Exhibit 10.1

PURCHASE AGREEMENT

THIS PURCHASE AGREEMENT (“Agreement”) is made as of the 10th day of August, 2022, by and among BitNile, Inc., a Nevada corporation (the “Company”), and each investor identified on the signature pages hereto (each, including its successors and assigns, an “Investor” and collectively, the “Investors”).

Recital

The Investors wish to purchase from the Company, and the Company wishes to sell and issue to the Investors, upon the terms and conditions stated in this Agreement, original issue discount promissory notes in the aggregate principal amount of $11,000,000, bearing interest at the rate of 10% per annum, in the form attached hereto as Exhibit A (the “Note”);

In consideration of the mutual promises made herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.       Definitions. In addition to those terms defined above and elsewhere in this Agreement, for the purposes of this Agreement, the following terms shall have the meanings set forth below:

“Ault Guaranty” means a Guaranty by Milton C. Ault, III, the Executive Chairman of the Parent, in favor of the Investors.

“Business Day” means a day, other than a Saturday or Sunday, on which banks in New York City are open for the general transaction of business.

“Closing” has the meaning set forth in Section 3.

“Closing Date” has the meaning set forth in Section 3.

“Common Stock” means the Parent’s Class A common stock, $0.001 par value per share.

“DPL Guaranty” means a Guaranty by Digital Power Lending, LLC, a California limited liability company.

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

“Note” has the meaning set forth in recitals.

“Material Adverse Effect” means a material adverse effect on (i) the assets, liabilities, results of operations, condition (financial or otherwise), business, or prospects of the Company and any Subsidiary of the Company taken as a whole, or (ii) the ability of the Company to consummate the transactions contemplated by this Agreement or the ability of the Company to perform its obligations under the Transaction Documents.

“Parent” means BitNile Holdings, Inc., a Delaware corporation.

“Parent Guaranty” means a Guaranty by Parent in favor of the Investors.

“Person” means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein.

“Principal Market” means the NYSE American, LLC.

“Purchase Price” means $10,000,000.

“SEC” means the United States Securities and Exchange Commission.

“SEC Documents” has the meaning set forth in Section 4.4.

“Security Agreement” means the Security Agreement by and among the Company, Digital Power Lending, LLC and Helios Funds LLC as collateral agent for the Investors in the form attached hereto as Exhibit B.

“Subsidiary” of any Person means another Person, an amount of the voting securities, other voting ownership or voting partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which) is owned directly or indirectly by such first Person.

“Transaction Documents” means this Agreement, the Notes, the Ault Guaranty, the DPL Guaranty, the Parent Guaranty and the Security Agreement.

2.       Purchase and Issuance of the Notes.

2.1       Note. Subject to the terms and conditions of this Agreement, on the Closing Date each Investor shall purchase, and the Company shall sell and issue to each Investor, the Note in the amount set forth opposite each Investor’s name on the signature pages attached hereto in exchange for the Purchase Price.

3.       Closing. On the date of executing this Agreement, the Company shall cause the delivery of the certificates representing the Notes, registered in the names and amounts of the Investors as set forth on the signature pages attached hereto to the Investors and the Investors shall wire to the Company, pursuant to wiring instruction attached hereto as Exhibit C, in same day funds in an amount representing such Investor’s Purchase Price, as set forth on the signature page hereto (“Closing” or “Closing Date”). The Closing shall occur upon confirmation that the conditions to Closing in Section 6 hereof have been satisfied. The Closing of the purchase and sale of the Notes shall take place at the offices of the Company. Notwithstanding anything else to the foregoing, the sale of the Notes may be made in one or more Closings and on one or more Closing Dates.

4.       Representations and Warranties of the Company. The Company hereby represents and warrants to each Investor that:

4.1       Organization and Standing of the Company. Each of the Company and its subsidiaries are entities duly organized and validly existing and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authorization to own their properties and to carry on their business as now being conducted and as presently proposed to be conducted. Each of the Company and its subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect.

4.2       Authority. The Company has the requisite power and authority to enter into and perform its obligations under the Transaction Documents and to issue the Notes in accordance with the terms hereof and thereof. The execution and delivery of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the Notes have been duly authorized by the Company’s Board of Directors and no further filing (other than a Form 8-K by the Parent), consent, or authorization is required by the Company, its Board of Directors or its stockholders. This Agreement and the other Transaction Documents have been duly executed and delivered by the Company, and constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities laws.

4.3       No Conflict. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby will not (A) result in a violation of the Certificate of Incorporation (as defined below) or other organizational documents of the Company or any of its subsidiaries, any share capital of the Company or any of its subsidiaries or Bylaws (as defined below) of the Company or any of its subsidiaries, (B) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its subsidiaries is a party, or (C) result in a violation of any law, rule, regulation, order, judgment or decree, including foreign, federal and state securities laws and regulations and the rules and regulations of the Principal Market applicable to the Parent or any of its Subsidiaries or by which any property or asset of the Company or any of its subsidiaries is bound or affected except, in the case of clause (B) or (C) above, to the extent such violations that could not reasonably be expected to have a Material Adverse Effect.

