Exhibit 10.1

LOAN AGREEMENT

THIS LOAN AGREEMENT is dated as of October 3, 2018 and is between the Borrower listed on Schedule I and ALPPS LLC, a Delaware limited liability company, as lender (the “ Lender ”).

recitals

WHEREAS, the Borrower has requested that the Lender make loans (the “ Loans ”) from time to time to the Borrower in an amount not to exceed the Commitment Amount (as defined below) and may from time to time request additional term loans for the purposes listed in Schedule I and, upon the terms and subject to the conditions herein set forth, the Lender is willing to provide the Loans to the Borrower.

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

SECTION 1.      defined terms

When used in this Agreement, including the preamble, recitals and any Schedule or Exhibit, the following terms shall have the following meanings:

“ Action ” against a Person means an action, suit, litigation, arbitration, investigation, complaint, dispute, contest, hearing, inquiry, inquest, audit, examination or other proceeding threatened or pending against, affecting or purporting to affect such Person or its property, whether civil, criminal, administrative, investigative or appellate, in law or equity before any arbitrator or Governmental Authority.

“ Adverse Effect ” means the effect of any event, condition, action, omission or circumstance, which, alone or when taken together with other events, conditions, actions, omissions or circumstances occurring or existing concurrently therewith, (a) has or could be reasonably expected to have any adverse effect upon the validity or enforceability of this Agreement or any of the other Loan Documents, (b) has or could reasonably be expected to have any adverse effect upon the title to or value of any material part of the Collateral, the Liens of the Lender with respect to the Collateral or the priority of any such Liens, (c) impairs the ability of the Borrower to perform its obligations under any of the Loan Documents, including repayment of any of the Obligations when due, or (d) impairs or delays the ability of the Lender to enforce or collect the Obligations or realize upon any of the Collateral in accordance with the Loan Documents or applicable Regulations.

“ Affiliate ” means, with respect to a specified Person, any other Person, directly or indirectly, through one or more intermediaries, controlling or being controlled by or under common control with such Person. For the purposes of this definition, the term “ control ” (including with correlative meanings, the terms “ controlled by ” and “ under common control with ”), as used with respect to any Person, means being a director, manager, general partner or executive officer of such Person or possessing, directly or indirectly, through the ownership of voting securities, through a Contractual Obligation or otherwise, the power to vote, or beneficial ownership of, 5% or more of any class of the voting securities of such Person or of any other equity interests in such Person.

“ Agreement ” means this Agreement, as it may be amended, restated, supplemented or otherwise modified from time to time.

“ Bankruptcy Code ” means the United States Bankruptcy Code (11 U.S.C. Section 101 et seq.).

“ Borrower ” has the meaning specified on Schedule I .

“ Business Day ” means any day of the week, excluding Saturdays, Sundays and any day on which banks in New York are authorized or required to be closed.

“ Closing Date ” means the first date on which the conditions set forth in Section 3.1 are satisfied and the first Loan can be made hereunder.

“ Closing Statement ” means a schedule of expected disbursements, as well as costs, Fees, expenses and other amounts expected to be paid on the Closing Date.

“ Collateral ” has the meaning specified in the Security Agreement.

“ Collateral Call Percentage ” means, with respect to each Loan, the “Collateral Call Percentage” specified for such Loan on Schedule I .

“ Collateral Call Period ” means, with respect to each Loan, the “Collateral Call Period” specified for such Loan on Schedule I .

“ Commitment ” means amount set forth as such on Schedule I , as modified to reflect reductions otherwise provided for in this Agreement.

“ Commitment Fee ” has the meaning specified in Section 2.3(a)(i) .

“ Collateral Call Percentage ” has the meaning specified on Schedule I .

“ Commitment Period ” means the period from the Closing Date through the Commitment Termination Date.

“ Commitment Termination Date ” means the “Commitment Termination Date” specified on Schedule I , as the same may be extended pursuant to Section 2.1(d) .

“ Consents ” means any approval, consent, authorization, notice to, or any other action by, any Person other than any Governmental Authority.

“ Contractual Obligation ” means, with respect to any Person, any provision of any security or similar instrument issued by such Person or of any agreement, undertaking, contract, lease, indenture, mortgage, deed of trust or other instrument (other than a Loan Document) to which such Person is a party or by which it or any of its property is bound or to which any of its property is subject.

“ Control Agreement ” means an agreement, in form and substance satisfactory to the Lender between the Lender and the Borrower, to the extent such agreement is effective to grant “control” (as defined under each applicable UCC) over the Collateral to the Lender.

“ Currency Agreement ” means any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic cap or other similar agreement or arrangement. For purposes of this definition, cryptocurrencies shall be considered currencies.

“ Currency of Payment ” has the meaning specified in Section 2.4(c) .

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“ Derivative ” means any Interest Rate Agreement, Currency Agreement, futures or forward contract, spot transaction, commodity swap, purchase or option agreement, other commodity price hedging arrangement, cap, floor or collar transaction, any credit default or total return swap, any other derivative instrument, any other similar speculative transaction and any other similar agreement or arrangement designed to alter the risks of any Person arising from fluctuations in any underlying variable, including interest rates, currency values, insurance, catastrophic losses, climatic or geological conditions or the price or value of any other derivative instrument. For the purposes of this definition, “derivative instrument” means “any derivative instrument” as defined in Statement of Financial Accounting Standards No. 133 (Accounting for Derivative Instruments and Hedging Activities) of the United States Financial Accounting Standards Board, and any defined with a term similar effect in any successor statement or any supplement to, or replacement of, any such statement.

“ Default ” means an event or condition the occurrence of which would, with the lapse of time or the giving of notice, or both, become an Event of Default.

“ Default Rate ” means, with respect to each Loan, the “Default Rate” specified for such Loan on Schedule I .

“ Dollars ” and the sign “ $ ” each mean the lawful money of the United States of America.

“ EFT ” has the meaning specified in Section 2.4(b) .

“ EFT Authorization ” has the meaning specified in Section 2.4(b) .

“ Event of Default ” means any event or condition described in Section 7.1 .

“ Excess ” has the meaning specified in Section 2.4(g) .

“ Extension Fee Percentage ” has the meaning specified on Schedule I .

“ Force Majeure Event ” means an event or circumstance which is beyond the control and without the fault or negligence of the Person affected and which by the exercise of reasonable diligence the party affected was unable to prevent, including (a) riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition or compulsory acquisition by any Governmental Authority, (b) ionizing radiation or contamination, radio activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive or other hazardous properties of any explosive assembly or nuclear component, (c) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds, (d) internet outages, hacking, denial of service attacks, cybersecurity breaches, cyber-attack or other act of sabotage, data failure or failure of any blockchain or any other technological system, (d) earthquakes, flood, fire or other physical natural disaster, (e) strikes or industrial disputes or (f) any other accident or act of god or public enemy.

“ Governmental Authority ” means any nation, sovereign or government, any state or other political subdivision thereof, any agency, authority or instrumentality thereof and any entity or authority exercising executive, legislative, taxing, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing, including any central bank stock exchange regulatory body arbitrator, public sector entity, supra-national entity (including the European Union and the European Central Bank) and any self-regulatory organization (including the National Association of Insurance Commissioners).

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“ Indemnified Claims ” means all Losses that may at any time be imposed on, incurred by or asserted against any Indemnitee in any way relating to or arising out of this Agreement, the other Loan Documents, the Collateral or any other document contemplated by this Agreement or otherwise in any way relating to or arising out of (a) the administration, performance or enforcement by the Lender of any of the Loan Documents or consummation of any transaction described therein, (b) the existence of, perfection of, a Lien upon or the sale or collection of, or any other damage, Loss, failure to return or other realization upon any Collateral, (c) any Force Majeure Event or (d) the failure of the Borrower or any of its Affiliates to observe, perform or discharge any of the Borrower’s covenants or duties under any of the Loan Documents, in each case including any cost or expense incurred by any Indemnitee in connection with any investigation, litigation, arbitration or other judicial or non-judicial proceeding, whether or not such Indemnitee is a party thereto.

“ Indemnitees ” means the Lender and each of its Related Parties.

“ Interest Rate Agreement ” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement.

“ Insolvency Proceeding ” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, (b) any general assignment for the benefit of creditors, formal or informal moratorium, composition, marshaling of assets for creditors or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each case, undertaken under the Bankruptcy Code or other applicable Regulations, or (c) any appointment of a permanent or interim receiver, manager, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Borrower, or over all or a substantial part of its property or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of the Borrower.

“ Intercreditor Agreement ” means that certain Intercreditor Agreement, dated as of the date hereof, by and among the Borrower, the Lender and Dominion Capital LLC to subordinate the Lien of the Junior Lien Lender securing the Junior Lien Obligations to the Liens securing the Obligations of the Borrower to the Lender.

“ Interest Payment Currency ” means, with respect to each Loan, the “Interest Payment Currency” specified for such Loan on Schedule I .

“ Interest Payment Dates ” means, with respect to each Loan, the “Interest Payment Dates” specified for such Loan on Schedule I .

“ Interest Rate ” means, with respect to each Loan, the “Interest Rate” specified for such Loan on Schedule I .

“ Junior Lien Creditor ” means Dominion Capital LLC, a Connecticut limited liability company.

“ Junior Lien Document ” means the Junior Lien Security Agreement and all other “Transaction Documents” (as defined in the Securities Purchase Agreement by and among the Junior Lien Creditor and the other purchasers identified therein and DPW Holdings, Inc., dated as of May 15, 2018) and all other documents, instruments, notices, certificates and agreements executed or delivered in connection with or contemplated by these agreements, including any amendments thereto, or any of the Junior Lien Obligations.

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“ Junior Lien Obligations ” means the “Obligations” as defined in the Junior Lien Security Agreement on the date hereof.

“ Junior Lien Security Agreement ” means the Security and Pledge Agreement, dated as of May 15, 2018, between the Junior Lien Creditor and the Borrower.

“ Legal Closing Fee ” has meaning specified in Section 2.3(a)(ii) .

“ Lender ” has the meaning specified in the Preamble.

“ Lien ” means any lien (statutory or other) mortgage, pledge, hypothecation, assignment, security interest, encumbrance, charge, claim, restriction on transfer or similar restriction or other security arrangement of any kind or nature whatsoever, including any conditional sale or other title retention agreement and any capital or financing lease having substantially the same economic effect as any of the foregoing.

“ Liquidation Fee ” has the meaning specified in Section 2.3(a)(vi) .

“ Liquidation Fee Percentage ” means, with respect to each Loan, the “Liquidation Fee Percentage” specified for such Loan on Schedule I .

“ Liquidation Percentage ” means, with respect to each Loan, the “Liquidation Percentage” specified for such Loan on Schedule I .

“ Loan Account ” has the meaning specified in Section 2.5(b) .

“ Loan Drawdown Fee ” has the meaning specified in Section 2.3(a)(iii) .

“ Loan Drawdown Fee Percentage ” means, with respect to each Loan, the “Loan Drawdown Fee Percentage” specified for such Loan on Schedule I .

“ Loan Documents ” means, collectively, this Agreement, any promissory notes evidencing the Loans or the Obligations, the Security Agreement, the Control Agreement, the Intercreditor Agreement, the Closing Statement and all other documents, instruments, notices, certificates and agreements executed or delivered in connection with or contemplated by this Agreement or any of the Obligations.

“ Loans ” has the meaning specified in the Recitals.

“ Losses ” means all liabilities, rights, demands, covenants, duties, obligations (including, without limitation, indebtedness, receivables and other contractual obligations), claims, damages, Actions and causes of actions, settlements, judgments, damages, losses (including reductions in yield), debts, responsibilities, fines, penalties, sanctions, commissions and interest, disbursements, Taxes, interest, charges, costs, fees and expenses (including fees, charges, and disbursements of financial, legal and other advisors, consultants and professionals and, if applicable, any value-added and other taxes and charges thereon), in each case of any kind or nature, whether joint or several, whether now existing or hereafter arising and however acquired and whether or not known, asserted, direct, contingent, liquidated, due, consequential, actual, punitive or treble.

“ LTV Ratio ” means, at any time, the ratio of the outstanding principal amount of all Loans to the value of the Collateral, as determined using the Valuation Index at such time.

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“ LTV Ratio Drawdown Percentage ” has the meaning specified on Schedule I .

“ LTV Ratio Maintenance Percentage ” has the meaning specified on Schedule I .

“ Maturity Date ” has the meaning specified on Schedule I , as the same may be extended pursuant to Section 2.1(d) .

“ Maturity Extension Fee ” has the meaning specified in Section 2.3(a)(v) .

“ Non-Conforming Tender ” has the meaning specified in Section 2.4(c) .

“ Notice of Borrowing ” has the meaning specified in Section 2.1(b) .

“ Obligations ” means all amounts, indebtedness, obligations, liabilities, covenants and duties of every type and description owing by the Borrower from time to time to any Secured Party or any Affiliate of any Secured Party, whether direct or indirect, joint or several, absolute or contingent, due or to become due, liquidated or unliquidated, secured or unsecured, now existing or hereafter arising and however acquired (regardless of whether acquired by assignment), whether or not evidenced by any note or other instrument or for the payment of money and whether arising under Contractual Obligations, Regulations or otherwise, including, without duplication, (i) the principal amount of the Loans owing by the Borrower, (ii) all other amounts, fees (including all Fees and any transfer or mining fees, which may be deducted directly from the Collateral upon any transfer thereof to any Person including to and from the Borrower), interest (including any prepayment premium), commissions, charges, costs, expenses, attorneys’ fees and disbursements, indemnities (including Indemnified Claims), reimbursement of amounts paid and other sums chargeable to the Borrower under any Loan Document or otherwise arising under any Loan Document and (iii) all interest on any item otherwise qualifying as “Obligation” hereunder, whether or not accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or similar proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding.

“ OFAC ” means The Office of Foreign Assets Control of the U.S. Department of the Treasury.

“ Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001).

“ Person ” means an individual, partnership, corporation, limited liability company, limited liability partnership, joint stock company, land trust, business trust or unincorporated organization, or a government or agency, department or other subdivision thereof.

“ Permit ” means, with respect to any Person, any permit, filing, notice, license, approval, variance, exception, permission, concession, grant, franchise, confirmation, endorsement, waiver, certification, registration, qualification, clearance or other Contractual Obligation or arrangement with, or authorization by, to or under the authority of, any Governmental Authority or pursuant to any Regulation, or any other action by any Governmental Authority in each case whether or not having the force of law and affecting or applicable to or binding upon such Person, its Contractual Obligations or arrangements or other liabilities or any of its property or to which such Person, its Contractual Obligations or any of its property is or is purported to be subject.

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“ Regulation ” means, all international, federal, state and local laws (whether civil or common law or rule of equity and whether U.S. or foreign), treaties, constitutions, statutes, codes, tariffs, rules, guidelines, regulations, writs, injunctions, orders, judgments, decrees, ordinances and administrative or judicial precedents or authorities, including, in each case whether or not having the force of law, the interpretation or administration thereof by any Governmental Authority, all policies, recommendations or guidance of any Governmental Authority and all administrative orders, directed duties, directives, requirements, requests.

“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the shareholders, partners, members, managers, directors, officers, employees, agents, contractors, trustees, representatives and advisors of such Person or of such Person’s Affiliates. Notwithstanding the foregoing, the Lender and the Borrower are not “Related Parties” of each other.

“ Sanctioned Jurisdiction ” means, at any time, a country, territory or geographical region that is subject to, the target of, or purported to be subject to, Sanctions Laws.

“ Sanctions Laws ” means all applicable Regulations concerning or relating to economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time by OFAC, including the following (together with their implementing regulations, in each case, as amended from time to time): the International Security and Development Cooperation Act (ISDCA) (22 U.S.C. §23499aa-9 et seq.); the Patriot Act; and the Trading with the Enemy Act (TWEA) (50 U.S.C. §5 et seq.).

“ Sanctioned Person ” means (a) any Person that is listed in the annex to, or otherwise subject to the provisions of, Executive Order 13224 – Blocking Property and Prohibiting Transactions with Persons Who Commit and Threaten to Commit or Support Terrorism, effective September 24, 2001; (b) any Person that is named in any Sanctions Laws-related list maintained by OFAC, including the “Specially Designated National and Blocked Person” list; (c) any Person or individual located, organized or resident or determined to be resident in a Sanctioned Jurisdiction that is, or whose government is, the target of comprehensive Sanctions Laws; (d) any organization or Person directly or indirectly owned or controlled by any such Person or Persons described in the foregoing clauses (a) through (c); and (e) any Person that commits, threatens or conspires to commit or supports “terrorism”," as defined in applicable United States Regulations.

“ Secured Parties ” means the Lender and its Related Parties.

“ Servicing Fee ” has the meaning specified in Section 2.3(a)(iv) .

“ Servicing Fee Amount ” means, with respect to each Loan, the “Servicing Fee Amount” specified for such Loan on Schedule I .

“ Security Agreement ” means the Security Agreement, dated as of the date hereof, between the Borrower, as grantor, and the Lender and for the benefit of the Secured Parties.

“ Solvent ” means, as to any Person, such Person (a) is able to pay all of its debts as such debts mature, (b) has capital that is not unreasonably small for its business and is sufficient to carry on its business and transactions and all business and transactions in which it is about to engage, (c) is not “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code, (d) has not incurred (by way of assumption or otherwise) and does not believe (nor should it reasonably believe) that it will incur any obligations or liabilities (contingent or otherwise) debts beyond its ability to pay such debts as they become due and (e) has not incurred (by way of assumption or otherwise) under any of the Loan Documents, or made any conveyance pursuant to or in connection therewith, with actual intent to hinder, delay or defraud either present or future creditors of such Person.

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“ Taxes ” means any present or future taxes, levies, imposts, duties, fees, assessments, deductions, withholdings or other charges of whatever nature, including income, receipts, excise, property, sales, use, transfer, license, payroll, withholding, social security and franchise taxes now or hereafter imposed or levied by the United States or any other Governmental Authority and all interest, penalties, additions to tax and similar liabilities with respect thereto, but excluding, in the case of the Lender, taxes imposed on or measured by the net income or overall gross receipts of the Lender.

“ UCC ” means the Uniform Commercial Code as from time to time in effect in the State of New York; provided , that, in the event that, by reason of mandatory provisions of any applicable Regulation, any of the attachment, perfection or priority of the Lender’s or any other Secured Party’s security interest in any Collateral is governed by the Uniform Commercial Code of a jurisdiction other than the State of New York, “ UCC ” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of the definitions related to or otherwise used in such provisions.

“ Valuation Index ” means, with respect to Collateral, the “Valuation Index” specified for such Collateral on Schedule I or, if such index no longer becomes available, such other valuation index chosen by the Lender in its reasonable discretion.

“ Wallet ” has the meaning specified in Section 3.1(b) .

All other capitalized terms contained in this Agreement and not otherwise defined shall have, when the context so indicates, the meanings provided for by the UCC.

SECTION 2.      LOANS AND TERMS OF REPAYMENT

2.1        Loans and Use of Proceeds .

(a)        Loans . During the Commitment Period, subject to and upon the terms and conditions hereof, the Lender agrees to make Loans to the Borrower in an aggregate principal amount up to but not exceeding the Commitment of the Lender.

(b)        Borrowing Mechanics . Loans shall be made solely upon receipt of a notice (the “ Notice of Borrowing ”) given by the Borrower to the Lender not later than 11:00 a.m. on the third Business Day prior to the requested date for the disbursement of such Loan; provided , that such date must be at least 15 calendar days before or after the date of disbursement of any other Loan (including any requested disbursement date for any Loan that has not yet occurred). Each such Notice of Borrowing shall be in form and substance acceptable to the Lender, and at a minimum specify therein (i) the requested date for the disbursement of such Loan, (ii) the principal amount of the proposed Loan, which, for any given disbursement date, shall be an integral multiple of $50,000 and shall not exceed $500,000, and (iii) the U.S. bank account of the Borrower where the proceeds of such Loan will be disbursed. Upon fulfillment of the applicable conditions set forth in Section 3 , on the date requested in the Notice of Borrowing, the Lender shall make the Loan available to the Borrower in same day funds at the Borrower’s bank account specified in the Notice of Borrowing. Notices received after 11:00 a.m. shall be deemed received on the following Business Day.

(c)        Repayment . The Loans shall be repaid in full on the Maturity Date, together with all interest accrued thereon on or prior to such date. The Loans shall be part of the Obligations secured by the Collateral. The proceeds of all Loans shall be used by the Borrower as provided in Section 5.3 . The Borrower shall be entitled to re-borrow any amounts repaid with respect to any Loan during the Commitment Period. The Loans shall bear interest as set forth in this Agreement and shall be repaid as provided in Section 2.4 . At any time, the Lender may set off and deduct pursuant to and in accordance with Section 8.5 any outstanding and unpaid Obligations that are due on or before such time from the proceeds of any Loan made hereunder.

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(d)        Extension of Maturity Date . The Borrower may request that the Lender extend the Maturity Date once by a year by submitting a notice to the Borrower no later than 5:00 p.m. on the Commitment Termination Date in form acceptable to the Lender. This notice shall be binding on the Borrower at any time when delivered and may not be withdrawn without the consent of the Lender. The Lender may, in its sole discretion, but shall have no obligation to, accept such notice by notifying the Borrower that it has done so at any time prior to the Maturity Date. Once the Lender shall have accepted such extension and the Borrower shall have paid the Maturity Extension Fee, the Maturity Date and the Commitment Termination Date shall each be extended to the date that is on each of their first anniversaries.

(e)        Prepayments . The Borrower may, at any time and from time to time upon at least 5 Business Day’s prior notice to the Lender stating the proposed date and principal amount of the prepayment and whether such prepayment shall reduce the Commitment (and if such notice is given the Borrower shall), (i) prepay, without premium or penalty, the Loans on any Business Day in whole or in part, in an aggregate amount that is an integral multiple of $50,000 (or such lesser amount as shall constitute the entire principal amount of the Loans then outstanding), or (ii) reduce the Commitment, without premium or penalty (provided that the Commitment may not be reduced below the aggregate principal amount of the Loans outstanding), on any Business Day in whole or in part in an aggregate amount that is an integral multiple of $50,000. Notwithstanding the foregoing, all prepayments of any principal amount shall be made together with a payment of any interest accrued and outstanding on such principal amount through the next Interest Payment Date, whether or not such interest shall have accrued as of such date. If, at any time, the outstanding principal amount of the Loans exceeds the Commitment, the Borrower shall immediately pay the amount of such excess to the Lender for application to repay such Loans. Failure to pay such amount shall be an immediate Event of Default under this Agreement.

2.2        Interest .

(a)        On the Loans . Interest shall accrue on the outstanding aggregate principal balance of each Loan at the Interest Rate for such Loan, shall be compounded daily, and shall be due and payable on each Interest Payment Date, in arrears, as well as on the date the principal amount of any Loan is repaid (to the extent accrued on the amount so repaid).

(b)        On Other Obligations . The principal amount of all other Obligations shall bear interest at the highest rate applicable to Loans hereunder, unless a different rate of interest is otherwise expressly provided in any Loan Document.

(c)        During Events of Default . While an Event of Default exists and is continuing, notwithstanding any other provision in any Loan Document to the contrary, all Obligations shall bear interest at the Default Rate. The Loan Documents may provide for additional amounts such as expense reimbursements, fees, etc. to be paid upon a Default or an Event of Default.

(d)        Computation . All interest chargeable under this Agreement shall be computed on the basis of a year of 360 days for the actual number of days elapsed in the period during which it accrued. Interest shall accrue from the date a Loan is made (or any other Obligation is due but unpaid) to the date such Loan or Obligation is repaid. In computing interest on any Loan, the date of the making of such Loan or the first day of an interest period applicable to such Loan shall be included, and the date of payment of such Loan or the expiration date of an interest period applicable to such Loan shall be excluded.

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2.3        Fees .

