usell.com, Inc. (Form: 8-K, Received: 01/19/2017 16:53:13)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): January 13, 2017

usell.com, Inc.

(Exact name of registrant as specified in its charter)

Delaware		000-50494		98-0412432
(State or other Jurisdiction of Incorporation)		(Commission File Number)		(IRS Employer Identification No.)

171 Madison Ave., 17 ^th Floor

New York, New York

10016

(Address of principal executive offices)

(Zip Code)

Registrant’s telephone number, including area code: (212) 213-6805

Former Address: N/A

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Overview

On January 13, 2017 (the “Closing Date”), uSell.com, Inc., a Delaware corporation (“uSell”), BST Distribution, Inc., a New York corporation which is uSell’s wholly-owned subsidiary (“BST”), We Sell Cellular LLC, a Delaware limited liability company which is BST’s wholly-owned subsidiary (“We Sell”), and certain other subsidiaries of uSell entered into a series of agreements with an institutional investor (the “Investor”), pursuant to which uSell issued the Investor a three-year secured promissory note in the principal amount of $8,660,000 (the “New Loan”), paid off its prior credit facility with certain institutional investors for which BAM Administrative Services, LLC acted as agent (the “BAM Facility”), and created a special purpose entity with equity funding from the Investor in the amount of $5,200,000 for the purpose of increasing uSell’s ability to purchase and sell cell phones and similar inventory for resale. As used in this Report, the term “uSell” includes BST, We Sell and all of their subsidiaries, unless clear from the context. In addition, when referring to the New Loan, the Investor is referred to as the “Lender,” and when referring to the special purpose entity, the Investor is referred to as the “Manager.” The transactions and related agreements are described in further detail below.

Item 1.01 Entry into a Material Definitive Agreement.

Special Purpose Entity

On the Closing Date, uSell and the Manager formed a special purpose entity as a Delaware limited liability company (the “SPE”), for the purpose of purchasing, refurbishing, repairing and reselling cell phones, smart phones, tablets and related accessories. The Manager is the sole manager of the SPE. The Manager invested $5,200,000 in equity in exchange for a membership interest. Of this sum, $5,000,000 will be used by the SPE for the purchase of approved inventory. The Manager received a $104,000 consulting fee for startup services and the remaining $96,000 was used to pay legal fees.

As further detailed in the Services Agreement entered into between uSell and the SPE on the Closing Date, uSell will provide all administrative and inventory management services necessary to the SPE’s daily operations. uSell and its personnel will not be compensated for providing services to the SPE, and uSell will generally be responsible for the costs of providing services to the SPE. However, the SPE will be responsible for costs directly related to acquiring and refurbishing the SPE’s inventory, shipping, certain tax accounting fees approved by the Manager, and other costs. The Services Agreement allows uSell to purchase inventory for its account and not for the SPE’s account until uSell has no available capital to purchase inventory. In exchange for its future services, uSell received its membership interest in the SPE. Profits from the SPE will be distributed to the Manager and to uSell based on certain return thresholds.

Neither uSell nor the Manager may dissolve the SPE during the first six months following its formation. After six months, the Manager may dissolve the SPE if the Manager has not received an average of at least $150,000 in distributions per month from the SPE beginning with month seven and future months. Either party may dissolve the SPE following 18 months from its formation but uSell must repay the loan described in Item 2.03 if it elects to dissolve the SPE. In addition, the Manager may dissolve the SPE at any time if uSell breaches its obligations under the SPE’s Limited Liability Company Agreement. Distributions upon dissolution of the SPE vary based on whether the Manager or uSell elects to dissolve the SPE.

In connection with formation of the SPE, each of Nik Raman, uSell’s Chief Executive Officer and a uSell director, Brian Tepfer, We Sell’s Chief Executive Officer and a uSell director, and Scott Tepfer, We Sell’s President, entered into Non-Competition and Confidentiality Agreements with uSell and the SPE.

