested quarterly as of the last day of each fiscal quarter of Guarantor. As used herein “ Liquidity ” means, without duplication, unrestricted and unpledged (i) cash (including cash pledged in favor of Lender); (ii) certificates of deposit or time deposits with terms of six (6) months or less; (iii) A-1/P-1 commercial paper with a term of six (6) months or less; (iv) U.S. treasury bills and other obligations of the Federal government, all with terms of six (6) months or less; (v) readily marketable securities (excluding “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), restricted stock and stock subject to the provisions of Rule 144 of the Securities and Exchange Commission); (vi) bankers’ acceptances issued for terms of six (6) months or less by satisfactory financial institutions; (vii) repurchase agreements with terms of six (6) months or less covering U.S. government securities; and (viii) a publicly traded fund, other than a hedge fund, that invests in any of the items (i) – (vii). Notwithstanding anything herein to the contrary, cash that is pledged in favor of Lender shall not be excluded for purposes of calculating Liquidity.

5.            Representations and Warranties of Borrower . Borrower hereby represents, covenants and warrants to Lender as follows:

(a)          The representations and warranties in the Credit Agreement and the other Loan Documents are true and correct in all material respects as of the date hereof.

(b)          There is currently no Event of Default under the Loan Documents and Borrower does not have knowledge of any event or circumstance which with the giving of notice or the passage of time, or both, would constitute an Event of Default under the Loan Documents.

(c)          The Loan Documents are in full force and effect and, following the execution and delivery of this Amendment, the Loan Documents continue to be the legal, valid and binding obligations of Borrower, enforceable in accordance with their respective terms, subject to limitations imposed by bankruptcy, insolvency, other debtor relief laws and general principles of equity.

(d)          As of the date hereof, Borrower has no claims, counterclaims, defenses or set-offs with respect to the Loan or the Loan Documents as modified herein.

(e)          Borrower validly exists under the laws of the State of its formation or organization and has the requisite power and authority to execute and deliver this Amendment and to perform the Loan Documents as modified herein. The execution and delivery of this Amendment by Borrower and the performance by Borrower of the Loan Documents as modified herein have been duly authorized by all requisite action by or on behalf of Borrower. This Amendment has been duly executed and delivered on behalf of Borrower.

6.            Reaffirmation of Guarantor Documents . Guarantor hereby ratifies and affirms the Guaranty, as modified herein, and agrees that the Guaranty, as modified herein, is in full force and effect following the execution and delivery of this Amendment. To Guarantor's actual knowledge, the representations and warranties of Guarantor as contained in the Guaranty are, as of the date hereof, true and correct and Guarantor does not have actual knowledge of any default thereunder. The Guaranty, as modified herein, continues to be the valid and binding obligation of Guarantor, enforceable in accordance with its terms, subject to limitations imposed by bankruptcy, insolvency, other debtor relief laws and principles of equity, and Guarantor has no claim or defense to the enforcement of the rights and remedies of Lender thereunder, except as specifically provided otherwise in the Guaranty. The execution and delivery of this Amendment by Guarantor and the performance by Guarantor of its obligations under the Loan Documents have been duly authorized by all requisite action by or on behalf of Guarantor. This Amendment has been duly executed and delivered on behalf of Guarantor.

7.            Loan Fees and Expenses . As a condition precedent to Lender's agreement to enter into this Amendment, Borrower hereby agrees to pay, promptly upon request therefor, all reasonable out-of-pocket costs and expenses incurred by Lender in connection with this Amendment, including, without limitation, reasonable attorneys’ fees and expenses.

8.            Release of Claims . Borrower, Guarantor and any other obligors, on behalf of themselves and their respective successors and assigns (collectively and individually, " Borrower Parties "), hereby fully, finally and completely RELEASE AND FOREVER DISCHARGE  Lender and its successors, assigns, affiliates, subsidiaries, parents, officers, shareholders, directors, employees, servicers, attorneys, agents and properties, past, present and future, and their respective heirs, successors and assigns (collectively and individually, " Lender Parties "), of and from any and all claims, controversies, disputes, liabilities, obligations, demands, damages, debts, liens, actions and causes of action of any and every nature whatsoever, known or unknown, whether at law, by statute or in equity, in contract or in tort, under state or federal jurisdiction, and whether or not the economic effects of such alleged matters arise or are discovered in the future, which Borrower Parties have as of the date of this Amendment or may claim to have against Lender Parties arising out of or with respect to any and all transactions relating to the Loan or the Loan Documents occurring on or before the date of this Amendment, including any loss, cost or damage of any kind or character arising out of or in any way connected with or in any way resulting from the acts, actions or omissions of Lender Parties occurring on or before the date of this Amendment.  The foregoing release is intended to be, and is, a full, complete and general release in favor of Lender Parties with respect to all claims, demands, actions, causes of action and other matters described therein, including specifically, without limitation, any claims, demands or causes of action based upon allegations of breach of fiduciary duty, breach of any alleged duty of fair dealing in good faith, economic coercion, usury, or any other theory, cause of action, occurrence, matter or thing which might result in liability upon Lender Parties arising or occurring on or before the date of this Amendment.  Borrower Parties understand and agree that the foregoing general release is in consideration for the agreements of Lender contained herein and that they will receive no further consideration for such release.

9.            Miscellaneous .

(a)          An Event of Default hereunder shall be an "Event of Default" under Section 8.1 of the Credit Agreement entitling Lender to all of the remedies afforded Lender in Section 8.2 of the Credit Agreement.

(b)          This Amendment shall be governed by and construed in accordance with the laws of the State of Florida without regard to its conflict of law principles.

(c)          Borrower, Guarantor and Lender acknowledge that there are no other understandings, agreements or representations, either oral or written, express or implied, with respect to the Loan that are not embodied in the Loan Documents and this Amendment, which collectively represent a complete integration of all prior and contemporaneous agreements and understandings of Borrower, Guarantor and Lender with respect to the Loan; and that all such prior understandings, agreements and representations are hereby modified as set forth in this Amendment. Except as expressly modified hereby, the terms of the Loan Documents are and remain unmodified and in full force and effect.

(d)          This Amendment shall bind and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. The paragraph and section headings used herein are for convenience only and shall not limit the substantive provisions hereof. All words herein which are expressed in the neuter gender shall be deemed to include the masculine, feminine and neuter genders. Any word herein which is expressed in the singular or plural shall be deemed, whenever appropriate in the context, to include the plural and the singular.

(e)          Any references to the Note, the Credit Agreement or the Loan Documents, contained in any of the Loan Documents shall be deemed to refer to the Note, the Credit Agreement and the other Loan Documents as amended hereby. This Agreement shall be deemed a "Loan Document" and accordingly, the definition of the term "Loan Documents" appearing in the Loan Documents is hereby amended to include, in addition to the documents already covered thereby, this Agreement.

(f)           This Amendment may be executed in one or more counterparts, all of which, when taken together, shall constitute one original Amendment.

(g)          Time is of the essence of each of Borrower's obligations under this Amendment.

(h)          If one or more of the provisions contained in this Amendment shall for any reason be held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Amendment, and this Amendment shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein or therein.

[SIGNATURE PAGE TO FOLLOW]

[Signature Page to Second Modification of Credit Agreement and Other Loan Documents]

IN WITNESS WHEREOF , the parties hereto have executed this Amendment as of the day and year first above written.

Exhibit 10.4

SECURITY AGREEMENT

THIS SECURITY AGREEMENT (this “ Agreement ”) is made as of June 22, 2017 (the “ Effective Date ”) by and between FIFTH THIRD BANK , an Ohio banking corporation located at 201 East Kennedy Blvd., Suite 1800, Tampa, Hillsborough County, Florida 33602 (the “ Secured Party ”) and JETPAY PAYMENT SERVICES, FL, LLC, a Delaware limited liability company (the “ Debtor ”). The Debtor’s principal address is 3939 West Drive, Center Valley, Pennsylvania 18034. Debtor and Secured Party hereby agree as follows:

WITNESSETH:

WHEREAS, Debtor is indebted to Secured Party in the aggregate principal amount of ONE MILLION SIX HUNDRED THOUSAND and 00/100 DOLLARS ($1,600,000.00) (the “ Loan ”) pursuant to the terms and conditions of that certain Credit Agreement dated of even date herewith by and between Borrower and Lender (the “ Credit Agreement ”) and which indebtedness is evidenced by that certain Promissory Note of even date herewith, executed by Debtor and made payable to the order of Secured Party in the stated principal amount of $1,600,000.00 (the “ Note ”), and all agreements, instruments and documents executed or delivered in connection with any of the foregoing or otherwise related thereto (collectively, together with any amendments, modifications, or restatements thereof, the “ Loan Documents ”).

1.            OBLIGATIONS . This assignment of collateral and grant of security interest shall secure (i) the payment when and as due and payable of the principal of and interest on the Loan or so much thereof as may be advanced from time to time, and any and all late charges, Additional Costs (as defined in the Note), and all other indebtedness, loans, advances, and each and every obligation and liability evidenced by, owing, arising under or in connection with the Loan, this Agreement, the Note, and/or any of the other Loan Documents, together with any extensions, modifications, renewals or refinancings of any of the foregoing; (ii) the payment of all other expenses, costs, advances and indebtedness which this Agreement by its terms secures; (iii) the performance and observance of the covenants and agreements contained in this Agreement, the Note and each of the other Loan Documents; (iv) the Rate Management Obligations (as defined in the Credit Agreement), except for Rate Management Obligations that constitute Excluded Swap Obligations (as defined in the Credit Agreement); (v) all obligations to perform or forbear from performing acts, and agreements, instruments and documents evidencing, guarantying, securing or otherwise executed in connection with any of the foregoing, together with any amendments, modifications and restatements thereof, and all expenses and attorneys’ fees incurred by Secured Party hereunder or any other document, instrument or agreement related to any of the foregoing to the extent required to be paid or reimbursed by Borrower thereunder; and (vi) all other loans, advances, indebtedness and each and every other obligation or liability of Debtor owed to each of Secured Party and/or any affiliate of Fifth Third Bancorp or its successors, however created, of every kind and description whether now existing or hereafter arising and whether direct or indirect, primary or as guarantor or surety, absolute or contingent, liquidated or unliquidated, matured or unmatured, participated in whole or in part, created by trust agreement, lease overdraft, agreement or otherwise, whether or not secured by additional collateral, whether originated with Secured Party or owed to others and acquired by Secured Party by purchase, assignment or otherwise, and all obligations to perform or forbear from performing acts, and agreements, instruments and documents evidencing, guarantying, securing or otherwise executed in connection with any of the foregoing, together with any amendments, modifications and restatements thereof, and all expenses and attorneys’ fees incurred by Secured Party hereunder or any other document, instrument or agreement related hereto or to any of the foregoing to the extent required to be paid or reimbursed by Borrower thereunder (collectively, the “ Obligations ”).

2.            COLLATERAL . The Debtor hereby grants to Secured Party a security interest in all right, title and interest of Debtor in all now owned or hereafter acquired or arising and wherever located personal property and assets of Debtor, including, but not limited to, those identified below (together with all proceeds and products thereof and all additions and accessions thereto, replacements thereof, supporting obligations therefor, software related thereto, guaranties thereof, insurance or condemnation proceeds thereof, documents related thereto, all sales of accounts constituting a right to payment therefrom, all tort or other claims against third parties arising out of damage thereto or destruction thereof, all property received wholly or partly in trade or exchange therefor, all fixtures attached or appurtenant thereto, all leases thereof, and all rents, revenues, issues, profits and proceeds arising from the sale, lease, license, encumbrance, collection, or any other temporary or permanent disposition thereof, or any other interest therein, collectively, the “ Collateral ”):

(a)          All Accounts, all Inventory, all Equipment, all General Intangibles, all Investment Property and any and all Rate Management Obligations.

(b)          All instruments, chattel paper, electronic chattel paper, documents, securities, moneys, cash, letters of credit, letter of credit rights, promissory notes, warrants, dividends, distributions, contracts, agreements, contract rights or other property, owned by Debtor or in which Debtor has an interest, including but not limited to, those which now or hereafter are in the possession or control of Secured Party or in transit by mail or carrier to or in the possession of any third party acting on behalf of Secured Party, without regard to whether Secured Party received the same in pledge, for safekeeping, as agent for collection or transmission or otherwise or whether Secured Party had conditionally released the same, and the proceeds thereof, all rights to payment from, and all claims against Secured Party, and any deposit accounts of Debtor with Secured Party, including all demand, time, savings, passbook or other accounts and all deposits therein.

(c)          All assets and all personal property now owned or hereafter acquired; all now owned and hereafter acquired inventory, equipment, fixtures, goods, accounts, chattel-paper, documents, instruments, farm products, general intangibles, supporting obligations, software, commercial tort claims, minerals, standing timber, growing crops and all rents, issues, profits, products and proceeds thereof, wherever any of the foregoing is located.

3.            DEFINITIONS . Capitalized terms not otherwise defined in this Agreement shall have the meanings attributed thereto in the applicable version of the Uniform Commercial Code adopted in the State of Delaware or, where appropriate, the jurisdiction in which the Collateral is located, as such definitions may be enlarged or expanded from time to time by legislative amendment thereto or judicial decision (the “ Uniform Commercial Code ” or the “ UCC ”). As used herein, the following capitalized terms shall have the following meanings:

(a)          “ Accounts ” means all accounts, accounts receivable, health-care insurance receivables, credit card receivables, contract rights, instruments, documents, chattel paper, tax refunds from federal, state or local governments and all obligations in any form including without limitation those arising out of the sale or lease of goods or the rendition of services by Debtor, all guaranties, letters of credit and other security and support obligations for any of the above; all merchandise returned to or reclaimed by Debtor, and all books and records (including computer programs, tapes and data processing software) evidencing any interest in or relating to the above; all winnings in a lottery or other game of chance operated by a governmental unit or person licensed to operate such game by a governmental unit and all rights to payment therefrom; and all “ Accounts ” as same is now or hereinafter defined in the Uniform Commercial Code.

(b)          “ Equipment " means all goods (excluding inventory, farm products or consumer goods), all machinery, machine tools, equipment, fixtures, office equipment, furniture, furnishings, motors, motor vehicles, tools, dies, parts, jigs, goods (including, without limitation, each of the items of equipment set forth on any schedule which is either now or in the future attached to Secured Party’s copy of this Agreement), and all attachments, accessories, accessions, replacements, substitutions, additions and improvements thereto, all supplies used or useful in connection therewith, and all “ Equipment ” as same is now or hereinafter defined in the Uniform Commercial Code.

(c)          “ General Intangibles ” means all general intangibles, chooses in action, causes of action, obligations or indebtedness owed to Debtor from any source whatsoever, payment intangibles, software and all other intangible personal .property of every kind and nature (other than Accounts) including without limitation patents, trademarks, trade names, service marks, copyrights and applications for any of the above, and goodwill, trade secrets, licenses, franchises, rights under agreements, tax refund claims; and all books and records including all computer programs, disks, tapes, printouts, customer lists, credit files and other business and financial records, the equipment containing any such information, and all “ General Intangibles ” as same is· now or hereinafter defined in the Uniform Commercial Code.

(d)          “ Inventory ” means goods, supplies, wares, merchandises and other tangible personal property, including raw materials, work in process, supplies and components, and finished goods, whether held for sale or lease, or furnished or to be furnished under any contract for service, or used or consumed in business, and also including products of and accessions to inventory, packing and shipping materials, all documents of title, whether negotiable or non-negotiable, representing any of the foregoing, and all “ Inventory ” as same is now or hereinafter defined in the Uniform Commercial Code.

(e)          “ Investment Property ” means a security, whether certificated or uncertificated security, entitlement, securities account, commodity contract or commodity account and all “Investment Property” as same is now or hereafter defined in the Uniform Commercial Code.

4.            WARRANTIES AS TO DEBTOR . Debtor hereby represents and warrants to Secured Party as follows:

(a)          Debtor is a Delaware limited liability company, and is duly organized, validly existing and in good standing under the laws of the State of Delaware and its status in Florida is active.

(b)          Debtor’s exact legal name, its Taxpayer I.D. and its Organizational Number are as follows:

(c)          Debtor’s chief executive office and places of business are located at the addresses set forth on Exhibit A attached hereto and incorporated herein by reference (collectively, the “ Place of Business ”).