(a)        Amounts . The Borrower shall pay to the Lender the following fees (collectively and together with Late Fees, the “ Fees ”) at the following times and in the following amounts:

(i)       A facility commitment fee (the “ Commitment Fee ”) for the provision of the Commitment hereunder in an aggregate amount equal to the Commitment Fee Percentage of the Commitment (which may, at the Lender’s option, be deducted from the proceeds of the Loans sent to the Borrower), to be paid in the following amount on the following dates:

(A)       $10,000 on the Closing Date;

(B)       $10,000 on the date each Loan is made; and

(C)       The remainder (if any) on the Maturity Date;

(ii)       On the Closing Date, a fee (the “ Legal Closing Fee ”) to help the Lender offset its legal fees in an amount equal to $5,000 (which may, at the Lender’s option, be deducted from the proceeds of the Loans sent to the Borrower);

(iii)       On the date any Loan is made, a fee (each a “ Loan Draw Down Fee ”) for such Loan in an amount equal to the Loan Drawdown Fee Percentage of the principal sum of such Loan (which may, at the Lender’s option, be deducted from the proceeds of the Loans sent to the Borrower);

(iv)       On each Interest Payment Date, a fee (each a “ Servicing Fee ”) in an amount equal to the Servicing Fee Amount;

(v)       On the initial Maturity Date, if the Borrower shall have notified the Lender that it wishes to extend such date pursuant to Section 2.1(d) and the Lender shall have accepted such extension, a maturity extension fee (the “ Maturity Extension Fee ”) for the extension of the Commitment in an amount equal to the Extension Fee Percentage of the Commitment then-outstanding (which may, at the Lender’s option, be deducted from the proceeds of the Loans sent to the Borrower on or after the initial Maturity Date); and

(vi)       On the date any Collateral is sold pursuant to this Agreement or any payment is made other than in Dollars, a fee (the “ Liquidation Fee ”) in an amount equal to the Liquidation Fee Percentage of the value of such Collateral (which may, at the Lender’s option, be paid through the sale of additional Collateral) or, as applicable, such payment made.

(b)        Payment . All Fees (i) shall be fully earned by the Lender when due and payable, (ii) except as required by applicable Regulation, shall not be subject to rebate, refund or proration, (iii) are and shall be deemed to be for compensation for the internal resources used to provide various services rendered hereunder, including the preparation of the closing and closing documents, periodic servicing of the Loans and liquidation of Collateral, and (iv) are not, and shall not be deemed to be, interest or any other charge for the use, forbearance or detention of money. All Fees shall be Obligations secured by the Collateral. The Lender may, at its option, deduct the Legal Closing Fee from the proceeds of any Loan made on the Closing Date, may deduct the portion of the Commitment Fee then due and the Loan Drawdown Fee for any Loan from the proceeds of the corresponding Loan (including Loans made on the Closing Date) and may deduct the Maturity Extension Fee from the proceeds of any Loan made on or after the initial Maturity Date.

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2.4        Payments .

(a)        Currency . All Obligations shall accrue and be computed in U.S. Dollars. For regularly scheduled payments of interest made at a time when no Event of Default shall be continuing, the Currency of Payment shall be the Interest Payment Currency. For all other payments of Obligations owing under any Loan Document (including the principal amount of Obligations), the Currency of Payment shall be Dollars; provided , that the Lender may, in its sole discretion, decide to accept such other payments in other currencies (including cryptocurrencies) in accordance with and subject to the provisions of Section 2.4(c)(ii) . Payments shall be made in the Currency of Payment (or, if accepted by the Lender for such payment, such other currencies) in immediately available funds without any defense, offset, counterclaim or deduction (including for present or future Taxes or fees), not later than 5:00 p.m. on the date when due (or such earlier time specified herein). Any payment that is received at a later time shall not be deemed to have been received by the Lender until the later of (i) the time such funds become immediately available Dollars without any defense, offset, counterclaim or deduction (including for present or future Taxes or fees) and (ii) the applicable next Business Day.

(b)        ACH . Payments to the Lender in Dollars should be made by ACH or, for higher amounts where ACH is not available, by wire transfer of immediately available funds to the following account (or, in each case, such other method reasonably acceptable to the Lender):

Bank Name: Signature Bank

Account Name: ALPPS LLC

Account Number: 1503352784

ACH Routing number: 026013576

In order to satisfy the Borrower's obligations under this Agreement, the Borrower expressly authorizes the Lender to initiate an electronic funds transfer (“ EFT ”) debit from the Borrower's designated bank account (including any subsequent designated account identified to the Lender by the Borrower) in accordance with the “Electronic Funds Transfer Authorization Agreement” attached hereto as Exhibit A (the “ EFT Authorization ”) for all amounts due and owing by the Borrower to the Lender under this Agreement (excluding, if the Interest Payment Currency is not Dollars, for regularly scheduled payments of interest when no Event of Default is continuing), including all payments to be made by the Borrower pursuant to Section 2.2 and Section 2.3 of this Agreement. In connection with such payments, the Borrower further agrees to complete the EFT Authorization and hereby authorizes the Lender to resubmit any EFT debit authorized by the Borrower that is returned for insufficient or uncollected funds, except as otherwise provided by NACHA — the Electronic Payment Association's EFT rules or applicable Regulations.

(c)        Payments in Other Currencies .

(i)       Each payment owing to the Lender under any of the Loan Documents shall be made in the relevant currency specified therein (the “ Currency of Payment ”). If the Currency of Payment for any payment is not Dollars, the Lender shall determine the amount owing by the Borrower in such Currency of Payment prior to 1:00 p.m. on the date such payment is due (with the amount of such payment being increased by the Liquidation Fee), using either the Valuation Index if applicable to such Currency of Payment or any other conversion method it shall determine applicable in good faith. Such determination by the Lender, whether or not communicated effectively to the Borrower within the time set forth below, shall be binding on the Lender and the Borrower absent manifest error. The Lender shall notify the Borrower of such determination on the date such payment is due prior to 1:00 p.m. as provided in Section 8.2 , including instructions on where to direct such payment, and such payment shall be due hereunder within four (4) hours (and in any case no later than the time provided in Section 2.4(a) ) on such date after delivery of such notice. Payment by the Borrower of such amount within such time in accordance with Section 2.4(a) shall constitute full satisfaction of the amounts owing hereunder for such payment and the Borrower shall not be liable for any shortfall when such Currency of Payment is converted to Dollars. Any payment tendered on any later time or date shall be considered a Non-Conforming Tender and shall be subject to the provision of clause (ii) below as if the Currency of Payment for such payment was Dollars.

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(ii)       Any payment that is tendered in a currency that is not Dollars and (i) is not made in immediately available funds in the Currency of Payment or (ii) is not made on the date and by the time due hereunder will be considered a “ Non-Conforming Tender .” To the extent permitted by applicable Regulation, any obligation to make payments in the Currency of Payment under any Loan Document (including obligations which have been converted into another currency for the purpose of obtaining judgment in any court or arbitral tribunal) will not, without the consent of the Lender, be discharged or satisfied (notwithstanding any judgment that might have been rendered in a currency other than the Currency of Payment) by any Non-Conforming Tender, except to the extent (a) such Non-Conforming Tender results in the receipt by the Lender, acting in good faith in converting the currency so tendered into the Currency of Payment, of the full amount in the Currency of Payment in same day funds of all amounts payable in respect of this Agreement and either (w) such Non-Conforming Tender is a late tender in the Currency of Payment, (x) tender in the Currency of Payment is prohibited by applicable Regulations, (y) tender in a currency other than the Currency of Payment is necessary or appropriate for the purpose of obtaining judgment in any court, administrative body or arbitral tribunal or (z) the Lender accepts such Non-Conforming Tender in its sole discretion. If for any reason the amount in the Currency of Payment so received falls short of the amount in the Currency of Payment payable in respect of this Agreement, the Borrower agrees that, as a separate and additional obligation notwithstanding any judgment that may have been obtained in a currency other than the Currency of Payment, to the extent permitted by applicable Regulation, immediately indemnify the Lender against such loss (such indemnification amount to be subject to this clause (ii) ) as may be necessary to compensate for the shortfall or caused by any delay in obtaining immediately available funds in the Currency of Payment. If for any reason the amount so received exceeds when converted to the Currency of Payment the amount payable in the Currency of Payment in respect of this Agreement, to the extent permitted by applicable law, the Lender agrees to remit to the Borrower the amount of such excess, subject to any right the Lender may then have and choose to exercise under Section 8.5 .

(d)        Business Days . Whenever any payment of any Obligations shall be due on a day that is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day and interest thereon shall continue to accrue and shall be payable for such extended period of time; provided , that if the Maturity Date falls on a non-Business Day, the payments due on the Maturity Date shall be made on the immediately preceding Business Day. If any amount applied to the Obligations is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other Person, then the Obligations or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such amount had not been made or received. The provisions hereof shall survive the Termination Date and payment in full of the Obligations.

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(e)        Effect of Non-Conforming and Late Payments . To the extent any Non-Conforming Tender may be deemed to have been received on a date after the date such payment was due hereunder pursuant to the provisions of this Section 2.4 , such failure of such payment to have been made when due will constitute or become a Default or Event of Default to the extent so provided under the terms of Section 7.1 . Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.2 from the date such amount was due and payable until the date such funds become immediately available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day). The Borrower shall pay to the Lender a late fee (each a “ Late Fee ”) on each Obligation or part thereof (other than Late Fees) that is not paid and remains outstanding more than 2 Business Days after its due date under the applicable Loan Document, at a rate of 10% of such Obligation or part thereof per annum. Such Late Fee shall accrue on each day and be due and payable on the following day in arrears.

(f)        Payment of Other Obligations . Obligations (other than the principal amount of Loans, interest thereof or Fees) that require the payment of money, if any, shall be due and payable as and when provided in the Loan Documents, or, if the date of payment is not specified in the Loan Documents, on demand.

(g)        Maximum Interest . The Borrower and the Lender hereby agree and stipulate that the only charges imposed upon the Borrower for the use of money in connection with this Agreement are and shall be the specific interest described in Section 2.2 and in any other Loan Document. Notwithstanding the foregoing, the Borrower and the Lender further agree and stipulate that all Fees, the Default Rate, funding or “breakage” charges or make-whole amounts, increased cost charges, attorneys’ fees and reimbursement for costs and expenses paid by the Lender to third parties or for damages incurred by the Lender are charges to compensate the Lender for underwriting and administrative services and costs or losses performed or incurred, and to be performed and incurred, by the Lender in connection with this Agreement and the other Loan Documents and shall under no circumstances be deemed to be charges for the use of money pursuant to any applicable Regulations. In no event shall the aggregate of all amounts that are contracted for, charged or received by the Lender pursuant to the terms of the Loan Documents and that are deemed interest under applicable Regulations exceed the highest rate permissible under any applicable Regulations that a court of competent jurisdiction shall, in a final determination, deem applicable hereto. If any interest is charged or received in excess of the maximum rate allowable under applicable Regulations (the “ Excess ”), the Borrower acknowledges and stipulates that any such charge or receipt shall be the result of an accident and bona fide error, and such Excess, to the extent received, shall be applied first to reduce the outstanding principal amount of the Obligations and the balance, if any, returned to the Borrower, it being the intent of the parties hereto not to enter into a usurious or other illegal relationship. The provisions of this Section 2.4(g) shall be deemed to be incorporated into every Loan Document (whether or not any provision of this Section 2.4(g) is referred to therein).

(h)        Application of Payments and Collections . The Borrower irrevocably waives the right to direct the application of any and all payments and collections at any time or hereafter received by the Lender from or on behalf of the Borrower and agrees that the Lender shall have the continuing right to apply and reapply any and all such payments and collections received at any time hereafter against the Obligations, in such manner as the Lender may deem advisable.

2.5        Notes; Loan Account .

(a)        Notes . Upon request by the Lender, the Borrower shall execute one or more promissory notes evidencing the Loans or the other Obligations in the form provided by the Lender to the Borrower prior to the date hereof (together with such changes as may be acceptable to the Lender and the Borrower) and in substance acceptable to the Lender. Each promissory note shall be issued by the Borrower to the Lender and shall be duly executed and delivered by an authorized officer of the Borrower.

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(b)        Loan Account . The Lender shall maintain for its books an account (“ Loan Account ”) serving as register for, and evidence of, the Loans and the Obligations resulting therefrom, including the amount of principal and interest payable from time to time hereunder. The Lender shall debit the Loan Account for the principal amount of the Loans made by it, accrued interest thereon and all other amounts that shall become due from the Borrower pursuant to this Agreement or any other Loan Document, and shall credit the Loan Account for each payment which the Borrower shall make in respect to the Obligations. Any failure of the Lender to make an entry in the Loan Account, or any error in doing so, shall not limit or otherwise affect the agreement of the Borrower to repay the Obligations in accordance with the Loan Documents. The entries made in the Loan Account shall be conclusive and binding on the Borrower for all purposes, absent manifest error. Entries in the Loan Account shall be made available for inspection by the Borrower upon reasonable request. No transfer of any Loan by the Lender shall be effective until the new Lender shall have received a copy of the Loan Account.

2.6        Illegality . Notwithstanding anything to the contrary herein contained, if the adoption of any change in Regulation (or any change in the interpretation or application of any Regulation by any Governmental Authority, whether or not such interpretation or application shall have the force of law and failure comply therewith would be deemed unlawful) occurs and the Lender determines in its reasonable judgment that as a result it is unlawful or impermissible for the Lender to make, fund or maintain the Loan (irrespective of whether costs or penalties would result therefrom) or to give effect to any of its obligations as contemplated hereby then the Lender may give the Borrower notice thereof. Within five (5) Business Days after any such notice, the Lender and the Borrower will use all reasonable efforts to agree on action that would eliminate such illegality. If the Lender and the Borrower shall have failed to reach agreement within such time period, then the Borrower shall at the latest date allowed by such change in Regulation, pay or prepay as the case may be (without premium or penalty and without payment of the amounts described in Section 2.1(e) ), the Loan, together with all accrued interest thereon and all fees and other Obligations then accrued to the Lender hereunder and unpaid.

SECTION 3.      CONDITIONS PRECEDENT

3.1        Closing Date Conditions . The obligation of the Lender to make any Loan is subject to the satisfaction, or waiver in accordance with Section 8.1 , of the following conditions on or before the Closing Date:

(a)        Documentation . The Lender shall have received each of the following from the Borrower, each in form and substance satisfactory to the Lender and each duly executed by the Borrower and/or its Related Parties as the case may be:

(i)        Loan Documents . (A) the Security Agreement, (B) the Control Agreement, (C) duly authorized UCC financing statements in all jurisdictions requested by the Lender (subject to the Intercreditor Agreement being duly executed), (D) an original promissory note (accompanied by instruments of transfer or assignment duly endorsed in blank and otherwise in form and substance satisfactory to the Lender) representing the Loan, (E) an ETF Authorization and (F) the Intercreditor Agreement duly executed by the Junior Lien Lender.

(ii)        Corporate Authorization Certificate . A certificate of the secretary or assistant secretary, the chief executive officer or other authorized signatory, as the case may be, of the Borrower with respect to (A) the certificate of incorporation or similar organizational document of the Borrower filed with any Governmental Authority, (B) any other organizational document of the Borrower, including any bylaws, operating agreement or limited partnership agreement, (C) the resolutions of the board of directors of the Borrower approving each Loan Document and the performance of the obligations of the Borrower thereunder and (D) the names and true signatures of the individuals signing the Loan Documents on the Closing Date.

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(iii)        Good Standing Certificates . A good standing certificate from the applicable Governmental Authority of the jurisdiction of incorporation of the Borrower.

(iv)        Closing Date Certificate and Closing Statement . A certificate, dated the Closing Date, as to certain events to be true as of the Closing Date, including with respect to the satisfaction of the conditions set forth in Section 3.2 ; and a Closing Statement, which shall have been initially prepared by the Lender.

(v)        AML/KYC Documentation . All other documentation requested by the Lender to successfully complete its anti-money laundering / know-your-customer analysis and other inquiries that the Lender deems required under applicable Regulations prior to accepting the Borrower as its customer.

(b)        Collateral Transfer . The Lender shall have actual possession of, and a first priority security interest in, the Collateral and have received, in form and substance satisfactory to the Lender (A) evidence that the Borrower owns the Collateral and (B) evidence that the Borrower has deposited the Collateral into the Lender's digital wallet established to receive the Collateral (“ Wallet ”), and that such deposit has been effective and verified to the satisfaction of the Lender; and

(c)        AML/KYC . The Lender shall have successfully completed its anti-money laundering and know-your-customer checks and any other applicable or related investigation and shall have accepted the Borrower as a customer.

3.2        Additional Conditions . The obligation of the Lender to make any Loan on any date (including the Closing Date) is subject to the satisfaction, or waiver in accordance with Section 8.1 , of the following conditions on or before such date:

(a)        Borrowing Certificate and Notice of Borrowing . The Lender shall have received, in form and substance satisfactory to it, from the Borrower a duly executed Notice of Borrowing, as well as a duly executed certificate certifying on such date as to the other conditions set forth in this Section 3.2 , each from an authorized executive officer of the Borrower and each in form and substance acceptable to the Lender;

(b)        Available Commitment . After making all Loans requested on such date, the aggregate outstanding principal amount of all Loans shall not exceed the aggregate outstanding Commitment;

(c)        LTV Ratio . The LTV Ratio (including any Loans to be made on such date) shall exceed the LTV Ratio Drawdown Percentage;

(d)        Representations, Warranties and Covenants . As of such date, the representations, warranties and covenants of the Borrower contained in the Loan Documents shall be true, correct and complied with on and as of such date, as if made on and as of such date;

(e)        No Default or Event of Default . As of such date, no event shall have occurred and be continuing or would result from the making of such Loan that would constitute an Event of Default or a Default;

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(f)        Consents . The Lender shall have received such Permits, Consents and other information, opinions or documents reasonably requested by the Lender in connection with such Loan;

(g)        No Adverse Effect . No Adverse Effect shall occur after giving effect to the making of such Loan; and

(h)        AML/KYC . The Lender shall have successfully completed its anti-money laundering and know-your-customer refresh checks and any other applicable or related investigation and shall have accepted to continue to have the Borrower as a customer;

(i)        Due Diligence . Lender’s due diligence on Borrower shall have been satisfactorily completed or refreshed; and

(j)        Other Information . The Lender shall have received any other financial or non-financial information regarding the Borrower as it may reasonably request.

SECTION 4.      BORROWER’ S REPRESENTATIONS AND WARRANTIES

To induce the Lender to enter into this Agreement and to extend credit, the Borrower makes the following representations and warranties, all of which shall be deemed made as of the Closing Date and on the date of the making of any additional Loan and each payment of interest or other repayment hereunder:

4.1        Existence and Rights; Predecessors . The Borrower is a Person having the corporate form listed on Schedule I , duly organized, validly existing and in good standing under the laws of its jurisdiction of organization listed on Schedule I and is duly qualified or licensed to transact business in its jurisdiction of organization, the jurisdiction of its principal place of business; has the right and power to enter into and discharge all of its obligations under the Loan Documents, each of which constitutes a legal, valid and binding obligation of the Borrower, enforceable against it in accordance with its terms, subject only to bankruptcy and similar laws affecting creditors’ rights generally; and has the power, authority, rights and franchises to own its property and to carry on its business as presently conducted. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock or any cryptocurrency, token or other blockchain asset.

4.2        Authority . The execution, delivery, performance by the Borrower of its obligations, and exercise of by the Borrower or the Secured Parties of their rights under the Loan Documents, including the making of the Loans under this Agreement, (a) have been duly authorized by all necessary corporate actions of the Borrower, (b) do not require any Consents or Permits that have not been obtained prior to the date hereof and each such Permit or Consent is in full force and effect and not subject of any pending or, to the best of the Borrower’s knowledge, threatened, attack or revocation, (c) are not and will not be in conflict with or prohibited or prevented by or create a breach under (A) any Regulation or Permit, (B) any corporate governance document or resolution or (C) any Contractual Obligation or provision thereof binding on the Borrower or its Related Parties or affecting any property of the Borrower or its Related Parties and (d) will not result in the imposition of any Lien on the Collateral other than Liens for the benefit of the Lender. Upon execution and delivery thereof, each Loan Document shall constitute the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms.

4.3        Litigation . There are no Actions pending or threatened against the Borrower that could, if adversely determined, alone or together, reasonably be expected to have an Adverse Effect or that finds or claims that the Borrower is in violation of any Regulation. The Borrower is not in default with respect to any order, writ, injunction, decree or demand of any court or any Governmental Authority.

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4.4        Solvency . The Borrower is, and after consummating the transactions contemplated hereby will be, Solvent.

4.5        Taxes . The Borrower has filed all tax returns that it is required to file and has paid all Taxes shown on said returns as well as all Taxes shown on all assessments received by it except to the extent that (a) such Taxes are the subject of a bona fide dispute concerning the Borrower’s liability to pay same or concerning the amount thereof, (b) such Taxes are being properly contested in good faith by appropriate proceedings promptly instituted and diligently conducted and (c) the Borrower has established appropriate reserves. The Borrower is not subject to any tax Liens, nor has it received any notice of deficiency or other official notice to pay any Taxes.

4.6        Collateral . The Borrower has good title to the Collateral. The Collateral is not subject to any Liens other than the Lien of the Lender and the Liens of the Junior Lien Creditor governed by the Intercreditor Agreement. From and after the execution and delivery of the Loan Documents and the filing of the documents thereby required, the Lender shall have a first-priority perfected security interest in and to all of the Collateral, free and clear of any Liens, and entitled to priority under applicable Regulations, with no financing statements, hypothecations or similar filings on record anywhere other than such filings in connection with this Agreement.

4.7        Compliance with Regulations; Absence of Default . The Borrower, and its properties, business operations and leaseholds, are in compliance in all material respects with all applicable Regulations and with all of the provisions of its bylaws. No event has occurred or has failed to occur which has not been remedied or waived, the occurrence or non-occurrence of which constitutes a Default or an Event of Default or an Adverse Effect.

4.8        Business . All information about the Borrower provided on Part I of Schedule I is true, complete and accurate and all facts necessary to make such information not misleading have been disclosed to the Lender.

4.9        No Sanctions . None of the Borrower or its Related Parties (a) is in violation of any Sanctions Law or engages in, or conspire or attempts to engage in, any transaction evading or avoiding any prohibition in any Sanction Law, (b) is a Sanctioned Person or derive revenues from investments in, or transactions with Sanctioned Persons, (c) has any assets located in Sanctioned Jurisdictions or (d) deals in, or otherwise engages in any transactions relating to, any property or interest in property blocked pursuant to any Regulation administered or enforced by OFAC. The Borrower will not use, directly or indirectly, any part of the proceeds of any Loan hereunder to fund, and none of the Borrower or its Related Parties are engaged in, any operations in, the financing of any investments or activities in, or any payments to, a Sanctioned Person or Sanctioned Entity.

4.10        No Bribery or other Corrupt Practices . The Collateral was purchased, produced or otherwise acquired in the manner and using the funds described in Schedule I . No part of the proceeds of any Loan will be used, directly or indirectly, to fund, and none of the Borrower or its Related Parties is engaged in making, 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, or in any other activity in violation of the United States Foreign Corrupt Practices Act of 1977, as amended, or any other Regulation sanctioning or purporting to sanction money laundering, bribery, corruption and other improper payments.

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4.11        No Purchase of Derivatives, Margin Stock, Cryptocurrencies or Tokens . The Borrower shall not use any parts of the proceeds of the Loans hereunder for the purpose of purchasing or carrying of any cryptocurrency, token or other blockchain asset or any “margin security” or “margin stock” within the meaning of Regulations U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224, or any Derivative, any “commodity” as defined in Section 1(a)(9) of the U.S. Commodity Exchange Act of 1936 (7 U.S.C. §1) or purchasing or carrying any of the products or engaging in any of the transactions described in Section 1(a)(10)(i) through (iv) of such Commodity Exchange Act. The Borrower shall not engage in any other transaction pursuant to or otherwise use such proceeds in any manner that might cause any borrowing hereunder or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or the Commodity Exchange Act or any other Regulation. For purposes of this Section 4.11, all cryptocurrencies shall be considered “commodities” and all tokens and other blockchain and similar investments shall be considered “margin securities” under all applicable Regulations – it being understood that some blockchain assets may fit under both definition under this assumption and that this assumption is made solely for convenience, this covenant is entered into for business reasons and does not evidence or reflect any belief of the Borrower or the Lender on the treatment or qualification of such assets under applicable Regulations.