The foregoing description of the Services Agreement and the Contribution Agreement is qualified in its entirety by the terms of the Services Agreement filed as Exhibit 10.1 hereto, and the Contribution Agreement filed as Exhibit 10.2 hereto, each of which is incorporated herein by reference. In addition, the forms of Non-Competition and Confidentiality Agreements are attached as Exhibit 10.3 and 10.4.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

Note Purchase Agreement and Secured Term Note

On the Closing Date, uSell, BST, and We Sell entered into a Note Purchase Agreement (the “NPA”) with the Lender (in Lender’s capacity as a purchaser and as the agent (the “Agent”) for all purchasers from time to time party to the NPA), pursuant to which uSell, BST and We Sell jointly and severally issued the Lender a secured term note in the principal amount of $8,660,000 at an original issue discount of 1%, for gross proceeds of $8,572,400 (the “Note”). The Note matures three years from issuance and bears interest at an annual rate of 13.25%, which interest is due and payable monthly in arrears. In addition, uSell paid the Lender a fee equal to 2% of the aggregate original principal amount of the Note and will pay the Lender a monthly maintenance fee based on an annual rate of 0.75% of the aggregate original principal amount of the Note. The Note is prepayable after 18 months with a 3% prepayment penalty. The Note contains customary financial covenants. In connection with the issuance of the Note, uSell granted the Lender a right of first refusal to participate in future financings (with certain exceptions) for as long as the principal balance of the Note remains outstanding.

uSell applied the proceeds received upon issuance of the Note to repay all amounts outstanding under the BAM Facility. At the time of repayment, amounts of principal outstanding under the BAM Facility were $8,080,000, with accrued interest and fees bringing the total payoff amount to $8,140,295.58. Although the BAM Facility had a 3% prepayment penalty, one of the BAM Facility lenders agreed to assume the entire amount of the $242,400 prepayment penalty, which permitted uSell to avoid paying the prepayment penalty.

The foregoing description of the NPA and the Note is a summary only and is qualified in its entirety by the full text of the NPA filed as Exhibit 10.5 hereto, and the Note filed as Exhibit 10.6 hereto, each of which is incorporated herein by reference.

Security Agreements, Subsidiary Guaranty and Pledge Agreement

In connection with the execution of the NPA and issuance of the Note, uSell, BST, We Sell and certain of their wholly-owned subsidiaries (collectively, the “Debtors”) entered into a Security Agreement for the benefit of the Lender and Agent. Pursuant to the Security Agreement, the Debtors granted the Agent (for the benefit of the Lender) a lien on all of each Debtor’s respective assets, including, but not limited to, equipment, inventory, accounts, and intellectual property. The wholly-owned subsidiaries which are parties to the Security Agreement also jointly and severally guaranteed payment and performance of all obligations under the Note and related debt transaction documents. uSell also entered into a Trademark Security Agreement with the Lender incorporating the terms of the Security Agreement with respect to the uSell’s trademark-related collateral.

As additional collateral to guarantee the Note and related obligations, uSell, BST and Upstream Phone Holdings, Inc., a Delaware corporation and wholly-owned subsidiary of uSell, also entered into a Pledge Agreement for the benefit of the Agent pursuant to which they pledged the equity interests of certain of their wholly-owned subsidiaries, including BST and We Sell, and uSell pledged its equity interest in the SPE.

In connection with the above, the Management Agreement effective as of October 1, 2015 by and among uSell, Nik Raman, Brian Tepfer, Scott Tepfer, and Daniel Brauser, uSell’s Executive Chairman, was amended to clarify that nothing in the Management Agreement precludes the Agent’s ability to exercise its remedies as a secured creditor party under the Note and related agreements.