4.4       Consents. Neither the Company nor any of its subsidiaries is required to obtain any consent from, authorization or order of, or make any filing (other than a Form 8-K by the Parent) or registration with, any court, governmental agency or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver or perform any of its respective obligations under or contemplated by the Transaction Documents, in each case, in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings (other than a Form 8-K by the Parent) and registrations which the Company or any of its subsidiaries is required to obtain pursuant to the preceding sentence have been obtained or effected on or prior to the Closing Date, and neither the Company nor any of its subsidiaries are aware of any facts or circumstances which might prevent the Company or any of its subsidiaries from obtaining or effecting any of the filings contemplated by the Transaction Documents.

4.4       SEC Documents. The Parent has, during the preceding 12 months, filed with the SEC all reports and other materials required to be filed by Section 13 or 15(d) of the Exchange Act, as applicable (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Parent included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Parent as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in the aggregate). No other information provided by or on behalf of the Company to the Investor which is not included in the SEC Documents contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they are or were made. There is no event, pending event or threatened event that could result in the Parent not filing with the SEC all reports and other materials required to be filed by Section 13 or 15(d) of the Exchange Act, as applicable, in compliance in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to such filings.

4.5       Information. The Company confirms that neither it nor any other Person acting on its behalf has provided the Investor or its agents or counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information concerning the Company or any of its subsidiaries, other than the existence of the transactions contemplated by the Transaction Documents. The Company understands and confirms that the Investor will rely on the foregoing representations in effecting transactions in securities of the Company. To the knowledge of the Company after reasonable inquiry, all disclosures provided to the Investor regarding the Company and its subsidiaries, their businesses and the transactions contemplated hereby, including any schedules to this Agreement, furnished by or on behalf of the Company or any of its subsidiaries is true and correct in all material respects and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.

4.6       Valid Issuance. The Notes are duly authorized by the Company and, when executed and delivered by the Company, will be valid and binding agreements of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.

4.7       Arm’s Length Transaction. The Company acknowledges and agrees that with respect to this Agreement and the transactions contemplated hereby, (A) the Investor is acting solely in an arm’s length capacity, (B) the Investor does not make and has not made any representations or warranties, other than those specifically set forth in this Agreement, (C) except as set forth in this Agreement, the Company’s obligations hereunder are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of any claim the Company may have against the Investor, (D) the Investor has not and is not acting as a legal, financial, accounting or tax advisor to the Company, or agent or fiduciary of the Company, or in any similar capacity, and (E) any statement made by the Investor or any of the Investor’s representatives, agents or attorneys is not advice or a recommendation to the Company.

4.8       Exchange Listing. Except as disclosed in SEC Documents, the Parent has not, in the 12 months preceding the date of this Agreement, received notice from any national securities exchange or automated quotation system on which the shares of Common Stock are listed or designated for quotation to the effect that the Company is not in compliance with the listing or maintenance requirements of such national securities exchange or automated quotation system. As of the date of this Agreement, to the Company’s actual knowledge based solely on absence of, as of the date hereof, any notice from any such securities exchange or automated quotation system that the Parent is not in compliance with the listing or maintenance requirements of such national securities exchange or automated quotation system, the Parent is in compliance with all such listing and maintenance requirements.

4.9       Principal Market. The Common Stock is listed on the Principal Market (or traded on other exchange or market reasonably acceptable to the Purchaser).

4.10       No Suspension. No suspension of trading of the Common Stock is in effect.

4.11       No Injunction. No injunctions or other legal proceedings relating to the sale of the Notes is pending or threatened against the Company.

4.12       No Default. Except as disclosed in SEC Documents, the Company is not in a default under, or has given to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its subsidiaries is a party.

4.13       Litigation and Regulatory Proceedings. Except as disclosed in SEC Documents, there are no material actions, causes of action, suits, claims, proceedings, inquiries or investigations (collectively, “Proceedings”) before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the executive officers of the Company or any of the Subsidiaries, threatened against or affecting the Company or any of the Subsidiaries, the Common Stock or any other class of issued and outstanding shares of the Company’s capital stock, or any of the Company’s or the Subsidiaries’ officers or directors in their capacities as such and there is no reason to believe that there is any basis for any such Proceeding.

4.14       No Undisclosed Events, Liabilities or Developments. No event, development or circumstance has occurred or exists, or is reasonably anticipated to occur or exist that (a) would reasonably be anticipated to have a Material Adverse Effect or (b) would be required to be disclosed by the Parent under applicable securities laws in a Registration Statement relating to an issuance and sale by the Parent of its Common Stock and which has not been publicly announced.

4.15        Compliance with Law. The Parent and each of the Subsidiaries have conducted and are conducting their respective businesses in compliance in all material respects with all applicable laws and are in compliance in all material respects with the rules and regulations of the Principal Market. Other than as publicly disclosed by the Parent, the Company is not aware of any facts which could reasonably be anticipated to lead to a delisting of the Common Stock by the Principal Market in the future.