5.            WARRANTIES AS TO THE COLLATERAL . Debtor hereby represents and warrants to Secured Party that:

(a)          Except for the security interest hereby granted and Permitted Liens (as defined in the Credit Agreement), Debtor is, and as to any property which at any time forms a part of the Collateral, shall be, the sole owner of, with good and marketable title in, each and every item of the Collateral, or otherwise shall have the full right and power to grant a security interest in the Collateral, free from any lien, security interest or encumbrance whatsoever;

(b)          Each item of Collateral is, and shall be, valid, and all information furnished to Secured Party with regard thereto is, and shall be, accurate and correct in all respects when furnished;

(c)          The provisions of this Agreement are sufficient to create in favor of Secured Party a valid and continuing lien on, and first security interest in, the types of Collateral in which a security interest may be perfected by the filing of UCC Financing Statements, and when such UCC Financing Statements are filed in the appropriate filing offices, and the requisite filing fees are paid, such filings shall be sufficient to perfect such security interests (other than Equipment affixed to real property so as to become fixtures);

(d)          If any of the Collateral is or will be attached to real estate in such a manner as to become a fixture under applicable state law, that said real estate is not encumbered in any way, or if said real estate is encumbered, Debtor will secure from the lien holder or the party in whose favor it is or will become so encumbered a written acknowledgment and subordination to the security interest hereby granted in such form as is acceptable to Secured Party;

(e)          The financial statements of Debtor for the most recent ended fiscal period and heretofore submitted to the Secured Party are true and correct in all material respects, and there are no material adverse changes in the conditions, financial or otherwise, of Debtor since the date of said financial statements; and

(f)           All Collateral consisting of goods (equipment, inventory, fixtures, crops, unborn young of animals, timber to be cut, manufactured homes; and other tangible, movable personal property) shall be held at the Debtor’s Place of Business or at such other locations as are acceptable to Secured Party or as otherwise permitted under the Credit Agreement. To the extent that the Collateral consists of vehicles, or other titled property, Debtor shall not take or permit any action which would require application for certificates of title for the vehicles outside of the state in which they are currently titled without Secured Party’s prior written consent.

6.            DEBTOR’S RESPONSIBILITIES . Debtor covenants with, and warrants to, Secured Party that Debtor shall:

(a)          Execute and deliver such supplemental instruments, documents, agreements and chattel paper, in the form of assignments or otherwise, as Secured Party shall reasonably require for the purpose of confirming and perfecting, and continuing the perfection of, Secured Party’s security interest in any or all of such Collateral, or as is reasonably necessary to provide Secured Party with control over the Collateral or any portion thereof;

(b)          At its expense and upon request of Secured Party, furnish copies of invoices issued by Debtor in connection with the Collateral, furnish certificates of insurance evidencing insurance on Collateral, furnish proof of payment of taxes and assessments on Collateral, make available to Secured Party, during normal business hours and upon reasonable prior notice, any and all of Debtor's books, records, written memoranda, correspondence, purchase orders, invoices and other instruments or writings that in any way evidence or relate to the Collateral;

(c)          Keep the Collateral insured at all times against risks of loss or damage by fire (including so-called extended coverage), theft and such other casualties including collision in the case of any motor vehicle, in accordance with the Credit Agreement;

(d)          Pay all taxes or assessments imposed on or with respect to the Collateral, unless the same are being contested in accordance with Section 6.13 of the Credit Agreement;

(e)          Keep all of the Collateral in good condition and repair (ordinary wear and tear excepted), protecting it from weather and other contingencies which might adversely affect it as secured hereunder;

(f)           Notify Secured Party immediately in writing of any information which Debtor has or may receive which might in any material respect adversely affect the value of the Collateral or the rights of Secured Party with respect thereto;

(g)          Notify Secured Party promptly, in writing, of any change in the Debtor's exact legal name or any change in the legal name of Debtor or of any change in the location of the Collateral or of any Place of Business or mailing addresses or the establishment of any new place of business or mailing address;

(h)          Pay all costs of filing any financing, continuation or termination statements with respect to the security interest created hereby;

(i)           Upon the occurrence of an Event of Default or breach of any provision of this Security Agreement, pay all expenses and reasonable attorneys’ fees of Secured Party; and Debtor agrees that said expenses and fees shall be secured under this Agreement;

(j)           Maintain possession of all Collateral at the location disclosed to Secured Party and not remove the Collateral from that location except in the ordinary course of Debtor's business or upon advance notice to Lender;

(k)          Except as permitted in the Credit Agreement, not sell, contract to sell, lease, encumber, or otherwise transfer the Collateral (other than inventory) until the Obligations have been paid and performed, Debtor acknowledging nonetheless that Secured Party has a security interest in the proceeds of such Collateral; and

(l)           Take any other and further action necessary or desirable as requested by Secured Party to grant Secured Party control over the Collateral, as “control” is defined in the applicable version of the Uniform Commercial Code, including without limitation (i) executing and/or authenticating any assignments or third party agreements; (ii) delivering, or causing the delivery of, any of the Collateral to the possession of Secured Party; or (iii) using commercially reasonable efforts to obtain written acknowledgements of the lien of Secured Party and agreements of subordination to such lien from third parties in possession of the Collateral in a form acceptable to Secured Party. Debtor consents to and hereby authorizes any third party in an authenticated record or agreement between Debtor, Secured Party, and the third party, including but not limited to depository institutions, securities intermediaries, and issuers of letters of credit or other support obligations, to accept direction from Secured Party regarding the maintenance and disposition of the Collateral and the products and proceeds thereof, and to enter into agreements with Secured Party regarding same, without further consent of the Debtor.

7.            ACCOUNTS RECEIVABLE . Debtor hereby agrees that, upon an Event of Default, Secured Party shall have the absolute right to take any one or all of the following actions:

(a)          Secured Party may serve written notice on Debtor instructing Debtor to deliver to Secured Party all subsequent payments on accounts receivable which Debtor shall do until notified otherwise;

(b)          Secured Party may notify the account debtor(s) of its security interest and instruct such account debtor(s) to make further payments on such accounts to Secured Party instead of to Debtor; and

(c)          Secured Party may serve written notice upon Debtor that all subsequent billings or statements of account rendered to any account debtor shall bear a notation directing the account debtor(s) to make payment directly to Secured Party. Any payment received by Secured Party pursuant to this paragraph shall be retained in a separate non-interest bearing account as security for the payment and performance of all Obligations of Debtor.

8.            POWER OF ATTORNEY . Upon an Event of Default, Debtor hereby makes, constitutes and appoints Secured Party its true and lawful attorney in fact to act, with full power of substitution, with respect to the Collateral in any transaction, legal proceeding, or other matter in which Secured Party is acting pursuant to this Agreement, including but not limited to executing, authenticating and/or filing on its behalf: (i) UCC Financing Statements and amendments thereto reflecting the lien of Secured Party upon the Collateral and any other documents necessary or desirable to perfect or otherwise continue the security interest granted herein; and (ii) any third party agreements or assignments to grant Secured Party control over the Collateral, including but not limited to third party agreements between Debtor, Secured Party, and depository institutions, securities intermediaries, and issuers of letters of credit or other support obligations, which third party agreements direct the third party to accept direction from Secured Party regarding the maintenance and disposition of the Collateral and the products and proceeds thereof.

9.            EVENTS OF DEFAULT . Any of the following events shall be an “Event of Default” hereunder:

(a)          An event of default occurs under any agreement, instrument or document evidencing, guarantying, securing or otherwise executed or delivered in connection with any of the Obligations, as “ Event of Default ” shall be defined therein;

(b)          Transfer or disposition of any of the Collateral other than in the ordinary course of business, except as expressly permitted by this Agreement or the Credit Agreement;

(c)          Attachment, execution or levy on any of the Collateral; or

(d)          Secured Party shall receive at any time following the closing a UCC filing report indicating that Secured Party’s security interest is not prior to all other security interests or other interests reflected in the report (other than Permitted Liens).

10.          REMEDIES . Upon any Event of Default, Secured Party may pursue any remedy available at law (including those available to a secured party under the provisions of the UCC) or in equity to collect, enforce or satisfy any Obligations then owing, whether by acceleration or otherwise. Upon any Event of Default, Secured Party shall have the right to pursue any of the following remedies separately, successively or concurrently:

(a)          Declare the Obligations, including any prepayment penalty which Borrower would be required to pay, immediately due and payable, without notice of any kind to Debtor.

(b)          File suit and obtain judgment and, in conjunction with any action, Secured Party may seek any ancillary remedies provided by law or at equity, including levy of attachment and garnishment.

(c)          Take possession of any Collateral if not already in its possession without demand and without legal process. Upon Secured Party’s demand, Debtor will assemble and make the Collateral available to Secured Party as it directs. Debtor grants to Secured Party the right, for this purpose, to enter into or on any premises where Collateral may be located.

(d)          Without taking possession, sell, lease or otherwise dispose of the Collateral at public or private sale in accordance with the UCC.

(e)          Seek appointment of a receiver to take possession of all or any part of the Collateral, with the power to protect and preserve the Collateral, to operate the Collateral preceding foreclosure or sale, and to collect the rents from the Collateral and apply the proceeds, over and above the cost of the receivership, against the Obligations. The receiver may serve without bond if permitted by law.

(f)           Collect the payments, rents, income, and revenues from the Collateral.

(g)          If Secured Party chooses to sell any or all of the Collateral, Secured Party may obtain a judgment against Borrower for any deficiency remaining on the Obligations after application of amounts received from the exercise of the rights provided in this Security Agreement.

11.          FORECLOSURE PROCEDURES .

(a)          No delay or omission by Secured Party to exercise any right or remedy accruing upon any Event of Default shall (i) impair any right or remedy, (ii) waive any default or operate as an acquiescence to the Event of Default, or (iii) affect any subsequent default of the same or of a different nature.

(b)          Secured Party shall give Debtor such notice of any private or public sale as may be required by the UCC.

(c)          Secured Party has no obligation to repair, clean-up or otherwise prepare the Collateral for sale.

(d)          Secured Party has no obligation to attempt to satisfy the Obligations by collecting them from any other person liable for them and Secured Party may release, modify or waive any collateral provided by any other person to secure any of the Obligations, all without affecting Secured Party's rights against Debtor. Debtor waives any right it may have to require Secured Party to pursue any third person for any of the Obligations.

(e)          Secured Party may comply with any applicable state or federal law requirements in connection with a disposition of the Collateral and compliance will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral.

(f)           Secured Party may sell the Collateral without giving any warranties as to the Collateral and may specifically disclaim any warranties of title or the like. This procedure will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral.

(g)          If Secured Party sells any of the Collateral upon credit, Debtor will be credited only with payments actually made by the purchaser, received by Secured Party and applied to the indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, Secured Party may resell the Collateral and Debtor shall be credited with the proceeds of the sale as and when received, less expenses.

(h)          In the event Secured Party purchases any of the Collateral being sold, Secured Party may pay for the Collateral by crediting some or all of the Obligations.

(i)           Secured Party has no obligation to marshal any assets in favor of Debtor, or against or in payment of: (i) the Note; (i) any of the other Obligations; or (ii) any other obligation owed to Secured Party or any other person.

12.          MISCELLANEOUS PROVISIONS .

(a)          All rights of Secured Party shall inure to the benefit of its successors and assigns and all obligations of Debtor shall bind the heirs, executors, administrators, successors and assigns of Debtor.

(b)          Debtor acknowledges and agrees that, in addition to the security interests granted herein, Secured Party has a bankers lien and common law right of set-off in and to Debtor's deposits, accounts and credits held by Secured Party and Secured Party may apply or set-off such deposits or other sums against the Obligations upon the occurrence of an Event of Default as set forth in this Agreement.

(c)          This Agreement contains the entire Agreement of the parties and no oral agreement whatsoever, whether made contemporaneously herewith or hereafter shall amend, modify or otherwise affect the terms of this Agreement.

(d)          All rights and liabilities hereunder shall be governed and limited by, and construed in accordance with, the laws of the State of New York (except any choice of law provision of New York law shall not apply if the law of a jurisdiction other than New York would apply thereby).

(e)          Any provision herein which may prove limited or unenforceable under any law or judicial ruling shall not affect the validity or enforceability of the remainder of this Agreement.

(f)          Debtor hereby authorizes Secured Party to file a copy of this Agreement as a Financing Statement with appropriate county and state government authorities necessary to perfect Secured Party’s security interest in the Collateral as set forth herein. Debtor hereby further authorizes Secured Party to file UCC Financing Statements on behalf of Debtor and Secured Party with respect to the Collateral.

(g)          This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all counterparts together shall constitute a single agreement.

[SIGNATURES APPEAR ON FOLLOWING PAGE]

IN WITNESS WHEREOF, each of the parties has duly executed this Agreement as of the Effective Date.

STATE OF PENNSYLVANIA

COUNTY OF Lehigh ____

The foregoing document was acknowledged before me this 22nd day of June , 2017, by Gregory M. Krzemien as Chief Financial Officer of JETPAY CORPORATION , the sole member of JETPAY PAYMENT SERVICES, FL, LLC , a Delaware limited liability company. He/She is personally known to me or has produced ____ known ___________________________ as identification.

[SIGNATURE OF SECURED PARTY APPEARS ON FOLLOWING PAGE]

Signature Page to Security Agreement

STATE OF FLORIDA

COUNTY OF _ Hillsborough ______________

The foregoing instrument was acknowledged before me this 22nd day of June , 2017, by Brian Holliday, as Vice President of FIFTH THIRD BANK, an Ohio banking corporation, on behalf of the bank. He is personally known to me or has produced ____ known ___________as identification.

Signature Page to Security Agreement

EXHIBIT A

PLACES OF BUSINESS

Chief Executive Office :

JetPay Corporation

3939 West Drive

Center Valley, PA 18069

ATTN: Gregory Krzemien

Places of Business:

316 South Baylen Street, Suite 590

Pensacola, Florida 32502

Exhibit 10.5

GUARANTY AGREEMENT

THIS GUARANTY AGREEMENT (this “ Guaranty ”) is made as of June 22, 2017, (the “ Effective Date ”) by JETPAY CORPORATION, a Delaware corporation (“ Guarantor ”) for the benefit of FIFTH THIRD BANK, an Ohio banking corporation, its successors and assigns (“ Lender ”).

WITNESSETH:

WHEREAS, pursuant to that certain Credit Agreement dated as of the date hereof between JetPay Payment Services, FL, LLC, a Delaware limited liability company (“ Borrower ”) and Lender (together with all renewals, amendments, modifications, increases and extensions thereof, the “ Credit Agreement ”), Lender has agreed to make a loan to Borrower in the amount of One Million Six Hundred Thousand and No/100 Dollars ($1,600,000.00) (the “ Loan ”). The Loan is evidenced by that certain Promissory Note dated of even date herewith, executed by Borrower and made payable to the order of Lender in the stated principal amount of $1,600,000.00 (as modified, renewed or otherwise amended from time to time, the “ Note ”);

WHEREAS, the Loan is secured by that certain Security Agreement by Borrower for the benefit of Lender dated of even date herewith (together with all renewals, modifications, increases and extensions thereof, the “ Security Agreement ”), which grants Lender a first priority security interest in the Collateral (as defined therein);

WHEREAS, Lender is contemporaneously entering into a certain Master Equipment Lease Agreement (the “ Master Lease ” and collectively, together with the Credit Agreement, the Note, the Security Agreement, any Rate Management Agreement (as defined in the Credit Agreement) and each of the other documents evidencing or securing the Loan or the Master Lease, the “ Obligor Loan Documents ”) to provide leasing (the “ Lease ”) to Borrower;

WHEREAS, Lender is not willing to make the Loan, to enter into the Lease or to otherwise extend credit to Borrower unless Guarantor unconditionally guarantees payment and performance to Lender of the Guaranteed Obligation (as herein defined); and

WHEREAS, Guarantor is the owner of a direct or indirect interest or has a financial interest in Borrower, and Guarantor will directly benefit from Lender’s making the Loan to Borrower and entering into the Master Lease with Borrower.

NOW, THEREFORE, as an inducement to Lender to make the Loan to Borrower, to enter into the Master Lease with Borrower and to extend such additional credit as Lender may from time to time agree to extend under the Obligor Loan Documents, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Guarantor does hereby agree as follows:

Article 1
DEFINED TERMS

Section 1.1            Defined Terms. Capitalized terms used in this Guaranty and not specifically defined in this Guaranty have the meaning provided in the Credit Agreement.

Article 2
NATURE AND SCOPE OF GUARANTY

Section 2.1            Guaranty of Obligation. Guarantor hereby irrevocably and unconditionally guarantees to Lender the payment and performance of the Guaranteed Obligation (as hereinafter defined) as and when the same shall be due and payable, whether by lapse of time, by acceleration of maturity or otherwise. Guarantor hereby irrevocably and unconditionally covenants and agrees that Guarantor is liable for the Guaranteed Obligation as a primary obligor.