The foregoing description of the Security Agreement, the Subsidiary Guaranty, the Trademark Security Agreement, the Pledge Agreement and the Amendment to the Management Agreement is a summary only and is qualified in its entirety by the full text of the Security Agreement filed as Exhibit 10.7 hereto, the Subsidiary Guaranty filed as Exhibit 10.8 hereto, the Trademark Security Agreement filed as Exhibit 10.9 hereto, the Pledge Agreement filed as Exhibit 10.10 hereto, and the Amendment to the Management Agreement filed as Exhibit 10.11 hereto, each of which is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

Exhibit No.		Description

10.1		Form of Services Agreement

10.2		Form of Contribution Agreement

10.3		Form of Non-Compete and Confidentiality Agreement - Tepfers

10.4		Form of Non-Compete and Confidentiality Agreement - Raman

10.5		Form of Note Purchase Agreement *

10.6		Form of Secured Term Note

10.7		Form of Security Agreement *

10.8		Form of Subsidiary Guaranty *

10.9		Form of Trademark Security Agreement *

10.10		Form of Pledge Agreement *

10.11		Form of Amendment to Management Agreement

Certain schedules, appendices and exhibits to this agreement have been omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished supplementally to the Securities and Exchange Commission staff upon request.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	USELL.COM, INC.

Date: January 19, 2017	/s/	Nikhil Raman
	Name:	Nikhil Raman
	Title:	Chief Executive Officer

Exhibit 10.1

SERVICES AGREEMENT

THIS SERVICES AGREEMENT (the “ Agreement ”) is entered into as of January 13, 2017 by and between uSell.com, Inc., a Delaware corporation and its Affiliates (collectively, the “ Service Provider ”) and XXXX, a Delaware limited liability company (the “ Company ”). Capitalized terms not defined herein shall have the meaning given to such terms in the LLC Agreement (as defined herein).

WHEREAS , the Service Provider is engaged in the purchasing of cell phones, smart phones, tablets and related accessories (“ Inventory ”), refurbishing or repairing such Inventory and reselling such Inventory (the “ Business ”) and its personnel (“ Personnel ”) have experience in all aspects of the Business;

WHEREAS , XXXXXX, a Delaware limited liability company that is a member of the Company (“ XXX ”) and the Service Provider, also a member of the Company, formed the Company and are entering into a Limited Liability Company Agreement as of the date hereof (the “ LLC Agreement ”) to set forth the respective rights, privileges, preferences and obligations as members of the Company, including their rights to receive distributions of cash (“ Distributions ”) from the Company;

WHEREAS , the Company wishes to engage the Service Provider to provide, and the Service Provider wishes to provide, administrative and inventory management services to the Company, either directly or through one or more of its wholly owned Affiliates including, but not limited to, (i) the purchase, shipping, distribution and sales of Inventory, (ii) the provision of back office services such as accounting, financial reporting, preparation of financial statements, billing, collection of accounts receivable, payment of accounts payable, quality assurance, the triage and classification of Inventory in accordance with its quality and resale value, (iii) the warehousing of the Inventory and the maintenance of a “virtual warehouse” to separate the Inventory of the Company from that of the Service Provider, (iv) the maintenance of the Company’s relationships with vendors and customers, (v) preparation, filing and payment of state and federal regulatory and tax filings and maintenance of the books and records of the Company and (vi) the provision of such other services to the Company as the Service Provider currently provides, and from time to time during the term of this Agreement provides, for its own Business, including the services required to be undertaken by the Company as set forth in Sections 3.3, 8.1, 8.2 and 9.4 (with XXXX’s review, oversight, input and consent) of the LLC Agreement (collectively, the “ Services ”);

NOW, THEREFORE , in consideration of the premises and the mutual agreements herein contained, the Service Provider and the Company agree as follows:

ARTICLE I

RETENTION; SERVICES
AND POWERS OF THE SERVICE PROVIDER

1.1. Retention of the Service Provider . The Company hereby engages the Service Provider to exclusively provide the Services to the Company as provided in this Agreement.