4.16       No Materially Adverse Contracts, Etc. Neither the Company nor any of the Subsidiaries is (a) subject to any charter, corporate or other legal restriction, or any judgment, decree or order which in the judgment of the Company’s officers has or is expected in the future to have a Material Adverse Effect or (b) a party to any contract or agreement which in the judgment of the Company’s management has or would reasonably be anticipated to have a Material Adverse Effect.

4.17       Taxes. The Company and the Subsidiaries each has correctly prepared and duly and timely made or filed, or caused to be made or filed, all United States federal, and applicable state, provincial, local and non-U.S. Tax returns, reports and declarations required by any jurisdiction to which it is subject and has paid all Taxes and other governmental assessments and charges that are material in amount, required to be paid by it, regardless of whether such amounts are shown or determined to be due on such returns, reports and declarations, except those being contested in good faith by appropriate proceedings and for which it has set aside on its books provision reasonably adequate for the payment of all Taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid Taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and, to the knowledge of the Company, there is no basis for any such claim. Each of the Company and the Subsidiaries has collected, withheld and remitted all Taxes due and payable to the proper taxing or other governmental authority. There are no audits, assessments, reassessments, suits, proceedings, investigations or claims pending against the Company or any of the Subsidiaries in respect of Taxes paid or payable, and there are no matters under discussion with any taxing or governmental authority of any jurisdiction involving the Company or any Subsidiary with, or the subject of any agreement with, any taxing or governmental authority relating to claims for additional Taxes. There are no agreements, waivers or other arrangements providing for an extension of time with respect to the assessment or reassessment of any Tax owing by the Company or any subsidiary, the filing of any tax returns by the Company or any Subsidiary or the payment of any Tax by the Company or any Subsidiary.

4.18       OFAC. None of the Company nor any of the Subsidiaries nor any director, officer, agent, employee, affiliate or person acting on behalf of the Company and/or any Subsidiary has been or is currently subject to any United States sanctions administered by the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”); and the Company will not directly or indirectly use any proceeds received from the Investor, or lend, contribute or otherwise make available such proceeds to its Subsidiaries or to any affiliated entity, joint venture partner or other person or entity, to finance any investments in, or make any payments to, any country or person currently subject to any of the sanctions of the United States administered by OFAC.

4.19       No Foreign Corrupt Practices. None of the Company or any of the Subsidiaries has, directly or indirectly: (a) made or authorized any contribution, payment or gift of funds or property to any official, employee or agent of any governmental authority of any jurisdiction except as otherwise permitted under applicable Law; or (b) made any contribution to any candidate for public office, in either case, where either the payment or the purpose of such contribution, payment or gift was, is, or would be prohibited under the Foreign Corrupt Practices Act or the rules and regulations promulgated thereunder or under any other legislation of any relevant jurisdiction covering a similar subject matter applicable to the Company or its Subsidiaries and their respective operations and the Company has instituted and maintained policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance with such legislation.

4.20       Anti-Money Laundering. The operations of each of the Company and the Subsidiaries are and have been conducted at all times in compliance with all applicable anti-money laundering laws, regulations, rules and guidelines in its jurisdiction of incorporation and in each other jurisdiction in which such entity, as the case may be, conducts business (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental authority involving the Company or its Subsidiaries with respect to any of the Money Laundering Laws is, to the best knowledge of the Company, pending, threatened or contemplated.

5.       Representations and Warranties of the Investors. Each Investor, for itself and for no other Investor, hereby represents and warrants as of the date hereof to the Company as follows:

5.1       Organization and Existence. Such Investor, if an entity, is a validly existing corporation, limited partnership or limited liability company and has all requisite corporate, partnership or limited liability company power and authority to invest in the Note pursuant to this Agreement.

5.2       Authorization. The execution, delivery and performance by such Investor of the Transaction Documents to which such Investor is a party have been duly authorized and will each constitute the valid and legally binding obligation of such Investor, enforceable against such Investor in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally.

5.3       Investment Experience. Investor acknowledges that it can bear the economic risk and complete loss of its investment in the Note and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby.

5.4       Collateral Agent Appointment. Pursuant to a separate collateral agent agreement dated as of even date herewith, Investor has appointed Helios Funds LLC, a New York limited liability company as its collateral agent (the “Collateral Agent”). Investor hereby certifies that the Collateral Agent is authorized, on behalf of the Investor, to execute the Security Agreement and take all actions undertaken by the Collateral Agent in the Security Agreement. Unless the Company has been advised in writing by the Investor that the Collateral Agent no longer is authorized to act on the Investor’s behalf, the Company may rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request furnished to it under the Security Agreement and believed by it to be genuine and to have been signed or presented by the Collateral Agent without inquiry and without requiring substantiating evidence of any kind.

6. Conditions to Closing.

6.1       Conditions to the Investors’ Obligations. The obligation of each Investor to purchase its Note at the Closing is subject to the fulfillment to each Investor’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by Investor:

(a)       all of the representations and warranties of the Company set forth herein being true, correct, complete and accurate; and

(b)       full and timely performance by the Company of all of its obligations and covenants under this Agreement.

6.2       Conditions to Obligations of the Company. The Company's obligation to sell and issue the Notes at the Closing is subject to the fulfillment to the satisfaction of the Company on or prior to the Closing Date of the following conditions, any of which may be waived by the Company:

(a)       all of the representations and warranties of the Investor set forth being true, correct, complete and accurate; and

(b)       Each Investor shall have delivered the Purchase Price to the Company.