4.12        Not Subject to Regulation Limiting Borrowing Authority . The Borrower is not an “investment company” and is not a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940. The Borrower is not subject to regulation under the Public Utility Holding Company Act of 2005, the Federal Power Act, the Interstate Commerce Act or the Investment Company Act of 1940 or to any Regulation or Permit limiting the Borrower’s ability to incur indebtedness for money borrowed.

4.13        Accuracy and Completeness of Information . All documents and other information relating to the Borrower furnished by or at the direction of the Borrower to the Lender were, at the time furnished, complete and correct in all material respects. Each of the representations and warranties made by the Borrower in each other Loan Document to which it is a party is true and correct in all material respects as of each date made or deemed made. No information is known to the Borrower (other than those disclosed to the Lender in writing prior to the date this representation is made) that makes such documents and other information misleading. There are no facts pertaining to the Borrower, its assets or its businesses or the Collateral that, individually or in the aggregate, could reasonably be expected to have an Adverse Effect. When any representation or warranty of the Borrower contained in any Loan Document is made, there is no information that would in any material respects contradict or be inconsistent with such representation or warranty.

SECTION 5.      AFFIRMATIVE COVENANTS

At all times prior to the date of payment in full of all Obligations, the Borrower shall comply with all of the following covenants:

5.1        Maintenance of Rights and Properties . The Borrower shall maintain its corporate/legal existence and business, maintain its chief executive office and location of books and records in the locations set forth on Schedule I , continue to engage in the same or substantially similar lines of business. The Borrower shall remain qualified and authorized to do business in its state of organization, in the jurisdiction of its principal place of business and any other jurisdiction where the Lender has filed a UCC financing statement.

5.2        Compliance with Laws and Permits . The Borrower shall comply with all Sanctions Laws, all Regulations relating to anti-money laundering and financial or securities fraud. The Borrower shall comply with all other Regulations and Permits except where a failure to do so could not individually or in the aggregate reasonably be expected to have an Adverse Effect.

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5.3        Use of Proceeds . Use the proceeds of any Loan as identified on Schedule I in a way that is consistent with the terms of the Loan Documents and all applicable Regulations.

5.4        Information . The Borrower shall provide to the Lender prompt written notice of the occurrence of any of the following: (i) any Default or any Event of Default or (ii) any development (including any Action) that results in, or could reasonably be expected to result in, an Adverse Effect. The Borrower shall provide to the Borrower, promptly upon request, such additional documents and information as the Lender may reasonably request.

SECTION 6.      NEGATIVE COVENANTS

At all times prior to the later of the Maturity Date and the date of payment in full of the Obligations and termination of the Loan Documents, the Borrower shall comply with all of the following covenants:

6.1        Fundamental Changes . The Borrower shall not merge, reorganize or consolidate with any Person, or liquidate, wind up its affairs or dissolve itself, in each case whether in a single transaction or in a series of related transactions or adopt a plan relating to the foregoing. The Borrower shall not change its federal employer identification number, its legal name, its state of incorporation or formation, its organizational identification number or corporate structure without having first provided at least thirty (30) calendar days prior written notice to the Lender and complying with all reasonable requirements of the Lender in regard thereto. The Borrower shall not relocate its chief executive office or principal place of business without having first provided at least thirty (30) calendar days prior written notice to the Lender.

6.2        Conduct of Business . The Borrower shall not suspend or otherwise discontinue all of its business operations or, to the extent reasonably expected to have an Adverse Effect, suspend or otherwise discontinue a material portion of its business operations.

6.3        Liens on the Collateral . The Borrower shall not create, permit, incur or suffer to exist any Lien on any of the Collateral other than the Liens securing the Obligations created pursuant to the Loan Documents and the Liens securing the Junior Lien Obligations.

6.4        Dispositions of the Collateral . The Borrower shall not sell, lease, license, give, consign or otherwise transfer or dispose of any portion of the Collateral.

6.5        Inconsistent Agreements . The Borrower shall not enter into any Contractual Obligation that would violate, be inconsistent with, or could reasonably be seen as interfering with, the terms of this Agreement or other Loan Document. The Borrower shall not enter into, directly or indirectly, any agreement (other than the Loan Documents) with any Person (other than the Junior Lien Creditor) that prohibits the borrower from creating, incurring, pledging, or suffering to exist any Lien upon, or from transferring, or restricts or limits the ability of the Borrower to create, incur, pledge or suffer to exist any Lien upon, or restrict the transfer of, any of the Collateral.

6.6        Amendment to Junior Lien Documents . Without the prior written consent of the Lender, the Borrower shall not (a) enter into, or suffer or permit to exist, any amendment or other modification to any Junior Lien Document without the prior written consent of the Lender or (b) incur additional Junior Lien Obligations in excess of the ones outstanding on the date hereof, other than incurring expense reimbursement, indemnity and similar obligations that would constitute Junior Lien Obligations if incurred on the date hereof.

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SECTION 7.      EVENTS OF DEFAULTS; REMEDIES

7.1        Events of Default . The occurrence or existence of any one or more of the following events or conditions shall constitute an Event of Default under this Agreement:

(a)       the Borrower fails to pay when due the principal amount of any Loan when due (in each case, whether due at stated maturity, on demand, upon acceleration or otherwise), which default is not cured within seven (7) Business Days;

(b)       the Borrower fails to pay interest on any Loan or any Fee due hereunder (in each case, whether due at stated maturity, on demand, upon acceleration of any Loan or otherwise) within seven (7) Business Days of the date it is due hereunder;

(c)       the Borrower fails to pay any other Obligation (in each case, whether due at stated maturity, on demand, upon acceleration or otherwise) within seven (7) Business Days after the Lender provides notice to the Borrower of such failure;

(d)       the LTV Ratio shall equal or exceed the Liquidation Percentage;

(e)       the LTV Ratio shall equal or exceed the Collateral Call Percentage and the Borrower shall fail to deposit (or such deposit shall fail to be effective and verified to the satisfaction of the Lender), during the corresponding Collateral Call Period, in the Wallet additional blockchain collateral of the same type as that initially deposited by the Borrower (or such other Collateral acceptable to the Lender in its sole discretion) so as to ensure that the LTV Ratio is lower than the LTV Ratio Maintenance Percentage;

(f)       the Borrower fails to comply with any term or condition contained in Sections 5 or 6 and, if such failure to comply is capable of being cured, such failure is not cured within seven (7) Business Days;

(g)       any representation, statement, report or certificate made or delivered by the Borrower to the Lender under any Loan Document is not true and correct in any material respect when made, deemed made or furnished and either such inaccuracy is a result of an intentional breach by the Borrower or such default is not cured to the Lender’s satisfaction within fifteen (15) days after the occurrence thereof;

(h)       the Borrower shall fail to comply with any other provision of any Loan Document and either such default is an intentional breach by the Borrower or such default is not cured to the Lender’s satisfaction within fifteen (15) days after the occurrence thereof;

(i)       (i) the Borrower shall take any steps (including board or other corporate authorization) to authorize an Insolvency Proceeding or (ii) an Insolvency Proceeding is commenced against the Borrower and is not dismissed within thirty (30) days thereafter or (iii) an Insolvency Proceeding is commenced by the Borrower;

(j)       Any order, judgment or decree shall be entered against the Borrower decreeing, the dissolution or split up of the Borrower and such order shall remain undischarged or unstayed for a period in excess of thirty (30) days;

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(k)       (i) the Borrower or any other Person shall challenge in any Action the validity or enforceability of any of the Loan Documents, the legality or enforceability of any of the Obligations or the perfection or priority of any Lien granted to the Lender or (ii) the Borrower shall contest the validity or enforceability of any Loan Document in writing or deny in writing that it has any further liability under any Loan Document to which it is a party;

(l)       any Loan Document ceases to be in full force or effect or shall be declared null and void, or the Lender shall not have or shall cease to have a valid and perfected first-priority Lien on any portion of the Collateral purported to be conveyed by any Loan Document, or any Loan Document that purports to create a Lien, shall, for any reason, fail or cease to create a valid, perfected and first priority Lien on or security interest in the Collateral covered hereby or thereby free and clear of any other Lien, in each case without the prior written consent of the Lender;

(m)       any judicial process, condemnation or forfeiture proceedings is brought against any material item or portion of the Collateral or any rights therein shall be subject to such judicial process, condemnation or forfeiture proceedings and is not dismissed within 10 days thereafter;

(n)       the occurrence of any event or development that has or could reasonably be expected to have an Adverse Effect; or

(o)       the occurrence of any event that constitutes (or with the passage of time or the giving of notice or both would constitute) an event of default under any Junior Lien Obligation or otherwise permits (or with the passage of time or the giving of notice or both would permit) the Junior Lien Lender to exercise any remedy under any such Junior Lien Obligation.

7.2        Remedies . Upon or after the occurrence of an Event of Default, the Lender may, in its discretion, do any one or more of the following:

(a)       In the case of any Event of Default other than that described in Section 7.1(i)(ii) or (iii) , by notice to the Borrower, (i) reduce or terminate the Commitment, whereupon the Commitment shall immediately be reduced or terminated and (ii) declare all or any part of the Obligations due and payable, whereupon the same shall become without further presentment, protest, notice or demand (all of which presentment, protest, notice and demand the Borrower expressly waives) become immediately due and payable;

(b)       In the case of any Event of Default described in Section 7.1(i)(ii) or (iii) , automatically, without presentment, demand, protest or other notice of any kind or any other act by the Lender, all of which are hereby waived by the Borrower, the Commitment shall immediately terminate and each of the following shall immediately become due and payable (A) the unpaid principal amount of and interest on the Loans and (B) all other Obligations;

(c)       In the case of any Event of Default described in Section 7.1(d) or 7.1(e) , immediately and without prior notice to the Borrower, sell all or any portion of the Collateral, thorough an exchange or otherwise, and apply such payment to repay the Obligations; and

(d)       In the case of any Event of Default (including the ones described above), (i) exercise all rights and remedies provided in the Loan Documents, (ii) exercise any right of counterclaim, setoff or otherwise which it may have with respect to money or property of the Borrower or any of its Related Parties, (iii) bring any Action permitted by Regulations for the specific performance of, or injunction against any violation of, any Loan Document, including as permitted by applicable Regulation the obtaining of the ex parte appointment of a receiver, and exercise any power granted under or to recover judgment under any Loan Document, (iv) enforce any and all Liens and security interests created pursuant to the Loan Documents, including selling the Collateral through an exchange or otherwise without the requirement of prior notice to or upon the Borrower or any other Person (which notice is hereby expressly waived to the maximum extent permitted by the UCC or any other applicable Regulations) and (v) exercise any other right or remedy permitted by applicable Regulations or otherwise available to the Lender at law, in equity or otherwise.

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7.3        Borrower’s Acknowledgement of Potential Collateral Loss . The Borrower understands and agrees to the following:

(a)       While the Collateral Claim Percentage and the Collateral Claim Period are intended to provide the Borrower an opportunity to provide additional Collateral in the absence of any other Event of Default, the concept of Liquidity Percentage is necessary and appropriate to protect the Lender against periods of high volatility and rapid changes in value of the Collateral. As a result, the Borrower may see the Collateral being sold without notice, at a time when it is losing its value rapidly, even if such loss of value is ultimately temporary and even at a time when the Borrower is willing and able to repay the Loan through other means.

(b)        Anything else in any Loan Document notwithstanding, certain events (including forks) may add assets to the Collateral (or otherwise transform part of the Collateral) so as to make it technologically difficult or impossible for the Lender to transfer all or part of the Collateral back to the Borrower. All Losses to the Borrower, its Affiliates or other Persons from such event shall constitute an “Indemnified Claim” hereunder for which the liability of the Lender and its Related Parties is limited hereunder.

(c)        (x) any transfer of Collateral, either to or from the Borrower or other parties, results in transfer fees (such as mining fees, etc.) and that such transfer fees are the responsibility of the Borrower and are typically deducted directly from such Collateral and reduce its value, so that, even if the Borrower pays all Obligations in full in cash, the Collateral returned to the Borrower shall be reduced by such transfer fees, (y) it may not be possible to sell at the price shown in the Valuation Index at the time of the sale due to market conditions and to the time necessary to complete all steps to sell the Collateral and (z) the Lender will use its judgment to make choices to obtain what it feels is the best price for the Collateral to get the Obligations repaid and these choices will not necessarily reflect the choices the Borrower would have made to obtain the best value for the Collateral as a whole.

7.4        No Waiver; Remedies . No failure or delay by any party in exercising any right, power or privilege under this Agreement or any other Loan Document will operate as a waiver of such right, power or privilege. A single or partial exercise of any right, power or privilege will not preclude any other or further exercise of the right, power or privilege or the exercise of any other right, power or privilege. The remedies herein conferred upon the Lender are not intended to be exclusive of any other remedies and each and every remedy is cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of any Regulation.

SECTION 8.      GENERAL PROVISIONS

8.1        Modifications and Signatures .

(a)        Amendments. This Agreement and the other Loan Documents contain and constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior negotiations, agreements, and understandings, whether written or oral, of the parties hereto. No amendment, modification or termination of any provision of this Agreement or any other Loan Document shall be effective without the written consent of the Lender and the Borrower. No waiver or consent shall be effective without the written consent of the Lender and any such waiver shall then be effective only in the specific instance and for the specific purpose for which it was given.

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(b)        Successors and Assigns . This Agreement shall bind and inure solely to the benefit of the Borrower, the Lender, the Related Parties of the Lender and their respective successors and, if permitted, assigns; provided , that the Borrower may not assign this Agreement or any other Loan Document or any rights or obligations hereunder or thereunder without the Lender’s prior written consent and any prohibited assignment shall be absolutely void. The Lender may sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, or any right or remedy under, the Obligations and the Loan Documents without the consent of the Borrower.

(c)        No Waiver by Course of Dealing. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice (except as specifically required hereunder or under any other Loan Document) or demand in similar or other circumstances. The failure by the Lender at any time or times to require strict performance by the Borrower of any provision of this Agreement or any of the other Loan Documents or the grating of any waiver or indulgence shall not waive, affect or otherwise diminish any right of the Lender thereafter to demand strict compliance and performance with such provision, nor shall it constitute a course of dealing by the Lender at variance with the terms of this Agreement or any other Loan Document such as to require further notice by the Lender of the Lender’s intent to require strict adherence to the terms of such Loan Document in the future. Any such actions shall not in any way affect the ability of the Lender, in its discretion, to exercise any rights available to it under this Agreement, the other Loan Documents or under applicable Regulations.

(d)        Execution in Counterparts . This Agreement may be executed in counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and both of which, when taken together, shall constitute but one and the same Agreement. In proving this Agreement in any judicial proceedings, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom such enforcement is sought.

(e)        Electronic Signatures. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or email electronic signatures. The Borrower expressly agrees that this Agreement is a “transferable record” as defined in applicable Regulations relating to electronic transaction and that it may be created, authenticated, stored, transmitted and transferred in a manner consistent with and permitted by such applicable Regulations.

8.2        Notices and Communications . All notices, requests, demands, and other communications to either party hereto or given under any Loan Document shall be in writing (including electronic mail transmission or similar writing) and shall be given to such party at the physical address or send to the electronic mailing address set forth in below or at such other physical address or electronic mailing address as such party may hereafter specify for the purpose of notice to the Lender and the Borrower in accordance with the provisions of this Section 8.2 :

If to the Borrower, to it at its address set forth on Schedule I .

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Each such notice, request or other communication shall be effective (a) if given by mail, three (3) Business Days after such communication is deposited in the U.S. Mail with first class postage pre-paid, addressed to the noticed party at the address specified herein, (b) if by nationally recognized overnight courier, when delivered with receipt acknowledged in writing by the noticed party, (c) if given by personal delivery, when duly delivered with receipt acknowledged in writing by the noticed party or (d) if given by electronic mail, unless the Lender otherwise prescribes, upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided , however , that if such electronic mail is not sent during the normal business hours of the recipient, such electronic mail shall be deemed to have been sent at the opening of business on the next business day for the recipient. Any written notice, request or demand that is not sent in conformity with the provisions hereof shall nevertheless be effective on the date that such notice, request or demand is actually received by the individual to whose attention at the noticed party such notice, request or demand is required to be sent.

8.3        General Indemnity . The Borrower hereby agrees to indemnify and defend the Indemnitees against and to release and hold the Indemnitees harmless from any Indemnified Claim that may be instituted or asserted against or incurred by any of the Indemnitees. Additionally, if any Taxes (excluding Taxes imposed upon or measured solely by the net income of the Lender, but including any intangibles tax, stamp tax, recording tax or franchise tax) shall be payable by the Lender or the Borrower on account of the execution or delivery of this Agreement, or the execution, delivery, issuance or recording of any of the other Loan Documents, or the creation or repayment of any of the Obligations hereunder, by reason of any applicable Regulations now or hereafter in effect, the Borrower shall pay (or shall promptly reimburse the Lender for the payment of) all such Taxes, including any interest and penalties thereon, and will indemnify and hold Indemnitees harmless from and against all liability in connection therewith. The foregoing indemnities shall not apply to Indemnified Claims incurred by any Indemnitee as a result of its own gross negligence or willful misconduct as determined by a final non-appealable order of a court of competent jurisdiction. Notwithstanding anything to the contrary in any of the Loan Documents, the obligations of the Borrower with respect to each indemnity given by it in this Agreement or any of the other Loan Documents in favor of the Lender shall survive the payment in full of the Obligations. If the Borrower shall be required by law to withhold or deduct any Taxes from or in respect of any sum payable hereunder or such document to the Lender, (A) the sum payable to the Lender shall be increased as may be necessary so that after making all required withholding or deductions (including withholding or deductions applicable to additional sums payable under this Section 8.3 ) the Lender receives an amount equal to the sum it would have received had no such withholding or deductions been made, (B) the Borrower shall make such withholding or deductions and (C) the Borrower shall pay the full amount withheld or deducted to the relevant taxation authority or other authority in accordance with applicable Regulations. The Borrower will indemnify the Lender against, and reimburse the Lender on demand for, the full amount of all Taxes (including any Taxes imposed by any governmental authority on amounts payable under this Section 8.3 and any additional income or franchise taxes resulting therefrom) incurred or paid by the Lender or any bank holding company parent of the Lender and any liability (including penalties, interest, and out-of-pocket expenses paid to third parties) arising therefrom or with respect thereto, whether or not such Taxes were lawfully payable. Within thirty (30) days after the date of any payment of Taxes by the Borrower, it will furnish to the Lender, at its address referred to in Section 8.2 , the original or a certified copy of a receipt or other documentation reasonably satisfactory to the Lender, evidencing payment thereof.

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8.4        Expenses . Whether or not the transactions contemplated hereby shall be consummated or any Loans shall be made, the Borrower agrees to pay promptly:

(a)       all the actual and reasonable costs and expenses of preparation of the Loan Documents on the Closing Date and the reasonable fees, expenses and disbursements of counsel to the Lender in connection with the negotiation, preparation and execution of the Loan Documents on the Closing Date, in any amount not to exceed the Legal Closing Fee in the aggregate; all the actual and reasonable costs and expenses of preparation of any Loan Documents after the Closing Date and any consents, amendments, waivers or other modifications to any Loan Documents; the reasonable fees, expenses and disbursements of counsel to the Lender in connection with the administration of the Loan Documents and any consents, waivers, amendments, supplements or other modifications thereto and any other documents or matters requested by the Borrower;

(b)       all the actual costs and reasonable expenses of creating and perfecting Liens in favor of the Lender, pursuant hereto, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums and reasonable fees, expenses and disbursements of counsel to the Lender;

(c)       all the actual costs and reasonable fees, expenses and disbursements of any auditors, accountants, consultants or appraisers;

(d)       all the actual costs and reasonable expenses (including the reasonable fees, expenses and disbursements of any appraisers, consultants, advisors and agents employed or retained by the Lender and its counsel) in connection with the inspection, verification, custody or preservation of any Collateral, to the extent required or permitted hereunder;

(e)       after the occurrence of a Default or an Event of Default, all costs and expenses, including reasonable attorneys’ fees (including allocated costs of internal counsel) and costs of settlement, incurred by the Lender in enforcing any Obligation of or in collecting any payments due from the Borrower hereunder or under the other Loan Documents by reason of such Default or Event of Default (including in connection with the sale of, collection from, or other realization upon any Collateral or the enforcement of any guaranty) or in connection with any negotiations, reviews, refinancing or restructuring of the credit arrangements provided hereunder, including in the nature of a “work out” or pursuant to any insolvency or bankruptcy cases or proceedings; and

(f)       the foregoing shall be in addition to, and shall not be construed to limit, any other provisions of the Loan Documents regarding indemnification and costs and expenses to be paid by the Borrower.

8.5        Set-Off . In addition to any rights now or hereafter granted under applicable Regulations and not by way of limitation of any such rights, upon the occurrence and during the continuance of any Event of Default, each Secured Party is hereby authorized by the Borrower at any time or from time to time, without notice or demand to the Borrower or to any other Person, any such notice or demand being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, time or demand, provisional or final, including indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other indebtedness or other amounts at any time held or owing by such Secured Party to or for the credit or the account of the Borrower or any of its Related Parties against and on account of the Obligations of the Borrower hereunder (including from the proceeds of any Loan to be disbursed hereunder), irrespective of whether or not (a) such Secured Party shall have made any demand hereunder or (b) the principal of or the interest on the Loans or any other Obligation shall have become due and payable and although such obligations and liabilities, or any of them, may be contingent or unmatured.

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8.6        Governing Law; Consent to Forum .

(a)        Except as otherwise expressly provided in any other LOAN Document, this Agreement, the other LOAN Documents and all claims, Actions and matters arising hereunder or thereunder or related hereto or thereto ARE governed by, and construed and enforced in accordance with, the laws of the State of New York.

(b)       Any Action with respect to any Loan Document may be brought in the New York State courts sitting in New York County or the federal courts of the United States of America for the Southern District of New York and sitting in New York County. The Borrower (a) accepts for itself and in respect of its property, generally and unconditionally, the non-exclusive jurisdiction of such courts, (b) irrevocably waives any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens , that it may now or hereafter have to the bringing of any Action in those jurisdictions, (c) irrevocably consents to the service of process of any court referred to above in any Action by the mailing of copies of the process to the parties hereto as provided in Section 8.2 and (d) agrees that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Service effected as provided in this manner will become effective ten (10) calendar days after the mailing of the process. Nothing contained in any Loan Document shall affect the right of the Lender to serve process in any other manner permitted by applicable Regulations or commence Actions or otherwise proceed against the Borrower in any other jurisdiction.

8.7        Waiver of Jury Trial and other Certain Rights .

(a)        The parties hereto hereby irrevocably and unconditionally waive, to the fullest extent permitted by applicable Regulations, any right that they may have to trial by jury of any claim or cause of action or in any Action, directly or indirectly based upon or arising out of this Agreement (whether based on contract, tort or any other theory). Each party (a) certifies that no representative, agent, or attorney of any other party has represented, expressly or otherwise, that such other parties would not, in the event of litigation, seek to enforce the foregoing waiver and (b) acknowledges that it and the other parties have been induced to enter into this Agreement and the other LOAN Documents by, among other things, the mutual waivers and certifications in this section.

(b)       The Borrower acknowledges and agrees that the foregoing waivers are a material inducement to the Lender to enter into and accept this Agreement. The Borrower has reviewed the foregoing waivers with its legal counsel and have knowingly and voluntarily waived its jury trial rights following consultation with such legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. This Section 8.7 shall not restrict a party from exercising remedies under the UCC or from exercising pre-judgment remedies under applicable Regulations.

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(c)       To the fullest extent permitted by applicable Regulations, the Borrower hereby knowingly, intentionally and intelligently waives (with the benefit of advice of legal counsel of its own choosing): (i) notice prior to taking possession or control of any of the Collateral and the requirement to deposit or post any bond or other security which might otherwise be required by any court or applicable Regulations prior to allowing the Lender to exercise any of such Person’s self-help or judicial remedies to obtain possession of any of the Collateral; (ii) any claim against the Lender on any theory of liability, for special, indirect, consequential, exemplary or punitive damages arising out of, in connection with or as a result of any of the Loan Documents, any transaction thereunder, possession or control of the Collateral by the Lender, the enforcement of any remedies by the Lender or the use of any proceeds of any Loan; and (iii) notice of acceptance of this Agreement by the Lender.