1.2. Key Personnel . The Service Provider shall make available to the Company the Service Provider’s Personnel of the same level of experience and the same number of Personnel as the Service Provider engages such Personnel for its own Business. Provided , however , the parties acknowledge that under a Note Purchase Agreement of even date herewith (the “ NPA ”), the Service Provider is borrowing $8,660,000 from an Affiliate of the Company which will used for a business which is competitive with the Business. For all purposes under this Agreement, the parties agree that the Service Provider shall be entitled to purchase Inventory for the Service Provider’s account and not for the Company’s account until the Service Provider has no available capital to purchase Inventory for its own account.

1.3. Standard of Performance and Care . The Service Provider agrees that in providing the Services under this Agreement it shall (i) provide such Services in accordance with the LLC Agreement in good faith, (ii) exercise the same standard of care, skill, prudence, consistency, quality and diligence as the Service Provider applies and has historically applied with respect to its Personnel and in the conduct of the Service Provider’s Business, including specifically with respect to the Inventory purchased by the Service Provider on behalf of the Company and (iii) pursue the Business on behalf of the Company in the same manner and with the same standards as it pursues and has historically pursued on behalf of its own business. In exercising any of its rights or performing its duties under this Agreement, the Service Provider shall perform its obligations under this Agreement in a manner that satisfies and is in accordance and material compliance with all applicable laws, rules and regulations and is in accordance and compliance with the LLC Agreement.

1.4. Inventory Management . The Service Provider covenants that it shall maintain “virtual” warehouses to manage, account for and hold the Inventory separate and apart from any inventory purchased or held for its own account. The Service Provider will purchase Inventory on behalf of the Company under purchase orders that are separate from any purchase order for the Service Provider’s own Business (i.e., no “split” purchase orders). Except in accordance with this Agreement, the Service Provider shall not commingle any Inventory purchased on behalf of the Company and inventory purchased for its own account, and shall in all events separately track and account for, any Inventory it purchases on behalf of the Company and inventory it purchases for its own account, including any related information such as sales, revenue, expenses, identification, shipping, distribution, points of sale, location, invoicing, data entry and books and records.

1.5. Cash Management . The Service Provider shall request release and disbursement of funds to purchase Inventory on behalf of the Company as set forth in, and shall otherwise comply in all respects with, Section 2.9 of the LLC Agreement.

1.6. Cooperation . In connection with the provision and receipt, as applicable, of Services, the parties shall cooperate with each other with regard to the exchange of information and the conduct of the Business.

1.7. Insurance . The Service Provider shall (i) at the Company’s expense, within ten (10) Business Days after the date of this Agreement, obtain and maintain property insurance on behalf of the Company covering all of the Company’s insurable properties (including, the Inventory) and general liability insurance, in each case in amounts acceptable to the Company (and in the case of Inventory in an amount equal to at least the cost of the Company’s Inventory), and (b) cause all premiums on such insurance policies to be paid in a timely manner.

ARTICLE II

COMPENSATION OF THE
SERVICE PROVIDER; FEES AND EXPENSES

2.1. Service Provider Compensation . The Service Provider’s compensation for the Services provided to the Company hereunder, shall be solely the right to receive the Distributions allocated to it pursuant to the LLC Agreement, and for the avoidance of any doubt, except as provided in this Section 2.1, the Service Provider shall not be entitled to any compensation or reimbursement of costs (including rent) or expenses for providing the Services. Notwithstanding the foregoing, the Company shall be responsible for and pay (i) all expenses for the following items with respect to the Business, which are separately tracked by the Service Provider: payments to vendors or consultants for Inventory, cost of Inventory, third party sales commissions on purchases or sales of the Company’s Inventory, inbound shipping costs, eBay/Paypal/Amazon fees, outbound shipping costs (only when separately tracked), (ii) all third-party auditing expenses relating to an audit but only to the extent that XXXX has requested an audit of the Company and third-party accounting expenses reasonably necessary to prepare tax returns of the Company, provided that the Service Provider shall obtain XXXX’s prior written consent to the accountant(s) or accounting firm that will prepare such tax returns, which consent will not be unreasonably withheld, and (iii) its allocable share of outbound shipping costs (when not separately tracked in accordance with Section 2.1(i) above), direct repair and refurbishment expenses (including direct labor and supplies such as boxes, lens tape, etc.), cellular, smart phone, and tablet supplies (parts, unlocking fees, ESN checks, etc.) and any other expenses that are not separately tracked pursuant to Section 2.1(i) above with respect to the Company’s Business for the prior calendar month based on the number of cell phones, smart phones, tablets and related accessories sold or processed, as applicable, by the Company in such prior month over the aggregate number of cell phones, smart phones, tablets and related accessories sold or processed, as applicable, by the Company and the Service Provider, provided , however , that all such costs and expenses are consistent with the Service Provider’s practices with respect to its own inventory and business; provided further , however , that the costs to be reimbursed by the Company pursuant to Section 2.1(iii) shall not be paid by the Company to the Service Provider until the Inventory attributable to such costs has been sold by the Company. The Service Provider will provide XXXX with supporting detail and calculations of the costs and expenses to be paid by the Company under this Section 2.1.