7.       Other Agreements of the Parties.

7.1       Security Agreement and Guaranties. Contemporaneous with the issuance of the Notes, (i) the Company will execute and deliver a Security Agreement in a form reasonably satisfactory to the Investors, (ii) Milton C. Ault, III will execute and deliver an Ault Guaranty in a form reasonably satisfactory to the Investors, (iii) DPL will execute and deliver a DPL Guaranty in a form reasonably satisfactory to the Investors, and (iv) Parent will execute and deliver a Parent Guaranty in a form reasonably satisfactory to the Investors.

7.2       Bitcoin. The Company will maintain not less than One Million Dollars ($1,000,000) of Bitcoin (as determined by reference to prices published by CoinDesk) (the “Bitcoin Minimum”) in a Company Bitcoin wallet (the “Bitcoin Wallet”) at all times during which the Notes remain outstanding. In the event that, as a result in the drop in the price of Bitcoin, the Company does not meet the Bitcoin Minimum, the Company shall, within twenty-four hours, deposit additional Bitcoin in the Bitcoin Wallet to satisfy the Bitcoin Minimum. The Company will provide a statement relating to the Bitcoin Wallet to any Investor within three (3) Business Days of a written request for same by such Investor. For so long as the Notes are outstanding, the Company will not pledge or grant a security interest in the Bitcoin Wallet or the Bitcoin contained therein, provided, however, that the Company may pledge or grant a security interest in any other Bitcoin wallet or the Bitcoin contained in such other wallets.

7.3       Stockholders’ Equity. The Parent will maintain stockholders’ equity of not less than One Hundred Million Dollars ($100,000,000) at all times during which the Notes remain outstanding. Stockholders’ equity shall be calculated in accordance with United States Generally Accepted Accounting Principles, but for purposes of the calculation under this Section 7.3, goodwill shall be excluded.

7.4.        Form 8-K. In the event of an Event of Default (as defined in the Notes), the Parent will file a Report on Form 8-K with the SEC within four (4) Business Days of the occurrence of the Event of Default to report the occurrence of such Event of Default.

7.5       Shelf Offering. In the event of a payment default under the Notes, if the Parent then has an effective shelf registration statement on file with the SEC, the Parent shall utilize reasonable commercial efforts to promptly conduct an offering of securities under such shelf registration statement to raise proceeds to cure the payment default.

7.6       Use of Proceeds. The Company will use the proceeds from the sale of the Notes for general working capital purposes.

8.       Miscellaneous.

8.1       Delivery of Notes. The Company shall, within five (5) Business Days after the Closing Date, delivery the originally executed Notes to each Investor.

8.2       Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

8.3       Notices. Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and shall be deemed effectively given as hereinafter described (i) if given by personal delivery, then such notice shall be deemed given upon such delivery, (ii) if given by email, then such notice shall be deemed given upon transmission, (iii) if given by mail, then such notice shall be deemed given upon the earlier of (A) receipt of such notice by the recipient or (B) three days after such notice is deposited in first class mail, postage prepaid, and (iv) if given by an internationally recognized overnight air courier, then such notice shall be deemed given one Business Day after delivery to such carrier. All notices shall be addressed to the party to be notified at the address as follows, or at such other address as such party may designate by ten days’ advance written notice to the other party:

If to the Company:

If to the Investor, to the address set forth on the signature page.

8.4       Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Investors. Any amendment or waiver effected in accordance with this paragraph shall be binding upon each holder of any Note purchased under this Agreement at the time outstanding, each future holder of all such Note, and the Company.

8.5       Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof but shall be interpreted as if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.

8.6       Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and thereof. All proposals, negotiations and representations (if any) made prior, and with reference to the subject matter of this Agreement, are merged herein. This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. Neither the Company nor the Investor shall be bound by any oral agreement or representation, irrespective of when made.

8.7       Further Assurances. The parties shall execute and deliver all such further instruments and documents and take all such other actions as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained.

8.8       Expenses. Except as otherwise set forth in this Agreement, each party to this Agreement shall bear its own expenses in connection with transactions contemplated hereby, provided, however, that the Company shall pay Giordano, Halleran & Ciesla, P.C., counsel to the Investors the reasonable legal fees and expenses incurred in connection with the transactions contemplated by this Agreement, in an amount not to exceed $10,000, which shall be payable at Closing.

8.9       No Strict Construction. The language used in this Amendment will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

8.10       Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the choice of law principles thereof. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.

[signature pages follow]

IN WITNESS WHEREOF, the parties have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written. 