8.8        Performance of the Borrower’s Obligations . If the Borrower shall fail to discharge any covenant, duty or obligation hereunder or under any of the other Loan Documents, the Lender may, in its discretion at any time, for the Borrower’s account and at the Borrower’s expense, pay any amount or do any act required of the Borrower hereunder or under any of the other Loan Documents or otherwise lawfully requested by the Lender. All costs and expenses incurred by the Lender in connection with the taking of any such action shall be reimbursed to the Lender by the Borrower on demand with interest at the Interest Rate from the date such payment is made or such costs or expenses are incurred to the date of payment thereof. Any payment made or other action taken by the Lender under this Section 8.8 shall be without prejudice to any right to assert, and without waiver of, an Event of Default hereunder and without prejudice to the Lender’s right to proceed thereafter as provided herein or in any of the other Loan Documents.

8.9        Marshaling . No Secured Party shall be under any obligation to marshal any property in favor of the Borrower or any other party or against or in payment of any Obligation. To the extent that any Secured Party receives a payment from the Borrower, from the proceeds of the Collateral, from the exercise of its rights of setoff, any enforcement action or otherwise, and such payment is subsequently, in whole or in part, invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party, then to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such payment had not occurred.

8.10        Further Assurances . The Borrower agrees to take such further actions as the Lender shall reasonably request from time to time in connection herewith to evidence, give effect to or carry out this Agreement and the other Loan Documents and any of the transactions contemplated hereby or thereby. Promptly after the Lender’s request therefor, the Borrower shall execute or cause to be executed and delivered to the Lender such instruments, assignments, title certificates or other documents as are necessary or desirable under the UCC or other applicable Regulations to protect or perfect (or continue the perfection of) the Liens upon the Collateral granted under the Loan Documents.

8.11        External Communications .

(a)        No Press Releases; Confidentiality . None of the Borrower and its Affiliates shall (i) use any name, trademark, service mark, symbol, logo (or any abbreviation, contraction or simulation thereof) of, or otherwise refer to, any Secured Party without the prior consent of the Lender (including in any press release, letterhead, public announcement or marketing material), except, after consulting with the Lender, to the extent required to do so under applicable Regulations or (ii) represent that the Borrower or its Affiliates, any product or service of the Borrower or its Affiliates, or any know how or policy or practice of the Borrower or its Affiliates has been approved or endorsed by any Secured Party. The Borrower shall, and shall ensure that its Related Parties shall, maintain confidential all information about obtained by them with respect to the Lender in connection with this Agreement; provided that (i) such information may be provided on a confidential basis to any Governmental Authority with appropriate jurisdiction over the Borrower and (ii) Borrower’s parent company, DPW Holdings, Inc. shall, in consultation with the Lender, who shall be provided a draft beforehand and given the opportunity to comment, prepare and file a Current Report on Form 8-K with the Securities and Exchange Commission within the time prescribed therefor by the NYSE.

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(b)        Credit Report and Other Authorizations . The Borrower authorizes the Lender, its agents and representatives and any credit reporting agency engaged by the Lender, to (i) investigate any references given or any other statements or data obtained from or about the Borrower for the purpose of this Agreement, (ii) obtain consumer business credit reports on the Borrower and (iii) share information regarding the Borrower’s performance under this Agreement with affiliates.

8.12        Survival of Representations . All representations and warranties made in this Agreement and the other Loan Documents shall survive the making of any extension of credit hereunder and the delivery of any promissory note evidencing any Loan or the Obligations and shall continue in full force and effect until the full and final payment and performance of the Obligations and the termination of the Loan Documents.

8.13        Lender-Creditor Relationship . The relationship between the Borrower and the Lender created by the Loan Documents and the transactions contemplated therein is solely that of lender and creditor. The Lender has no any fiduciary relationship or duty to the Borrower arising out of or in connection with, and there is no agency, tenancy or joint venture relationship between the Borrower and the Lender by virtue of, any Loan Document or any transaction contemplated therein. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document or any refinancing of any Obligation), the Borrower acknowledges and agrees that (a) the transactions contemplated by this Agreement and the Security Agreement involving the Lender are arm’s-length commercial transactions between the Borrower, on the one hand, and the Lender on the other hand, (b) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, (c) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents, (d) the Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates or any other Person, and (e) the Lender has no obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents.  The Lender and its Related Parties may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and the Lender has no obligation to disclose any of such interests to the Borrower or any of its Affiliates.  To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated by any Loan Document.  The Borrower hereby affirmatively represents and certifies to the Lender that it has consulted its own legal counsel, accounting, regulatory and tax advisors and understands and accepts the terms, conditions, risks and implications of the transactions evidenced by this Agreement.

8.14        Severability . Any provision of any Loan Document being held illegal, invalid or unenforceable in any jurisdiction shall not affect any part of such provision not held illegal, invalid or unenforceable, any other provision of any Loan Document or any part of such provision in any other jurisdiction, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. In addition, upon any determination that any such term or other provision is invalid, illegal or incapable of being enforced, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

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8.15        Interpretation . As used in this Agreement, references to the singular will include the plural and vice versa and references to the masculine gender will include the feminine and neuter genders and vice versa, as appropriate. Unless otherwise expressly provided in this Agreement (a) the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement, (b) recital, article, section, subsection, schedule and exhibit references are references with respect to this Agreement unless otherwise specified, (c) except as otherwise expressly written herein, any reference to any agreement in any Loan Document shall include a reference to all recitals, appendices, exhibits and schedules to such agreement and, unless the prior written consent of any party is required hereunder and is not obtained, shall be a reference to such agreement as waived, amended, restated, supplemented or otherwise modified and (d) except as otherwise expressly written herein, any reference to a specific Regulation shall be to such Regulation, as modified from time to time, together with any successor or replacement Regulation, in each case as in effect at the time of determination. Unless the context otherwise requires, when used in any Credit Document, the following terms have the following meaning: (u) “execution,” “signed,” “signature” and words of like import shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Regulation, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other similar state Regulation based on the Uniform Electronic Transactions Act, (v) “incur” means incur, create, make, issue, assume or otherwise become or remain directly or indirectly liable in respect of or responsible for, in each case whether directly or indirectly, as primary obligor or guarantor or endorser, and the terms “incurrence” and “incurred” and similar derivatives shall have correlative meanings, (w) “knowledge” of the Borrower means the best knowledge of any officer, director or employee of the Borrower after due inquiry, (x) “including” means “including, without limitation,” (y) “asset” and “property” have the same meaning and mean, “collectively, all rights and interests in tangible and intangible assets and properties, whether real, personal or mixed and including cash, capital stock, revenues, accounts, leasehold interests, contract rights and other rights under Permits and Contractual Obligations” and (z) “documents” means “collectively, all documents, drafts, instruments, agreements, indentures, certificates, forms, opinions, powers of attorney, notices, summons, reports, financial statements and other writings, however evidenced, whether in physical or electronic form.” The headings in this Agreement are included for convenience of reference only and will not affect in any way the meaning or interpretation of this Agreement. All references in this Agreement or any other Loan Document to statutes and regulations shall include all amendments of same and implementing regulations and any successor statutes and regulations; to any instrument or agreement (including any of the Loan Documents) shall include any and all modifications and supplements thereto and any and all restatements, extensions or renewals thereof to the extent such modifications, supplements, restatements, extensions or renewals of any such documents are permitted by the terms hereof and thereof. A Default or an Event of Default shall be deemed to exist at all times during the period commencing on the date that such Default or Event of Default occurs to the date on which such Default or Event of Default is waived in writing pursuant to this Agreement or, with respect to any Default, is cured within any period of cure expressly provided in this Agreement. Whenever in any provision of this Agreement or any other Loan Document, the Lender is authorized to take or decline to take any action (including making any determination) in the exercise of its “discretion,” such provision shall be understood to mean that the Lender may take or refrain to take such action in its sole discretion. References to times of the day shall refer to Eastern Time. In the computation of periods of time from a specified date to a later specified date, the word “ from ” means “from and including,” the words “ to ” and “ until ” each mean “to but excluding” and the word “ through ” means “to and including.” Time is of the essence of this Agreement and the other Loan Documents. No provision of this Agreement or any of the other Loan Documents shall be construed against or interpreted to the disadvantage of any party hereto by any Governmental Authority by reason of such party having or being deemed to have structured, drafted or dictated such provision. “ month ” (but not calendar month) means each period from the day (including the Closing Date itself) in a calendar month numerically-corresponding to the day of the Closing Date (provided that, if such calendar month does not have any such numerically-corresponding day, such numerically-corresponding day shall be deemed to be the last day of such calendar month) to the next such numerically-corresponding day in the next calendar month.

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In witness whereof, the parties hereto have caused this Loan Agreement to be duly executed and delivered by their respective representatives thereunto duly authorized as of the date first written above. 

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Exhibit 10.2

Promissory Note

For value received , the undersigned, _ Super Crypto Mining, Inc. _, a Delaware Corporation (the “ Borrower ”), hereby promises to pay to the order of the Lender set forth above (the “ Lender ”) the Principal Amount set forth above, or, if less, the aggregate unpaid principal amount of the Loan (as defined in the Loan Agreement referred to below) made by the Lender to the Borrower on the date hereof, payable at such times, and in such amounts, as are specified in the Loan Agreement.

The Borrower promises to pay interest on the unpaid principal amount of such Loan from the date made until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Loan Agreement.

Both principal and interest are payable in U.S. Dollars to ALPPS LLC, at 256 West 38th Street, 15 ^th Floor, New York NY 10018, in immediately available funds.

This Note is one of the promissory notes referred to in, and is entitled to the benefits of, and is a Loan Document under, the Loan Agreement, dated as of _ October 3, 2018 __ (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Loan Agreement ”), between the Borrower and the Lender. Capitalized terms used herein and not defined herein are used herein as defined in the Loan Agreement.

The Loan Agreement, among other things, (a) provides for the making of a Loan by the Lender to the Borrower in an aggregate amount not to exceed at any time outstanding the Principal Amount set forth above, the indebtedness of the Borrower resulting from such Loan being evidenced by this Note and (b) contains provisions for acceleration of the maturity of the unpaid principal amount of this Note upon the happening of certain stated events and also for prepayments on account of the principal hereof prior to the maturity hereof upon the terms and conditions therein specified.

This Note is secured as provided in the Security Agreement and the other Loan Documents.

Demand, diligence, presentment, protest and notice of non-payment and protest are hereby waived by the Borrower.

This Note shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

[Signature Pages Follow]

In witness whereof , the Borrower has caused this Note to be executed and delivered by its duly authorized officer as of the day and year and at the place set forth above.

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Exhibit 10.3

SECURITY AGREEMENT

Security Agreement, dated as of October 3, 2018, by Super Crypto Mining, Inc. (the “ Borrower ”), as grantor, in favor of ALLPPS LLC, a Delaware limited liability company (“ Lender ”) and each other Secured Party (as defined below).

W i t n e s s e t h:

Whereas , pursuant to the Loan Agreement dated as of the date hereof (as the same may be modified from time to time, the “ Loan Agreement ”) between the Borrower and the Lender, the Lender has agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein; and

Whereas , it is a condition precedent to the obligation of the Lender to make extensions of credit to the Borrower under the Loan Agreement that the Borrower shall have executed and delivered this Agreement to the Lender;

Now, therefore, in consideration of the premises and to induce the Lender to enter into the Loan Agreement and to make extensions of credit to the Borrower thereunder, the Borrower hereby agrees with the Lender as follows:

Article I

Defined Terms

Section 1.1          Definitions . (a) Capital terms used herein without definition are used as defined in the Loan Agreement.

(b)        The following terms shall have the following meanings:

“ Agreement ” means this Security Agreement.

“ Collateral ” has the meaning specified in Section 2.1 .

“ Control Agreement ” means an agreement, in form and substance satisfactory to the Lender between the Lender and the Borrower, to the extent such agreement is effective to grant “control” (as defined under each applicable UCC) over the Collateral to the Lender.

“ Liabilities ” means all claims, actions, suits, judgments, damages, losses, liability, obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions, charges, disbursements and expenses, in each case of any kind or nature (including interest accrued thereon or as a result thereto and fees, charges and disbursements of financial, legal and other advisors and consultants), whether joint or several, whether or not indirect, contingent, consequential, actual, punitive, treble or otherwise.

“ proceeds ” means “proceeds” as such term is defined in section 9-102 of the UCC but, in any event, shall include, without limitation, all dividends or other income from the Collateral, collections thereon or distributions with respect thereto. Without limiting the generality of the foregoing, the term “Proceeds” includes any blockchain or other asset received with respect to any blockchain asset that is otherwise part of the Collateral (including as a result of a fork in the blockchain) and whatever is receivable or received when blockchain assets or their proceeds are sold, exchanged, collected, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes proceeds of any right to indemnity or guaranty payable to Borrower from time to time with respect to any other Collateral.

SECURITY AGREEMENT

“ Secured Parties ” means the Lender, its Related Parties, each other beneficiary of any indemnification or reimbursement obligation by the Borrower under any Loan Document and any other Person owed any Obligation.

“ UCC ” means the Uniform Commercial Code as from time to time in effect in the State of New York; provided , however , that, in the event that, by reason of mandatory provisions of any applicable Regulation, any of the attachment, perfection or priority of the Lender’s or any other Secured Party’s security interest in any Collateral is governed by the Uniform Commercial Code of a jurisdiction other than the State of New York, “ UCC ” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of the definitions related to or otherwise used in such provisions.

(c)         The following terms have the meanings given to them in the UCC and terms used herein without definition that are defined in the UCC have the meanings given to them in the UCC (such meanings to be equally applicable to both the singular and plural forms of the terms defined): “ accounts , “ as-extracted collateral ,” “ deposit accounts ,” “ documents ,” “ equipment ,” “ farm products ,” “general intangibles,” “ health-care-insurance receivable ,” “ instruments ,” “ investment property ,” “ proceeds ,” “ record ” and “ securities’ accounts .”

Section 1.2          Certain Other Terms . (a) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. The terms “ herein ,” “ hereof ” and similar terms refer to this Agreement as a whole and not to any particular Article, Section or clause in this Agreement. References herein to an Annex, Article, Section or clause refer to the appropriate Annex to, or Article, Section or clause in this Agreement. Where the context requires, provisions relating to any Collateral when used in relation to the Borrower shall refer to the Borrower’s Collateral or any relevant part thereof.

(b)         Section 8.16 ( Interpretation ) of the Loan Agreement is applicable to this Agreement to the same extent it is applicable to the Loan Agreement.

Article II

Grant of Security Interest

Section 2.1          Collateral . For the purposes of this Agreement, all of the following property now owned or at any time hereafter acquired by the Borrower or in which the Borrower now has or at any time in the future may acquire any right, title or interests is collectively referred to as the “ Collateral ”:

(a)         the Collateral described on Schedule I of the Loan Agreement and all other blockchain assets stored in the Borrower’s account in the Lender’s Wallet;

(b)         all other property of the debtor held by any Secured Party, including all property of every description, in the custody of or in transit to such Secured Party for any purpose, including safekeeping, collection or pledge, for the account of the debtor or as to which the debtor may have any right or power, including but not limited to cash;

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(c)         all “accounts,” “deposit accounts,” “documents,” “general intangibles,” “instruments,” “investment property” and “securities’ accounts” as each of those terms is defined in the UCC, in each case solely to the extent relating to, holding, containing or constituting the foregoing;

(d)        all books and records pertaining to the other property described in this Section 2.1 ; and

(e)         to the extent not otherwise included, all “income” and rights to receive such “income” (as defined in the UCC) of, replacements for, substitutions of, products or proceeds of and distributions relating to or constituting, any of the foregoing and all rights of Debtor to receive from any third party any of the foregoing.

Section 2.2           Grant of Security Interest in Collateral . The Borrower, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations of the Borrower (the “ Secured Obligations ”), hereby mortgages, pledges and hypothecates to the Lender for the benefit of the Secured Parties, and grants to the Lender for the benefit of the Secured Parties a Lien on and security interest in, all of its right, title and interest in, to and under the Collateral of the Borrower.

Article III

Representations and Warranties

To induce the Lender to enter into the Loan Documents, the Borrower hereby represents and warrants each of the following to the Lender and the other Secured Parties:

Section 3.1          Title; No Other Liens . Except for the Lien granted to the Lender pursuant to this Agreement or under any Loan Document (including Section 3.2 ), the Borrower owns each item of the Collateral free and clear of any and all Liens or claims of others. The Borrower (a) is the record and beneficial owner of the Collateral pledged by it hereunder constituting instruments or certificates and (b) has rights in or the power to transfer each other item of Collateral in which a Lien is granted by it hereunder, free and clear of any other Lien.

Section 3.2          Perfection and Priority . The security interest granted pursuant to this Agreement constitutes a valid and continuing perfected first-priority security interest in favor of the Lender in all Collateral subject, for the following Collateral, to the occurrence of the following: (i) in the case of all Collateral in which a security interest may be perfected by filing a financing statement under the UCC, the completion of such filings, which have been delivered to the Lender in completed and duly authorized form and (ii) the execution of Control Agreements. Such security interest shall be prior to all other Liens on the Collateral except as permitted by any Loan Document upon the execution of Control Agreements as appropriate. Except as set forth in this Section 3.2 , all actions by the Borrower necessary or desirable to protect and perfect the Lien granted hereunder on the Collateral have been duly taken.

Section 3.3          Jurisdiction of Organization . The Borrower’s jurisdiction of organization, legal name and organizational identification number, if any, as of the date hereof, are as disclosed to the Lender prior to the date hereof.

Section 3.4           Collateral Delivery . As of the Closing Date, all Collateral has been transferred to the Lender in accordance with Section 4.3 . Upon the occurrence and during the continuance of an Event of Default, the Lender shall be entitled to exercise all of the rights of the Borrower in any Collateral, and a transferee or assignee of such Collateral shall become a holder of such Collateral to the same extent as the Borrower and be entitled to participate in the management of the issuer of such Collateral and, upon the transfer of the entire interest of the Borrower, the Borrower shall, by operation of law, cease to be a holder or owner of such Collateral.

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Section 3.5           Specific Collateral . None of the Collateral is, or is proceeds or products of, farm products, as-extracted collateral, health-care-insurance receivables or timber to be cut.

Section 3.6          Enforcement . Except as set forth in the Intercreditor Agreement, no Permit, notice to or filing with any Governmental Authority or any other Person or any consent from any Person is required for the exercise by the Lender of its rights (including voting rights) provided for in this Agreement or the enforcement of remedies in respect of the Collateral pursuant to this Agreement, including the transfer of any Collateral, except as may be required in connection with the disposition of any portion of the Collateral by laws affecting the offering and sale of securities generally or any approvals that may be required to be obtained from any bailees or landlords to collect the Collateral.

Article IV

Covenants

The Borrower agrees with the Lender to the following, as long as any Obligation remains outstanding and, in each case, unless the Lender otherwise consents in writing:

Section 4.1          Maintenance of Perfected Security Interest; Further Documentation and Consents . (a)  Generally . The Borrower shall (i) not use or permit any Collateral to be used unlawfully or in violation of any provision of any Loan Document, any Regulation or any policy of insurance covering the Collateral and (ii) not enter into any agreement, obligation or undertaking restricting the right or ability of the Borrower or the Lender to transfer any Collateral.

(b)         The Borrower shall maintain the security interest created by this Agreement as a perfected security interest having at least the priority described in Section 3.2 and shall defend such security interest and such priority against the claims and demands of all Persons.

(c)         In accordance with the Loan Agreement, the Borrower shall furnish to the Lender from time to time such lists, schedules and other documents as may be requested by the Lender further identifying and describing the Collateral and such other documents in connection with the Collateral as the Lender may reasonably request, all in reasonable detail and in form and substance satisfactory to the Lender.

(d)         At any time and from time to time, upon the written request of the Lender, the Borrower shall, for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, (i) promptly and duly execute and deliver, and have recorded, such further documents, including an authorization to file (or, as applicable, the filing) of any financing statement or amendment under the UCC (or other filings under similar Regulations) in effect in any jurisdiction with respect to the security interest created hereby and (ii) take such further action as the Lender may reasonably request, including executing and delivering any Control Agreements.

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Section 4.2          Changes in Locations, Name, Etc. Except upon 30 days’ prior written notice to the Lender and delivery to the Lender of all documents reasonably requested by the Lender to maintain the validity, perfection and priority of the security interests provided for herein, the Borrower shall not do any of the following:

(a)         change its jurisdiction of organization or its location; or

(b)         change its legal name or organizational identification number, if any, or corporation, limited liability company, partnership or other organizational structure to such an extent that any financing statement filed in connection with this Agreement would become misleading.

Section 4.3          Control . The Borrower shall have transferred all Collateral to the Lender and ensured that it is subject to a Control Agreement. During the continuance of an Event of Default, the Lender shall have the right, at any time in its discretion and without notice to the Borrower, to (a) execute any further document to transfer to or to register in its name or in the name of its nominees or transferees any Collateral and (b) exchange any item representing or evidencing any Collateral for items of smaller or larger denominations. The Lender shall be entitled to receive all distributions paid or made in respect of the Collateral (including with respect to the creation of any fork). The Borrower shall not grant “control” (within the meaning of such term under Article 9-106 of the UCC) over any Collateral to any Person other than the Lender.

Article V

Remedial Provisions

Section 5.1          Code and Other Remedies . (a) UCC Remedies . During the continuance of an Event of Default, the Lender may exercise, in addition to all other rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to any Secured Obligation, all rights and remedies of a secured party under the UCC or any other applicable Regulation.

(b)         Disposition of Collateral. Without limiting the generality of the foregoing, the Lender may, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon the Borrower or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), during the continuance of any Event of Default (personally or through its agents or attorneys), (i) collect, receive, appropriate and realize upon any Collateral and (ii) transfer, grant option or options to purchase and deliver any Collateral (enter into any agreement, commitment or other obligation to do any of the foregoing), in one or more portions at public or private sale or sales, at any exchange or office of any Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Lender shall have the right, upon any such public sale or sales and, to the extent permitted by the UCC and other applicable Regulations, upon any such private sale, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption of the Borrower, which right or equity is hereby waived and released. The Borrower acknowledges and agrees that (i) the Collateral is an asset of a nature that threatens to decline speedily in value and is of a type customarily sold on a recognized market (and that the exchanges available to sell the Collateral are recognized markets), (ii) that the Collateral is also the subject to widely distributed price quotations, such as the Valuation Index, and (iii) as a result thereof the Lender is not required to give the Borrower any notification of such sale or sales under the UCC and that, given the volatility of the price, the best way to sell it is as quickly as possible in a private sale without prior notice. The Borrower understands and agrees that (w) the value of the Collateral is highly volatile so that, if the LTV Ratio of any Loan equals or exceeds the Liquidation Percentage for such Loan or if any other Event of Default occurs, the Lender may sell all Collateral of the Borrower held by the Lender immediately and without prior notice to the Borrower, (x) any transfer of Collateral, either to or from the Borrower or other parties, results in transfer fees (such as mining fees, etc.) and that such transfer fees are the responsibility of the Borrower and are typically deducted directly from such Collateral and reduce its value, so that, even if the Borrower pays all Obligations in full in cash, the Collateral returned to the Borrower shall be reduced by such transfer fees, (y) it may not be possible to sell at the price shown in the Valuation Index at the time of the sale due to market conditions and to the time necessary to complete all steps to sell the Collateral and (z) the Lender will use its judgment to make choices to obtain what it feels is the best price for the Collateral to get the Obligations repaid and these choices will not necessarily reflect the choices the Borrower would have made to obtain the best value for the Collateral as a whole.