Section 2.2            Definition of Guaranteed Obligation. The term “ Guaranteed Obligation ” means (i) the payment when and as due and payable of the principal of and interest on the Loan or so much thereof as may be advanced from time to time, and any and all late charges, Additional Costs (as defined in the Note), and all other indebtedness, loans, advances, and each and every obligation and liability evidenced by, owing, arising under or in connection with the Loan, the Security Agreement, the Note, the Master Lease and/or any of the other Obligor Loan Documents, together with any extensions, modifications, renewals or refinancings of any of the foregoing; (ii) the payment of all other expenses, costs, advances and indebtedness which the Security Agreement by its terms secures and which the Master Lease by its terms secures; (iii) the performance and observance of the covenants and agreements contained in the Security Agreement, the Note, the Master Lease and each of the other Obligor Loan Documents; (iv) the Rate Management Obligations, except for Rate Management Obligations that constitute Excluded Swap Obligations; (v) all obligations to perform or forbear from performing acts, and agreements, Agreements and documents evidencing, guarantying, securing or otherwise executed in connection with any of the foregoing, together with any amendments, modifications and restatements thereof, and all expenses and attorneys’ fees incurred by Lender hereunder or any other document, Agreement or agreement related to any of the foregoing to the extent required to be paid or reimbursed by Borrower thereunder; and (vi) all other loans, advances, indebtedness and each and every other obligation or liability of Borrower owed to each of Lender and/or any affiliate of Fifth Third Bancorp or its successors, however created, of every kind and description whether now existing or hereafter arising and whether direct or indirect, primary or as guarantor or surety, absolute or contingent, liquidated or unliquidated, matured or unmatured, participated in whole or in part, created by trust agreement, lease overdraft, agreement or otherwise, whether or not secured by additional collateral, whether originated with Lender or owed to others and acquired by Lender by purchase, assignment or otherwise, and all obligations to perform or forbear from performing acts, and agreements, Agreements and documents evidencing, guarantying, securing or otherwise executed in connection with any of the foregoing, together with any amendments, modifications and restatements thereof, and all expenses and attorneys’ fees incurred by Lender hereunder or any other document, instrument or agreement related hereto or to any of the foregoing to the extent required to be paid or reimbursed by Borrower thereunder.

Article 3
GENERAL TERMS AND CONDITIONS

Section 3.1            Nature of Guaranty. This Guaranty is an irrevocable, absolute, continuing guaranty of payment and not a guaranty of collection. This Guaranty may not be revoked by Guarantor and shall continue to be effective with respect to any Guaranteed Obligation existing after any attempted revocation by Guarantor. This Guaranty may be enforced by Lender and any subsequent holder of any of the Notes and shall not be discharged by the assignment or negotiation of all or part of the Obligor Loan Documents.

Section 3.2            Guaranteed Obligation Not Reduced by Offset. The Guaranteed Obligation shall not be reduced, discharged or released because or by reason of any existing or future offset, claim or defense of Borrower or any other Person (as defined below) against Lender or against payment of the Guaranteed Obligation, whether such offset, claim or defense arises in connection with the Guaranteed Obligation (or the transactions creating the Guaranteed Obligation) or otherwise. As used in this Guaranty, “Person” shall mean any individual, corporation, partnership, joint venture, association, joint stock company, trust, trustee, estate, limited liability company, unincorporated organization, real estate investment trust, government or any agency or political subdivision thereof, or any other form of entity.

Section 3.3            No Duty To Pursue Others. Lender has the right to require Guarantor to pay, comply with and satisfy the Guaranteed Obligation under this Guaranty, and shall have the right to proceed immediately against Guarantor with respect thereto. Without limitation of the generality of the foregoing, it shall not be necessary for Lender (and Guarantor hereby waives any rights which Guarantor may have to require Lender), in order to enforce the Guaranteed Obligation against Guarantor, first to (i) institute a suit or exhaust its remedies against Borrower or others liable on the Loan, the Master Lease or the Guaranteed Obligation or any other Person or any of the collateral for the Loan or the Master Lease, (ii) enforce Lender’s rights against any of the collateral for the Loan or the Master Lease, (iii) join Borrower or any others liable on the Guaranteed Obligation in any action seeking to enforce this Guaranty, (iv) demonstrate that the collateral for the Loan provides inadequate security for the Loan or that the collateral for the Master Lease provides inadequate security for the Master Lease, or (v) resort to any other means of obtaining payment of the Guaranteed Obligation.

Section 3.4            Payments; Interest on Amounts Payable Hereunder. If all or any part of the Guaranteed Obligation shall not be punctually paid when due (taking into account any cure periods provided under the Obligor Loan Documents), whether on demand, maturity, acceleration or otherwise, Guarantor shall pay, immediately upon demand by Lender and without presentment, protest, notice of protest, notice of non-payment, notice of intention to accelerate the maturity, or notice of acceleration of the maturity, in immediately available lawful money of the United States of America, as an addition to the Guaranteed Obligation, interest on the Guaranteed Obligation (to the extent not paid when due) at a rate equal to the interest rate specified in the Note increased by three percentage points (3%) until paid in full (without duplication of any imposition of the Default Rate as defined in and pursuant to the Note). Lender may apply all money received by Lender from Guarantor to payment or reduction of the Loan, the obligations under the Master Lease or reimbursement of Lender’s expenses to the extent payable pursuant to the Obligor Loan Documents, in such priority and proportions, and at such time or times as Lender may elect in its sole discretion.

Section 3.5            Enforcement Costs . Guarantor hereby agrees to pay, on written demand by Lender, all reasonable, documented and out-of-pocket costs incurred by Lender in collecting any amount payable under this Guaranty or enforcing or protecting its rights under the Obligor Loan Documents, in each case whether or not legal proceedings are commenced (the “ Enforcement Costs ”). Such fees and expenses shall be in addition to the Guaranteed Obligation and shall include, without limitation, costs and expenses of outside counsel, paralegals and other hired professionals, special servicing fees (including portfolio management fees), court fees, costs incurred in connection with pre-trial, trial and appellate level proceedings (including discovery and expert witnesses), costs incurred in post-judgment collection efforts or in any Bankruptcy Proceeding to the extent such costs relate to the Guaranteed Obligation or the enforcement of this Guaranty. Amounts incurred by Lender shall be immediately due and payable, and shall bear interest at the Default Rate from the date of disbursement until paid in full upon Lender’s written demand for payment. This Section 3.5 shall survive the payment in full of the Guaranteed Obligation.

Section 3.6            Cumulative Remedies. Guarantor acknowledges that, following an Event of Default, Lender is entitled to accelerate the Loan and/or the Master Lease and to exercise all other rights and remedies as have been provided to Lender under the Obligor Loan Documents and by law or in equity, including, without limitation, enforcement of this Guaranty. All rights and remedies of Lender are cumulative and may be exercised independently, concurrently or successively in Lender’s sole discretion and as often as occasion therefor shall arise. Lender’s delay or failure to accelerate the Loan or the Master Lease or to exercise any other remedy upon the occurrence of an Event of Default shall not be deemed a waiver of such right or remedy. No partial exercise by Lender of any right or remedy will preclude further exercise thereof. Notice or demand given to Guarantor in any instance will not entitle Guarantor to notice or demand in similar or other circumstances nor constitute Lender’s waiver of its right to take any future action in any circumstance without notice or demand. Lender may release other security for the Loan or the Master Lease, may release any party liable for the Loan or the Master Lease, may grant extensions, renewals or forbearances with respect thereto, may accept a partial or past due payment or grant other indulgences, or may apply any other security held by it to payment of the Loan or the Master Lease, in each case without prejudice to its rights under this Guaranty and without such action being deemed an accord and satisfaction or a reinstatement of the Loan or the Master Lease. Lender will not be deemed as a consequence of its delay or failure to act, or any forbearances granted, to have waived or be estopped from exercising any of its rights or remedies.

Section 3.7            Unimpaired Liability. Guarantor acknowledges and agrees that all obligations hereunder are and shall be absolute and unconditional under any and all circumstances without regard to the validity, regularity or enforceability of any or all of the Obligor Loan Documents or the existence of any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor or surety. Without limiting the foregoing, Guarantor acknowledges and agrees that the liability hereunder shall in no way be released, terminated, discharged, limited or impaired by reason of any of the following (whether or not Guarantor has any knowledge or notice thereof):

(a)           Borrower’s or any other Person’s lack of authority or lawful right to enter into any of the Obligor Loan Documents or any officers’ or representatives’ lack of authority or right to enter into Obligor Loan Documents on its behalf, or the obligations thereunder being ultra vires;

(b)           any modification, supplement, extension, consolidation, restatement, waiver or consent provided by Lender with respect to any of the Obligor Loan Documents including, without limitation, the grant of extensions of time for payment or performance;

(c)           the failure to record any Loan Document or to perfect any security interest intended to be provided thereby;

(d)           the release, surrender, exchange, subordination, deterioration, waste, loss, impairment or substitution, in whole or in part, of any collateral for the Loan or the Master Lease, the failure to protect, secure or insure any such collateral, the acceptance of additional collateral for the Loan or the Master Lease or the failure of Lender or any other party to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral for the Loan or the Master Lease;

(e)           Lender’s failure to exercise, or delay in exercising, any rights or remedies Lender may have under the Obligor Loan Documents, or under this Guaranty, or otherwise available at law or in equity, including but not limited to any neglect, delay, omission, failure or refusal of Lender (i) to take or prosecute any action for the collection of all or any part of the Guaranteed Obligation, or (ii) to foreclose, or initiate any action to foreclose, or, once commenced, prosecute to completion any action to foreclose upon any collateral for the Loan or the Master Lease, or (iii) to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guaranteed Obligation;

(f)            the release of Borrower or any other Person now or hereafter party to a Loan Document from performance, in whole or in part, under any of the Obligor Loan Documents to which each is a party, in each case whether by operation of law, Lender’s voluntary act, or otherwise;

(g)           any bankruptcy, insolvency, reorganization, adjustment, dissolution, liquidation or other like proceeding involving or affecting Borrower or any other Person;

(h)           the termination or discharge of the Security Agreement or any other Loan Document or the exercise of any power of sale or any foreclosure (judicial or otherwise) or delivery or acceptance of a deed-in-lieu of foreclosure;

(i)            the existence of any claim, setoff, counterclaim, defense or other rights which Guarantor may have against Borrower, Lender or any other Person, whether in connection with the Loan, the Master Lease or any other transaction;

(j)            the accuracy or inaccuracy of the representations and warranties made by Borrower or any other Person in any of the Obligor Loan Documents;

(k)           any adjustment, indulgence, forbearance or compromise that might be granted or given by Lender to Borrower or any other Person;

(l)            any sale, lease or transfer of any or all of the assets of Borrower or any other Person;

(m)          any valid defenses, claims or offsets (whether at law, in equity or by agreement) by Borrower which render the Guaranteed Obligation wholly or partially uncollectible from Borrower, whether arising in connection with the Obligor Loan Documents or otherwise,

(n)           the illegality or unenforceability of, or the inability to collect, the Guaranteed Obligation;

(o)           any of the Obligor Loan Documents being irregular or not genuine or authentic; or

(p)           any changes (whether directly or indirectly) in the shareholders, partners or members of Borrower or the reorganization, merger or consolidation of Borrower into or with any other Person.

Section 3.8            Waivers. Guarantor hereby waives and relinquishes, to the fullest extent permitted by law: (a) all rights or claims of right to cause a marshalling of assets or to cause Lender to proceed against any of the collateral for the Loan or the Master Lease before proceeding under this Guaranty against Guarantor or any other guarantor or indemnitor under the Loan or the Master Lease; (b) all rights and remedies accorded by applicable law to sureties or guarantors, except any rights of subrogation and contribution (the exercise of which are subject to the terms of this Guaranty); (c) the right to assert a counterclaim, other than a mandatory or compulsory counterclaim, in any action or proceeding brought by or against Guarantor; (d) notice of acceptance of this Guaranty and of any action taken or omitted in reliance hereon; (e) presentment for payment, demand, protest, notice of nonpayment or failure to perform or observe, or any other proof, notice or demand to which they might otherwise be entitled with respect to the Guaranteed Obligation; (f) all homestead or exemption rights against the Guaranteed Obligation and the benefits of any statutes of limitation or repose; and (g) any defense based upon an election of remedies by Lender, including any election to proceed by judicial or non-judicial foreclosure of any such collateral, whether real property or personal property security, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable or any election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of Guarantor or the rights of Guarantor to proceed against Borrower or any other guarantor for reimbursement, or both.

Section 3.9            Waivers of Notice. Guarantor agrees to the provisions of the Obligor Loan Documents and hereby waives notice of (a) any disbursements thereunder made by Lender to Borrower, (b) any amendment or extension of the Obligor Loan Documents, (c) the execution and delivery by Borrower and Lender of any other loan or credit agreement or of Borrower’s execution and delivery of any promissory notes or other documents arising under the Obligor Loan Documents or in connection with the Property, (d) the occurrence of any Event of Default, (e) Lender’s transfer or disposition of the Guaranteed Obligation, or any part thereof, (f) the sale or foreclosure (or posting or advertising for sale or foreclosure) of the Property, (g) any default by Borrower or any other Person under or with respect to the Obligor Loan Documents, or (h) any other action at any time taken or omitted by Lender and, generally, all demands and notices of every kind in connection with this Guaranty and the other Obligor Loan Documents.

Section 3.10          Guarantor Bound by Judgment Against Borrower. Guarantor agrees that Guarantor shall be bound conclusively, in any jurisdiction, by the judgment in any action by Lender against Borrower in connection with the Obligor Loan Documents (wherever instituted) as if Guarantor was a party to such action even if not so joined as a party.

Section 3.11          Certain Consequences of Borrower’s Bankruptcy.

(a)           Any payment made on the Loan or in connection with the Master Lease, whether made by Borrower or Guarantor or any other Person, that is required to be refunded or recovered from Lender as a preference or a fraudulent transfer or is otherwise set-aside pursuant to 11 U.S.C. § 101 et seq., as the same may be amended from time to time (the “Bankruptcy Code”), or any other present or future state or federal law regarding bankruptcy, reorganization or other relief to debtors (collectively with the Bankruptcy Code, the “Debtor Relief Laws”) shall not be considered as a payment made on the Loan, the Master Lease or under this Guaranty. Guarantor’s liability under this Guaranty shall continue with respect to any such payment, or be deemed reinstated, with the same effect as if such payment had not been received by Lender, notwithstanding any notice of revocation of this Guaranty prior to such avoidance or recovery or payment in full of the Loan or the obligations in connection with the Master Lease, until such time as all periods have expired within which Lender could be required to return any amount paid at any time on account of the Guaranteed Obligation.

(b)           Until payment in full of the Obligations (as defined in the Credit Agreement) (including interest accruing after the commencement of a proceeding by or against Borrower under the Bankruptcy Code or any other Debtor Relief Law, which interest the parties agree remains a claim that is prior and superior to any claim of Guarantor notwithstanding any contrary practice, custom or ruling in cases under any applicable Debtor Relief Law generally), Guarantor agrees not to accept any payment or satisfaction of any kind of indebtedness of Borrower to Guarantor and hereby assigns such indebtedness to Lender, including the right (but not the obligation) to file proof of claim and to vote in any other bankruptcy or insolvency action, including the right to vote on any plan of reorganization, liquidation or other proposal for debt adjustment under Federal or state law.

Section 3.12          Subrogation and Contribution. Guarantor agrees that no payment by Guarantor under this Guaranty shall give rise to, and Guarantor hereby unconditionally and irrevocably waives, releases and abrogates any and all rights Guarantor may now or hereafter have under any agreement, at law or in equity (including, without limitation, any law subrogating Guarantor to the rights of Lender) to assert, (a) any rights of subrogation against Borrower or the collateral for the Loan or the Master Lease, or (b) any rights of contribution against any other guarantor of the Loan or the Master Lease or any other Person, in each case unless and until Lender has received full and indefeasible payment of the Obligations. If the deferral of such rights shall be unenforceable for any reason, Guarantor agrees that: (x) Guarantor’s rights of subrogation shall be junior and subordinate to Lender’s rights against Borrower and the collateral for the Loan or the Master Lease, and (y) such Guarantor’s rights of contribution against any such other guarantor shall be junior and subordinate to Lender’s rights against such other guarantor.

Section 3.13          Subordination of Debt to any Guarantor .

(a)           Any indebtedness of Borrower to any Guarantor, whether now or hereafter existing, whether direct, contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of whether such debts or liabilities be evidenced by note, contract, open account or otherwise, and irrespective of the person or persons in whose favor such debts or liabilities may, at their inception, have been or may hereafter be created, or the manner in which they have been or may hereafter be acquired by Guarantor, including, without limitation, all rights and claims of Guarantor against Borrower (arising as a result of subrogation or otherwise) as a result of Guarantor’s payment of all or a portion of the Guaranteed Obligation, together with any interest thereon (collectively, “ Guarantor Claims ”), shall be and hereby is deferred, postponed and subordinated to the prior payment in full of the Loan and the Master Lease. Further, until payment in full of the Obligations, Guarantor agrees that should the Guarantor receive any payment, satisfaction or security for any Guarantor Claim, then upon request of the Lender, the same shall be delivered to Lender in the form received (endorsed or assigned as may be appropriate ) for application on account of, or as security for, the Loan and the Master Lease and until so delivered to Lender, shall be held in trust for Lender as security for the Loan and the Master Lease.

(b)           In the event of receivership, bankruptcy, reorganization, arrangement, debtor’s relief, or other insolvency proceedings involving Guarantor as debtor, Lender shall have the right to prove its claim in any such proceeding so as to establish its rights hereunder and receive directly from the receiver, trustee or other court custodian dividends and payments which would otherwise be payable upon Guarantor Claims. Guarantor hereby assigns such dividends and payments to Lender. Should Lender receive, for application against the Guaranteed Obligation, any dividend or payment which is otherwise payable to Guarantor and which, as between Borrower and Guarantor, shall constitute a credit against the Guarantor Claims, then, upon payment to Lender in full of the Guaranteed Obligation, Guarantor shall become subrogated to the rights of Lender to the extent that such payments to Lender on the Guarantor Claims have contributed toward the liquidation of the Guaranteed Obligation, and such subrogation shall be with respect to that portion of the Guaranteed Obligation which would have been unpaid if Lender had not received dividends or payments upon the Guarantor Claims.