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SIGNATURE PAGES FOR INVESTORS FOLLOW]

[INVESTOR SIGNATURE PAGES TO bitnile PURCHASE AGREEMENT]

IN WITNESS WHEREOF, the undersigned have caused this Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

Address for Delivery of Note for Purchaser (if not same as address for notice):

[SIGNATURE PAGES CONTINUE]

[INVESTOR SIGNATURE PAGES TO bitnile PURCHASE AGREEMENT]

IN WITNESS WHEREOF, the undersigned have caused this Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

Address for Delivery of Note for Purchaser (if not same as address for notice):

EXHIBIT A

FORM OF NOTE

EXHIBIT B

FORM OF SECURITY AGREEMENT

EXHIBIT C

WIRING INSTRUCTIONS

Exhibit 10.2

SECURITY AGREEMENT

THIS SECURITY AGREEMENT (this “Security Agreement”) is entered into as of August 10, 2022 by and among BitNile, Inc., a Nevada corporation with offices located at 11411 Southern Highlands Parkway, Suite 240, Las Vegas Nevada 89141 (“Debtor”), Digital Power Lending, LLC, a California limited liability company (“DPL” and together with Debtor, the “Grantors”) and Helios Funds LLC, a New York limited liability company with offices located at 45 Broadway – 19^th Floor, New York, New York 10006, as collateral agent acting in the manner and to the extent described in the Collateral Agent Agreement defined below (the “Collateral Agent”) for the benefit of the holders of the Debtor’s 10% Secured OID Notes (each a “Secured Party” and collectively, the “Secured Parties”).

BACKGROUND INFORMATION

WHEREAS, pursuant to the Note Purchase Agreement, dated as of the date hereof (the “Purchase Agreement”) each of the Secured Parties has been issued a 10% Secured OID Promissory Note of even date herewith in the principal amount of $5,500,000 (as such notes may be amended, restated, refinanced, supplemented or otherwise modified from time to time, the “Notes”) by the Debtor;

WHEREAS, DPL has guarantied the obligations of Debtor under the Notes pursuant to a Guaranty of even date herewith (the “Guaranty”);

WHEREAS, in consideration for the loans evidenced by the Notes, the Grantors desire to grant to the Collateral Agent for the benefit of the Secured Parties a security interest in the “Collateral” (as hereinafter defined) in accordance with the terms of this Security Agreement to secure the obligations of the Debtor to the Secured Parties under the Notes (the “Obligations”); and

WHEREAS, the Secured Parties have appointed Helios Funds LLC as Collateral Agent pursuant to that certain Collateral Agent Agreement dated as of August 10, 2022 (the “Collateral Agent Agreement”) among the Secured Parties and the Collateral Agent.

PROVISIONS

NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:

1.       Grant of Security Interest. As security for the obligations of the Debtor under the Notes and DPL under the Guaranty, Grantors hereby grant and assign to the Collateral Agent for the benefit of the Secured Parties a security interest as set forth below in the following, in each case whether now or hereafter existing or in which the Grantor now has or hereafter acquires an interest and wherever the same may be located (the “Collateral”):

(A) DPL hereby grants and assign to the Collateral Agent for the benefit of the Secured Parties a security interest in (i) marketable securities, investments and other property having a value of $10 million (the “Pledged Securities”), which Pledged Securities are held from time to time in E*Trade Securities LLC Account No. __________ (the “Investment Account”) and (ii) all rights and entitlements of DPL in and with respect to the Pledged Securities; and

(B) Debtor hereby grants and assign to the Collateral Agent for the benefit of the Secured Parties a security interest in four thousand (4,000) S19 Pro Antminers (the “Miners”) owned by Debtor, and all proceeds from the sale thereof, including: (a) all additions, replacements of and substitutions for all or any part of the foregoing property; (b) all records and data and embedded software relating to the foregoing property; and (c) all Proceeds thereof; provided, however, that after the Debtor has made the third Monthly Payment (as defined in the Notes), the number of Miners shall be reduced to two thousand (2,000). The serial numbers of the Miners that shall constitute Collateral shall be set forth on Schedule A hereto, which may be amended from time to time by the Debtor upon written notice to the Collateral Agent.

The term “Proceeds” includes proceeds of insurance policies insuring the Collateral against loss by theft, casualty or otherwise, and all cash or non-cash proceeds and receivables arising from the sale or transfer of such property.

The Collateral shall not include any Bitcoin mined from the Collateral.

The security interest hereby granted is to secure the prompt and full payment and complete performance of all obligations of the Grantors to the Secured Parties and the Collateral Agent under the Notes, the Guaranty and this Security Agreement.

2.       General Covenants. Each Grantor represents, warrants and covenants to and for the benefit of the Collateral Agent and the Secured Parties as follows:

(a)       Except for the security interests granted hereby, (i) such Grantor is the sole owner of the Collateral in which it is granting a security interest free from any and all liens, security interests, encumbrances, claims and other adverse interests and (ii) no security agreement, financing statement, equivalent security or lien instrument or continuation statement covering any of the Collateral has been executed by such Grantor, or is on file or of record in any public office;

(b)       Such Grantor shall not create, permit or suffer to exist, and shall take such action as is necessary to remove, any claim to or interest in or lien or encumbrance upon the Collateral owned by it, other than the security interest granted hereby. Each Grantor shall defend the right, title and interest of the Collateral Agent and the Secured Parties in, to and under the Collateral owned by it against all claims and demands of all persons and entities at any time claiming the same or any interest therein;

(c)       Subject to any limitation stated therein or in connection therewith, all information furnished by a Grantor concerning the Collateral, is or shall be at the time the same is furnished, accurate, correct and complete in all material respects; and

(d)        Each Grantor agrees to promptly notify the Collateral Agent in writing of any change (i) in the jurisdiction of organization of such Grantor, (ii) in the company name or in any trade names used to identify such Grantor in the conduct of its business or in the ownership of its properties, (iii) in the location of its chief executive office, its principal place of business, or offices in which it maintains any books and records or any offices or facilities at which Collateral owned by it is located (including the establishment of any such new offices or facilities), (iv) in its identity or corporate structure including any merger or reorganization thereof, or (v) in its Federal Taxpayer Identification Number.