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(c)         Management of the Collateral. The Borrower further agrees, that, during the continuance of any Event of Default, (i) to the extent the Collateral is in the possession of the Borrower or any of its Related Parties, the Lender also has the right to require that the Borrower provide such guards and maintenance services as shall be necessary to protect the Collateral and to preserve and maintain such Collateral in good condition, (ii) until the Lender is able to transfer any Collateral, the Lender shall have the right to hold or use such Collateral to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for any other purpose deemed appropriate by the Lender and (iii) the Lender may, if it so elects, seek the appointment of a receiver or keeper to take possession of any Collateral and to enforce any of the Lender's remedies (for the benefit of the Secured Parties), with respect to such appointment without prior notice or hearing as to such appointment. The Borrower hereby consents to such rights and such appointment and hereby waives any objection the Borrower may have thereto or the right to have a bond or other security posted by the Lender in connection therewith. The Lender shall not have any obligation to the Borrower to maintain or preserve the rights of the Borrower as against third parties with respect to any Collateral while such Collateral is in the possession of the Lender.

(d)         Application of Proceeds. The Lender shall apply the cash proceeds of any action taken by it pursuant to this Section 5.1 , after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any Collateral or in any way relating to the Collateral or the rights of the Lender and any other Secured Party hereunder, including reasonable attorneys’ fees and disbursements and any transfer or mining fees relating to the transfer of any Collateral, to the payment in whole or in part of the Secured Obligations, as set forth in the Loan Agreement, and only after such application and after the payment by the Lender of any other amount required by any Regulation, need the Lender account for the surplus, if any, to the Borrower.

(e)         Direct Obligation . Neither the Lender nor any other Secured Party shall be required to make any demand upon, or pursue or exhaust any right or remedy against, the Borrower or any other Person with respect to the payment of the Obligations or to pursue or exhaust any right or remedy with respect to any Collateral therefor or any direct or indirect guaranty thereof. All of the rights and remedies of the Lender and any other Secured Party under any Loan Document shall be cumulative, may be exercised individually or concurrently and not exclusive of any other rights or remedies provided by any Regulation. To the extent it may lawfully do so, the Borrower absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Lender, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety, now or hereafter existing, arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of any Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.

(f)          Commercially Reasonable . To the extent that applicable Regulations impose duties on the Lender to exercise remedies in a commercially reasonable manner, the Borrower acknowledges and agrees that it is not commercially unreasonable for the Lender to do any of the following: 

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(i)          fail to incur significant costs, expenses or other Liabilities reasonably deemed as such by the Lender to transfer the Collateral to an exchange or otherwise prepare any Collateral for disposition;

(ii)         fail to obtain Permits, or other consents to dispose of, or for the collection of, any Collateral, or, if not required by other Regulations, fail to obtain Permits or other consents for the collection or disposition of any Collateral;

(iii)        fail to remove Liens on any Collateral or to remove any adverse claims against any Collateral;

(iv)        advertise or fail to advertise dispositions of any Collateral through publications or media of general circulation, whether or not such Collateral is of a specialized nature or to contact other Persons, whether or not in the same business as the Borrower, for expressions of interest in acquiring any such Collateral;

(v)         exercise collection remedies against other Persons obligated on any Collateral, directly or through the use of collection agencies or other collection specialists, hire one or more professional auctioneers to assist in the disposition of any Collateral, whether or not such Collateral is of a specialized nature or, to the extent deemed appropriate by the Lender, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Lender in the collection or disposition of any Collateral, or utilize Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets to dispose of any Collateral;

(vi)       dispose of assets in private sales instead of through exchanges or in wholesale rather than retail markets;

(vii)      disclaim disposition warranties, such as title, possession or quiet enjoyment; or

(viii)     purchase insurance or credit enhancements to insure the Lender against risks of loss, collection or disposition of any Collateral or to provide to the Lender a guaranteed return from the collection or disposition of any Collateral.

The Borrower acknowledges that the purpose of this Section 5.1 is to provide a non-exhaustive list of actions or omissions that are commercially reasonable when exercising remedies against any Collateral and that other actions or omissions by the Secured Parties shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 5.1 . Without limitation upon the foregoing, nothing contained in this Section 5.1 shall be construed to grant any rights to the Borrower or to impose any duties on the Lender that would not have been granted or imposed by this Agreement or by applicable Regulations in the absence of this Section 5.1 . The Borrower understands and agrees that the value of the Collateral is highly volatile so that, if the LTV Ratio of any Loan equals or exceeds the Liquidation Percentage for such Loan or if any other Event of Default occurs, the Lender may sell all Collateral of the Borrower held by the Lender immediately and without prior notice to the Borrower.

Section 5.2          Rights to Collateral . Upon the occurrence and continuance of any an Event of Default, taking into account the associated cure period pertinent thereto:

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(a)         Voting Rights . Until the return of the Collateral to the Borrower, the Lender or its nominee may exercise directly any right pertaining to the Collateral as the owner of the Collateral, including any right of conversion, exchange and subscription and any other right, privilege or option pertaining to the Collateral as if it were the absolute owner thereof and including the right to exchange at its discretion any Collateral upon any event requiring such exchange and the right to deposit and deliver any Collateral with any exchange, transfer agent committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Lender may determine, all without liability except to account for property actually received by it; provided , however , that the Lender shall have no duty to the Borrower to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing.

(b)         Proxies . In order to permit the Lender to exercise the rights that it may be entitled to exercise pursuant hereto and to receive all distributions that it may be entitled to receive hereunder, (i) the Borrower shall promptly execute and deliver (or cause to be executed and delivered) to the Lender all such proxies, payment orders, evidences of transfer and other instruments as the Lender may from time to time reasonably request and (ii) without limiting the effect of clause (i) above, the Borrower hereby grants to the Lender an irrevocable proxy to exercise all other rights, powers, privileges and remedies to which a holder of the Collateral would be entitled, which proxy shall be effective, automatically and without the necessity of any action (including any transfer of any Collateral on the applicable blockchain) by any other person and which proxy shall only terminate upon the payment in full of the Secured Obligations.

(c)         Authorization of Issuers . The Borrower hereby expressly irrevocably authorizes and instructs, without any further instructions from the Borrower, each other Person to (i) comply with any instruction received by it from the Lender in writing that states that an Event of Default is continuing and is otherwise in accordance with the terms of this Agreement and the Borrower agrees that such issuer shall be fully protected from Liabilities to the Borrower in so complying and (ii) unless otherwise expressly permitted hereby, make any payment or distribution with respect to the Collateral directly to the Lender.

Section 5.3          Proceeds to be Turned over to and Held by Lender . Unless otherwise expressly provided in the Loan Agreement or this Agreement, all proceeds of any Collateral received by the Borrower hereunder in Dollars, certificates of deposit, bankers’ acceptances, time and demand deposits and other similar cash equivalents shall be held by the Borrower in trust for the Lender and the other Secured Parties, segregated from other funds of the Borrower, and shall, promptly upon receipt by the Borrower, be turned over to the Lender in the exact form received (with any necessary endorsement). All such proceeds and other proceeds being held by the Lender (or by the Borrower in trust for the Lender) shall continue to be held as collateral security for the Secured Obligations and shall not constitute payment thereof until applied as provided in the Loan Agreement.

Section 5.4          Deficiency . The Borrower shall remain liable for any deficiency if the proceeds of any sale or other disposition of any Collateral are insufficient to pay the Secured Obligations and the fees and disbursements of any attorney employed by the Lender or any other Secured Party to collect such deficiency.

Article VI

The Lender

Section 6.1          Lender’s Appointment as Attorney-in-Fact . (a) The Borrower hereby irrevocably constitutes and appoints the Lender with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Borrower and in the name of the Borrower or in its own name, for the purpose of carrying out the terms of the Loan Documents, to take any appropriate action and to execute any document or instrument that may be necessary or desirable to accomplish the purposes of the Loan Documents, and, without limiting the generality of the foregoing, the Borrower hereby gives the Lender the power and right, on behalf of the Borrower, without notice to or assent by the Borrower, to do any of the following when an Event of Default shall be continuing:

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(i)          pay or discharge taxes and Liens levied or placed on or threatened against any Collateral, effect any repair or pay any insurance called for by the terms of the Loan Agreement (including all or any part of the premiums therefor and the costs thereof);

(ii)         execute, in connection with any sale provided for in Section 5.1 , any document to effect or otherwise necessary or appropriate in relation to evidence the transfer of any Collateral; or

(iii)        (A) direct any party liable for any payment under any Collateral to make payment of any moneys due or to become due thereunder directly to the Lender or as the Lender shall direct, (B) ask or demand for, and collect and receive payment of and receipt for, any moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral, (C) sign and indorse any receipt, assignment, verification, notice and other document in connection with any Collateral, (D) commence and prosecute any suit, action or proceeding at law or in equity in any court of competent jurisdiction to collect any Collateral and to enforce any other right in respect of any Collateral, (E) defend any actions, suits, proceedings, audits, claims, demands, orders or disputes brought against the Borrower with respect to any Collateral, (F) settle, compromise or adjust any such actions, suits, proceedings, audits, claims, demands, orders or disputes and, in connection therewith, give such discharges or releases as the Lender may deem appropriate and (G) generally, transfer, grant a Lien on, enter into any agreement or other obligation with respect to and otherwise deal with, any Collateral as fully and completely as though the Lender were the absolute owner thereof for all purposes and do, at the Lender’s option, at any time or from time to time, all acts and things that the Lender deems necessary to protect, preserve or realize upon any Collateral and the Secured Parties’ security interests therein and to effect the intent of the Loan Documents, all as fully and effectively as the Borrower might do.

(b)         If the Borrower fails to perform or comply with any obligation contained herein, the Lender, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such obligation.

(c)         The expenses of the Lender incurred in connection with actions undertaken as provided in this Section 6.1 , together with interest thereon at the rate set forth in Section 2.2 ( Interest ) of the Loan Agreement, from the date of payment by the Lender to the date reimbursed by the relevant Borrower, shall be payable by the Borrower to the Lender on demand.

(d)         The Borrower hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue of this Section 6.1 . All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until this Agreement is terminated and the security interests created hereby are released.

Section 6.2          Authorization to File Financing Statements . The Borrower authorizes, subject to any contrary provision in the Intercreditor Agreement (if any), the Lender and its agents, contractors and Affiliates, at any time and from time to time, to file or record financing statements, amendments thereto, and other filing or recording documents or instruments with respect to any Collateral in such form and in such offices as the Lender reasonably determines appropriate to perfect the security interests of the Lender under this Agreement, and such financing statements and amendments may described the Collateral covered thereby as “all assets of the debtor.” A photographic or other reproduction of this Agreement shall be sufficient as a financing statement or other filing or recording document or instrument for filing or recording in any jurisdiction. The Borrower also hereby ratifies its authorization for the Lender to have filed any initial financing statement or amendment thereto under the UCC (or other similar laws) in effect in any jurisdiction if filed prior to the date hereof.

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Section 6.3          Authority of Lender . The Borrower acknowledges that the rights and responsibilities of the Lender under this Agreement with respect to any action taken by the Lender or the exercise or non-exercise by the Lender of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Lender and the other Secured Parties, be governed by the Loan Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Lender and the Borrower, the Lender shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Borrower shall be under any obligation or entitlement to make any inquiry respecting such authority.

Section 6.4          Duty of Lender . The Lender shall be considered the owner of the Collateral until transferred back to the Borrower. The Lender’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession shall be to deal with it in the same manner as the Lender deals with similar property for its own account. The powers conferred on the Lender hereunder are solely to protect the Lender’s interest in the Collateral and shall not impose any duty upon the Lender to exercise any such powers. The Lender shall be accountable only for amounts that it receives as a result of the exercise of such powers, and neither it nor any of its Affiliates shall be responsible to the Borrower for any act or failure to act hereunder, except for their own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. In addition, the Lender shall not be liable or responsible for any loss or damage to any Collateral, or for any diminution in the value thereof, by reason of the act or omission of any warehousemen, carrier, forwarding agency, consignee or other bailee if such Person has been selected by the Lender in good faith.

Section 6.5           Obligations and Liabilities with respect to Collateral . Except for the obligation of the Lender to return the Collateral (less any applicable transfer fees) set forth above after the Lender shall be fully satisfied that all Secured Obligations shall have been irredeemably paid in full in cash (and all Commitments shall have been terminated), no Secured Party and no Affiliate thereof shall be liable for failure to transfer any Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of the Borrower or any other Person or to take any other action whatsoever with regard to any Collateral. The powers conferred on the Lender hereunder shall not impose any duty upon any other Secured Party to exercise any such powers. The other Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their respective officers, directors, employees or agents shall be responsible to the Borrower for any act or failure to act hereunder, except for their own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. In addition, the Borrower understands and agrees that certain events (including forks) may add assets to the Collateral (or otherwise transform part of the Collateral) so as to make it technologically difficult or impossible for the Lender to transfer all or part of the Collateral back to the Borrower. The Borrower agrees that all Losses to the Borrower, its Affiliates or other Persons from such event shall constitute an “Indemnified Claim” under the Loan Agreement for which the liability of the Lender and its Related Parties is limited thereunder.

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Article VII

 
Miscellaneous

Section 7.1          Reinstatement . The Borrower agrees that, if any payment made by the Borrower or other Person and applied to the Secured Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or the proceeds of any Collateral are required to be returned by any Secured Party to the Borrower, its estate, trustee, receiver or any other party, including the Borrower, under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, any Lien or other Collateral securing such liability shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, any Lien or other Collateral securing the Borrower’s liability hereunder shall have been released or terminated by virtue of the foregoing or (b) any other provision of this Agreement shall have been terminated, cancelled or surrendered, such Lien, other Collateral or provision shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any the Borrower in respect of any Lien or other Collateral securing such obligation or the amount of such payment.

Section 7.2          No Waiver by Course of Conduct . No Secured Party shall by any act (except by a written instrument pursuant to Section 7.4 ), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that such Secured Party would otherwise have on any future occasion.

Section 7.3          Amendments in Writing . None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Section 8.1 of the Loan Agreement.

Section 7.4          Notices . All notices, requests and demands to or upon the Lender or the Borrower hereunder shall be effected in the manner provided for in Section 8.2 of the Loan Agreement; provided , however , that any such notice, request or demand to or upon the Borrower shall be addressed to the Borrower’s notice address set forth in such Section 8.2 .

Section 7.5          Successors and Assigns . This Agreement shall be binding upon the successors and assigns of the Borrower and shall inure to the benefit of each Secured Party and their successors and assigns; provided , however , that the Borrower may not assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Lender.

Section 7.6           Counterparts . This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page of this Agreement by facsimile transmission or by e-mail shall be as effective as delivery of a manually executed counterpart hereof.

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Section 7.7          Severability. Any provision of this Agreement being held illegal, invalid or unenforceable in any jurisdiction shall not affect any part of such provision not held illegal, invalid or unenforceable, any other provision of this Agreement or any part of such provision in any other jurisdiction.

Section 7.8          Governing Law . This Agreement and the rights and obligations of the parties hereto shall be governed by, and construed, interpreted, and enforced in accordance with, the law of the State of New York.

Section 7.9         Waiver of Jury Trial . Each party hereto hereby irrevocably waives trial by jury in any suit, action or proceeding with respect to, or directly or indirectly arising out of, under or in connection with, any Loan Document or the transactions contemplated therein or related thereto (whether founded in contract, tort or any other theory). Each party hereto (A) certifies that no other party and no Affiliate or agent of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and (B)   acknowledges that it and the other parties hereto have been induced to enter into this agreement by the mutual waivers and certifications in this Section 7.9 .

[Signature Pages Follow]

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In witness whereof , each of the undersigned has caused this Security Agreement to be duly executed and delivered as of the date first above written.

Accepted and Agreed
as of the date first above written:

ALPPS LLC

Exhibit 10.4

CONTROL AGREEMENT

CONTROL AGREEMENT, dated as of _ October 3, 2018 __, by and among Super Crypto Mining, Inc. (the “ Borrower ”), ALPPS LLC, as lender and as collateral agent (the “ First Lien Creditor ” and “ Collateral Agent ”) respectively) under the Intercreditor Agreement, dated as of the date hereof, by and among the parties hereto (the “ Intercreditor Agreement ”), and Dominion Capital LLC, as Second Lien Creditor (as defined in the Intercreditor Agreement).

W i t n e s s e t h:

Whereas , pursuant to the Loan Agreement dated as of the date hereof (as the same may be modified from time to time, the “ Loan Agreement ”) between the Borrower and the First Lien Creditor, the First Lien Creditor has agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;

WHEREAS, pursuant to the Security Agreement dated as of the date hereof (as the same may be modified from time to time, the “ Security Agreement ”) between the Borrower and the First Lien Creditor, the Borrower, as collateral security for its Obligations under the Loan Documents, granted to First Lien Creditor for the benefit of the Secured Parties (as defined therein) a Lien on and security interest in all of its right, title, and interest in, to, and under the Collateral (as defined therein), including the Blockchain Assets (as defined below);

WHEREAS , the Second Lien Creditor has extended credit to DPW Holdings, Inc., a Delaware corporation (the “ Parent Company ”) from which the Debtor and the Parent Company have benefitted and that is secured in part by all of the assets of the Parent Company and certain of its subsidiaries, pursuant to a Securities Purchase Agreement dated May 15, 2018 (the “ May Agreement ”) and other Transaction Documents (as defined in the May Agreement), including a Security and Pledge Agreement, made as of May 15, 2018, among the Parent Company, the Borrower for the benefit of the Second Lien Creditor and other secured parties (the “ Second Lien Security Agreement ”) that also grants to the Second Lien Creditor a security interest in, to, and under the Collateral (as defined therein), including the Blockchain Assets (as defined below);

WHEREAS, the parties hereto, have entered into the Intercreditor Agreement to ensure that the Second Lien Creditor subordinates its Lien in the Collateral to the Lien of the First Lien Creditor; and

Whereas , it is a condition precedent to the obligation of the First Lien Creditor to make extensions of credit to the Borrower under the Loan Agreement that the Borrower shall have executed and delivered this Agreement to the First Lien Creditor and Second Lien Creditor.

Now, therefore, in consideration of the premises, the parties hereto agree as follows:

1.             Definitions .

(a)       Capitalized terms used herein without definition are used as defined in the Intercreditor Agreement or, if not defined therein, in the Loan Agreement.

(b)       The following terms shall have the following meanings:

“ Agreement ” means this Control Agreement.

“ Blockchain Assets ” means the blockchain assets described on Schedule I of the Loan Agreement and all other blockchain assets stored in the Wallet under the Borrower’s address.

“ Proceeds ” means “proceeds” as such term is defined in section 9-102 of the UCC and, in any event, shall include, without limitation, all dividends or other income from the Collateral, collections thereon or distributions with respect thereto. Without limiting the generality of the foregoing, the term “Proceeds” includes whatever is receivable or received when Blockchain Assets or their proceeds are sold, exchanged, collected, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes proceeds of any indemnity or guaranty payable to Borrower from time to time with respect to any of the Blockchain Assets or any new Blockchain Assets received as a result of the creation of a fork in the blockchain.

(c)       The following term has the meanings given to such term in the UCC and terms used herein without definition that are defined in the UCC have the meanings given to them in the UCC (such meanings to be equally applicable to both the singular and plural forms of the terms defined): “ control .”

(d)        Certain Other Terms . The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. The terms “ herein ,” “ hereof ” and similar terms refer to this Agreement as a whole and not to any particular Article, Section or clause in this Agreement. References herein to an Annex, Article, Section or clause refer to the appropriate Annex to, or Article, Section or clause in this Agreement. Where the context requires, provisions relating to any Collateral when used in relation to the Borrower shall refer to the Collateral or any relevant part thereof.

(e)        Section 8.16 (Interpretation) of the Loan Agreement is applicable to this Agreement to the same extent it is applicable to the Loan Agreement.

2.             Security Interest . Pursuant to the Security Agreement, the Borrower has granted to the Secured Parties security interests in the Collateral not subject to any other Lien that constitutes valid and continuing perfected first and second-priority security interests in favor of the Secured Parties. The Liens of the Creditors have the priority set forth in the Intercreditor Agreement.

3.             Control . Subject to the terms and conditions hereof, the First Lien Creditor and Collateral Agent hereby agrees that, for as long as any First Lien Obligation shall remain outstanding, it will have title to and, under the UCC, possession of the Collateral, including for purposes of perfecting its Liens under UCC Section 9-313. Subject to the terms and conditions hereof and subject to the payment in full of the First Lien Obligations, the parties hereto hereby agrees that, for as long as any Second Lien Obligation shall remain outstanding, the Collateral Agent will have title to and, under the UCC, possession of the Collateral for the benefit of the Second Lien Creditor, including for purposes of perfecting its Liens under UCC Section 9-313.

4.             Delivery of Blockchain Assets, Perfection of Security Interest, and Further Assurances .

(a)       The Collateral Agent has issued a unique address to the Borrower and has provided instructions to the Borrower on how to use that address to transfer the Collateral to the Wallet owned by the First Lien Creditor. All Collateral of the Borrower will be identified using that address. Concurrently with the execution and delivery of this Agreement and the Loan Agreement, the Borrower shall transfer all of the Blockchain Assets to the First Lien Creditor into the Wallet of the Collateral Agent and under the unique address assigned to the Borrower. Each of the Secured Parties and the Borrower acknowledge that the deposit of the Blockchain Assets pursuant to this Section 4(a) is not a transfer of the title of such Blockchain Assets, but rather is solely for the purposes of the Secured Parties gaining control of the Blockchain Assets included in the Collateral for UCC purposes.

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(b)       The Borrower shall, from time to time, as may be required by any Secured Party with respect to the Collateral, immediately take all actions as may be requested by such Secured Party to perfect the security interest of any Secured Party in the Collateral, including, if applicable, with respect to all Collateral over which control may be obtained within the meaning of sections 8-106, 9-104, 9-105, 9-106 and 9-107 of the UCC, as applicable, the Borrower shall immediately take all actions as may be requested from time to time by any Secured Party so that control of such Collateral is obtained and at all times held by the Secured Parties. All of the foregoing shall be at the sole cost and expense of the Borrower.

5.             Covenants . As long as any Obligations shall remain outstanding:

(a)       The Controlling Creditor has full control over the Collateral and may dispose of it without any notice from the Borrower and the Collateral Agent may do the same in accordance with the provisions of the Intercreditor Agreement. The Borrower shall, at its own expense, take all actions required on its part for each Secured Party to have control (as defined in sections 8-106, 9-104, 9-105, 9-106 and 9-107 of the UCC, as applicable) over all Collateral with respect to which such control may be obtained pursuant to the UCC.

(b)       No Person other than the Secured Parties have control or possession of all or any part of the Collateral and the Borrower shall not grant control over any other Person over any part of the Collateral. Accordingly, the Borrower acknowledges and agrees that the First Lien Creditor and Collateral Agent shall not follow the instructions of any other Person (including the Borrower) with respect to the Collateral.

(c)       The Borrower agrees that the First Lien Creditor may transfer the Collateral, without prior notice to the Borrower, upon determination by the First Lien Creditor that an Event of Default exists under the Loan Agreement authorizing such transfer, including, inter alia , the LTV Ratio exceeding the Liquidation Percentage. The Borrower understands and agrees that (w) the value of the Collateral is highly volatile so that, if the LTV Ratio of any Loan equals or exceeds the Liquidation Percentage for such Loan or if any other Event of Default occurs, the First Lien Creditor may sell all Collateral of the Borrower held by the First Lien Creditor immediately and without prior notice to the Borrower, (x) any transfer of Collateral, either to or from the Borrower or other parties, results in transfer fees (such as mining fees, etc.) and that such transfer fees are the responsibility of the Borrower and are typically deducted directly from such Collateral and reduce its value, so that, even if the Borrower pays all Obligations in full in cash, the Collateral returned to the Borrower shall be reduced by such transfer fees, (y) it may not be possible to sell at the price shown in the Valuation Index at the time of the sale due to market conditions and to the time necessary to complete all steps to sell the Collateral and (z) the First Lien Creditor will use its judgment to make choices to obtain what it feels is the best price for the Collateral to get the Obligations repaid and that these choices do not necessarily reflect the choices the Borrower would have made to obtain the best value for the Collateral as a whole.