(c)           Guarantor agrees that any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guarantor Claims shall be and remain inferior and subordinate to any liens, security interests, judgment liens, charges or other encumbrances upon Borrower’s assets securing payment of the Guaranteed Obligation, regardless of whether such encumbrances in favor of Guarantor or Lender presently exist or are hereafter created or attach. Without the prior written consent of Lender, Guarantor shall not (i) exercise or enforce any creditor’s right Guarantor may have against Borrower, or (ii) foreclose, repossess, sequester or otherwise take steps or institute any action or proceedings (judicial or otherwise, including without limitation the commencement of, or joinder in, any liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency proceeding) to enforce any liens, mortgage, deeds of trust, security interests, collateral rights, judgments or other encumbrances held by Guarantor on assets of Borrower.

Section 3.14         Lender Transferees; Secondary Market Activities; No Transfer by Guarantor. Guarantor acknowledges and agrees that Lender, without notice to Guarantor or Guarantor’s consent, may assign all or any portion of its rights hereunder in connection with any sale or assignment of the Loan or servicing rights related to the Loan, grant participations in the Loan, transfer the Loan as part of a securitization in which Lender assigns its rights to a securitization trustee, or contract for the servicing of the Loan, and that each such assignee, participant or servicer shall be entitled to exercise all of Lender’s rights and remedies hereunder. Guarantor further acknowledges that Lender may provide to third parties with an existing or prospective interest in the servicing, enforcement, ownership, purchase, participation or securitization of the Loan, including, without limitation, any rating agency rating the securities issued in respect of a securitization or participation of the Loan, and any entity maintaining databases on the underwriting and performance of commercial mortgage loans, any and all information which Lender now has or may hereafter acquire relating to the Loan, the Property or with respect to Borrower or Guarantor, as Lender determines necessary or desirable. Guarantor irrevocably waives all rights Guarantor may have under applicable law, if any, to prohibit such disclosure, including, without limitation, any right of privacy. Guarantor may not assign any of Guarantor’s rights, powers, duties and obligations hereunder, or substitute another Person in lieu of Guarantor as the obligor hereunder.

Section 3.15          Financial Statements. Guarantor represents and warrants to Lender that (i) the financial statements of Guarantor previously submitted to Lender are true, complete and correct in all material respects, disclose all actual and contingent liabilities, and fairly present the financial condition of Guarantor, and do not contain any untrue statement of a material fact or omit to state a fact material to the financial statements submitted or this Guaranty, and (ii) no material adverse change has occurred in the financial statements from the dates thereof until the date hereof. Guarantor shall furnish to Lender the financial information and reports as set forth in Section 6.6 of the Credit Agreement.

Section 3.16          No reliance. Guarantor agrees and acknowledges that: (a) Guarantor is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, ability to collect, or value of the collateral for the Loan or the Master Lease; (b) Guarantor may be required to pay the Guaranteed Obligation in full without assistance or support of any other party, and (c) Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that other parties will be liable to pay the Guaranteed Obligation, or that Lender will look to other parties to pay or perform the Guaranteed Obligation.

Section 3.17         Termination. This Guaranty shall be automatically discharged as of the date on which the Obligations have been indefeasibly paid in full.

Section 3.18          Setoff. Guarantor hereby grants to Lender a security interest in, and Lender is hereby authorized at any time following an Event of Default, without prior notice to Guarantor (any such notice hereby being expressly waived by Guarantor), to set off and apply, any and all accounts and deposits (general or special, time or demand, provisional or final) at any time held by Lender, or any branch, subsidiary, or affiliate of Lender, and all other indebtedness at any time owing by Lender or any branch, subsidiary, or affiliate of Lender, to or for the credit or the account of Guarantor (including all accounts held jointly with another, but excluding any IRA or Keogh accounts, or any trust accounts for which a security interest would be prohibited by law), against any and all of the obligations of Guarantor due and payable under this Guaranty. Such security interest may be enforced, and such right of setoff may be exercised, by Lender irrespective of whether or not Lender shall have made any demand under this Guaranty. Lender agrees promptly to notify a Guarantor after any such setoff and application, provided that the failure to give such notice shall not affect the validity or such setoff and application. The rights of Lender under this section are in addition to other rights and remedies (including, without limitation, other rights of setoff) which Lender may have.

Section 3.19         Intentionally Omitted.

Section 3.20          Minimum Liquidity . Until such time as the Loan and the obligations in connection with the Master Lease have been indefeasibly paid in full, Guarantor and its wholly-owned and controlled consolidated subsidiaries shall maintain a minimum, unrestricted and unpledged Liquidity of Two Million and No/100 Dollars ($2,000,000.00), which shall be tested quarterly as of the last day of each fiscal quarter of Guarantor. As used herein “ Liquidity ” means, without duplication, unrestricted and unpledged (i) cash (including cash pledged in favor of Lender); (ii) certificates of deposit or time deposits with terms of six (6) months or less; (iii) A-1/P-1 commercial paper with a term of six (6) months or less; (iv) U.S. treasury bills and other obligations of the Federal government, all with terms of six (6) months or less; (v) readily marketable securities (excluding “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), restricted stock and stock subject to the provisions of Rule 144 of the Securities and Exchange Commission); (vi) bankers’ acceptances issued for terms of six (6) months or less by satisfactory financial institutions; (vii) repurchase agreements with terms of six (6) months or less covering U.S. government securities; and (viii) a publicly traded fund, other than a hedge fund, that invests in any of the items (i) – (vii). Notwithstanding anything herein to the contrary, cash that is pledged in favor of Lender shall not be excluded for purposes of calculating Liquidity.

Article 4
REPRESENTATIONS AND WARRANTIES

Section 4.1            Guarantor Due Diligence and Benefit. Guarantor represents and warrants to Lender that (a) the Loan, the Master Lease and this Guaranty are for commercial purposes, (b) Guarantor has had adequate opportunity to review the Obligor Loan Documents, (c) Guarantor is fully aware of obligations of Borrower thereunder and of the financial condition, assets and prospects of Borrower, and (d) Guarantor is executing and delivering this Guaranty based solely upon Guarantor’s own independent investigation of the matters contemplated by clauses (a) through (c) of this Section 4.1 and in no part upon any representation, warranty or statement of Lender with respect thereto.

Section 4.2            General. Guarantor represents and warrants to Lender that:

(a)           Authority. Guarantor has all requisite corporate authority to execute and deliver this Guaranty and perform Guarantor’s obligations hereunder.

(b)           Valid and Binding Obligation. This Guaranty constitutes Guarantor’s legal, valid and binding obligation, enforceable against Guarantor in accordance with its terms, except to the extent enforceability may be limited under applicable bankruptcy and insolvency laws and similar laws affecting creditors’ rights generally and to general principles of equity.

(c)           No Conflict with Other Agreement. Guarantor’s execution, delivery and performance of this Guaranty will not (i) violate any of the organizational documents of Guarantor, (ii) result in the breach of, or conflict with, or result in the acceleration of, any obligation under any guaranty, indenture, credit facility or other instrument to which Guarantor, Borrower or any of their respective assets may be subject, or (iii) violate any order, judgment or decree to which Guarantor, Borrower or any of their respective assets are subject.

(d)           No Pending Litigation. No action, suit, proceeding or investigation, judicial, administrative or otherwise (including without limitation any reorganization, bankruptcy, insolvency or similar proceeding), currently is pending or, to the best of Guarantor’s knowledge, threatened against Guarantor which, either in any one instance or in the aggregate, may have a material, adverse effect on Guarantor’s ability to perform Guarantor’s obligations under this Guaranty.

(e)           Consideration. Guarantor owns a direct or indirect interest or has a financial interest in Borrower and will derive substantial benefit from Lender’s making of the Loan to Borrower and entering into the Master Lease.

(f)            Financial Condition. Guarantor currently is solvent and will not be rendered insolvent by providing this Guaranty. No adverse change has occurred in the financial condition of Guarantor since the date of Guarantor’s most recent financial statements submitted to Lender, other than such changes that have been disclosed in writing to Lender and acknowledged by Lender.

Article 5
EVENT OF DEFAULT

Section 5.1            Default. Any Event of Default hereunder shall be deemed an “ Event of Default ” under the Credit Agreement and the other Obligor Loan Documents. Any of the following occurrences shall constitute an “Event of Default” under this Guaranty:

(a)           An Event of Default occurs under the terms of the Obligor Loan Documents, as “Event of Default” shall be defined therein.

(b)           Guarantor shall fail to observe or perform any covenant, condition, or agreement under this Guaranty for a period of thirty (30) days from the date of such breach, or any representation or warranty of Guarantor set forth in this Guaranty shall be materially inaccurate or misleading when made or delivered.

(c)           The monetary default by Guarantor under the terms of any indebtedness of Guarantor now or hereafter existing, which default has not been cured within any time period permitted pursuant to the terms and conditions of such indebtedness and which would impair Lender’s ability to exercise its rights under the Obligor Loan Documents.

(d)           The commencement by Guarantor of a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect; or the entry of a decree or order for relief in respect of Guarantor in a case under any such law or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of Guarantor, or for any substantial part of Guarantor’s property, or ordering the wind-up or liquidation of Guarantor’s affairs; or the filing or pendency for sixty (60) days without dismissal of a petition initiating an involuntary case under any such bankruptcy, insolvency or similar law; or the making by Guarantor of any general assignment for the benefit of creditors; or the failure of Guarantor generally, to pay Guarantor’s debts as such debts become due; or the taking of action by Guarantor in furtherance of the foregoing.

(e)           The revocation or attempted revocation of this Guaranty by Guarantor before the termination of this Guaranty in accordance with its terms, or the assignment or attempted assignment of this Guaranty by Guarantor.

Article 6
MISCELLANEOUS

Section 6.1            Notices. All notices or other written communications hereunder shall be deemed to have been properly given (a) upon delivery, if delivered in person, (b) one (1) business day after having been deposited for overnight delivery with any reputable overnight courier service, or (c) three (3) business days after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or certified mail, postage prepaid, return receipt requested, addressed to the addresses set forth below in this Section or as such party may from time to time designate by written notice to the other parties. Either party by notice to the other in the manner provided herein may designate additional or different addresses for subsequent notices or communications:

Section 6.2            Invalid Provisions. If any provision of this Guaranty is held to be illegal, invalid or unenforceable in whole or in part, such provision shall be fully severable; this Guaranty shall be construed and enforced as if such illegal, invalid or unenforceable provision (or portion thereof) had never comprised a part hereof; the remaining provisions hereof shall remain in full effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance therefrom; and in lieu of such illegal, invalid or unenforceable provision there shall be added automatically as a part of this Guaranty a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible to be legal, valid and enforceable.

Section 6.3            Time of the Essence. Time is of the essence with respect to this Guaranty and the performance and observance by Guarantor of each covenant, agreement, provision and term of this Guaranty.

Section 6.4            Successors and Assigns. This Guaranty shall be binding upon Guarantor and Guarantor’s heirs, representatives, successors and assigns and shall inure to the benefit of the Lender, and its successors and assigns, except that (a) Guarantor may not assign or transfer Guarantor’s rights hereunder or any interest herein or delegate its duties hereunder, and (b) Lender shall have the right to assign its rights hereunder in accordance with the Credit Agreement.

Section 6.5           JURY WAIVER.  GUARANTOR AND LENDER, BY ITS ACCEPTANCE HEREOF, HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG GUARANTOR AND LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS GUARANTY, ANY OTHER LOAN DOCUMENT, OR ANY RELATIONSHIP BETWEEN GUARANTOR AND LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE LOAN AND THE MASTER LEASE DESCRIBED HEREIN AND IN THE OTHER OBLIGOR LOAN DOCUMENTS.

Section 6.6            Governing Law. This Guaranty shall be governed by and construed in accordance with the laws of the State of New York.

Section 6.7            JURISDICTION AND VENUE. GUARANTOR HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS INITIATED BY GUARANTOR AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS GUARANTY MAY BE LITIGATED IN THE CIRCUIT COURT OF HILLSBOROUGH COUNTY, FLORIDA OR HAMILTON COUNTY, OHIO, OR THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA OR, IF LENDER INITIATES SUCH ACTION, ANY COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION AND WHICH HAS JURISDICTION. GUARANTOR HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY LENDER IN ANY OF SUCH COURTS, AND HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO GUARANTOR, AT THE ADDRESS TO WHICH NOTICES ARE TO BE SENT PURSUANT TO THIS GUARANTY. GUARANTOR WAIVES ANY CLAIM THAT HILLSBOROUGH COUNTY, FLORIDA, HAMILTON COUNTY, OHIO OR THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE. SHOULD GUARANTOR, AFTER BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE MAILING THEREOF, GUARANTOR SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY LENDER AGAINST GUARANTOR AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE EXCLUSIVE CHOICE OF FORUM FOR GUARANTOR SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT BY LENDER OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING BY LENDER OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND GUARANTOR HEREBY WAIVES THE RIGHT, IF ANY, TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.

Section 6.8            Entire Agreement. This Guaranty embodies the entire agreement and understanding between Lender and Guarantor with respect to the subject matter hereof and supersedes all prior agreements and understandings between such parties relating to the subject matter hereof. Accordingly, this Guaranty may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties.

Section 6.9            Phrases. When used in this Guaranty, the phrase “including” (or a word of similar import) shall mean “including, but not limited to,” the phrase “satisfactory to Lender” shall mean “in form and substance satisfactory to Lender in all respects,” the phrase “with Lender’s consent” or “with Lender’s approval” shall mean such consent or approval at Lender’s discretion, and the phrase “acceptable to Lender” shall mean “acceptable to Lender at Lender’s discretion”, except as provided otherwise herein. Wherever the context of this Guaranty may so require, the gender shall include the masculine, feminine and neuter, and the singular shall include the plural and vice versa. This Guaranty shall be construed as though drafted by all of the parties hereto and shall not be construed against or in favor of any party.

Section 6.10          Titles of Articles, Sections and Subsections. All titles or headings to articles, sections, subsections or other divisions of this Guaranty or the exhibits hereto are only for the convenience of the parties and shall not be construed to have any effect or meaning with respect to the other content of such articles, sections, subsections or other divisions, such other content being controlling as to the agreement between Guarantor and Lender.

Section 6.11          Survival . All of the representations, warranties, covenants, and indemnities hereunder, and any modification or amendment hereof, shall survive the closing and funding of the Loan and the Master Lease, shall not be deemed to have merged herein, and shall (except to the extent expressly provided for herein) remain as continuing representations, warranties, covenants and indemnities so long as any Obligations is outstanding.

Section 6.12          Representation by Legal Counsel. Guarantor acknowledges that Guarantor has been advised by Lender to seek the advice of legal counsel in connection with the negotiation and preparation of this Guaranty. If Guarantor has chosen not to obtain legal representation, whether due to cost considerations or for other reasons, the lack of such representation shall not furnish Guarantor with any defense to the enforcement of Lender’s rights hereunder.

Section 6.13          Injunctive Relief. Guarantor recognizes that in the event Guarantor fails to perform, observe or discharge any of Guarantor’s obligations hereunder, no remedy of law will provide adequate relief to Lender, and agrees that Lender shall be entitled to pursue temporary and permanent injunctive relief in any such case without the necessity of proving actual damages.

Section 6.14          Credit Agreement. Guarantor hereby agrees to be bound by any covenants applicable to, or binding upon, Guarantor in the Obligor Loan Documents and such covenants are hereby incorporated by reference as if fully set forth herein.

Section 6.15          Modification. This Guaranty shall not be modified, supplemented, or terminated, nor any provision hereof waived, except by a written instrument signed by the party against whom enforcement thereof is sought, and then only to the extent expressly set forth in such writing.

Section 6.16          Duplicate Originals; Counterparts. This Guaranty may be executed in any number of duplicate originals, and each duplicate original shall be deemed to be an original. This Guaranty (and each duplicate original) also may be executed in any number of counterparts, each of which shall be deemed an original and all of which together constitute a fully executed Guaranty even though all signatures do not appear on the same document. Receipt of an executed signature page to this Guaranty by facsimile or other electronic transmission shall constitute effective delivery thereof

Section 6.17          Recitals. The recital and introductory paragraphs hereof are a part hereof, form a basis for this Guaranty and shall be considered prima facie evidence of the facts and documents referred to therein.

Section 6.18          Joint and Several Obligations. If Guarantor is a partnership, the obligations of Guarantor under this Guaranty are the joint and several obligation of each general partner thereof Any married person signing this Guaranty agrees that recourse may be had against community property assets and against his or her separate property for the satisfaction of all obligations contained herein.