3.       Additional Assurances. Each Grantor shall perform, do, make, execute and deliver all such additional and reasonable further acts, things, deeds, assurances and instruments as the Collateral Agent may reasonably require to more completely vest in and assure to the Collateral Agent its rights hereunder and in, to or under the Collateral.

4.       Preservation and Disposition of Collateral.

(a)       Except for the security interest granted hereby, each Grantor shall keep the Collateral owned by it free from any and all liens, security interests, encumbrances, claims and interests. Each Grantor shall advise the Collateral Agent promptly, in writing and in reasonable detail: (i) of any material encumbrance upon or claim asserted against any of the Collateral owned by it; (ii) of any material change in the composition of the Collateral owned by it; and (iii) of the occurrence of any other event that would have a material effect upon the aggregate value of the Collateral owned by it or upon the security interest of the Collateral Agent.

(b)       DPL shall at all times maintain in the Investment Account marketable securities and/or cash having a value of not less than $10 million. DPL shall provide a monthly account statement for the Investment Account to the Collateral Agent within ten (10) days of the end of each month whiles the Notes are outstanding.

(c) Neither Grantor shall sell or otherwise dispose of the Collateral without the prior written consent of the Collateral Agent, provided, however, that (i) DPL shall be entitled without the prior consent from the Collateral Agent, to execute sales of marketable securities that constitute Pledged Securities, provided that DPL maintains a sufficient value of Pledged Securities as Collateral pursuant to the terms of this Agreement, and (ii) Debtor shall be entitled without the prior consent from, but upon written notice to, the Collateral Agent, to replace one or more of the Miners that compromise the Collateral with an equivalent number of miners that are at least substantially similar in nature.

(d)       Neither Grantor shall use the Collateral in violation of any statute, ordinance, regulation, rule, decree or order. Each Grantor shall pay and/or satisfy any charges or levies upon the Collateral owned by it or in respect to the income or profits therefrom, except that no such charge need be paid if (i) the validity thereof is being contested in good faith by appropriate proceedings, and (ii) such proceedings do not involve any danger of sale, forfeiture or loss of any Collateral or any interest therein.

(e)        At reasonable times and upon reasonable notice, Collateral Agent may examine the Collateral and each Grantor’s records pertaining to it, wherever located, and make copies of such records.

5.       Financing Statements. At the request of the Collateral Agent, each Grantor shall join with the Collateral Agent in executing one or more financing statements in form satisfactory to the Collateral Agent and shall pay the cost of filing the same in all public offices wherever filing is deemed by the Collateral Agent to be necessary or desirable. Each Grantor hereby agrees that a carbon, photographic or other reproduction of this Security Agreement or of a financing statement shall be sufficient as a financing statement.

6.       Default. If an Event of Default (as defined in the Notes) shall occur:

(a)       The Collateral Agent may, in accordance with the terms of the Notes, declare the unpaid balance of the Notes immediately due and payable and this Security Agreement in default.

(b)       The Collateral Agent shall have the rights and remedies of a secured party under this Security Agreement and under the laws of the State of New York, including the Uniform Commercial Code as adopted and in effect from time to time in the State of New York (the “UCC”), and in addition to all of the rights and remedies of a secured party under the UCC (such rights and remedies of the Collateral Agent to be cumulative and non-exclusive), the Collateral Agent may (i) require each Grantor to, and each Grantor hereby agrees that it will at its expense and upon request of the Collateral Agent forthwith, assemble all or any part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place to be designated by the Collateral Agent that is reasonably convenient to both parties, (ii) subject to the terms and conditions of any agreements in place relating to the Collateral, enter onto the property where any Collateral is located and take possession thereof with or without judicial process or (iii) sell, transfer, or otherwise dispose of all or any of the Collateral, at any time, or from time to time consistent with the provisions of the UCC. The Collateral Agent shall give the applicable Grantor at least ten (10) days’ prior written notice of either the date after which any intended private sale is to be made or the time and place of any intended public sale. The Collateral Agent shall have the right to conduct such sales on the applicable Grantor’s premises upon prior written consent of the Grantor (which shall not be unreasonably withheld or delayed), and such sales may be adjourned from time to time in accordance with applicable law. After deducting all costs of sale as provided for under the UCC, the Collateral Agent may apply the net proceeds of the sale to the Obligations with such allocation as to item and maturity as the Collateral Agent, in its sole discretion, deems advisable and shall refund the surplus to the applicable Grantor. The Collateral Agent may sell or otherwise dispose of the Collateral without giving any warranties as to the Collateral and may specifically disclaim any warranties of title or the like.