2.2. Service Provider Expenses . Except as expressly set forth in Section 2.1, the Service Provider shall bear and be charged with all of the costs and expenses of the Service Provider whether incurred before or after the date hereof, in connection with the Services rendered or to be rendered by the Service Provider to or on behalf of the Company.

ARTICLE III

EXCULPATION AND INDEMNIFICATION

3.1. Exculpation and Indemnification .

(a) Neither the Service Provider, nor any of its Affiliates, nor the managers, members, affiliates, partners, directors, officers, employees, shareholders and other representatives and agents of the Service Provider (each, a “ Service Provider Indemnified Party ”), shall be liable to the Company, or its Affiliates, or to any of their members, managers, officers, directors, shareholders, employees, consultants, independent contractors or other representatives or agents for monetary damages for any losses, claims, damages or liabilities (“ Damages ”) arising from any act performed or omitted by such parties arising out of the performance by the Service Provider of its Services under this Agreement or the Company’s Business or affairs, except to the extent that any such Damages are attributable to the gross negligence or willful misconduct of such Service Provider Indemnified Party or breach of this Agreement by any such Service Provider Indemnified Party, in which case the Service Provider shall indemnify and hold harmless the Company and its members and their respective members, managers, officers, directors, shareholders, employees, consultants or other representatives or agents (each, a “ Company Indemnified Party ”) for all Damages arising from any act or omission with respect to which the Service Provider has been found to have been grossly negligent or to have engaged in willful misconduct or breach of this Agreement in the same manner as the Indemnified Parties are entitled to indemnification from the Company as set forth in Section 3.1(b).

(b) The Company shall, to the fullest extent permitted by applicable law, indemnify, defend and hold harmless the Service Provider Indemnified Parties against any Damages to which the Service Provider Indemnified Parties may become subject in connection with any matter arising out of the performance by the Service Provider of its Services under this Agreement or the Company’s Business or affairs, except, with respect to the Service Provider Indemnified Parties to the extent that any such Damages are attributable to the gross negligence or willful misconduct of a Service Provider Indemnified Party or breach of this Agreement by a Service Provider Indemnified Party, in which case the Company Indemnified Parties shall be indemnified and held harmless by the Service Provider as set forth in Section 3.1(a). If the Service Provider Indemnified Parties become involved in any capacity in any action, proceeding or investigation in connection with any matter arising out of the performance by the Service Provider of its Services under this Agreement or the Company’s Business or affairs, the Company shall advance to the Service Provider Indemnified Parties their reasonable legal and other expenses (including the cost of any investigation and preparation) as they are incurred in connection therewith; provided , however , that the Service Provider Indemnified Parties shall promptly repay to the Company the amount of any such reimbursed expenses paid to them or on their behalf if it shall ultimately be finally determined that the Service Provider Indemnified Parties were not entitled to be indemnified by the Company in connection with such action, proceeding or investigation.