6.             Secured Parties Appointed Attorneys-in-Fact . The Borrower hereby appoints each Secured Party the Borrower’s attorney-in-fact, with full authority in the place and stead of the Borrower and in the name of the Borrower or otherwise, from time to time in the such Secured Party’s discretion to take any action and to execute any instrument which such Secured Party may deem necessary or advisable to accomplish the purposes of this Agreement (but the such Secured Party shall not be obligated to and shall have no liability to the Borrower or any third party for failure to do so or take action). This appointment, being coupled with an interest, shall be irrevocable. The Borrower hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof.

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7.             Secured Parties May Perform . If the Borrower fails to perform any obligation contained in this Agreement, each Secured Party, subject to the Intercreditor Agreement, may itself perform, or cause performance of, such obligation, and the expenses of such Secured Party incurred in connection therewith shall be payable by the Borrower; provided that no Secured Party shall be required to perform or discharge any obligation of the Borrower.

8.             Reasonable Care . No Secured Party shall have any duty with respect to the care and preservation of the Collateral beyond the exercise of reasonable care. Each Secured Party shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which such Secured Party accords its own property, it being understood that no Secured Party shall have any responsibility for (a) ascertaining or taking action with respect to any claims, the nature or sufficiency of any payment or performance by any party under or pursuant to any agreement relating to the Collateral or other matters relative to any Collateral, whether or not such Secured Party has or is deemed to have knowledge of such matters, or (b) taking any necessary steps to preserve rights against any parties with respect to any Collateral. No Secured Party shall have any liability to the Borrower with respect to any loss or damage to the Collateral resulting from any malicious software, hacking, or computer or other digital viruses. Nothing set forth in this Agreement, including the exercise by any Secured Party of any of the rights and remedies hereunder, shall relieve the Borrower from the performance of any obligation on the Borrower’s part to be performed or observed in respect of any of the Collateral.

9.             No Waiver by Course of Conduct . No Secured Party shall by any act (except by a written instrument pursuant to Section 8.2 of the Loan Agreement), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that such Secured Party would otherwise have on any future occasion.

10.           Amendments in Writing . None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Section 8.1 of the Loan Agreement.

11.           Notices . All notices, requests and demands to or upon any Secured Party or the Borrower hereunder shall be effected in the manner provided for the Intercreditor Agreement; provided , however , that any such notice, request or demand to or upon the Borrower shall be addressed to the Borrower’s notice address set forth in such Intercreditor Agreement.

12.           Successors and Assigns . This Agreement shall be binding upon the successors and assigns of the Borrower and shall inure to the benefit of each Secured Party and their successors and assigns; provided , however , that the Borrower may not assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Secured Parties.

13.           Counterparts . This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page of this Agreement by facsimile transmission or by e-mail shall be as effective as delivery of a manually executed counterpart hereof.

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14.           Severability . Any provision of this Agreement being held illegal, invalid or unenforceable in any jurisdiction shall not affect any part of such provision not held illegal, invalid or unenforceable, any other provision of this Agreement or any part of such provision in any other jurisdiction.

15.           Governing Law . This Agreement and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

16.           Waiver of Jury Trial . Each party hereto hereby irrevocably waives trial by jury in any suit, action or proceeding with respect to, or directly or indirectly arising out of, under or in connection with, any Loan Document or the transactions contemplated therein or related thereto (whether founded in contract, tort or any other theory). Each party hereto (A) certifies that no other party and no Affiliate or agent of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and (B)   acknowledges that it and the other parties hereto have been induced to enter into this agreement by the mutual waivers and certifications in this Section 21 .

[SIGNATURE PAGE FOLLOWS]

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In witness whereof, the parties hereto have caused this Control Agreement to be duly executed and delivered by their respective representatives thereunto duly authorized as of the date first written above.

Exhibit 10.5

Intercreditor Agreement

This Intercreditor Agreement (as supplemented or modified from time to time in accordance with the terms hereof, this “ Agreement ”), dated as of October 3, 2018, is entered into among ALPPS LLC, as the First Lien Creditor, the Second Lien Creditor, the Collateral Agent, and Super Crypto Mining, Inc., a Delaware corporation (together with its successors by merger, the “ Borrower ”) (each capitalized term being used as defined below).

W i t n e s s e t h :

WHEREAS , DOMINION CAPITAL LLC, a Connecticut limited liability company (together with any successors and permitted assigns, the “ Second Lien Creditor ”) has extended credit to DPW Holdings, Inc., a Delaware corporation (the “ Parent Company ”) from which the Debtor and the Parent Company have benefitted and that is secured in part by all of the assets of the Parent Company and certain of its subsidiaries, pursuant to a Securities Purchase Agreement dated May 15, 2018 (the “ May Agreement ”) and other Transaction Documents (as defined in the May Agreement), including a Security and Pledge Agreement, made as of May 15, 2018, among the Parent Company, the Borrower for the benefit of the Second Lien Creditor and other secured parties (the “ Second Lien Security Agreement ”);

WHEREAS, ALPPS LLC (together with any successors and permitted assigns, the “ First Lien Creditor ” and, together with the Second Lien Creditor, the “ Creditors ”) has agreed, pursuant to a Loan Agreement (as such agreement may be modified or supplemented in accordance herewith, and together with the corresponding agreements with respect to any Refinancing thereof permitted hereunder, the “ First Lien Loan Agreement ”) to make and/or continue certain extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein secured by a first lien on certain Bitcoin and related Collateral (as defined in the First Lien Loan Agreement) held by the First Lien Creditor; and

Whereas , a condition precedent to the obligations of First Lien Creditor to make and/or continue extensions of credit to the Borrower under the First Lien Loan Agreement is that the Second Lien Creditor and the Borrower shall have executed and delivered this Agreement to the Collateral Agent;

Now, Therefore , in consideration of the premises and the covenants and agreements contained herein, each party hereto hereby agrees as follows:

Section 1.      Definitions

1.1        Definitions

(a)       Capitalized terms used herein but not otherwise defined are used as defined in the First Lien Loan Agreement on the date hereof, as such definitions may be amended thereafter as permitted by the Transaction Documents; provided , that no such amendment shall be effective for purposes of this Agreement unless made with the approval of the Second Lien Creditor.

(b)       The following terms shall be defined to include any item included as such in the definition of these terms under any Transaction Document: “ Default ” or “ Event of Default ”.

(c)       As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

“ Adequate Protection” means “adequate protection” under sections 361, 362, 363 or 364 of the Bankruptcy Code and any similar concept under any other applicable Bankruptcy Law or other Regulation.

“ Bankruptcy Code ” means title 11, United States Code .

“ Bankruptcy Law ” means each of the Bankruptcy Code, any similar federal, state or foreign Regulation for the relief of debtors or any arrangement, reorganization, insolvency, moratorium or assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Borrower and any similar Regulations relating to or affecting the enforcement of creditors’ rights generally.

“ Collateral ” means any property subject to a First Lien (in each case, including any judgment lien), including all “Collateral” of the Borrower as defined under the First Lien Documents, and any proceeds thereof.

“ Collateral Agent ” means ALLPS LLC, in its capacity as collateral agent for the Secured Parties hereunder, together with any successor collateral agent hereunder.

“ Collateral Enforcement Action ” means, with respect to any Secured Party, for such Secured Party, whether or not in consultation with any other Secured Party, to exercise, seek to exercise, join any Person in exercising or institute or maintain or participate in any action or proceeding with respect to, any rights or remedies with respect to any Collateral, including (a) commencing, seeking to commence or joining any Person in commencing any Insolvency Proceeding, (b) instituting or maintaining, or joining any Person in instituting or maintaining, any enforcement, contest, protest, attachment, collection, execution, levy or foreclosure action or proceeding with respect to any Collateral, whether under any Transaction Document or otherwise, (c) exercising any right of set-off with respect to the Borrower, (d) exercising any right or remedy under any control agreement, landlord waiver, bailee’s letter or similar agreement or arrangement or (e) causing (or, after the occurrence and during the continuance of any Event of Default, consenting to or requesting) any sale of Collateral or other disposition of any Collateral.

“ Controlling Creditor ” means, until the First Lien Creditor shall have confirmed in writing, which confirmation shall not be unreasonably withheld, conditioned or delayed, to the Collateral Agent and Second Lien Creditor that all First Lien Obligations shall have been paid in full, the First Lien Creditor and, thereafter, the Second Lien Creditor; provided , that, if First Lien Obligations shall have been reinstated after such confirmation, the “Controlling Creditor” shall again be the First Lien Creditor from and after such reinstatement until a new confirmation shall have been signed by the First Lien Creditor.

“ Creditor ” means each of the First Lien Creditor and Second Lien Creditor.

“ Creditor Document ” means each First Lien Document and Second Lien Document.

“ Default Distribution Period ” has the meaning specified in Section 3.1(b)   (Optional and Mandatory Prepayments) .

“ First Lien ” means any Lien securing any First Lien Obligation.

“ First Lien Documents ” means the “Loan Documents” as defined in the First Lien Loan Agreement (other than this Agreement) or any Post-Petition Financing Document, together with any certificate, agreement, document or instrument evidencing, modifying or governing an obligation thereunder or any other obligation to any “Secured Party” as defined in the First Lien Loan Agreement, granting, modifying or evidencing a Lien for the benefit of any such “Secured Party” or governing or modifying rights or remedies with respect to any such Lien.

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“ First Lien Obligations ” means each of the following:

(a)       the “Obligations” (under and as defined in the First Lien Loan Agreement);

(b)       all extensions of credit under any Post-Petition Financing;

(c)       all other amounts, obligations, covenants and duties, of every type and description owing by the Borrower (in its capacity as such) under any First Lien Document (including any indemnification or reimbursement obligation, any damages, any liabilities, any obligation arising under any cash management, foreign exchange, currency swap or interest rate hedging transaction, any obligation to post cash collateral in respect of letters of credit), whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired and whether or not evidenced by any note, guaranty or other instrument or for the payment of money;

(d)       any payment made to any other Person other than the Borrower (i) to acquire, satisfy or otherwise discharge any claim for the purpose of maintaining, preserving or protecting any Collateral, any First Lien or, to the extent such payment is made by the First Lien Creditor, any Second Lien; and

(e)       any Post-Petition Interest on any obligation described in any of clauses (a) through (d) above;

provided , that (x) to the extent at any time, the aggregate principal amount of all loans constituting First Lien Obligations shall exceed the Maximum First Lien Outstanding, then the principal amount of obligations described in clauses (c) (to the extent not included in any other clause above), (b) , (a) and (d) above (in that order) shall be excluded from the definition of “First Lien Obligations” and (y) to the extent any payment with respect to the First Lien Obligations (whether by or on behalf of the Borrower, as proceeds of security, enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential in any respect, set aside or required to be paid to a debtor in possession, trustee, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.

“ Indebtedness ” means, with respect to any Person, without duplication, the following: (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person for the deferred purchase price of property or services other than accounts payable and accrued liabilities incurred in respect of property or services purchased in the ordinary course of business, (iii) all obligations of such Person evidenced by notes, bonds, debentures or similar borrowing or securities instruments, (iv) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person, (v) all obligations of such Person as lessee under capital leases, (vi) all reimbursements and all other obligations of such Person with respect to (A) letters of credit, bank guarantees or bankers’ acceptances or (B) surety, customs, reclamation, performance or other similar bonds, (vii) all obligations of such Person secured by Liens on the assets of such Person, (viii) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any capital stock or other ownership or profit interest in such Person or any other Person or any warrants, rights or options to acquire such capital stock, (ix) all obligations of such Person in respect of any guaranty by such Person of any obligation of another Person of the type described in clauses (i) through (viii) of this definition, (x) all obligations of another Person of the type described in clauses (i) through (ix) secured by a Lien on the property assets of such Person (whether or not such Person is otherwise liable for such obligations of such other Person) and (xi) after taking into account the effect of any legally-enforceable netting contractual obligations of such Person, all payments that would be required to be made in respect of any derivative instrument in the event of a termination (including an early termination) on the date of determination.

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“ Insolvency Proceeding ” means, in each case with respect to the Borrower, any property of the Borrower or any Indebtedness of the Borrower, (a) any voluntary or involuntary case, action or proceeding before any court or other Governmental Authority under the Bankruptcy Code or otherwise relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, (b) any general assignment for the benefit of creditors or formal or informal moratorium, composition, marshaling of assets for creditors or other, similar arrangement, adjustment, protection relief or composition of any debt or (c) any case or proceeding seeking the entry of an order for relief or appointment of a permanent or interim receiver, manager, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Borrower, or over all or a substantial part of its property or a warrant of attachment, execution or similar process.

“ Lender ” means each First Lien Creditor and Second Lien Creditor.

“ Maximum First Lien Outstanding ” means a principal amount of $2,500,000.

“ Notice of Default ” means a written certificate, in form reasonably satisfactory to the Collateral Agent, from the Controlling Creditor to the Collateral Agent and the other Creditor certifying that (a) the sender of such notice is the Controlling Creditor and (b)(i) an Event of Default has occurred and is continuing under the Transaction Documents of such Controlling Creditor or (ii) the Secured Obligations under the Transaction Documents of such Controlling Creditor shall have been accelerated as set forth in such Transaction Documents.

“ paid in full ” or “ payment in full ” means, at any time with respect to any Secured Obligations, the occurrence of all of the following (other than as part of a Refinancing):

(a)       payment in full in cash of such Secured Obligations (and termination of all other obligations with respect thereto), including principal, interest and premium, if any, other than, in each case to the extent not then due and payable or otherwise owed, contingent indemnification or reimbursement obligations; and

(b)       if such Secured Obligations consist of all Secured Obligations owing to either Creditor, termination of all commitments by such Creditor, if any.

“ Post-Petition Financing ” means any financing obtained by the Borrower during any Insolvency Proceeding or otherwise pursuant to any Bankruptcy Law on terms and conditions acceptable to the First Lien Creditor, including any such financing obtained by the Borrower under Section 364 of the Bankruptcy Code or consisting of any arrangement for use of cash collateral held in respect of any Secured Obligation under Section 363 of the Bankruptcy Code, in each case or any similar provision of any Bankruptcy Law.

“ Post-Petition Financing Document ” means any agreement, certificate, document or instrument executed by the Borrower with respect to any Post-Petition Financing.

“ Post-Petition Interest ” means all interest accruing after the filing of any petition in bankruptcy or the commencement of any Insolvency Proceeding, whether or not a claim for post-filing or post-petition interest is allowed in any such Insolvency Proceeding.

“ Post-Petition Securities ” means any Securities or other Indebtedness received in full or partial satisfaction of any claim as part of any Insolvency Proceeding.

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“ Refinancing ” means, with respect to any Indebtedness, any other Indebtedness (including under any Post-Petition Securities received on account of such Indebtedness) issued as part of a refinancing, extension, renewal, defeasance, amendment, restatement, modification, supplement, restructuring, replacement, exchange, refunding or repayment thereof.

“ Second Lien ” means any Lien securing any Second Lien Obligation.

“ Second Lien Documents ” means the “Transaction Documents” as defined in the May Agreement, including two Senior Secured Promissory Notes, the Second Lien Security Agreement and another Securities Purchase Agreement dated as of July 2, 2018, and together with any certificate, agreement, document or instrument evidencing, modifying or governing any obligation thereunder or any other obligation to any “Secured Party” (as defined in the Second Lien Security Agreement), granting, modifying or evidencing a Lien for the benefit of any such “Secured Party”, or governing or modifying rights or remedies with respect to any such Lien.

“ Second Lien Obligations ” means (a) the “Obligations” (as defined in the Second Lien Security Agreement) and (b) all other amounts, obligations, covenants and duties, of every type and description owing by the Borrower (in its capacity as such) under any Second Lien Document (including any damages or liabilities and any indemnification or reimbursement obligation), whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, now existing or hereafter arising and however acquired and whether or not evidenced by any note, guaranty or other instrument or for the payment of money.

“ Secured Obligation ” means any First Lien Obligation or Second Lien Obligation.

“ Secured Party ” means the First Lien Creditor, the Second Lien Creditor and the Collateral Agent.

“ First Lien ” means any Lien securing any First Lien Obligation, including any such Lien previously released or otherwise terminated but later reinstated, to the extent so reinstated.

“ Uniform Commercial Code ” or “ UCC ” means the Uniform Commercial Code of the State of New York, as amended.

1.2        Certain Other Terms . The terms “ herein ,” “ hereof ,” “ hereto ” and “ hereunder ” and similar terms refer to this Agreement as a whole and not to any particular Article, Section, subsection or clause in this Agreement. In the computation of time periods, unless otherwise specified, the word “ from ” means “ from and including ” and each of the words “ to ” and “ until ” means “ to but excluding ” and the word “ through ” means “ to and including ”. The term “ including ” means “including without limitation” except when used in the computation of time periods. References herein to an Annex, Schedule, Article, Section, subsection or clause refer to the appropriate Annex or Schedule to, or Article, Section, subsection or clause in this Agreement. References herein to any section or clause in any Transaction Document shall include references to any successor section or clause in any successor Transaction Document. Where the context requires, provisions relating to any Collateral shall refer to the Collateral or any relevant part thereof. All references to the Borrower shall include the Borrower as debtor and debtor-in-possession and any receiver or trustee for the Borrower in any Insolvency Proceeding. Except as otherwise expressly provided herein, references herein to any term as defined in any Transaction Document are references to such terms as defined on the date hereof, together with any amendment to such definitions effective after the date hereof with the approval of each Creditor. Any other reference in this Agreement to any Transaction Document shall include all appendices, exhibits and schedules thereto, and, except to the extent expressly provided herein, all effective amendments, restatements, supplements and other modifications thereto, in each case permitted hereunder. References in this Agreement to any statute shall be to such statute as amended or modified and in effect from time to time.

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Section 2.      Lien Priorities

2.1        Subordination . Notwithstanding the date, manner or order of grant, attachment or perfection of any First Lien or Second Lien and notwithstanding any provision of the UCC or any other applicable Regulation or any Transaction Document or any other circumstance whatsoever:

(a)       any First Lien on any Collateral, whether now or hereafter existing and regardless of how acquired or created, shall be senior and prior to any Second Lien on such Collateral and shall remain so, whether or not such First Lien is junior or subordinate to any other obligation or any Lien securing any other obligation; and

(b)       any Second Lien on any Collateral, whether now or hereafter existing and regardless of how acquired or created, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all First Liens on such Collateral.

2.2        Contesting Liens and Priorities; Marshalling

(a)        Contesting Liens and Priorities . No Secured Party or the Borrower shall (and neither the Second Lien Creditor or the Borrower shall direct the Collateral Agent to, and each of the Second Lien Creditor and the Borrower hereby waives, to the fullest extent permitted by applicable Regulations, any right it might have to) raise any objection to or otherwise contest, and no Secured Party or the Borrower shall support any other Person in raising any objection to or otherwise contesting, whether or not as part of any Collateral Enforcement Action or in any resulting or related action or proceeding (including any Insolvency Proceeding), any of the following without the consent of the First Lien Creditor:

(i)       the priority, validity or enforceability of any First Lien, including the priority set forth herein with respect to any Second Lien; or

(ii)       the amount of any Secured Obligation asserted or permitted to be asserted by any Secured Party or otherwise secured by any First Lien or, as the case may be, Second Lien.

(b)        Marshalling . The Second Lien Creditor shall not, prior to the payment in full of the First Lien Obligations, assert, demand, request, plead or otherwise claim the benefit of, any marshalling, appraisal, valuation and any other right that may otherwise be available under applicable Regulation with respect to any Collateral to a creditor in its capacity as beneficiary of a Second Lien on such Collateral.

2.3        No Additional Liens

(a)       The Borrower shall not grant any new Second Lien on any of its property (in each case, other than customary rights of setoff to the Second Lien Creditor) unless the Borrower has granted, through documentation in form and substance satisfactory to the First Lien Creditor, a First Lien on such property in favor of the Collateral Agent for the benefit of the First Lien Creditor as security for the First Lien Obligations.

(b)       To the extent any Collateral shall be subject to any Second Lien securing any Second Lien Obligation for the benefit of the Second Lien Creditor and such Collateral is not subject to a First Lien securing the First Lien Obligations to the same extent (after giving effect to transactions scheduled to occur concurrently with the grant of such Second Lien), then the Second Lien Creditor shall, upon demand by and at the option of the First Lien Creditor, either (i) release such Second Lien, (ii) ensure that the Borrower grants a First Lien on such Collateral in favor of the Collateral Agent for the benefit of the First Lien Creditor as security for the First Lien Obligations or (iii) assign a first priority First Lien in such Collateral to the Collateral Agent for the benefit of the First Lien Creditor as security for the First Lien Obligations. Prior to such assignment or release, the Second Lien Creditor shall act as sub-agent of the Collateral Agent for the sole purpose of perfecting the Lien on such Collateral, and the First Lien Creditor shall thereby be deemed to have a first-priority First Lien on such Collateral for all purposes.

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Section 3.      Payments and Application of Proceeds

3.1        Optional and Scheduled Payments

(a)        First Lien Obligations . Prior to payment in full of all First Lien Obligations, the First Lien Creditor may receive and retain all payments in respect of any First Lien Obligation (including from Collateral).

(b)        Second Lien Obligations . The Second Lien Creditor may receive payments of principal, interest and other payments in respect of any Second Lien Obligation (including upon conversion of the promissory notes issued thereunder) unless such payments are made from Collateral at any time (a “ Default Distribution Period ”) that is prior to the payment in full of all First Lien Obligations and when (i) any Notice of Default has been delivered by the First Lien Creditor and has not been withdrawn, (ii) such payments contradict any other provision of this Agreement or (iii) such payments are the direct or indirect result of any Collateral Enforcement Action taken by the Second Lien Creditor in contravention of this Agreement, including in contravention of Section 4    (Exercise of Second Lien Remedies) .

3.2        Application of Proceeds During Default . Proceeds of Collateral received by the Collateral Agent or any Secured Party during a Default Distribution Period or otherwise required to be applied pursuant to this section shall be applied first , to repay the First Lien Obligations as set forth in the First Lien Documents until paid in full (including Post-Petition Interest) and then , to repay the Second Lien Obligations as set forth in the Second Lien Loan Agreement until paid in full.

3.3        Payment Over . To the extent received by any Secured Party prior to the payment in full of all First Lien Obligations, all Collateral (including proceeds of any insurance policy covering Collateral, but only to the extent of such coverage), whether or not in connection with the exercise of any right or remedy (including the exercise of any right of setoff) but other than payments of the Second Lien Obligations permitted to be made pursuant to Sections 3.1 and 3.2 above, shall be segregated and held in trust and forthwith paid over to the Collateral Agent to be held for the benefit of the First Lien Creditor, in each case in the same form as received and with any necessary endorsements or as a court of competent jurisdiction may otherwise direct.

3.4        Subrogation . To the extent the Second Lien Creditor makes a payment to the First Lien Creditor, the Second Lien Creditor shall be subrogated to the rights of the First Lien Creditor; provided , that the Second Lien Creditor shall assert, enforce or exercise (whether directly or through the Collateral Agent) against any Person prior to payment in full of the First Lien Obligations any right of subrogation it may have obtained from the First Lien Secured Creditor or the Collateral Agent or otherwise as a result of any payment hereunder, whether or not such payment is required or permitted under this Agreement.

3.5        Reinstatement . If any First Lien Creditor is required, in any Insolvency Proceeding or otherwise, to turn over or otherwise pay to the estate of the Borrower any amount (a “ Recovery ”), then the First Lien Obligations shall be reinstated to the extent of such Recovery and the First Lien Creditor shall be entitled to the payment in full of the First Lien Obligations with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement.

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Section 4.      Exercise of Second Lien Remedies

4.1        Standstill . Prior to the payment in full of the First Lien Obligations, whether or not any Insolvency Proceeding has been commenced by or against the Borrower, the Second Lien Creditor shall not do (and the Second Lien Creditor shall not direct the Collateral Agent to do) any of the following without the consent of the First Lien Creditor:

(a)       take any Collateral Enforcement Action; provided , that any Second Lien Credit Party may, in any Insolvency Proceeding, perform the actions described in clauses (a) through (d) of Section 5.5 (Rights of Second Lien Creditor in any Insolvency Proceeding) ; or

(b)       object to, contest or take any other action that is reasonably likely to hinder, (i) any Collateral Enforcement Action (other than any Insolvency Proceeding) of the First Lien Creditor, (ii) any release of Collateral permitted under Section 8   (Release of Collateral) , whether or not done in consultation with or with notice to the Second Lien Creditor or (iii) any decision by the First Lien Creditor to forbear or refrain from bringing or pursuing any such Collateral Enforcement Action or to effect any such release.