7.       Disposition of Proceeds of Collateral. All proceeds received by the Collateral Agent for the benefit of the Secured Parties in respect of any sale, collection or other enforcement or disposition of Collateral, shall be applied (after deduction of any amounts payable to the Collateral Agent pursuant to Paragraph 8 hereof) against the Obligations pro rata among the Secured Parties in proportion to their interests in the Obligations. Upon payment in full of all Obligations, Grantors shall be entitled to the return of all Collateral, including cash, which has not been used or applied toward the payment of Obligations or used or applied to any and all costs or expenses of the Collateral Agent incurred in connection with the liquidation of the Collateral (unless another person is legally entitled thereto). Any assignment of Collateral by the Collateral Agent to a Grantor shall be without representation or warranty of any nature whatsoever and wholly without recourse. To the extent allowed by law, each Secured Party may purchase the Collateral and pay for such purchase by offsetting up to such Secured Party’s pro rata portion of the purchase price with sums owed to such Secured Party by Debtor arising under the Obligations or any other source.

8.       Expenses. Debtor shall pay to the Collateral Agent, on demand, the amount of any and all reasonable expenses, including, without limitation, attorneys’ fees, legal expenses and brokers’ fees, which the Collateral Agent may incur in connection with: (a) sale, collection or other enforcement or disposition of Collateral; (b) exercise or enforcement of any rights, remedies or powers of the Collateral Agent hereunder or with respect to any or all of the Obligations upon breach or threatened breach; or (c) failure by Debtor to perform and observe any agreements of Debtor contained herein which are performed by the Collateral Agent.

9.      Waiver, Amendment and Other Actions. The provisions of this Agreement may be waived or amended by a written instrument executed by each Grantor and the Collateral Agent.

10.    Miscellaneous Provisions.

(a)       All of the Collateral Agent’s rights and remedies, whether at law or in equity and whether evidenced hereby or by any other agreement, instrument or paper, shall be cumulative and may be exercised singularly or concurrently. The exercise of one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of other rights or remedies.

(b)       All notices and other communications provided for hereunder shall be given in accordance with the notice provision of the Purchase Agreement.

(c)       The Collateral Agent shall not be deemed to have waived any of their rights hereunder or under any other agreement, instrument or paper signed by a Grantor unless such waiver be in writing and signed by the Secured Parties.

(d)       This Security Agreement and all rights and obligations hereunder, including matters of constructions, validity and performance, shall be governed by the laws of the State of New York. The parties hereto agree that the venue for any action concerning, relating to or involving this Security Agreement shall be the State of New York, and the parties hereby consent to the jurisdiction of the courts of the State of New York.

(e)       The provisions hereof shall, as the case may require, bind or inure to the benefit of the respective successors and assigns of each of the Grantors, the Collateral Agent and each of the Secured Parties.

(f)       Any provision of this Security Agreement, which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

(g)       This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

[signature page follows]

IN WITNESS WHEREOF, Debtor and the Collateral Agent have signed this Security Agreement this 10th day of August, 2022. 

Schedule A

Serial No’s of S19 Pro Antminers

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Exhibit 10.3

GUARANTY

GUARANTY, dated August 10, 2022, by Digital Power Lending, LLC, a California limited liability company (the “Guarantor”), in favor of the holders of the 10% Secured OID Notes issued or to be issued by BitNile, Inc., a Nevada corporation (“BitNile”).

WHEREAS, BitNile is proposing to issue up to $11,000,000 principal amount of 10% Secured OID Notes (the “Notes”);

WHEREAS, as an inducement to prospective purchasers of the Notes, the Guarantor has agreed to guaranty all of BitNile’s obligations under the Notes (collectively, the “Obligations”); and

WHEREAS, Helios Funds LLC is acting as collateral agent (“Collateral Agent”) for the holders of the Notes.

NOW, THEREFORE, FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged, the Guarantor hereby agrees as follows:

Section 1. Guaranty of Payment. The Guarantor hereby guarantees the full and punctual payment when due of all of the Obligations. This Guaranty is a guarantee of payment and not of collection, and Guarantor waives any right to require that any action be brought against BitNile or to require that resort be had at any time to any direct or indirect security for the Obligations. The Guarantor’s obligations hereunder are continuing obligations and are absolute and unconditional. Notwithstanding the foregoing and for the avoidance of doubt, this Guaranty will expire, and the Guarantor will be automatically released from its obligation hereunder without any further action by any Person upon the indefeasible payment in full in cash of all Obligations.

Section 2. Guarantor’s Agreement to Pay Enforcement Costs. The Guarantor further agrees, upon an Event of Default (as defined in the Notes), to pay all out-of-pocket, reasonable costs and expenses (including court costs and reasonable legal expenses) expended by holders of the Notes or the Collateral Agent acting on behalf of the holders of the Notes in connection with the enforcement of the Obligations and this Guaranty.

Section 3. Waivers by Guarantor. The Guarantor agrees that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Seller with respect thereto. The Guarantor waives presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of BitNile and all suretyship defenses generally.