Section 6.19          Reliance. Lender would not make the Loan or the Master Lease to the Borrower without this Guaranty. Accordingly, Guarantor intentionally and unconditionally enters into the covenants and agreements herein and understands that, in reliance upon and in consideration of such covenants and agreements, the Loan and the Master Lease shall be made and, as part and parcel thereof, specific monetary and other obligations have been, are being and shall be entered into which would not be made or entered into but for such reliance.

Section 6.20          Waiver of Bankruptcy Stay. Guarantor covenants and agrees that upon the commencement of a voluntary or involuntary Bankruptcy Proceeding by or against Guarantor, Guarantor shall not seek a supplemental stay or otherwise pursuant to 11 U.S.C. §105 or any other provision of the Bankruptcy Code or any other Debtor Relief Law, to stay, interdict, condition, reduce or inhibit the ability of Lender to enforce any rights of Lender against Guarantor by virtue of this Guaranty or otherwise.

Section 6.21          Further Assurances. Guarantor shall, upon request by Lender, execute, with acknowledgment or affidavit if required, and deliver, any and all documents and instruments required to effectuate the provisions hereof and of any other Loan Document.

[Remainder of page INTENTIONALLY LEFT blank;
signature PAGE FOLLOWS]

IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the Effective Date.

The undersigned, a Notary Public in and for the said County, in the State aforesaid, DOES HEREBY CERTIFY that Gregory M. Krzemien the Chief Financial Officer of JETPAY CORPORATION, a Delaware corporation , who is personally known to me to be the same person whose name is subscribed to the foregoing instrument appeared before me this day in person and acknowledged that he/she signed and delivered the said instrument as his/her own free and voluntary act and as the free and voluntary act of said corporation, for the uses and purposes therein set forth.

GIVEN under my hand and notarial seal this 22nd day of June , 2017.

Signature Page to Guaranty Agreement

Exhibit 10.6

NOTE REGARDING FLORIDA DOCUMENTARY STAMP TAX : THIS PROMISSORY NOTE: (a) IS NOT SECURED BY AN INTEREST IN FLORIDA REAL PROPERTY; AND (b) HAS BEEN MADE, EXECUTED AND DELIVERED BY BORROWER TO LENDER OUTSIDE OF THE TERRITORIAL LIMITS OF THE STATE OF FLORIDA. THEREFORE, NO DOCUMENTARY STAMP TAX IS DUE HEREON.

$1,000,000.00

AMENDED AND RESTATED

REVOLVING PROMISSORY NOTE

THIS AMENDED AND RESTATED REVOLVING PROMISSORY NOTE (this “ Note ”) is made as of June 22, 2017 (the “ Effective Date ”) in the principal amount of One Million and No/100 Dollars ($1,000,000.00).

RECITALS

A.            This Note is made by JETPAY PAYMENT SERVICES, FL, LLC , a Delaware limited liability company, successor in interest to CSI ACQUISITION SUB ONE, LLC, a Delaware limited liability company (“ Borrower ”), having an address of 1175 Lancaster Ave., Suite 200, Berwyn, PA 19312, and is payable to the order of FIFTH THIRD BANK, an Ohio banking corporation, its successors and assigns (“ Lender ”), 201 East Kennedy Blvd., Suite 1800, Tampa, Hillsborough County, Florida 33602, pursuant to the terms and conditions set forth in that certain Credit Agreement dated as of June 1, 2016 by and between Borrower and Lender, as amended by that certain Modification of Credit Agreement and Other Loan Documents dated as of March 23, 2017 and that certain Second Modification of Credit Agreement and Other Loan Documents dated of even date herewith (the “ Credit Agreement ”). The amount disbursed by Lender to Borrower, repayment of which is evidenced by this Note, is referred to as the “ Loan ”.

B.            This Note is secured, among other items, by that certain Security Agreement dated June 1, 2016 by and between Borrower and Lender (the “ Security Agreement ”), encumbering certain interests in personal property as more particularly described therein (the “ Property ”) (the Note, the Security Agreement, the Credit Agreement, and all other documents evidencing or securing the Loan are hereinafter collectively referred to herein as the “ Loan Documents ”). All of the agreements, conditions, covenants, provisions and stipulations contained in the Credit Agreement and other Loan Documents are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein and Borrower covenants and agrees to keep and perform them, or cause them to be kept and performed, strictly in accordance with their terms.

1.            Agreement to Pay .

A.            Maturity Date. Borrower hereby promises to pay to the order of Lender the principal sum of One Million and No/100 Dollars ($1,000,000.00), or so much thereof as may be outstanding hereunder, in lawful money of the United States of America on or before the earlier of June 1, 2018 (the “ Maturity Date ”) or upon acceleration of the Note, together with interest thereon at the rate or rates hereinbelow set forth.

B.            Interest Rate. Interest on the Loan shall accrue on the outstanding principal balance of this Note from the date of the initial disbursement through the Maturity Date. Commencing on the first day of August, 2017 and on the first day of each successive month thereafter (subject to earlier prepayment as provided in Section 8 hereof), until the Loan has been fully paid and satisfied in cash, Borrower shall make payments to Lender of accrued interest.

2.            Defined Terms. In addition to the terms defined elsewhere in this Note, the following terms shall have the following meanings when used in this Note. All capitalized terms used in this Note and not otherwise defined shall have the meanings ascribed thereto in the Credit Agreement.

A.            “ Adjusted LIBOR Rate ” shall mean a rate per annum equal to two percent (2.00%) plus the LIBOR Rate for such Interest Period.

B.            “ Business Day ” shall mean (i) with respect to all notices and determinations in connection with the LIBOR Rate, any day (other than a Saturday or Sunday) on which commercial banks are open in London, England, New York, New York, and Cincinnati, Ohio for dealings in deposits in the London Interbank Market; and (ii) in all other cases, any day on which commercial banks in Cincinnati, Ohio are required by law to be open for business; provided that, notwithstanding anything to the contrary in this definition of “Business Day”, at any time during which a Rate Management Agreement (as defined in the Credit Agreement) with Lender is then in effect with respect to all or a portion of this Note, then the definitions of “Business Day” and “Banking Day”, as applicable, as set forth in such Rate Management Agreement shall govern with respect to all applicable notices and determinations in connection with such portion of this Note subject to such Rate Management Agreement.

C.            “ Default ” shall mean when used in reference to this Note or any other document, or in reference to any provision or obligation under this Note or any other document, the occurrence of an event or the existence of a condition which, with the passage of time or the giving of notice, or both, would constitute an Event of Default under this Note or such other document, as the case may be.

D.            “ Default Rate ” as defined in Section 5 hereof.

E.            “ Event of Default ” shall mean (i) when used in reference to this Note, one or more of the events or occurrences referred to in Section 9.A. of this Note; and (ii) when used in reference to any other document, a default or event of default under such document that has continued after the giving of any applicable notice and the expiration of any applicable grace or cure periods.

F.            “ Interest Period ” shall mean a period of one month, at Borrower’s election, which period shall commence on a Business Day selected by Borrower subject to the terms of this Note and shall be determined by Lender in accordance with this Note and Lender’s loan systems and procedures periodically in effect, including, without limitation, in accordance with the following terms and conditions, as applicable:

(a)           In the case of immediately successive Interest Periods with respect to a continued LIBOR Rate Loan, each successive Interest Period shall commence on the day on which the immediately preceding Interest Period expires, with interest for such day to be calculated based upon the LIBOR Rate in effect for the new Interest Period;

(b)           If a Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall end on the next succeeding Business Day; provided that, if the next succeeding Business Day falls in a new month, such Interest Period shall end on the immediately preceding Business Day; and

(c)           If any Interest Period begins on a Business Day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, then the Interest Period shall end on the last Business Day of the calendar month ending at the end of such Interest Period.

G.            “ Interest Rate ” shall mean the Adjusted LIBOR Rate for the applicable Interest Period.

H.            “ LIBOR Rate ” shall mean, for the Interest Period applicable thereto in accordance with this Note, the rate of interest (rounded upwards to the next 1/8th of one percent (1%) and adjusted by Lender for reserves if Lender is required to maintain reserves with respect to the Loan (or portion thereof)) fixed by the ICE Benchmark Administration Limited (or any successor thereto, or replacement thereof, as approved by Lender each an “ Alternate LIBOR Source ”) at approximately 11:00 a.m., London, England time (or at the relevant time established by an Alternate LIBOR Source or by Lender), two Business Days prior to the commencement of the requested Interest Period, relating to quotations for the one month London Interbank Offered Rate, as selected by Borrower in accordance with this Note, on U.S. Dollar deposits, as displayed by Bloomberg LP (or any successor thereto, or replacement thereof, as approved by Lender, each an “ Approved Bloomberg Successor ”), all as determined by Lender in accordance with this Note and Lender’s loan systems and procedures periodically in effect. If the LIBOR Rate is no longer displayed on Bloomberg LP (or any Approved Bloomberg Successor), the LIBOR Rate shall be determined in good faith by Lender from such other sources as it shall determine to be comparable to Bloomberg LP (or any Approved Bloomberg Successor) all as determined by Lender in accordance with this Note and Lender’s loan systems and procedures periodically in effect. Notwithstanding anything to the contrary contained herein, in no event shall the LIBOR Rate be less than 0% as of any date (the “LIBOR Rate Minimum”); provided that, at any time during which a Rate Management Agreement (as defined in the Credit Agreement) with Lender is then in effect with respect to all or a portion of the Obligations, the LIBOR Rate Minimum shall be disregarded and no longer of any force and effect with respect to such portion of the Obligations subject to such Rate Management Agreement. Each determination by Lender of the LIBOR Rate shall be final, binding and conclusive in the absence of manifest error.

3.            Computation of Interest. Moneys deposited by Lender in an escrow shall be deemed to have been disbursed as of, and shall bear interest from, the date of deposit in escrow. Interest on this Note shall be payable for the day a disbursement of proceeds of the Loan is made. Regularly scheduled payments of interest on this Note shall include interest accrued to but not including the day on which the payment is made. Payments of principal on this Note shall include interest on the amount paid to but not including the date of payment if payment is received prior to 2:00 P.M. Eastern Time, and if payment is received after such time, payment of principal on this Note shall include interest to and including the day of payment.

4.            Payment Terms. The Loan shall be due and payable, and Borrower hereby promises to pay the outstanding principal amount of the Loan to Lender, together with all accrued interest thereon then remaining unpaid and all other unpaid amounts, charges, fees and expenses outstanding under this Note or under any of the other Loan Documents, on the Maturity Date.

5.            Late Payments; Default Rate; Fees. If any payment is not paid within ten (10) days of when due under this Note or any of the other Loan Documents, Borrower agrees to pay to Lender a late payment fee of five percent (5%) of the payment amount with a minimum fee of $20.00. After an Event of Default, Borrower agrees to pay to Lender a fixed charge of $25.00, or Borrower agrees that Lender may, without notice, increase the Interest Rate by five percentage points (5.00%) (the “ Default Rate ”) for the period of time the default is continuing. Lender may impose a non-sufficient funds fee for any check that is presented for payment that is returned for any reason.

6.            Rounding and Rate Management Agreement. At any time during which a Rate Management Agreement is then in effect with respect to this Note, the provisions contained in this Note which round up the Interest Rate to the nearest 118 ^th shall be disregarded and no longer of any force and effect, notwithstanding anything to the contrary contained in this Note.

7.            Maximum Interest Rate. Notwithstanding any provisions of this Note or any instrument securing payment of the indebtedness evidenced by this Note to the contrary, it is the intent of Borrower and Lender that Lender shall never be entitled to receive, collect or apply, as interest on principal of the indebtedness, any amount in excess of the maximum rate of interest permitted to be charged by applicable law; and if under any circumstance whatsoever, fulfillment of any provision of this Note, at the time performance of such provision shall be due, shall involve transcending the limit of validity prescribed by applicable law, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity; and in the event Lender ever receives, collects or applies as interest any such excess, such amount which would be excess interest shall be deemed a permitted partial prepayment of principal without penalty or premium and treated hereunder as such; and if the principal of the indebtedness evidenced hereby is paid in full, any remaining excess funds shall forthwith be paid to Borrower. In determining whether or not interest of any kind payable hereunder exceeds the highest lawful rate, Borrower and Lender shall, to the maximum extent permitted under applicable law, (a) characterize any non-principal payment as an expense, fee or premium rather than as interest, and (b) amortize, prorate, allocate and spread such payment so that the interest on account of such indebtedness does not exceed the maximum amount permitted by applicable law; provided that if the amount of interest received for the actual period of existence thereof exceeds the maximum lawful rate, Lender shall refund to Borrower the amount of such excess. Lender shall not be subject to any penalties provided by any laws for contracting for, charging or receiving interest in excess of the maximum lawful rate.

8.            Revolving Loan. Provided that no Default or Event of Default under this Note or any of the other Loan Documents has occurred and is continuing, any portion of the principal balance of this Note which is repaid may be reborrowed by Borrower prior to the Maturity Date. There shall be no prepayment penalty or premium.

9.            Default and Remedies.

A.            An “ Event of Default ” shall occur under this Note upon the occurrence of (a) the failure of Borrower to make any principal or interest payment owing hereunder on the date which is ten (10) days after the date when due, (b) the failure by Borrower to pay any other amount payable to Lender under this Note within ten (10) days after the date when any such payment is due in accordance with the terms hereof, (c) a breach by Borrower of any of the covenants, agreements, representations, warranties or other provisions hereof, which is not cured within the grace or cure period, if any, applicable thereto, or (d) the occurrence of any Event of Default under any of the other Loan Documents. An Event of Default under this Note shall also be deemed an Event of Default under the other Loan Documents.

B.            If an Event of Default has occurred and is continuing, Lender shall have the option, without demand or notice, other than specified herein or in the other Loan Documents, to declare the unpaid principal of this Note, together with all accrued interest, prepayment premium, if any, and other sums secured by the Security Agreement, or other Loan Documents, at once due and payable to the extent permitted by law, to foreclose the Security Agreement and the other liens or security interests securing the payment of this Note, and to exercise any and all other rights and remedies available at law or in equity under the Security Agreement or the other Loan Documents.

C.            The remedies of Lender, as provided herein or in the Security Agreement or any of the other Loan Documents shall be cumulative and concurrent, and may be pursued singularly, successively or together, at the sole discretion of Lender, and may be exercised as often as occasion therefor shall arise. No act of omission or commission of Lender, including specifically any failure to exercise any right, remedy or recourse, shall be deemed to be a waiver or release of the same, such waiver or release to be effected only through a written document executed by Lender and then only to the extent specifically recited therein. A waiver or release with reference to any one event shall not be construed as continuing, as a bar to, or as a waiver or release of, any subsequent right, remedy or recourse as to a subsequent event.

10.          Costs and Attorneys ’ Fees . If any Event of Default under this Note shall occur, or if Lender incurs any expenses or costs in connection with the protection or realization of any collateral, whether or not suit is filed thereon or on any instrument granting a security interest in said collateral, Borrower promises to pay all costs of collection of every kind, including but not limited to all appraisal costs, reasonable attorneys’ fees, court costs, and expenses of every kind, incurred by Lender in connection with such collection or the protection or enforcement of any or all of the security for this Note, whether or not any lawsuit is filed with respect thereto.

11.          Waiver . Borrower, and each surety and endorser hereon waives grace, notice, notice of intent to accelerate, notice of default, protest, demand, presentment for payment and diligence in the collection of this Note, and in the filing of suit hereon, and agrees that his or its liability and the liability of his or its heirs, beneficiaries, successors and assigns for the payment hereof shall not be affected or impaired by any release or change in the security or by any increase, modification, renewal or extension of the indebtedness or its mode and time of payment. It is specifically agreed by the undersigned that the Lender shall have the right at all times to decline to make any such release or change in any security given to secure the payment hereof and to decline to make any such increase, modification, renewal or extension of the indebtedness or its mode and time of payment.

12.          Notices . All notices or other communications required or permitted hereunder shall be delivered in the manner set forth in the Credit Agreement.

13.          Application of Payments . All payments on account of the indebtedness evidencing the Note shall first be applied to late charges and costs and fees incurred by Lender in enforcing its rights hereunder or under the Security Agreement and the other Loan Documents, second to accrued interest on the unpaid principal balance, and third to reduce unpaid principal in inverse chronological order of maturity. Any payments and other amounts owing under this Note shall be made at Lender’s address above unless otherwise designated by Lender in writing.

14.          Miscellaneous .

A.            The headings of the paragraphs of this Note are inserted for convenience only and shall not be deemed to constitute a part hereof.

B.            All payments under this Note shall be payable in lawful money of the United States which shall be legal tender for public and private debts at the time of payment; provided that a check will be deemed sufficient payment so long as it clears when presented for payment. Each payment of principal or interest under this Note shall be paid not later than 2:00 P.M. Eastern Time on the date due therefor and funds received after that hour shall be deemed to have been received by Lender on the following Business Day. If any payment of principal, interest or any other amount due under this Note shall become due on a day which is not a Business Day, the due date for such payment shall be automatically extended to the next succeeding Business Day, and, in the case of a principal payment, such extension of time shall be included in computing interest on such principal. If an Event of Default has occurred and remains uncured, Lender is hereby authorized to charge any account of Borrower maintained with Lender for each payment of principal, interest and other amounts due under this Note, when each such payment becomes due. All amounts payable under this Note and the other Loan Documents shall be paid by Borrower without offset or other reduction.