4.2        Termination of Standstill . Notwithstanding the foregoing Section 4.1 , in the event the Collateral Agent has not, and the First Lien Creditor has not, taken any Collateral Enforcement Action in accordance with this Agreement and the First Lien Documents within 180 days after the receipt by the First Lien Creditor from the Second Lien Creditor of a notice that one or more “Events of Default” as defined at the time of determination under the Second Lien Documents have occurred and are continuing and the Second Lien Creditor intends to take Collateral Enforcement Actions (the “ Standstill Period ”), then, if any “Event of Default” described in such notice is still continuing, the Second Lien Creditor shall be entitled to (and to direct the Collateral Agent to) take any Collateral Enforcement Action as provided in the Second Lien Documents (it being understood and agreed that any such Collateral Enforcement Action shall in all respects comply with the terms of this Agreement and applicable Regulations); provided , that, notwithstanding the foregoing, in no event shall the Second Lien Creditor be entitled to (or to direct the Collateral Agent to) take any Collateral Enforcement Action if, notwithstanding the expiration of the Standstill Period, the First Lien Creditor shall have (or the Collateral Agent shall have been directed by the First Lien Creditor to) taken any Collateral Enforcement Action with respect to all or any material portion of the Collateral (in which case the First Lien Creditor shall give notice thereof to the Second Lien Creditor promptly after learning of such Collateral Enforcement Action).

4.3        Rights of Second Lien Creditor as Unsecured Creditors . Except as otherwise expressly provided in this Section 4 , nothing in this Section 4 is intended to modify any right to demand or sue for payment or any other right or remedy that the Second Lien Creditor may have as an unsecured creditor against the Borrower in accordance with the terms of the Second Lien Documents and applicable Regulations and the Second Lien Creditor may take any action (or direct the Collateral Agent to take any action) to create, perfect or preserve Second Liens not inconsistent with the other provisions of this Agreement and not adverse to the priority of such Second Liens or the First Liens; provided , that, in the event the Second Lien Creditor becomes a judgment lien creditor or otherwise obtains any Lien as a result of its enforcement of its rights as an unsecured creditor, such judgment lien and the Collateral subject thereto shall be subject to all terms and conditions of this Agreement, and such judgment lien shall be a Second Lien and shall be junior and subordinate to the Liens securing the First Lien Obligations hereunder on the same basis as any other Second Lien.

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Section 5.      Insolvency Proceedings

5.1        Waivers . As long as the First Lien Obligations shall not have been paid in full (irrespective of whether the First Lien Obligations are scheduled to be paid in full as part of an applicable Insolvency Proceeding), the Second Lien Creditor shall not do (and the Second Lien Creditor shall not direct the Collateral Agent to do, and the Second Lien Creditor hereby waives, to the fullest extent permitted by applicable Regulations, any right it might have to do) any of the following in any Insolvency Proceeding without the consent of the First Lien Creditor:

(a)       raising any objection to, opposing or contesting (or supporting any Person in objecting, opposing or contesting) any of the following:

(i)        Allowance of First Lien Obligations and Related Liens . Any item set forth clauses (i) and (ii) of Section 2.2   (Contesting Liens and Priorities) (irrespective of whether the First Lien Obligations are scheduled to be paid in full as part of such Insolvency Proceeding), including (A) the amount of the First Lien Obligations allowed or permitted to be asserted under any Bankruptcy Law or otherwise in any Insolvency Proceeding, or (B) the extent to which the First Lien Obligations are deemed secured claims under Section 506(a) of the Bankruptcy Code or any similar provision in Bankruptcy Law;

(ii)        Adequate Protection for First Lien Obligations . (A) Any request for protection to be provided to the First Lien Secured Lenders with respect to any Collateral, including any Adequate Protection sought by or granted to the First Lien Creditor (or the Collateral Agent acting on behalf of, or with the express consent of, the First Lien Creditor) with respect to any Collateral or (B) any consent or objection by the First Lien Creditor (or the Collateral Agent acting on behalf of, or with the express consent of, the First Lien Creditor) to any motion, relief, action or proceeding based on any Person (including the First Lien Creditor) claiming a lack of Adequate Protection with respect to any Collateral;

(iii)        Post-Petition Interest and Expenses for First Lien Obligations . Any request by the First Lien Creditor (or the Collateral Agent acting on behalf of, or with the express consent of, the First Lien Creditor) to permit, as part of such Insolvency Proceeding, the payment or accrual of interest and fees, costs and expenses (including fees and expenses of counsel and other professional advisors) after the commencement of such Insolvency Proceeding, including pursuant to Sections 506(b) or (c) of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law;

(iv)        Use of Cash Collateral . Any use of Collateral constituting cash collateral by the Borrower;

(v)        Post-Petition Financing . Any Post-Petition Financing constituting First Lien Obligations, regardless of whether any amounts, obligations, covenants or duties thereunder are senior to the Second Lien Obligations or secured by First Liens, and, with respect to each such Post-Petition Financing, (A) each Lien securing such Post-Petition Financing shall be a First Lien and, therefore, the Second Liens on any Collateral shall be junior and subordinate to such Lien to the same extent such Second Liens are junior and subordinate to any other First Lien and (B) the Second Lien Creditor shall further subordinate each Second Lien to any First Liens securing such Post-Petition Financing as necessary or appropriate to effect the priority described in clause (A) above;

(vi)        Sale of Collateral . Any proposed sale of the Collateral pursuant to Section 363 of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law;

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(vii)        Relief from Automatic Stay . (A) Any request for relief from the automatic stay as provided in Section 362 of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law sought by the First Lien Creditor (or the Collateral Agent acting on behalf of, or with the express consent of, the First Lien Creditor) with respect to Collateral or (B) any consent or objection by the First Lien Creditor (or the Collateral Agent acting on behalf of, or with the express consent of, the First Lien Creditor) to any motion, relief, action or proceeding based on any Person (including the First Lien Creditor) claiming such relief from automatic stay with respect to any Collateral; or

(viii)        Plan of Reorganization . The treatment of First Lien Obligations under a Chapter 11 plan of reorganization under the Bankruptcy Code or any similar plan or reorganization or arrangement under any applicable Bankruptcy Law;

(b)        Adequate Protection . (i) Request or accept any grant of Adequate Protection on account of any Collateral or any other relief with respect to any Collateral or (ii) otherwise request the payment of interest on any Second Lien Obligations or of fees, costs or expenses (including fees or expenses of counsel and other professional advisors) as part of any Insolvency Proceeding, including pursuant to Sections 506(b) and (c) of the Bankruptcy Code or similar provisions of any other Bankruptcy Law; provided , that (x) to the extent the First Lien Creditor is granted Adequate Protection with respect to the Collateral in the form of the benefit of additional or replacement Liens on any Collateral (whether or not pre-petition Collateral), then the Second Lien Creditor may request Adequate Protection in the form of the same additional or replacement Liens on such Collateral, which Liens shall then be junior and subordinate to the First Liens as provided in this Agreement (including, if applicable, to the Liens securing any Post-Petition Financing as provided in clause (a)(v) ) and (y) the Second Lien Creditor may request accrual (but not the payment) of any interest on any Second Lien Obligations or of any fees, costs or expenses constituting part of Second Lien Obligations as part of an Insolvency Proceeding (which the Second Lien Creditor agrees will constitute adequate protection of their claims and interests under the Bankruptcy Code);

(c)        Relief from Automatic Stay . Seek relief from the automatic stay as provided in Section 362 of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law or any other stay in respect of the Collateral.

5.2        Voting . Until the payment in full of all First Lien Obligations, if the Second Lien Creditor has not voted its claim in respect of any Collateral in any Insolvency Proceeding on or prior to 10 days before the expiration of the time to vote such claim, the First Lien Creditor shall have the right, but not the obligation, to vote such claim. Any such vote by the First Lien Creditor shall be irrevocable when made, and, once made, the Second Lien Creditor shall not have any right to (and the Second Lien Creditor hereby waives, to the fullest extent permitted by applicable Regulations, any right it might otherwise have to) change or withdraw any such vote.

5.3        Post-Petition Securities . If, prior to the payment in full of the First Lien Obligations, the Second Lien Creditor receives any Post-Petition Securities in any Insolvency Proceeding and such Post-Petition Securities benefit from any Lien upon any Bitcoin, Ether or similar blockchain property of any reorganized debtor, such Liens shall constitute Second Liens hereunder and shall be junior and subordinate to the First Liens (which shall include any Liens securing any Post-Petition Securities received in such Insolvency Proceeding on account of any First Lien Obligation) to the same extent as all other Second Liens hereunder.

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5.4        Separate Classification . The grants of First Liens and Second Liens pursuant to the Transaction Documents constitute separate and distinct grants and, because of, among other things, differing rights in the Collateral, the Second Lien Obligations are fundamentally different from the First Lien Obligations, and the Second Lien Obligations and First Lien Obligations must be separately classified in any Insolvency Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the Second Lien Obligations and the First Lien Obligations constitute only one secured claim with respect to any Collateral (and not separate classes of senior and junior secured claims), then all distributions with respect any Collateral shall be made as if there were separate classes of senior and junior secured claims against the Borrower in respect of such Collateral (with the effect that, to the extent that the aggregate value of the Collateral is sufficient (for this purpose ignoring all claims held by the Second Lien Creditor), the First Lien Creditor shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, Post-Petition Interest, before any distribution is made in respect of the claims held by the Second Lien Creditor with respect to the Collateral (and the Second Lien Creditor shall, in accordance with Section 3.4 (Payment Over) and in addition to but without duplication of any amounts to be turned over thereunder, turn over to the First Lien Creditor for the benefit of the First Lien Creditor all amounts otherwise received by them (and assign all rights to receive amounts receivable by them) to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Second Lien Creditor).

5.5        Rights of Second Lien Creditor in an Insolvency Proceeding . Without limitation to other rights of the Second Lien Creditor and except as otherwise limited or prohibited by Section 4 (Exercise of Second Lien Remedies) or any other provision of this Section 5 and except as part of or following any Collateral Enforcement Action initiated in contravention of this Agreement, the Second Lien Creditor may (directly or through the Collateral Agent) do each of the following:

(a)       prove its claim or, if applicable, its interest;

(b)       file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors;

(c)       file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of any Second Lien Obligation in any Insolvency Proceeding, whether or not such Second Lien Obligation is secured by any Collateral, in each case unless otherwise expressly prohibited by this Agreement; and

(d)       vote on any plan of reorganization.

Section 6.      Amendments

6.1        Amendments to First Lien Documents

(a)        Amendments to First Lien Loan Agreement . Without the prior written consent of the Second Lien Creditor, the First Lien Loan Agreement may not be amended, supplemented or otherwise modified (and no replacement First Lien Loan Agreement may be entered into in connection with a Refinancing that is not part of a Post-Petition Financing), in each case if the effect of such amendment, supplement, modification or replacement is to do any of the following:

(i)       increase the “Interest Rate” or the “Default Rate” as defined in the First Lien Loan Agreement (or any other interest rate or default interest rate applicable to any First Lien Obligation), in each case other than any increase occurring because of any Default or Event of Default;

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(ii)       change the scheduled final maturity date of any Loan constituting First Lien Obligations; or

(iii)       contravene any provision of this Agreement.

(b)        Amendments to Collateral Documents . Prior to the payment in full of the Second Lien Obligations, all First Lien Documents pursuant to which a First Lien is granted or under which any right or remedy with respect to any First Lien is governed (excluding, in any case, the First Lien Loan Agreement and any loan agreement with respect to any Post-Petition Financing), whether or not such First Lien Documents are also Second Lien Documents or the Second Lien Creditor are also party thereto, may be amended, supplemented or otherwise modified (including Refinanced), and new First Lien Documents may be entered into granting a First Lien or governing rights or remedies with respect to any First Lien, in each case without the consent of the Second Lien Creditor, unless such amendment, supplement or other modification, or entering into such new First Lien Document, would otherwise require the consent of the Second Lien Creditor and (i) releases Collateral other than as permitted by Section 8   (Release of Collateral) , (ii) materially adversely affect the rights and obligations of the Second Lien Creditor substantively more than it materially adversely affect the rights and obligations of the First Lien Creditor or (iii) notice of such amendment, supplement, other modification or new First Lien Document is not given to the Second Lien Creditor within 10 Business Days of the effectiveness thereof.

6.2        Amendments to Second Lien Documents . Without the prior written consent of the First Lien Creditor, no Second Lien Document may be amended, supplemented or otherwise modified, and no new Second Lien Document may be entered into, in each case if the effect of such amendment, supplement, modification or new Second Lien Document is to do any of the following:

(a)       change or amend any term if such change or amendment would have a material adverse effect on the rights and obligations of the First Lien Creditor or the Collateral Agent, materially increase the obligations of the Borrower or otherwise confer additional material rights to the holder of such Second Lien Obligation in a manner adverse to the Collateral Agent, the First Lien Creditor or the Borrower; or

(b)       contravene any provision of this Agreement.

6.3        Other Permitted Amendments . Except as otherwise provided in Sections 7.1 (Amendment to First Lien Documents) and 7.2 (Amendments to Second Lien Documents) , the Secured Parties may amend, supplement or otherwise modify each Transaction Document, and may enter into new Transaction Documents without affecting the rights or duties of the parties hereto or the subordination and other provisions set forth herein including, with respect to the First Lien Creditor, taking any of the actions described in Section 10.1 (Continuing Rights with Respect to First Lien Obligations) .

Section 7.      Release of Collateral

7.1        Direction to Release . The Collateral Agent shall upon request by the Borrower, and is hereby authorized and directed (without any further notice or consent to or of any Secured Party) to, promptly release any Lien held by the Collateral Agent for the benefit of the Secured Parties against any of the following:

(a)       all of the Collateral, upon receipt of a written notice from each Creditor that all Secured Obligations have been paid in full;

(b)       any Collateral in connection with any Collateral Enforcement Action permitted under this Agreement and the Transaction Documents; or

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(c)       any Collateral sold or otherwise disposed of by the Borrower, if such sale or disposition is not otherwise prohibited by this Agreement and otherwise permitted by the Transaction Documents.

7.2        Further Assurances . The Collateral Agent is hereby authorized and directed to execute and deliver or file such termination and partial release statements and take such other actions as are reasonably necessary to release (or subordinate) Liens pursuant to this Section 8 promptly upon the effectiveness of any such release (or subordination).

Section 8.      Attorney in Fact; Execution of Releases

(a)       The Second Lien Creditor hereby irrevocably constitutes and appoints the First Lien Creditor and any officer or agent thereof (including the Collateral Agent), with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Second Lien Creditor and in the name of the Second Lien Creditor or in the First Lien Creditor’s own name, for the purpose of carrying out the terms of this Agreement, to take, prior to the payment in full of all First Lien Obligations, any appropriate action (including executing any document or instrument necessary or desirable) to accomplish the purpose of, or obtaining or preserving the full benefits of, this Agreement and the rights and powers herein granted, including to ensure the validity, perfection or priority of the Second Liens.

(b)       Without limiting the generality of the foregoing, the Second Lien Creditor hereby gives the First Lien Creditor and any officer and agent thereof (including the Collateral Agent) the power and right, on behalf of the Second Lien Creditor, without notice to or assent by the Second Lien Creditor, to do, prior to the payment in full of the First Lien Obligations, any of the following, to the extent the Second Lien Creditor would be permitted to do so under the First Lien Documents and Second Lien Documents:

(i)       file of any financing or continuation statement under the UCC or other similar applicable Regulation;

(ii)       take possession of, and indorse and collect, either in the name of the Second Lien Creditor or its own name, any item that is required to be turned over to the First Lien Creditor pursuant to Section 3.1 ;

(iii)       execute, in connection with any release of any Collateral described in Section 8 (Release of Collateral) for which the Second Lien Creditor is obligated under such Section 8 (Release of Collateral) to release or subordinate its Second Liens, any termination, partial release, endorsement, assignment, other instrument of conveyance or transfer, any subordination agreement or any other document with respect to such Collateral necessary or appropriate to effect such release or subordination; and

(iv)       direct the Collateral Agent to do any of the foregoing.

(c)       The Second Lien Creditor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable.

(d)       Notwithstanding the grant of the foregoing power of attorney, nothing in this Section 9 is intended to in any way relieve the Borrower of its obligations to comply with Regulations or applicable Contractual Obligations with respect to the release of collateral under any Second Lien Document.

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Section 9.      Rights and Remedies of First Lien Creditor

9.1        Continuing Rights with Respect to First Lien Obligations

(a)       Without limiting the other rights the First Lien Creditor may have under this Agreement or the Transaction Document and subject to the rights of the Second Lien Creditor and other limitations expressly set forth in Section 4   (Exercise of Second Lien Remedies) and Section 5   (Insolvency Proceedings) and to the limitations expressly set forth in Section 7   (Amendments) or otherwise expressly set forth in this Agreement, the First Lien Creditor may (but shall not be obligated to), and shall have the exclusive right, prior to the payment in full of the First Lien Obligations, without any consultation with, any consent of, any duty to (or, except as otherwise expressly provided hereunder, notice to) the Second Lien Creditor, without regard to any right or interest the Second Lien Creditor may have in the Collateral or otherwise, without incurring any liability to the Second Lien Creditor and without impairing or releasing any of the subordination, priorities and other obligations of the Second Lien Creditor provided in this Agreement (even if any right of subrogation or other right or remedy of the Second Lien Creditor is affected, impaired or extinguished thereby), to do, delay or not do (or direct the Collateral Agent to do, delay or not do) each of the following, all in such order, at such time and in such manner as it may determine in the exercise of its sole discretion:

(i)       manage, supervise, maintain, or make further, extensions of credit to the Borrower under the First Lien Documents and First Lien Obligations, including changing duties or provisions, the manner, place or terms of payment or change the time of payment of, and modifying, whether by course of conduct or otherwise, any First Lien Document, First Lien Obligation, First Lien or guaranty of any First Lien Obligation and entering into any Refinancing of any First Lien Obligation;

(ii)       settle or compromise any First Lien Obligation, any insurance policy covering the Collateral or any other liability of the Borrower with respect to the Collateral or the First Lien Obligations and apply or permit any other Person to apply any sums by whomsoever paid and however realized with respect to the Collateral or any First Lien Obligation to any liability (including the First Lien Obligations), or change any such application, in each case in any manner, in any order and for any purpose;

(iii)       require the Borrower to provide, or otherwise accept, additional Collateral (including if the LTV Ratio shall equal or exceed the Collateral Call Percentage);

(iv)       take, elect to take, delay in or refrain from taking any Collateral Enforcement Action, sell (including if the LTV Ratio equals or exceeds the Liquidation Percentage or if the Borrower shall have failed to deposit additional Collateral as required within the time required), exchange, release, surrender, collect on, realize upon, enforce rights, exercise remedies (including rights and remedies of a secured lender under the UCC or any other applicable Regulation of any applicable jurisdiction and rights and remedies of a secured creditor under any Bankruptcy Law), elect rights or remedies, delay in or refrain from exercising any rights or remedies and otherwise deal freely with in any manner and in any order any Collateral in accordance with the terms of the First Lien Documents as if the Second Liens did not exist, including collecting on any account or general intangible that is part of the Collateral, sending Blockage Notices with respect to deposit accounts and similar notices with respect to securities accounts and other accounts containing Collateral, approve any award granted in any condemnation or similar proceeding affecting the Collateral, exercising rights under any Landlord Waiver or Bailee’s Letter, making determinations regarding dispositions pursuant to §363(f) of the Bankruptcy Code and similar Bankruptcy Laws, appointing an agent to sell or otherwise dispose of Collateral, credit bidding the debt owing to the First Lien Creditor and incurring fees and expenses in connection with any sale or other disposition of Collateral; and

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(v)       commence or join any Person in commencing any Insolvency Proceeding with respect to the Borrower, participate or consent to any Post-Petition Financing, take any of the actions set forth in any of the subclauses of Section 5.1(a) (Waivers) or object, whether in any Insolvency Proceeding or otherwise, to any action taken by any Person (including the Second Lien Creditor), including to the Second Lien Creditor seeking Adequate Protection or asserting any right or remedy, whether under this Agreement, the Transaction Documents or otherwise.

(b)       The Second Lien Creditor and the Borrower understand and agree to the following:

(i)       While the Collateral Claim Percentage and the Collateral Claim Period are intended to provide the Borrower an opportunity to provide additional Collateral in the absence of any other Event of Default, and that the concept of Liquidity Percentage is necessary and appropriate to protect the Lender against periods of high volatility and rapid changes in value of the Collateral. As a result, the Borrower and the Second Lien Creditor may see the Collateral being sold without notice, at a time when it is losing its value rapidly, even if such loss of value is ultimately temporary and even at a time when the Borrower is willing and able to repay the First Lien Obligations through other means.

(ii)        Anything else in any First Lien Document notwithstanding, certain events (including forks) may add assets to the Collateral (or otherwise transform part of the Collateral) so as to make it technologically difficult or impossible for the First Lien Creditor or the Collateral Agent to transfer all or part of the Collateral to the Borrower or the Second Lien Creditor. Neither the First Lien Creditor nor the Collateral Agent shall be liable for any Losses to the Borrower, the Second Lien Creditor, their Affiliates or other Persons from such event.

(iii)       (x) any transfer of Collateral, either to or from the Borrower or other parties, results in transfer fees (such as mining fees, etc.) and that such transfer fees are the responsibility of the Borrower and are typically deducted directly from such Collateral and reduce its value, so that, even if the Borrower pays all Obligations in full in cash, the Collateral returned to the Borrower or the Second Lien Creditor shall be reduced by such transfer fees, (y) it may not be possible to sell at the price shown in the Valuation Index at the time of the sale due to market conditions and to the time necessary to complete all steps to sell the Collateral and (z) the Lender will use its judgment to make choices to obtain what it feels is the best price for the Collateral to get the Obligations repaid and these choices will not necessarily reflect the choices the Borrower would have made to obtain the best value for the Collateral as a whole.

9.2        Continuing and Irrevocable Rights Under this Agreement . This is a continuing agreement of lien subordination. All rights and remedies of the First Lien Creditor and all obligations of the Second Lien Creditor under this Agreement shall remain in full force and effect until payment in full of all First Lien Obligations irrespective of, and no right or remedy of the First Lien Creditor under this Agreement shall be prejudiced or impaired at any time by, any of the following: (a) any action described in 7.3 (Amendments; Legends) or Section 10.1 (Continuing Rights with Respect to First Lien Obligations) , (b) any lack of validity or enforceability of any First Lien Document or any Second Lien Document, (c) the commencement of any Insolvency Proceeding or any other Collateral Enforcement Action, (d) any act or failure to act on the part of the Borrower or the First Lien Creditor, (e) any noncompliance by any Person with the terms, provisions and covenants of this Agreement or any Transaction Document, regardless of any knowledge thereof that the First Lien Creditor may have or be otherwise charged with or (f) any other circumstances that otherwise might constitute a defense available to, or a discharge of, the Borrower in respect of any First Lien Obligation or of the Second Lien Creditor in respect of this Agreement or any Second Lien Document. All consents, waivers and other provisions set forth herein for the benefit of the First Lien Creditor are irrevocable (except in a writing signed by the First Lien Creditor as provided in Section 14.1   (Amendments; Waivers) ), and each of the Second Lien Creditor and the Borrower hereby waives any right under applicable Regulations to revoke any such consent, waiver or other provision of this Agreement.

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Section 10.      Representations and Warranties

Each party hereto represents and warrants as follows: (a) such party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has all requisite power and authority to enter into and perform its obligations under this Agreement, (b) this Agreement has been duly executed and delivered by such party and constitutes a legal, valid and binding obligation of such party, enforceable in accordance with its terms and (c) the execution, delivery and performance by such party of this Agreement (i) do not require any consent or approval of, registration or filing with or any other action by any governmental authority and (ii) will not violate any applicable Regulation or the Constituent Documents of such party or any order of any Governmental Authority binding upon such party.