Section 4. Unenforceability of Obligations against BitNile. If for any reason BitNile has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from BitNile by reason of BitNile’s insolvency, bankruptcy or reorganization or by other operation of law or for any other reason, this Guaranty shall nevertheless be binding on the Guarantor to the same extent as if the Guarantor at all times had been the principal obligor on all such Obligations.

Section 5. Assignment. No assignment by BitNile of the Obligations under the Notes will relieve BitNile of such Obligations nor will any such assignment relieve the Guarantor of its obligations under this Guaranty.

Section 6. Amendments and Waivers. No amendment or waiver of any provision of this Guaranty nor consent to any departure by the Guarantor therefrom shall be effective unless the same shall be in writing and signed by the Collateral Agent. No failure on the part of the Collateral Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.

Section 7. Notices. All notices required or permitted hereunder shall be in writing and deemed effectively given upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to Guarantor at the address set forth on the signature page hereto or at such other address or addresses as Guarantor shall designate to the Collateral Agent in writing.

Section 8. Governing Law. This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.

Section 9. Miscellaneous. This Guaranty constitutes the entire agreement of the Guarantor with respect to the matters set further herein. The rights and remedies herein provided are cumulative and not exclusive of any remedies provided by law or any other agreement. The invalidity or unenforceability of any one or more sections of this Guaranty shall not affect the validity or enforceability of its remaining provisions. Captions are for the ease of reference only and shall not affect the meaning of the relevant provisions. The meanings of all defined terms used in this Guaranty shall be equally applicable to the singular and plural forms of the terms defined.

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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and delivered as of the date first above written.

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Exhibit 10.04

GUARANTY

GUARANTY, dated August 10, 2022, by BitNile Holdings, Inc., a Delaware corporation, (the “Guarantor”), in favor of the holders of the 10% Secured OID Notes issued or to be issued by BitNile, Inc., a Nevada corporation (“BitNile”).

WHEREAS, BitNile is proposing to issue up to $11,000,000 principal amount of 10% Secured OID Notes (the “Notes”);

WHEREAS, as an inducement to prospective purchasers of the Notes, the Guarantor has agreed to guaranty all of BitNile’s obligations under the Notes (collectively, the “Obligations”); and

WHEREAS, Helios Funds LLC is acting as collateral agent (“Collateral Agent”) for the holders of the Notes.

NOW, THEREFORE, FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged, the Guarantor hereby agrees as follows:

Section 1. Guaranty of Payment. The Guarantor hereby guarantees the full and punctual payment when due of all of the Obligations. This Guaranty is a guarantee of payment and not of collection, and Guarantor waives any right to require that any action be brought against BitNile or to require that resort be had at any time to any direct or indirect security for the Obligations. The Guarantor’s obligations hereunder are continuing obligations and are absolute and unconditional. Notwithstanding the foregoing and for the avoidance of doubt, this Guaranty will expire, and the Guarantor will be automatically released from its obligation hereunder without any further action by any Person upon the indefeasible payment in full in cash of all Obligations.

Section 2. Guarantor’s Agreement to Pay Enforcement Costs. The Guarantor further agrees, upon an Event of Default (as defined in the Notes), to pay all out-of-pocket, reasonable costs and expenses (including court costs and reasonable legal expenses) expended by holders of the Notes or the Collateral Agent acting on behalf of the holders of the Notes in connection with the enforcement of the Obligations and this Guaranty.

Section 3. Waivers by Guarantor. The Guarantor agrees that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Seller with respect thereto. The Guarantor waives presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of BitNile and all suretyship defenses generally.

Section 4. Unenforceability of Obligations against BitNile. If for any reason BitNile has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from BitNile by reason of BitNile’s insolvency, bankruptcy or reorganization or by other operation of law or for any other reason, this Guaranty shall nevertheless be binding on the Guarantor to the same extent as if the Guarantor at all times had been the principal obligor on all such Obligations.

Section 5. Assignment. No assignment by BitNile of the Obligations under the Notes will relieve BitNile of such Obligations nor will any such assignment relieve the Guarantor of its obligations under this Guaranty.

Section 6. Amendments and Waivers. No amendment or waiver of any provision of this Guaranty nor consent to any departure by the Guarantor therefrom shall be effective unless the same shall be in writing and signed by the Collateral Agent. No failure on the part of the Collateral Agent to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.

Section 7. Notices. All notices required or permitted hereunder shall be in writing and deemed effectively given upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to Guarantor at the address set forth on the signature page hereto or at such other address or addresses as Guarantor shall designate to the Collateral Agent in writing.

Section 8. Governing Law. This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.

Section 9. Miscellaneous. This Guaranty constitutes the entire agreement of the Guarantor with respect to the matters set further herein. The rights and remedies herein provided are cumulative and not exclusive of any remedies provided by law or any other agreement. The invalidity or unenforceability of any one or more sections of this Guaranty shall not affect the validity or enforceability of its remaining provisions. Captions are for the ease of reference only and shall not affect the meaning of the relevant provisions. The meanings of all defined terms used in this Guaranty shall be equally applicable to the singular and plural forms of the terms defined.

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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and delivered as of the date first above written.

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