C.            The obligations and liabilities under this Note of Borrower shall be binding upon and enforceable against Borrower and its heirs, legatees, legal representatives, successors and assigns. This Note shall inure to the benefit of and may be enforced by Lender, its successors and assigns.

D.            If any provision of this Note or any payments pursuant to the terms hereof shall be invalid or unenforceable to any extent, the remainder of this Note and any other payments hereunder shall not be affected thereby and shall be enforceable to the greatest extent permitted by law.

E.            If this Note is executed by more than one party as Borrower, the obligations and liabilities of each Borrower under this Note shall be joint and several and shall be binding upon and enforceable against each Borrower and their respective successors and assigns.

F.            Lender may at any time assign its rights in this Note and the Loan Documents, or any part thereof and transfer its rights in any or all of the collateral, and Lender thereafter shall be relieved from all liability with respect to such collateral. In addition, the Lender may at any time sell one or more participations in the Note. Borrower may not assign its interest in this Note, or any other agreement with Lender or any portion thereof, either voluntarily or by operation of law, without the prior written consent of Lender.

G.            Time is of the essence of this Note and of each and every provision hereof.

H.            This Note, together with the other Loan Documents, sets forth all of the covenants, promises, agreements, conditions and understandings of the parties relating to the subject matter of this Note, and there are no covenants, promises, agreements, conditions or understandings, either oral or written between them relating to the subject matter of this Note or other than as are set forth herein and in the other Loan Documents. This Note and the other Loan Documents supersede all prior written and oral commitments and agreements relating to the Loan. Borrower acknowledges that it is executing this Note without relying on any statements, representations or warranties, either oral or written, that are not expressly set forth herein or in the other Loan Documents.

I.             This Note and each provision hereof may be modified, amended, changed, altered, waived, terminated or discharged only by a written instrument signed by the party sought to be bound by such modification, amendment, change, alteration, waiver, termination or discharge.

J.             Each party to this Note and the legal counsel to each party have participated in the drafting of this Note, and accordingly the general rule of construction to the effect that any ambiguities in a contract are to be resolved against the party drafting the contract shall not be employed in the construction and interpretation of this Note.

K.           Borrower certifies that the proceeds of this Loan are to be used for business purposes.

15.          Choice of Laws. This Note shall be governed by and construed in accordance with the laws of the State of Florida.

16.          JURY WAIVER. BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG BORROWER AND LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS NOTE, ANY OTHER LOAN DOCUMENT, OR ANY RELATIONSHIP BETWEEN BORROWER AND LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE LOAN DESCRIBED HEREIN AND IN THE OTHER LOAN DOCUMENTS.

17.          JURISDICTION AND VENUE. BORROWER HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS INITIATED BY BORROWER AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS NOTE SHALL BE LITIGATED IN THE CIRCUIT COURT OF HILLSBOROUGH COUNTY, FLORIDA, OR THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA OR, IF LENDER INITIATES SUCH ACTION, ANY COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION AND WHICH HAS JURISDICTION. BORROWER HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY LENDER IN ANY OF SUCH COURTS. BORROWER WAIVES ANY CLAIM THAT HILLSBOROUGH COUNTY, FLORIDA OR THE MIDDLE DISTRICT OF FLORIDA IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE. SHOULD BORROWER, AFTER BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW, BORROWER SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY LENDER AGAINST BORROWER AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE EXCLUSIVE CHOICE OF FORUM FOR BORROWER SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT BY LENDER OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING BY LENDER OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND BORROWER HEREBY WAIVES THE RIGHT, IF ANY, TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.

18.          Patriot Act. Lender hereby notifies 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”), it is required to obtain, verify and record information that identifies Borrower, which information includes the name and address of Borrower and other information that will allow Lender to identify Borrower in accordance with the Act.

19.          BillPayer Service . Any payments and other amounts owing under this Note shall be initiated by Lender in accordance with the terms of this Note from Borrower’s account through Auto BillPayer (or Lender’s then current automated billing paying service) (“ BillPayer Service ”). Borrower hereby authorizes Lender to initiate such payments from Borrower’s primary depository account with Lender. Borrower acknowledges and agrees that use of the BillPayer Service shall be governed by the then current standard terms and conditions thereof, and Borrower hereby acknowledges receipt of such Terms and Conditions as in effect on the date hereof. Borrower further acknowledges and agrees to maintain payments hereunder through the BillPayer Service throughout the term of this Note (to the extent Lender and its affiliates continue to provide such service). If the BillPayer Service is cancelled at any time, Borrower may be required to pay Lender the then current amount of the difference between Lender’s customary Note processing fee and the discounted Note processing fee received by Borrower in consideration of its use of the BillPayer Service.

20.          Amended and Restated. This Note renews, amends, replaces and supersedes that certain Revolving Promissory Note dated June 1, 2016, in the original principal amount of Five Hundred Thousand and No/100 Dollars ($500,000.00) executed by Borrower in favor of Lender (the “ Prior Note ”). It is the intention of Lender and Borrower that while this Note renews, amends, replaces and supersedes the Prior Note, it is not in payment or satisfaction of the Prior Note, but rather is the substitution of one evidence of debt for another without any intent to extinguish the old. Should there be any conflict between any of the terms of the Prior Note and the terms of this Note, the terms of this Note shall control.

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IN WITNESS WHEREOF , Borrower has executed, sealed and delivered this Note as of the Effective Date.

Exhibit 10.7

Master Equipment Lease Agreement

This Master Equipment Lease Agreement (this “Master Lease”) dated as of June 22, 2017 is made by and between FIFTH THIRD BANK, an Ohio banking corporation (“Lessor”), and JETPAY PAYMENT SERVICES, FL, LLC, a limited liability company organized under the laws of the State of Delaware and having a principal place of business at 3939 West Valley Drive, Center Valley, PA 18034 (“Lessee”).

TERMS AND CONDITIONS OF LEASE

1.            Lease . Subject to the terms and conditions set forth herein, Lessor and Lessee shall execute and deliver Equipment Schedules pursuant to this Master Lease (each, an “Equipment Schedule”) and pursuant to each Equipment Schedule Lessor shall lease to Lessee the equipment and other property described on such Equipment Schedule (together with all parts, additions and accessories incorporated therein, and software incorporated therein, the “Equipment”). Each Equipment Schedule will incorporate by reference this Master Lease and will specify certain terms relating to the leasing of the Equipment (this Master Lease as incorporated into each Equipment Schedule, a “Lease”). Each Equipment Schedule, together with this Master Lease, shall constitute a separate and enforceable Lease. In the event that any term of any Equipment Schedule conflicts with or is inconsistent with any term of this Master Lease, the terms of the Equipment Schedule shall govern. As used herein, the term “Item of Equipment”, as it relates to any Equipment, shall have the meaning specified in the Equipment Schedule relating to such Equipment and if no such meaning is specified therein, “Item of Equipment” shall mean the Equipment as a whole.

2.            Term . With respect to any Item of Equipment, unless otherwise specified on an Equipment Schedule, the initial term of lease shall commence on the earlier of (a) the date an Acceptance Certificate (as defined in Section 5) is executed with respect to such Item of Equipment, and (b) unless the Lessee rejects such Item of Equipment in a written notice to Lessor, ten (10) days after delivery of such Item of Equipment (the “Delivery and Acceptance Date”) and, unless earlier terminated as provided herein, shall expire on the Expiration Date (as defined in the Equipment Schedule relating to such Item of Equipment); provided, however, that the Base Lease Term or the then applicable Renewal Term shall be automatically extended for successive one month periods until either (a) the end of the Notice Period (as defined below) or (b) Lessor demanding return of the Equipment. As used herein, “Notice Period” shall mean the period ending on the latest of (i) the Expiration Date, (ii) one hundred eighty (180) days after the delivery by Lessee of its final written notice of its election to purchase or return the Equipment or to determine the Fair Market Value or Fair Market Rental Value, as applicable, in accordance with the options set forth in the Equipment Schedule and (iii) one hundred eighty (180) days after the delivery by Lessee of its election to return the Equipment. Lessee shall pay Basic Rent at the then current rate for each month during the automatic renewal term. As used herein, “Term” shall mean, collectively, the period from the Delivery and Acceptance Date to the Expiration Date and all Renewal Terms (as defined in the Equipment Schedule relating to such Equipment); provided, however, that this Master Lease shall be effective from and after the date of execution hereof. All obligations of Lessee hereunder shall survive the expiration, cancellation or other termination of the Term. Provided that no Default or Event of Default (each as defined in Section 16) has occurred and is continuing, Lessor shall not interfere with Lessee’s quiet use and possession of the Equipment.

3.            Rent . Lessee shall pay Lessor for the leasing of the Equipment hereunder the periodic rental payments (“Basic Rent”) on the dates (each a “Rent Payment Date”) and in the amounts set forth in the Equipment Schedule. Basic Rent together with all other additional amounts as may from time to time be payable under this Lease and the other Lease Documents (as defined in Section 4) is referred to herein as “Rent”. Rent shall be due whether or not Lessee has received any notice that such payments are due. All Rent shall be paid to Lessor at its address set forth in the Equipment Schedule, or as otherwise directed by Lessor in writing. If any Rent is not paid when due (or within 10 days thereafter) Lessee shall pay to Lessor a late payment fee equal to five percent (5%) of the amount of such Rent.

4.            Net Lease . Each Lease shall constitute a non-cancelable net lease, it being the intention of the parties that all costs, expenses and liability associated with the Equipment or its lease shall be borne by Lessee. Lessee’s obligation to pay Rent and otherwise to perform its obligations under this Lease and each other document and agreement executed in connection with this Lease (together with the Lease, collectively, the “Lease Documents”) shall be irrevocable, absolute and unconditional and shall not be subject to defense, counterclaim, set-off, diminution, abatement or recoupment for any reason whatsoever, and Lessee waives all rights to terminate or surrender this Lease for any reason except as expressly set forth in this Lease, including, without limitation, defect in the Equipment or non-performance by Lessor. All Rent shall be paid without reduction or deduction whatsoever, including any reduction or deduction for any Tax (as defined in Section 18).

5.            Acceptance . Upon delivery of the Equipment, Lessee shall promptly inspect and test such Equipment and, if acceptable to Lessee, accept such Equipment and deliver to Lessor a certificate of acceptance, in form and substance reasonably satisfactory to Lessor (“Acceptance Certificate”). Lessee represents that it has selected both (a) the Equipment, and (b) the manufacturer, vendor or other supplier of the Equipment (the “Supplier”) without assistance from Lessor and either is a party to, or has received a copy of, each agreement and document by which Lessor acquired the Equipment or the right to possession and use of the Equipment (including any documents or agreements with the Supplier (collectively, the “Supply Contract”)) prior to the Delivery and Acceptance Date. Lessee hereby assumes the risks, burdens, and obligations to any manufacturer or vendor of any Item of Equipment on account of nondelivery, nonacceptance or nonperformance of the Equipment.

6.            Disclaimer of Warranties . THE EQUIPMENT IS BEING LEASED TO THE LESSEE BY THE LESSOR “AS IS, WHERE IS”. LESSOR DOES NOT MAKE, HAS NOT MADE, SHALL NOT BE DEEMED TO MAKE OR HAVE MADE, AND EXPRESSLY DISCLAIMS TO LESSEE ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH ANY LAW, RULE, SPECIFICATION, OR CONTRACT PERTAINING THERETO, QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE , USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE, IT BEING AGREED THAT ALL SUCH RISKS, AS BETWEEN LESSOR AND LESSEE, ARE TO BE BORNE BY LESSEE. Lessee’s execution and delivery of an Acceptance Certificate shall be conclusive evidence as between Lessor and Lessee that the Items of Equipment referred to therein are acceptable for all purposes hereof.

7.            Conditions Precedent . The obligation of Lessor to purchase the Equipment and to lease the same to Lessee shall be subject to satisfaction (or waiver by Lessor) of each of the following conditions, prior to the Delivery and Acceptance Date with respect to such Equipment: (a) Lessor shall have received each of the following documents, in form and substance satisfactory to Lessor: (i) the Equipment Schedule relating to such Equipment duly executed by Lessee; (ii) an Acceptance Certificate for each Item of Equipment duly executed by Lessee; (iii) if requested by Lessor, an assignment of Lessee’s rights under the Supply Contract in form and substance acceptable to Lessor and consent executed by Lessee and the Supplier; (iv) the original bills of sale evidencing chain of title from the manufacturer or supplier to the Lessor relating to the Equipment to be leased hereunder; (v) a certificate of a member, managing member or other responsible officer of Lessee dated the date of such Equipment Schedule certifying (A) the incumbency of each of the members, managing members or other officers executing the applicable Lease Documents and, if such member or managing member is a corporation or other entity, the incumbency of the individual officer executing such documents on behalf of the member or managing member, (B) a copy of the articles of organization, operating agreement, and other applicable organizational documents of Lessee and (C) copies of any other documents evidencing the authorization of the members, managing members or other responsible officers on behalf of the Lessee to execute, deliver and perform this Lease and each other Lease Document; (vi) a certificate dated the date of such Equipment Schedule of a member, managing member or other chief financial officer of Lessee certifying that, to the best of Lessee’s knowledge, no Default or Event of Default has occurred and is continuing and no Event of Loss (as defined in Section 11) has occurred with respect to any Equipment identified in such Equipment Schedule; (vii) if requested by Lessor, an opinion of legal counsel to Lessee in form and substance satisfactory to Lessor; and (viii) such other documents or agreements as may be required by the terms of the Equipment Schedule or as Lessor may reasonably request; (b) Lessor shall have the right (by assignment or otherwise) to purchase the Equipment identified in the applicable Equipment Schedule for a price not to exceed the Lessor’s Capitalized Cost (as identified in such Equipment Schedule) and on terms and conditions otherwise reasonably satisfactory to the Lessor; (c) Lessor shall have received evidence of the filing of Uniform Commercial Code financing statements or other records relating to such Equipment in form and substance satisfactory to Lessor in the jurisdiction in which Lessee is a registered organization and such other jurisdiction as Lessor may reasonably request; (d) Lessor shall have received evidence of insurance policies covering the Equipment which comply with the requirements of Section 10, hereof; (e) the representations and warranties of the Lessee contained herein and in each of the Lease Documents shall be true and correct on and as of the Delivery and Acceptance Date both with and without giving effect to the transactions contemplated by the applicable Lease; (f) no Default or Event of Default shall have occurred and be continuing or result from the transactions contemplated by the Lease; and (g) Lessee shall have paid the fees and reasonable out-of-pocket expenses of Lessor (including the fees and expenses of counsel to the Lessor and any filing or recordation fees) incurred in connection with the negotiation, execution and delivery of the Equipment Schedule and other Lease Documents relating thereto;

8.            Use and Maintenance; Alterations .

(a)           Lessee covenants and agrees that it: (i) shall use the Equipment solely in the conduct of its business, for the purpose, and in the manner, for which the Equipment was designed; (ii) shall operate, maintain, service and repair the Equipment, and maintain all records and other materials relating thereto, (A) in accordance and consistent with (1) the Supplier’s recommendations all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, issued by the Supplier or other service provider (including requiring all components, fuels and fluids installed in or used on the Equipment to meet the standards specified by the Supplier from time to time), (2) the requirements of all applicable insurance policies, (3) the Supply Contract, so as to preserve all of Lessee’s and Lessor’s rights thereunder, including all rights to any warranties, indemnities or other rights or remedies, (4) all applicable laws, and (5) the prudent practice of other similar companies in the same business as Lessee, but in any event, to no lesser standard than that employed by Lessee for comparable equipment owned or leased by it; and (B) without limiting the foregoing, so as to cause the Equipment to be in good repair and operating condition and in at least the same condition as when delivered to Lessee hereunder, except for ordinary wear and tear resulting despite Lessee’s full compliance with the terms hereof; (iii) shall not discriminate against the Equipment with respect to scheduling of maintenance, parts or service; (iv) shall not change the location of any Equipment as specified in the Equipment Schedule without the prior written consent of Lessor; and (v) to the extent requested by Lessor, shall cause each Item of the Equipment to be continually marked, in a plain and distinct manner, with the name of Lessor followed by the words “Owner and Lessor,” or other appropriate words designated by Lessor on labels furnished by Lessor. If the location for any Equipment specified in the Equipment Schedule is a facility leased by Lessee or owned by Lessee subject to one or more mortgage liens, upon the request of Lessor, Lessee will obtain a real property waiver or waivers in form and substance satisfactory to Lessor from the lessors or mortgagees of such facility.