Section 11.      Independent Analysis; No Warranties; No Duties

11.1        Independent Analysis .

(a)       Each Secured Party has, independently and without reliance on any other Secured Party, and based on documents and information deemed by it appropriate, made its own credit analysis and decision to enter into this Agreement, the Transaction Documents, and the transactions contemplated hereby and thereby and the Second Lien Creditor will continue to make its own credit decision in taking or not taking any action under the Second Lien Documents or this Agreement.

(b)       The First Lien Creditor, on the one hand, and the Second Lien Creditor, on the other hand, shall each, without reliance on the other or on the Collateral Agent, be responsible for keeping themselves informed of (a) the financial condition of the Borrower and all endorsers or guarantors of the Secured Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the Secured Obligations.

(c)       No Secured Party shall have any duty to advise any other Secured Party of information known to it regarding such condition or any such circumstances or otherwise. In the event the First Lien Creditor, in its sole discretion, undertakes at any time or from time to time to provide any such information to the Second Lien Creditor, it or they shall be under no obligation (i) to provide any additional information or to provide any such information on any subsequent occasion, (ii) to undertake any investigation or (iii) to disclose any information that, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential.

11.2        No Warranties or Liability

(a)       No Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectibility or enforceability of any Transaction Document.

(b)       None of the Collateral Agent and the First Lien Creditor shall have any duty or liability to the Second Lien Creditor with respect to, and the Second Lien Creditor hereby waives all claims against the First Lien Creditor or the Collateral Agent arising out of, any and all actions that the First Lien Creditor or the Collateral Agent may take or permit or omit to take pursuant to Section 10.1 (Continuing Rights with Respect to First Lien Obligations) or otherwise with respect to any of the following: (i) any First Lien Document, (ii) the collection of any First Lien Obligation, (iii) the foreclosure upon, or sale, liquidation or other disposition of, any Collateral, (iv) the release of any Lien or (v) the maintenance or preservation of any Collateral, any First Lien Obligation or any right of or benefit to the First Lien Creditor.

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(c)       Without limiting the foregoing, none of the First Lien Creditor and the Collateral Agent shall have any duty to the Second Lien Creditor to act or refrain from acting in a manner that allows, or results in, the occurrence or continuance of an event of default or default under any agreements with the Borrower (including the Transaction Documents), regardless of any knowledge thereof that the First Lien Creditor or the Collateral Agent may have or be charged with.

Section 12.      Collateral Agent

12.1        Appointment

(a)       Each Creditor hereby irrevocably appoints ALPPS LLC as “Collateral Agent” hereunder to handle matters relating to the Collateral, and each Creditor hereby irrevocably authorizes the Collateral Agent to take such actions on its behalf and to exercise such power as are delegated to the Collateral Agent by the terms of this Agreement or any related document as well as all powers such Creditors have under the Transaction Documents with respect to the Collateral, together with such actions and powers as are reasonably incidental thereto, in accordance with the terms of this Agreement or any related document or Transaction Document. The provisions of this Section 12 are solely for the benefit of the Collateral Agent and the Borrower shall not have any rights as a third party beneficiary of any provision thereof. It is understood and agreed that the use of the term “agent” herein or in any other Transaction Document (or any other similar term) with reference to the Collateral Agent is not intended to connote, and the Collateral Agent does not assume and shall not be deemed to have assumed, any fiduciary, trust or other implied (or express) obligation or relationship arising under agency doctrine of any applicable Regulation. Without limiting the foregoing, the Collateral Agent shall not (a) be subject to any fiduciary or implied duties, regardless of whether a Default has occurred or (b) except as expressly set forth in this Agreement or the Transaction Documents, have any duty to disclose, or be liable for any failure to disclose, any information relating the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity. Instead, such term is used as a matter of market custom, and is intended to create or reflect only a ministerial relationship between contracting parties, mostly for administrative purposes.

(b)       The Collateral Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement or any Transaction Document to which the Collateral Agent is a party as such, and the Collateral shall not have any duty to take any discretionary action or exercise any discretionary powers, except for those expressly mentioned by this Agreement or any Transaction Document as required to be taken by the Collateral Agent upon the direction of all or part of the Creditors; provided , that, even in such cases, the Collateral Agent shall not be required to take any action that, in the opinion of the Collateral Agent, may expose the Collateral Agent to liability or that is contrary to any Transaction Document or any applicable Regulation. Notwithstanding anything to the contrary contained herein, the Collateral Agent shall not be required to take any action which is contrary to this Agreement or any Transaction Document to which the Collateral Agent is a party or any applicable Regulation. The Collateral Agent shall not (i) be required to initiate or conduct any litigation or collection proceeding hereunder or under any Transaction Document to which the Collateral Agent is a party, unless required by the terms of this Agreement or any Transaction Document (and the Collateral Agent shall have been indemnified to its satisfaction for costs, claims and expenses to be incurred by it), or (ii) be responsible for any action taken or omitted to be taken by it hereunder, under this Agreement or any Transaction Document to which the Collateral Agent is a party or in connection herewith or therewith, except in the case of its own gross negligence or willful misconduct.

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(c)       None of the Collateral Agent or any Creditor nor any of their respective Affiliates shall be responsible to any other Creditor for any recitals, statements, representations or warranties made by the Borrower or any of its Affiliates contained in this Agreement or any Transaction Document or in any certificate or other document referred to or provided for in, or received by any Creditor under, this Agreement or any Transaction Document, for the value, validity, effectiveness, genuineness, enforceability, priority or sufficiency of this Agreement or any Transaction Document or any other document referred to or provided for herein or therein or for any failure by the Borrower or any of its Affiliates to perform their respective obligations hereunder or thereunder. Each Creditor represents that it has, independently and without reliance on the Collateral Agent or any other Creditor, and based on such documents and information as it has deemed appropriate, made its own appraisal of the Collateral and the Transaction Documents, the financial condition and affairs of the Borrower and its own decision to enter into this Agreement and the other Transaction Documents to which it is a party and agrees that it will, independently and without reliance upon the Collateral Agent or any other Creditor, and based on such documents and information as it shall deem appropriate at the time, continue to make its own appraisals and decisions in taking or not taking action under this Agreement and the Transaction Documents to which it is a party. Neither the Collateral Agent nor any Creditor shall be required to keep informed as to the performance or observance by the Borrower or any of its Affiliates under the Transactions Documents or any other document referred to or provided for therein or to make inquiry of, or to inspect the properties or books of, the Borrower or such Affiliates. Except for notices, reports and other documents and information expressly required to be furnished to the Creditors by the Collateral Agent hereunder and under the Transaction Documents, none of the Collateral Agent or any Creditor shall have any duty or responsibility to provide any other Creditor with any credit or other information concerning the Borrower, or any Affiliate thereof, which may come into the possession of the Collateral Agent or such Creditor or any of its or their Affiliates.

(d)       The Collateral Agent may execute any of its duties or powers under this Agreement and the Collateral Documents by or through agents, attorneys-in-fact, receivers or employees and shall be entitled to advice of counsel concerning all matters pertaining to such duties and may in all cases pay such reasonable compensation to all such agents, attorneys-in-fact, receivers and employees as may reasonably be employed in connection with its duties hereunder. The Collateral Agent may act upon the opinion or advice of any attorney (including in-house counsel) selected by the Collateral Agent in the exercise of reasonable care. The Collateral Agent shall not be responsible for any Loss resulting from any action or inaction taken or not taken, as the case may be, in good faith in reliance upon such opinion or advice. The Collateral Agent without consent of or notice to any party hereto, may assign any and all of its rights or obligations hereunder to any of its Affiliates.

(e)       The Creditors hereby authorize the Collateral Agent to execute, deliver and perform each of the Transaction Documents to which the Collateral Agent is or is intended to be a party, and each Creditor agrees to be bound by all of the agreements of the Collateral Agent contained in, and all of the other terms and conditions of, the Transaction Documents.

(f)       Without the prior written consent of all Creditors (except as the Controlling Creditor is entitled to instruct, and so instructs, pursuant to this Agreement or the Transaction Documents or as may be otherwise required under the Transaction Documents), the Collateral Agent shall not (a) release any Collateral or otherwise terminate any Lien under any Transaction Document, (b) consent to any modification, supplement, amendment, termination or waiver of any Transaction Document or (c) consent to any Lien under any Transaction Document securing obligations other than the Secured Obligations; provided that no such consent shall be required, and the Collateral Agent is hereby authorized, to release any Lien covering Collateral if such release of Collateral is expressly permitted under the applicable Transaction Documents or is made in connection with a Collateral Enforcement Action or otherwise in connection with the exercise of remedies taken by, or at the written direction of the relevant Controlling Creditor pursuant to the Transaction Documents and in accordance with this Agreement. Unless otherwise directed the Collateral Agent may take such action, to the extent permitted under the Transactions Documents, as it considers desirable or necessary to preserve or perfect its interest in the Collateral.

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(g)       For the avoidance of doubt, nothing in this Agreement or in any other Transaction Document shall limit the obligations of the Borrower under any Transaction Document, including any obligation of the Borrower to obtain any consent or approval of the Secured Parties or any other Person required to be obtained by such Borrower prior to any amendment of, modification or supplement to or waiver under any Transaction Document. The Borrower shall not request the consent of the Collateral Agent and the Collateral Agent shall not consent to any amendment of, modification or supplement to or waiver under any Transaction Document unless and until the Borrower shall have first obtained all such required consents and approvals.

12.2        Actions; Direction of Creditors; Notices

(a)       Except as set forth in clause (b) below , the Collateral Agent shall take, or refrain from taking, any action as directed in writing by the Controlling Creditor or any other action that does not contradict any provision of this Agreement as directed in writing by (i) the Controlling Creditor or (ii) the other Creditor; provided , that (x) in case of conflict between directions validly given pursuant to clause (i) above and directions validly given pursuant to clause (ii) above, such directions given pursuant to clause (i) above shall govern and (y) in case of conflict between any other directions validly given pursuant to this clause (b) , the directions last received by Collateral Agent shall govern.

(b)       From and after the receipt of any Notice of Default and prior to the withdrawal of all pending Notices of Event of Default, the Collateral Agent shall take, or refrain from taking, any action directed in writing by the Creditors jointly or any other action that does not contradict any provision of this Agreement as directed in writing by (i) the Controlling Creditor and (ii) solely to the extent empowered to do so pursuant to Section 4.2 (Termination of Standstill) , the Second Lien Creditor; provided , that (x) directions given pursuant to clause (ii) above shall expire no later than when the power to give such directions shall expire and (y) in case of conflict between any other directions validly given pursuant to this clause (b) , taking into account the preceding clause (x) , the directions last received by Collateral Agent shall govern. In the event all of the Events of Default giving rise to any Notice of Default issued by either Creditor has been cured or waived or otherwise has ceased to exist pursuant to the applicable Transaction Document, such Creditor shall withdraw such Notice of Default by written notice of such withdrawal to the Collateral Agent.

(c)       In the event that the Collateral Agent shall have received instructions from the Controlling Lender which the Collateral Agent believes are inconsistent, the Collateral Agent shall notify the Controlling Lender of such belief and the Collateral Agent shall be entitled to refrain from following such conflicting instructions until such instructions are clarified to the reasonable satisfaction of the Collateral Agent by the Controlling Lender; provided that if such conflicting instructions are not so clarified within the time requested by the Collateral Agent, the Collateral Agent shall, subject to the terms and conditions hereof, exercise such remedies hereunder and under the Transaction Documents as the Collateral Agent believes are appropriate under its preferred reading of such instructions.

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(d)       No Secured Party may instruct the Collateral Agent to take any action that such Secured Party itself is prohibited to take under this Agreement or any Transaction Document. The Collateral Agent waives and agrees not to exercise all rights it holds solely for the benefit of the Second Lien Creditor hereunder to the same extent the Second Lien Creditor has waived or agreed not to exercise such rights under this Agreement or under any Transaction Document. The Collateral Agent shall be entitled to rely upon, and shall have no duty to investigate the accuracy of the matters stated in, any certificate, notice or other document (including any cable, telegram, telecopy or telex) reasonably believed by it to be genuine and to have been signed or sent by or on behalf of the proper Person or Persons.

(e)       The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of a Default or an Event of Default unless the Collateral Agent has received written notice from a Secured Party describing such Default or Event of Default and stating that such notice is a “Notice of Default”. The Collateral Agent shall take such action with respect to such Default or Event of Default as so directed by the Controlling Creditor (in accordance with the provisions of the Transaction Documents); provided that, unless and until the Collateral Agent shall have received such directions, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interest of the Secured Parties generally (without having regard to the specific interests of any Secured Party) or, at the discretion of the Collateral Agent, in the best interest of the Controlling Creditor.

(f)       The Controlling Creditor shall promptly send to the other Creditor a copy of any written direction given by such Controlling Creditor pursuant to this Section 13.2 , and the Collateral Agent shall provide to each Creditor a copy of any written direction received from any other Secured Party pursuant to this Section 13.2 ; provided , that the failure to comply with this clause (d) shall not impair any right, power or remedy of any Secured Party under any Transaction Document.

(g)       In the event that the Collateral Agent is instructed to proceed to take any Collateral Enforcement Action or otherwise sell or otherwise dispose of, or take any other action with respect to, any or all of the Collateral or to take any other action pursuant to this Agreement or any other Transaction Document, then, upon the request of the Collateral Agent, each Creditor shall notify the Collateral Agent in writing, as of any time the Collateral Agent may specify in such request, of (a) the aggregate amount of the applicable Secured Obligations owing under the applicable Transaction Documents, (b) the components of such Secured Obligations and (c) such other information as the Collateral Agent may reasonably request.

(h)       Nothing in this Section 13.2 shall impair the right of the Collateral Agent in its discretion to take or omit to take any action deemed proper by the Collateral Agent under this Agreement and the Transaction Documents and that it believes in good faith is not inconsistent with any direction of the Controlling Creditor delivered pursuant to this Section 13.2 ; provided , the Collateral Agent shall not be under any obligation to take any discretionary action under the provisions of this Agreement or any Transaction Document unless so directed by the Controlling Creditor.

12.3        No Duties .

(a)       The Collateral Agent and the First Lien Creditor shall have no obligation whatsoever to any Secured Party to ensure that the Collateral in their possession or under their control is genuine or owned by the Borrower or to preserve the rights or benefits of any Person except as expressly set forth in this Agreement. Neither Collateral Agent nor the First Lien Creditor shall have, by reason of this Agreement, any Transaction Document or any other document, a fiduciary relationship with the Second Lien Creditor.

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12.4        Indemnification . Each Creditor agrees to indemnify the Collateral Agent and each of its Affiliates, and each of their respective directors, officers, employees, agents and advisors (to the extent not reimbursed by the Borrower), from and against such Lender’s ratable share (calculated based on the outstanding principal amount of the Secured Obligations owing to, including commitments of, such Creditors) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements (including fees, expenses and disbursements of financial and legal advisors) of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against, the Collateral Agent or any of its Affiliates, directors, officers, employees, agents and advisors in any way relating to or arising out of this Agreement or the Transaction Documents or any action taken or omitted by the Collateral Agent under this Agreement or the other Transaction Documents; provided , that no such Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Collateral Agent’s or such Affiliate’s gross negligence, bad faith or willful misconduct. Without limiting the foregoing, each such Lender further agrees to reimburse the Collateral Agent promptly upon demand for its ratable share (calculated based on the outstanding principal amount of the Secured Obligations owing to, and commitments of, such Creditors) of any out-of-pocket expenses (including fees, expenses and disbursements of financial and legal advisors) incurred by the Collateral Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of its rights or responsibilities under, this Agreement or the Transaction Documents, to the extent that the Collateral Agent is not reimbursed therefor by the Borrower.

12.5        Limitation of Liability . The Collateral Agent shall have no liability (whether in contract, tort or otherwise) to any Secured Party for or in connection with the transactions contemplated hereby or by any Transaction Document, except to the extent such liability is determined in a final non-appealable judgment by a court of competent jurisdiction to have resulted from such Collateral Agent’s gross negligence or willful misconduct.

12.6        Resignation and Removal

(a)       The Collateral Agent may resign at any time by giving written notice thereof to the Creditors and the Borrower and shall, immediately upon giving such notice, be discharged from its duties and obligations under this Agreement and the Transaction Documents. The Collateral Agent may be removed at any time by the Creditors, acting jointly, by giving written notice thereof to the Collateral Agent and the Borrower. Upon any such resignation or removal, the Creditors acting jointly shall have the right to appoint a successor Collateral Agent. If no successor Collateral Agent shall have been so appointed and shall have accepted such appointment within 30 days following the notice of resignation or removal, then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint a successor Collateral Agent. In either case, such appointment shall be subject to the prior written approval of the Borrower (which approval may not be unreasonably withheld or delayed and shall not be required upon the occurrence and during the continuance of an Event of Default).

(b)       Upon the acceptance of any such appointment by a successor Collateral Agent, such successor Collateral Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Collateral Agent hereunder and under the Transaction Documents. Promptly after the retiring Collateral Agent’s resignation or removal hereunder as Collateral Agent, the retiring Collateral Agent shall, upon reimbursement of its expenses and receipt of appropriate indemnfications, take such action as may be reasonably necessary to assign to the successor Collateral Agent its rights as Collateral Agent under the Collateral Documents and to protect and maintain the Liens held by the Collateral Agent for the benefit of the Secured Parties (including delivery of any Collateral in its possession to the successor Collateral Agent). After such resignation, the retiring Collateral Agent shall continue to have the benefit of this Section 13 and the remainder of this Agreement and the Transaction Documents any as to any actions taken or omitted to be taken by it while it was Collateral Agent under this Agreement and the Transaction Documents. The Collateral Agent shall not be obligated to pay any fee or expense of any successor Collateral Agent.

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(c)       Prior to any Person accepting its appointment as a successor Collateral Agent, the Controlling Creditor shall assume and perform all of the duties of the retiring Collateral Agent hereunder until such time, if any, as a successor Collateral Agent shall become the Collateral Agent hereunder.

(d)       Any Person (i) into which the Collateral Agent may be merged or consolidated or (ii) which may result from any merger, conversion, or consolidation to which the Collateral Agent shall be a party, which corporation, if requested by any Creditor, executes an agreement of assumption to perform every obligation of the Collateral Agent under this Agreement and the Transaction Documents, shall be the successor of the Collateral Agent hereunder without the execution or filing of any instrument or any further act on the part of any of the parties hereto.

Section 13.       Miscellaneous

13.1        Amendments; Waivers . No amendment, modification or waiver of any provision of this Agreement shall be deemed to be made unless the same shall be in writing signed by each of the First Lien Creditor, the Second Lien Creditor and, in the absence of any continuing Event of Default and, with respect to modifications to, or waivers with respect to, Section 8   (Release of Collateral) or any other modification or waiver materially affecting any right, obligation or duty of the Borrower, the Borrower. In the case of a waiver of any provision of this Agreement, such waiver shall be effective only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time.

13.2        Consent of Borrower . The Borrower hereby consents to the provisions of this Agreement.

13.3        Reliance by First Lien Creditor . The consent by the First Lien Creditor to the execution and delivery of the Second Lien Documents and to the grant to the Second Lien Creditor of a Second Lien on the Collateral and all extensions of credit made or deemed made on and after the date hereof by the First Lien Creditor to the Borrower are given, made or deemed made in reliance upon this Agreement.

13.4        Consequential Damages . In no event shall any party hereto be liable on any theory of liability for any special, consequential or punitive damages (including any loss of profits, business or anticipated savings). Each Secured Party hereby waives, releases and agrees (each for itself and on behalf of its Subsidiaries) not to sue upon any such claim for any special, consequential or punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.

13.5        Notices . All notices, demands, requests, consents and other communications provided for in this Agreement shall be given as set forth in any applicable First Lien Document or Second Lien Document for such party or beneficiary (and notice to the Collateral Agent shall be given to the First Lien Lender unless otherwise notified by the Collateral Agent to all other parties hereto).

13.6        Effectiveness; Assignments; Refinancing . This Agreement shall become effective when executed and delivered by the parties hereto and, thereafter, shall be binding upon the parties hereto and their successors and assigns, and shall remain in full force and effect after the commencement of any Insolvency Proceeding. This Agreement may not be assigned by any Secured Party except in connection with a corresponding permitted assignment of the rights of such Secured Party as such under the corresponding Transaction Documents and may not be assigned by the Borrower. Should any Post-Petition Financing or any Refinancing of any Secured Obligation occur, this Agreement shall apply to such Post-Petition Financing or Refinancing to the same extent as to the original Secured Obligations, and the parties hereto agree to enter into conforming changes to this Agreement, if any, as may be necessary or appropriate to ensure or evidence such application.

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13.7        No Third Party Beneficiaries . This Agreement and the rights and benefits hereof shall inure to the benefit of the First Lien Creditor, the Second Lien Creditor, the Borrower and each of their respective successors and (if permitted) assigns and, to the extent applicable, the Borrower, the Second Lien Creditor and their respective successors and (if permitted) assigns. No other Person, shall have or be entitled to assert rights or benefits hereunder, including, other than with respect to Section 2.3(a) (No Additional Liens) and Section 7 (Release of Collateral) , the Borrower. Except for Section 2.3(a) (No Additional Liens) and Section 7 (Release of Collateral) , nothing herein shall be construed to grant any right or give any benefit to the Borrower or to modify, as between the Borrower and the Secured Parties only, any right or remedy any Secured Party may have against the Borrower (including any right of any Secured Party to receive payments of principal and interest permitted hereunder) or any obligation of the Borrower.

13.8        Specific Performance . The First Lien Creditor may demand specific performance of this Agreement. The Second Lien Creditor hereby irrevocably waives any defense it might have based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action that may be brought by the First Lien Creditor.

13.9        Further Assurances . Each of the Collateral Agent and the Second Lien Creditor agrees that it shall take such further action and shall execute and deliver to the First Lien Creditor such additional documents and instruments (in recordable form, if requested) as the First Lien Creditor may reasonably request to effectuate the terms of and the Lien priorities contemplated by, this Agreement.

13.10        Governing Law . This Agreement shall be interpreted, and the rights and liabilities of the parties hereof determined, in accordance with the law of the State of New York.

13.11        Consent to Jurisdiction; Waivers .

(a)       Any legal action or proceeding with respect to this Agreement may be brought in the courts of the State of New York or of the United States of America for the Southern District of New York, and, by execution and delivery of this Agreement, each party hereto hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum   non   conveniens , that any of them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions.

(b)       Each Secured Party and each other party hereto hereby irrevocably consents to the service of any and all legal process, summons, notices and documents in any suit, action or proceeding brought in the United States of America arising out of or in connection with this Agreement by the mailing (by registered or certified mail, postage prepaid) or delivering of a copy of such process to such party at its address specified in Section 14.5 (Notices) . Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by any applicable Regulation.

(c)        Each Secured Party and each other party hereto irrevocably waives trial by jury in any action or proceeding with respect to this Agreement.

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13.12        Severability . Any provision this Agreement being held illegal, invalid or unenforceable in any jurisdiction shall not affect any part of such provision not held illegal, invalid or unenforceable, any other provision of this Agreement or any part of such provision in any other jurisdiction. The parties shall endeavor in good faith negotiations to replace any part of any provision so held illegal, invalid or unenforceable so as to replace it with valid provisions the economic effect of which comes as close as possible to such part of such provision held illegal, invalid or unenforceable.

13.13        Section Titles . The section titles contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of this Agreement.

13.14        Counterparts . This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed signature page of this Agreement by facsimile transmission or by posting on the Approved Electronic Platform shall be as effective as delivery of a manually executed counterpart hereof.

13.15        Entire Agreement . This Agreement, together with all Transaction Documents, embodies the entire agreement of the parties and supersedes all prior agreements and understandings relating to the subject matter hereof. In the event of any conflict between the provisions of this Agreement and the provisions of any Transaction Documents, the provisions of this Agreement shall govern.

[Signature Pages Follow]

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

AGREED AND ACKNOWLEDGED:

DPW HOLDINGS, INC.

[Signature Page to Intercreditor Agreement]