(b)           Lessee, at its own cost and expense, will promptly replace all parts, appliances, systems, components, instruments and other equipment (“Parts”) incorporated in, or installed on, the Equipment which may from time to time become worn out, lost, stolen, destroyed, seized, confiscated, damaged beyond repair or permanently rendered unfit for use for any reason whatsoever. In addition, in the ordinary course of maintenance, service repair, overhaul or testing, Lessee may remove any Parts, whether or not worn out, lost, stolen, destroyed, seized, confiscated, damaged beyond repair or permanently rendered unfit for use, provided that Lessee shall replace such Parts as promptly as practicable. All replacement Parts shall be free and clear of all Liens (as defined in Section 8(c)) and shall be in as good an operating condition as, and shall have a value and utility at least equal to, the Parts replaced, assuming such replaced Parts were in the condition and repair required to be maintained by the terms hereof. Any replacement Part installed, or incorporated on, the Equipment shall be considered an accession to such Equipment and title to such replacement Part shall immediately vest in Lessor without cost or expense to Lessor.

(c)           Lessee will keep the Equipment and its interest therein free and clear of all liens, claims, mortgages, charges and encumbrances of any type regardless of how arising (“Liens”) other than any Lien arising out of claims against Lessor not relating to the lease of the Equipment to Lessee (“Permitted Liens”). Lessee will defend, at its own expense, Lessor’s title to the Equipment from all such Liens. If any Lien shall attach to any item of Equipment, Lessee will provide written notification to Lessor within five (5) days after Lessee receives notice of any such attachment stating the full particulars thereof and the location of such Equipment on the date of such notification.

(d)           At its sole option, Lessee may make any alteration, modification or attachment to the Equipment deemed appropriate by Lessee, provided that such alteration, modification, attachment is of a type which is readily removable without damage to the Equipment does not decrease the value, condition, utility or useful life of the Equipment or cause such Equipment to become “limited use property” (as defined in Revenue Procedure 2001-28, 2001-19 I.R.B. 1156 or any successor publication or Treasury Regulation issued pursuant to the Internal Revenue Code of 1986 (as amended, supplemented or modified from time to time, the “Code”)), a fixture (as defined in the Uniform Commercial Code as in effect in any applicable jurisdiction), or real property or affect the insurability or impair any manufacturer’s warranty with respect to the Equipment. All alterations, modifications and attachments of whatsoever kind or nature made to any item of Equipment that cannot be removed without damaging or reducing the functional capability, economic value or insurability of the item of Equipment or impairing any manufacturer’s warranty shall only be made with the prior written consent of the Lessor and shall be deemed to be part of the Equipment. Under no circumstance shall any alteration, modification or attachment be subjected by Lessee to any encumbrance other than this Lease.

9.            Assignment and Sublease . Lessee shall not sublease or otherwise relinquish possession of any Item of Equipment, or assign, transfer or encumber its rights, interests or obligations hereunder or under any Equipment Schedule executed pursuant hereto unless expressly permitted pursuant to the terms of the Equipment Schedule relating to such Equipment. No assignment, transfer or sublease, in any event, shall relieve Lessee of, and Lessee shall remain primarily liable for, its obligations under each Lease Document.

10.          Insurance .

(a)           Lessee shall provide, maintain and pay for insurance coverage with respect to the Equipment, insuring against, among other things, the loss, theft, damage, or destruction of the Equipment, in an amount not less than the Stipulated Loss Value (as defined in the applicable Equipment Schedule) of such Equipment at any time; and public liability and property damage with respect to the use or operation of the Equipment, in the amounts set forth in the applicable Equipment Schedule. All insurance against loss shall name Lessor as the sole loss payee and all liability insurance shall name Lessor and its Assignees (as defined in Section 20) and their subsidiaries and affiliated companies, and their successors and assigns as additional insureds. All of such insurance shall be in form (including all endorsements required by Lessor), and with companies, reasonably satisfactory to Lessor.

(b)           All policies of insurance required hereunder shall (i) provide that any cancellation, expiration, lapse, or material modification shall not be effective as to the Lessor for a period of thirty (30) days after receipt by Lessor of written notice thereof; (ii) provide that premiums may be paid by the Lessor, but without liability on the part of the Lessor for such premiums; (iii) be primary without any right of set-off or right of contribution from any other insurance carried by the Lessor; (iv) contain breach of warranty provisions providing that, in respect of the interests of the Lessor, the insurance shall not be invalidated by any action, inaction or breach of warranty, declaration, or condition by the Lessee or any other person or by any fact or information known to Lessor; and (v) waive any right of subrogation against Lessor. Prior to the Delivery and Acceptance Date for any Item of Equipment, and thereafter, not less than 15 days prior to each renewal or replacement of such insurance, Lessee will deliver to Lessor certificates issued by the insurance carriers thereunder evidencing the insurance required to be maintained pursuant to this Lease.

(c)           The proceeds (if any) of the insurance maintained by Lessee that are received with respect to the loss or damage of any Equipment, shall be applied and paid first , to Lessor for any amount then due and payable by Lessee under this Lease, second , if an Event of Loss (as defined in Section 11) has occurred, to Lessor for the payment of Stipulated Loss Value or otherwise, to Lessee for its reasonable, documented, out-of-pocket costs to repair or replace such item of Equipment pursuant to Section 11, to the extent that such repairs or replacements were necessitated by the occurrence of the loss for which such proceeds were paid, and third , to Lessee to reimburse Lessee for any Stipulated Loss Value actually paid to, and retained by Lessor. Proceeds of any liability insurance shall promptly be paid to the party entitled thereto.

(d)           If Lessee does not obtain, maintain or furnish to Lessor acceptable proof of the insurance coverage required by this Agreement, Lessor shall be entitled, upon notice to Lessee, to procure such insurance, as Lessor shall deem appropriate in its discretion, at Lessee’s sole cost and expense.

11.          Risk of Loss; Damage to Equipment .

(a)           Lessee shall bear the entire risk of loss and damage to any and all Items of Equipment from any cause whatsoever, whether or not insured against, during the Term until the Equipment is returned to Lessor in accordance with Section 14 hereof. No loss or damage shall relieve Lessee of the obligation to pay Rent or of any other obligation under this Lease. An “Event of Loss” shall be deemed to have occurred with respect to any Item of Equipment if such Item of Equipment or any material part thereof has been lost, stolen, requisitioned or condemned by any governmental authority, damaged beyond repair or damaged in such a manner that results in an insurance settlement on the basis of an actual or arranged total loss.

(b)           Upon any loss or damage to any Item of Equipment not constituting an Event of Loss, Lessee will promptly, and in any event within thirty (30) days of such loss or damage (or such longer period as Lessor shall determine in its sole discretion), place such Item of Equipment in good condition and repair as required by the terms of this Lease. If an Event of Loss to any Item of Equipment has occurred, Lessee shall immediately notify Lessor of same, and at the option of Lessor, Lessee shall: (i) not more than thirty (30) days following such Event of Loss (or such longer period as Lessor shall determine in its sole discretion) replace such Item of Equipment with replacement equipment (acceptable to Lessor) in as good condition and repair, and with the same value remaining useful economic life and utility, as such replaced Item of Equipment immediately preceding the Event of Loss (assuming that such replaced Item of Equipment was in the condition required by this Lease), which replacement equipment shall immediately, and without further act, be deemed to constitute Items of Equipment and be fully subject to this Lease as if originally leased hereunder and shall be free and clear of all Liens; or (ii) pay to Lessor on the next succeeding Rent Payment Date the sum of (A) all Rent due and owing hereunder with respect to such Item of Equipment (at the time of such payment) including all Basic Rent payable on such Rent Payment Date plus (B) the Stipulated Loss Value as of such Rent Payment Date with respect to such Item of Equipment. Upon Lessor’s receipt of the payment required under subsection (ii) above, Lessee shall be entitled to Lessor’s interest in such Item of Equipment, in its then condition and location, “as is” and “where is”, without any representations or warranties, express or implied.

12.          Financial, Other Information and Notices .

(a)           All the financial statement reporting requirements, and all financial covenants (the “Referenced Covenants”) stated in that certain Credit Agreement between JETPAY PAYMENT SERVICES, FL, LLF as “Borrower” and FIFTH THIRD BANK as “Lender” dated as of June ___, 2017, and as it may be amended, restated or otherwise modified from time to time (the “Credit Agreement”), and related definitions of financial statement terms, shall be incorporated into this Master Lease by reference and shall apply to this agreement as if fully stated herein. In the event the Credit Agreement is terminated or is no longer in effect, then the Referenced Covenants in effect as of the last date prior to such termination or lapse of effectiveness shall continue to apply to this Master Lease, and Lessee and Lessor shall, promptly upon Lessor’s request therefor, sign and deliver an amendment to this Master Lease that sets forth such provisions and definitions directly (i.e. instead of incorporating them by reference).

(b)           Lessee shall provide prompt written notice to Lessor (i) of any Event of Default, (ii) of any loss or material damage to any Item of Equipment or any Event of Loss with respect to any Item of Equipment, and (iii) any existing or threatened investigation, claim or action by any governmental authority known to Lessor which could reasonably be expected to materially and adversely affect the Equipment or this Lease.

(c)           Lessee shall furnish such other information as Lessor may reasonably request from time to time relating to the Equipment, this Lease or the operation or condition of Lessee including, without limitation, such additional financial statements of the Lessee for such periods as Lessor may request.

13.          Inspections . Lessor may from time to time during Lessee’s normal business hours, inspect the Equipment and Lessee’s records with respect thereto. Lessee shall cooperate with Lessor in scheduling such inspection and in making the Equipment available for inspection by Lessor or its designee at a single location as reasonably specified by Lessee. Lessee will, upon reasonable request, provide a report on the condition of the Equipment, a record of its maintenance and repair, a summary of all items suffering an Event of Loss, a certificate of no Event of Default, or such other information or evidence of compliance with Lessee’s obligations under the Lease as Lessor may reasonably request.

14.          Condition Upon Return . At the expiration of the Term, unless Lessee has elected to purchase the Equipment in accordance with the terms of the Equipment Schedule, Lessee shall promptly, at its own cost and expense: (a) perform any testing and repairs required to place each Item of Equipment in the same condition and appearance as when received by Lessee (reasonable wear and tear excepted) and in good working order for its originally intended purpose and eligible for manufacturer’s maintenance (if available), free of all Lessee’s markings and free of all Liens other than Permitted Liens; (b) if de-installation, disassembly or crating is required, cause such Items of Equipment to be de-installed, disassembled and crated by an authorized manufacturer’s representative or such other service person as is reasonably satisfactory to Lessor; and (c) return such Items of Equipment in the condition and in the manner specified in the Equipment Schedule (collectively, the “Return Condition”). The Equipment, as returned, will include related maintenance logs, operating manuals, and other related materials. All operating manuals for the Equipment must be returned to Lessor undamaged and containing all pages. If lost or destroyed, Lessee shall, at its own expense, provide replacement operating manuals. Lessor may, but is not required to, inspect the Equipment prior to its return. If Lessor determines that the Equipment does not conform to the Return Condition, Lessor will promptly notify Lessee of such determination specifying the repairs or refurbishments needed to place the Equipment in the Return Condition. Lessor may, at its option, either require Lessee to effect such repairs or itself effect such repairs. In either case, all costs associated with any repairs and inspections will be paid by Lessee. Until Lessee has returned the Equipment in compliance with the requirements of this Lease, the Lease shall continue in full force and effect and Lessee shall continue to pay Rent notwithstanding any expiration or termination of the Term through and including the date on which the Equipment is accepted for return by Lessor as conforming with the Return Condition.

15.          Lessee’s Representations and Warranties . Lessee represents and warrants as of the date of execution and delivery of this Master Lease and each Equipment Schedule as follows: (a) Lessee is a limited liability company organized under the laws of the State of Delaware, having a principal place of business at 3939 West Valley Drive, Center Valley, Pennsylvania, 18034, duly organized, validly existing under the laws of the jurisdiction of its organization with full power to enter into and to pay and perform its obligations under the Equipment Schedule and this Lease as incorporated therein by reference, and is duly qualified or licensed in all other jurisdictions where its failure to so qualify would reasonably be expected to materially and adversely affect the conduct of its business or its ability to perform any of its obligations under or the enforceability of this Lease; (b) each Equipment Schedule, this Master Lease and all other Lease Documents have been duly authorized, executed and delivered by Lessee, are valid, legal and binding obligations of Lessee, are enforceable against Lessee in accordance with their terms and do not and will not contravene any provisions of or constitute a default under Lessee’s organizational documents, any agreement to which it is a party or by which it or any of its property is bound, or any applicable law, regulation, or order of any governmental authority; (c) Lessor’s right, title and interest in and to the Equipment and the Rent therefrom will vest in Lessor upon Lessee’s acceptance of the Equipment for lease hereunder and will not be affected or impaired by the terms of any agreement or instrument by which Lessee or any of its property is bound; (d) no approval of, or filing with, any governmental authority or other person is required in connection with Lessee’s entering into, or the payment or performance of its obligations under, this Lease and the other Lease Documents; (e) there are no suits or proceedings pending or, to the knowledge of Lessee, threatened, before any court or governmental agency against or affecting Lessee which would reasonably be expected to materially and adversely affect the conduct of its business or its ability to perform any of its obligations under or the enforceability of this Lease; (f) the financial statements of Lessee which have been delivered to Lessor have been prepared in accordance with generally accepted accounting principles consistently applied, and fairly present Lessee’s financial condition and the results of its operations as of the date of and for the period covered by such statements (subject to customary year-end adjustments), and since the date of such statements there has been no material adverse change in such financial condition or operations; (g) Lessee’s full and correct legal name is set forth on the signature page hereof and Lessee will not change its legal name or the location of its jurisdiction of organization without giving to Lessor at least thirty (30) days prior written notice thereof; (h) the Equipment will always be used for business or commercial, and not personal, purposes; (i) Lessee is not in default under any obligation for borrowed money, for the deferred purchase price of property or any lease agreement which, either individually or in the aggregate, would reasonably be expected to have a material adverse effect on the condition of its business or its ability to perform any of its obligations under or the enforceability of this Lease; (j) under the laws of the jurisdiction(s) in which the Equipment is to be located, the Equipment consists solely of personal property and not fixtures; and (k) Lessee is, and will remain, in full compliance with all laws and regulations applicable to Lessee, except such non-compliance as would not reasonably be expected to have a material adverse effect on the condition of its business or its ability to perform any of its obligations under or the enforceability of this Lease, including without limitation, (i) ensuring that no person who owns a controlling interest in or otherwise controls Lessee is or shall be (A) listed on the Specially Designated National and Blocked Person List maintained by the Office of Foreign Assets Control (“OFAC”), Department of the Treasury and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, executive order or regulations or (B) a person designated under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any related enabling legislation or any other similar executive order and (ii) compliance with all applicable Bank Secrecy Act (“BSA”) laws, regulations and government guidance on BSA compliance and on the prevention and detection of money laundering violations.

Lessee’s representations and warranties shall survive termination or expiration of the Lease.

16.          Events of Default and Remedies .

(a)           Each of the following events constitutes an “Event of Default” hereunder and any event that, with the passage of time or the giving of notice, or both, would constitute an Event of Default shall constitute a “Default” hereunder: (i) Lessee fails to pay any Rent when due under this Lease and such failure continues for a period of ten (10) days; (ii) any representation or warranty made by Lessee in the Lease or in any other Lease Document shall at any time prove to have been incorrect in any material respect as and when made; (iii) Lessee (A) fails to obtain and maintain the insurance coverage required herein; or (B) fails to observe or perform any other covenant, condition or agreement under this Lease and, in the case of clause (B), such failure continues unremedied for a period of fifteen (15) days; (iv) Lessee shall have consolidated with or merged with or into another entity, or conveyed, sold or otherwise transferred all or substantially all of its assets or shall have failed to maintain its corporate existence; (v) Lessee (A) ceases doing business as a going concern; (B) makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts as they mature or generally fails to pay its debts as they become due; (C) initiates any voluntary bankruptcy, reorganization, insolvency or similar proceeding; (D) fails to obtain the discharge of any bankruptcy, reorganization, insolvency or similar proceeding initiated against it by others within sixty (60) days of the date such proceedings were initiated; (E) requests or consents to the appointment of a trustee, custodian or receiver or other officer with similar powers for itself or a substantial part of its property; or (F) a trustee, custodian or receiver or other officer with similar powers is appointed for itself or for a substantial part of its property; (vi) Lessee fails to return the Equipment or fails to return the Equipment in the required condition at the expiration of the Term; (vii) a default shall have occurred and be continuing under any contract, agreement or document between Lessee and any of its other creditors, (viii) a default shall have occurred and be continuing under any contract, agreement or document between Lessee and Lessor or any affiliate of Lessor; (ix) if Lessee’s obligations are guaranteed by any other party, an “Event of Default” (under and as defined in a Guaranty executed by any such Guarantor) shall occur; or (x) the owners of the capital stock or other units of ownership on the date of this Lease entitled to vote for the election of the board of directors of the Lessee or other similar governing body cease to own or do not have the unencumbered right to vote in the aggregate at least fifty percent (50%) of such capital stock or other ownership interest of Lessee.

(b)           Upon the occurrence of an Event of Default, Lessor may exercise any one or more of the following remedies and any additional rights and remedies permitted by law (none of which shall be exclusive) and shall be entitled to recover all its reasonable costs and expenses including incidental and consequential damages (as described in Section 2A-530 of the Uniform Commercial Code) and attorneys’ fees in enforcing its rights and remedies:

(i)           Lessee shall upon demand assemble or cause to be assembled any or all of the Equipment at a location designated by Lessor; and/or to return promptly, at Lessee’s expense, any or all of the Equipment to Lessor at such location, in the condition and otherwise in accordance with all of the terms of Section 14 hereof; and/or

(ii)          Lessor may itself or by its agents enter upon the premises of Lessee or any other location where the Equipment is located and take possession of and render unusable by Lessee any or all of the Equipment, wherever it may be located, without any court order or other process of law and without liability for any damages occasioned by such taking of possession; and/or

(iii)         Sell, re-lease or otherwise dispose of any or all of the Equipment, whether or not in Lessor’s possession, at public or private sale with or without notice to Lessee, with the right of Lessor to purchase and apply the net proceeds of such disposition, after deducting all costs of such disposition (including but not limited to costs of transportation, possession, storage, refurbishing, advertising and brokers’ fees), to the obligations of Lessee under this Lease, with Lessee remaining liable for any deficiency and with any excess being retained by Lessor, or retain any and all of the Equipment; and/or

(iv)         Cancel such Equipment Schedule as to any or all of the Equipment; and/or

(v)          Proceed by appropriate court action, either at law or in equity (including an action for specific performance), to enforce performance by Lessee to recover damages associated with such Event of Default; or exercise any other right or remedy available to Lessor at law or in equity; and/or

(vi)         By offset, recoupment or other manner of application, apply any security deposit, monies held in deposit or other sums then held by Lessor or any affiliate of Lessor, and with respect to which Lessee has an interest, against any obligations of Lessee arising under this Lease or any other Lease Document, whether or not Lessee has pledged, assigned or granted a security interest to Lessor in any or all such sums as collateral for said obligations.

(c)           In addition to the foregoing, Lessee shall pay to Lessor on demand the sum of (i) any and all Rent which is then due or which has accrued to the date of demand and (ii) at Lessor’s option (A) an amount equal to the Stipulated Loss Value (as set forth in the related Equipment Schedule) as of the Rent Payment Date on or immediately preceding the date of demand for the Items of Equipment as Lessor shall specify or (B) all Basic Rent and all other sums, including any tax indemnities becoming due as a result of such Event of Default, for the Term (including any mandatory Renewal Term) and all amounts due upon the expiration of the Term including any return fees and/or any amounts due with respect to the mandatory purchase of the Equipment becoming due under this Lease from the date of demand to the Expiration Date for such Items of Equipment plus the assumed residual value of such Equipment (as determined by Lessor). The Lessor and Lessee agree that Lessor shall be entitled to such amount as damages for loss of bargain and not as a penalty and that such amount is reasonable in light of the anticipated harm to Lessor caused by an Event of Default.

(d)           If Lessee pays the full amount referred to in Section 16(c) to Lessor prior to the termination of this Lease as it relates to such Items of Equipment, title to the relevant Equipment shall immediately vest in Lessee without representation or warranty by Lessor. If Lessee fails to pay such amount and Lessor subsequently sells, releases or otherwise disposes of such Items of Equipment, the amount due from Lessee under Section 16(c) shall be reduced by an amount equal to (i) the actual cash proceeds received and retained by Lessor upon any sale or disposition or (ii) if Lessor leases such Equipment by a lease agreement substantially similar to this Lease, the present value of the rents (discounted at the Prime Rate as announced by Fifth Third Bank and in effect at the time of demand plus 2.00%) payable under such subsequent Lease for the remaining Term of this Lease (without regard to any Renewal Terms other than the then current Renewal Term (if applicable)), in each case, net of all costs and expenses incurred in connection with such sale, disposition or lease including any incidental damages.

(e)           A cancellation or termination hereunder shall occur only upon written notice by Lessor to Lessee, and only with respect to such Items of Equipment as Lessor specifically elects to cancel or terminate by such notice. Except as to any such Items of Equipment with respect to which there is a cancellation or termination, this Lease shall remain in full force and effect and Lessee shall be and remain liable for the full performance of all its obligations under this Lease.

(f)            Lessee shall indemnify, defend and hold Lessor harmless for any loss, personal injury (including death), or damage to property, suffered by Lessor, its employees or any of its agents in connection with its entry onto the premises of Lessee or any third party hereunder, except to the extent resulting from the gross negligence or willful misconduct of Lessor. Each of the rights and remedies of Lessor hereunder and under the other Lease Documents is in addition to all of its other rights and remedies hereunder, under the other Lease Documents and under applicable law and nothing in this Lease or any other Lease Document shall be construed as limiting any such right or remedy. Lessor’s failure to exercise or delay in exercising any right, power or remedy available to Lessor shall not constitute a waiver or otherwise affect or impair its rights to the future exercise of any such right, power or remedy. Waiver by Lessor of any Event of Default shall not be a waiver by Lessor of any other or subsequent Events of Default.

17.          General Indemnification . Lessee shall pay, and shall indemnify and hold Lessor, its directors, officers, agents, employees, successors and assigns (each an “Indemnitee”) harmless on an after-tax basis from and against, any and all liabilities, causes of action, claims, suits, penalties, damages, losses, costs or expenses (including attorneys’ fees), obligations, liabilities, demands and judgments, and Liens, of any nature whatsoever (collectively, a “Liability”) arising out of or in any way related to: (a) the Lease Documents, (b) the manufacture, purchase, ownership, title, selection, acceptance, rejection, possession, lease, sublease, operation, use, maintenance, documenting, inspection, control, loss, damage, destruction, removal, storage, surrender, sale, use, condition, delivery, nondelivery, return or other disposition of or any other matter relating to any Item of Equipment or any part or portion thereof (including, in each case and without limitation, latent or other defects, whether or not discoverable, any claim for patent, trademark or copyright infringement) and any and all Liabilities in any way relating to or arising out of injury to persons, properties or the environment or any and all Liabilities based on strict liability in tort, negligence, breach of warranties or violations of any regulatory law or requirement, (c) a failure to comply fully with applicable law and (d) Lessee’s failure to perform any covenant, or Lessee’s breach of any representation or warranty, hereunder; provided, that the foregoing indemnity shall not extend to the Liabilities to the extent resulting solely from the gross negligence or willful misconduct of an Indemnitee.

18.          General Tax Indemnification . Lessee shall pay when due and shall indemnify and hold each Indemnitee harmless from and against (on an after-tax basis) any and all taxes, fees, withholdings, levies, imposts, duties, assessments and charges of any kind and nature (“Taxes”) arising out of or related to this Lease or any other Lease Document (together with interest and penalties thereon and including, without limitation, sales, use, gross receipts, personal property, real property, real estate excise, ad valorem , business and occupational, value added, leasing, leasing use, documentary, stamp or other taxes imposed upon or against any Indemnitee, Lessee or any Equipment by any governmental authority with respect to any Equipment or the manufacturing, ordering, sale, purchase, shipment, delivery, acceptance or rejection, ownership, titling, registration, leasing, subleasing, possession, use, operation, removal, return or other dispossession thereof or upon the rents, receipts or earnings arising therefrom or upon or with respect to this Lease, whether payable at the inception of a Lease, during the Term thereof or at the expiration thereof, excepting only all United States federal, state and local taxes based on or measured by Lessor’s net income). Whenever this Lease or any other Lease Document terminates as to any Item of Equipment, Lessee shall, upon written request by Lessor, advance to Lessor the amount estimated by Lessor to be the personal property or other taxes on such Item of Equipment which are not yet payable, but for which Lessee is responsible. Lessor shall, at Lessee’s request, provide Lessee with Lessor’s method of computation of any estimated taxes. Except as otherwise provided in the Equipment Schedule relating to any Equipment, upon receipt of any tax bill relating to such Equipment from a relevant taxing authority, Lessor will pay the Tax identified on such tax bill. Lessee will, on demand, (a) reimburse Lessor for the amount of such Tax paid to such taxing authority and (b) pay to Lessor a fee (as identified by Lessor from time to time) relating to the administration of such payment.

19.          Ownership and Security Interests .

(a)           Title to the Equipment shall at all times remain in Lessor, and Lessee shall acquire no ownership, title, property, right, equity or interest in the Equipment other than its leasehold interest solely as Lessee subject to all the terms and conditions hereof. This Lease, is intended to be a “finance lease” solely for the purposes of Article 2A of the Uniform Commercial Code as that term is defined in Article 2A of the Uniform Commercial Code. To the extent permitted by applicable law, Lessee (a) waives any and all rights and remedies of Lessee under Sections 2A-508 through 2A-522 of the Uniform Commercial Code and (b) any rights now or hereafter conferred by statute or otherwise to recover incidental or consequential damages from Lessor for any breach or any other reason whatsoever. If, notwithstanding the express intent of the parties, a court of competent jurisdiction determines that any Equipment Schedule is not a “finance lease”, the parties agree that in such event (i) (A) in order to secure the prompt payment of Rent under and with respect to this Lease, and the performance and observance by Lessee of all the agreements, covenants and provisions hereof (collectively, the “Obligations”), Lessee hereby grants to Lessor a first priority security interest in all of Lessee’s right, title and interest in the following (whether now existing or hereafter created and whether now owned or hereafter acquired): (1) the Equipment (including, without limitation, all inventory, equipment, fixtures or other property comprising the same), and general intangibles relating thereto, (2) additions, attachments, accessories and accessions thereto whether or not furnished by the Supplier of such Equipment, (3) all subleases (including the right to receive any payment thereunder and the right to make any election or determination or give any consent or waiver thereunder), chattel paper, accounts, security deposits and bills of sale relating thereto, (4) any and all substitutions, replacements or exchanges for any such Equipment or other collateral, and (5) any and all products and proceeds of any collateral hereunder (including all insurance and requisition proceeds) and all other payments of any kind with respect to the Equipment and other collateral in and against which a security interest is granted hereunder and (B) Lessee agrees that with respect to the Equipment, in addition to all of the other rights and remedies available to Lessor hereunder upon the occurrence of an Event of Default, Lessor shall have all of the rights and remedies of a secured party under the Uniform Commercial Code; and (ii) the original principal amount of the obligations hereunder shall be an amount equal to the Lessor’s Capitalized Cost, and that such principal amount shall accrue interest at the lesser of (x) the maximum lawful rate permitted by applicable law or (y) the implicit interest rate reflecting Lessor’s financial assumptions at the time of the execution of the Lease (including any assumed residual value at the end of the Term as determined by Lessor).

(b)           Lessee hereby authorizes Lessor to file, solely at the expense of Lessee, any Uniform Commercial Code financing statements or other similar documents that Lessor reasonably deems necessary or advisable to protect its interest. Lessee agrees promptly to execute and deliver to Lessor such further documents or other assurances, and to take such further action, including obtaining landlord and mortgagee waivers, as Lessor may from time to time reasonably request.

(c)           As security for the payment as and when due of the Rent and all other obligations of Lessee to Lessor under this Lease, any promissory note and any other documents relating thereto (and any renewals, extensions and modifications thereof) and under any other agreement or instrument (as the same may be renewed, extended or modified and hereinafter collectively referred to as the “Lease Documents”), both now in existence and hereafter created, together with any other obligation of Lessee to Lessor or its affiliates, and the performance as and when due of all obligations of Lessee under the Lease Documents (as the same may be renewed, extended or modified), Lessee hereby grants to Lessor (excluding any Assignee) a first priority security interest in Lessee’s right, title and interest in all assets securing any of Lessee’s other obligations to Lessor (excluding any Assignee) or its affiliates.

20.          Assignment by Lessor . Lessor may at any time assign, grant a security interest in, or otherwise dispose of (individually or collectively, a “transfer”), all or any portion of its rights, title or interests in, to and under this Lease, any Equipment Schedule or any Item of Equipment, together or separately, to one or more persons or entities (each, an “Assignee”). Upon any such transfer, this Lease shall remain in full force and effect. If Lessee is given notice of any such transfer, it shall acknowledge receipt thereof in writing and execute, or otherwise authenticate, such further instruments as may be reasonably requested by Assignee with respect to such transfer, including without limitation, a consent certifying certain material facts and circumstances related to this Lease and the Equipment. Unless otherwise expressly agreed by Assignee, Assignee shall not assume any of the obligations of Lessor under this Lease. Upon written notice to Lessee of an assignment, Lessee agrees to pay the Rent with respect to the Items of Equipment covered by such assignment to such Assignee in accordance with the instructions specified in such notice and Lessee shall not assert against Assignee any defense, counterclaim or offset that Lessee may have against Lessor. All obligations and liabilities of Lessee to Lessor under this Lease (including, without limitation, any schedules, exhibits, riders or other attachments attached hereto or otherwise incorporated herein) are also hereby made for the express benefit of Assignee.

21.          Miscellaneous .

(a)           Lessee shall pay all costs and expenses of Lessor, including, without limitation, reasonable attorneys’ and other professional fees, the fees of any collection agencies and appraisers and all other costs and expenses related to any sale or re-lease of the Equipment (including storage costs), costs incurred in perfecting any security interest or registering Lessor’s ownership, payment of any obligations of Lessee required to be performed under this Lease (including without limitation, Taxes and assessments with respect to any Equipment), incurred by Lessor in the preparation, negotiation and execution of this Lease or any amendment or supplement hereto, enforcing any of the terms, conditions or provisions hereof and in protecting Lessor’s rights hereunder. If Lessee fails to reimburse Lessor for any such costs and expenses within thirty (30) days of invoice, interest shall accrue at a rate equal to the lesser of (a) eighteen percent (18%) per annum or (b) the maximum amount permitted under applicable law, on the unpaid balance thereof.

(b)           This Lease shall be governed by and construed in accordance with the laws of the State of New York. Any judicial proceeding arising out of or relating to this Lease may be brought in any court of competent jurisdiction in Hamilton County, Ohio or Hillsborough County, Florida or the district court for the Middle District of Florida, and each of the parties hereto (i) accepts the nonexclusive jurisdiction of such courts and any related appellate court and agrees to be bound by any judgment rendered by any such court in connection with any such proceeding and (ii) waives any objection it may now or hereafter have as to the venue of any such proceeding brought in such court or that such court is an inconvenient forum. EACH OF THE LESSEE AND LESSOR HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING ARISING OUT OF OR IN ANY WAY RELATING TO THIS LEASE, ANY EQUIPMENT SCHEDULE, OR ANY OTHER LEASE DOCUMENT AND ANY ASSIGNMENT, SUBLEASE OR OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH.

(c)           All notices delivered hereunder shall be in writing (including facsimile) and shall be delivered to the following addresses:

if to Lessee:

JetPay Payment Services, FL, LLC

3939 West Valley Drive

Center Valley, PA 18034

Attn: Gregory M. Krzemien

Facsimile: (610) 797-9520

if to Lessor:

Fifth Third Equipment Finance Company

38 Fountain Square Plaza

MD10904A

Cincinnati, Ohio 45263

Facsimile: (513) 534-6706

(d)           Lessee acknowledges and agrees that time is of the essence with respect to its performance under the Lease Documents. Any failure of Lessor to require strict performance by Lessee or any waiver by Lessor of any provision herein shall not be construed as a consent or waiver of any provision of this Lease. This Lease shall be binding upon, and inure to the benefit of, the parties hereto, their permitted successors and assigns.

(e)           This Lease, together with all other Lease Documents, constitutes the entire understanding or agreement between Lessor and Lessee with respect to the leasing of the Equipment, and supersedes all prior agreements, representations and understandings relating to the subject matter hereof. Neither this Lease nor any other Lease Document may be amended except by a written instrument signed by Lessor and Lessee.

(f)            This Lease may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.

(g)           Any provision of this Lease which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability shall not invalidate or render unenforceable such provision in any other jurisdiction. Captions are intended for convenience or reference only, and shall not be construed to define, limit or describe the scope or intent of any provisions hereof.

(h)           IN THE EVENT THE LESSOR HEREUNDER IS FIFTH THIRD EQUIPMENT FINANCE COMPANY AND THE LESSEE OR GUARANTOR  MAINTAINS A PRINCIPLE PLACE OF BUSINESS, OR IS INCORPORATED IN, EITHER THE STATE OF ALABAMA OR NEW YORK; OR THE PARTIES CONTRACTUALLY AGREE TO BE GOVERNED BY NEW YORK LAW AND THEREBY SUBJECT THEMSELVES TO THE JURISDICTION OF THOSE STATE AND FEDERAL COURTS WITHIN THE STATE; OR THE EQUIPMENT BEING FINANCED HEREUNDER IS LOCATED IN ALABAMA OR NEW YORK, THEN  LESSOR SHALL BE REFFERED TO BY ITS D/B/A  “FIFTH THIRD EQUIPMENT FINANCE COMPANY, INC.”

IN WITNESS WHEREOF, Lessor and Lessee have executed this Master Lease as of the day and year first above written.