(c) The provisions of this Article III shall inure to the benefit of the Service Provider Indemnified Parties, and any successors, assigns, heirs and personal representatives of such Service Provider Indemnified Parties.

ARTICLE IV

MISCELLANEOUS

4.1. Duration and Termination . This Agreement shall commence on the date first set forth above and terminate (i) at XXXX’s election upon Service Provider’s breach of this Agreement and failure to cure such breach within fifteen (15) days after delivery of notice by XXXX to Service Provider of such breach, or within thirty (30) days after delivery of such notice if such breach is not reasonably capable of being cured within fifteen (15) days, (ii) upon dissolution of the Company as provided in the LLC Agreement, or (iii) upon the mutual agreement of the parties.

4.2. Status of the Service Provider . Except in the rendering of the Services on behalf of the Company, the Service Provider shall be an independent contractor and shall have no authority to act for or represent the Company in any way or otherwise be deemed an agent of the Company.

4.3. Notices . All notices required or permitted hereunder shall be in writing and shall be deemed effectively given:

(a) upon personal deliver to the party to be notified;

(b) when sent by confirmed facsimile if sent during normal business hours of the recipient, or, if not, then on the next business day;

(c) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or

(d) one (1) business day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.

All communications shall be sent as follows:

If to the Service Provider, to:

uSell.com, Inc.
33 East 33 ^rd St., Suite 1101
New York, NY 10016
Attention: Nik Raman, CEO
nik@usell.com

And to:

BST Distribution, Inc.
We Sell Cellular LLC
150 Executive Drive, Suite Q
Edgewood, NY 11717
Attention: Brian Tepfer, CEO
btepfer@wesellcell.com

if to the Company, to:

XXXX

or at such other address as any party may designate by written notice to the other parties hereto given in accordance herewith.

4.4. Further Assurances . The parties hereto shall promptly execute, deliver, file or record such agreements, instruments, certificates and other documents and take such actions as the other parties may reasonably request or as may otherwise be necessary or proper to carry out the terms and provisions of this Agreement and to consummate and perfect the transactions contemplated hereby.

4.5. Binding Effect; Assignment . Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, heirs, executors and administrators of the parties hereto and shall inure to the benefit of and be enforceable by each party. This Agreement shall not be assignable by a party without the prior written consent of the other party.

4.6. Governing Law, Jurisdiction and Waiver of Jury Trial .

(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.

(b) THE PARTIES HEREBY CONSENT AND AGREE THAT THE STATE OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE PARTIES PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK. EACH PARTY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. EACH PARTY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT THE ADDRESS SET FORTH IN SECTION 4.3 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON SUCH PARTY’S ACTUAL RECEIPT THEREOF OR FIVE (5) BUSINESS DAYS AFTER DEPOSIT IN THE U.S. MAIL, PROPER POSTAGE PREPAID.

(c) THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND/OR OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN ANY PARTY ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO.

4.7. XXXX as Third Party Beneficiary . XXXX shall be a third party beneficiary of this Agreement. The Service Provider and the Company expressly agree that XXXX shall be entitled to enforce the Company’s rights hereunder to the same extent that the Company is entitled to enforce this Agreement whether in law or in equity. Except for XXXX, the Service Provider Indemnified Parties and the Company Indemnified Parties, nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or corporation other than the parties hereto and their successors or assigns, any rights or remedies under or by reason of this Agreement. XXXX shall have the right at any time during normal business hours to inspect and audit books and records of the Service Provider in connection with and related to the Services and the Service Provider promptly will provide to XXXX information requested by XXXX in connection with and related to the Services.

4.8. Severability . Wherever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid or illegal under applicable law such provision shall be ineffective to the extent of such prohibition or invalidity or illegality, without invalidating the remainder of such provision or the remaining provisions thereof which shall not in any way be affected or impaired thereby.

4.9. Waiver . No course of dealing or omission or delay on the part of any party hereto in asserting or exercising any right hereunder shall constitute or operate as a waiver of any such right. No waiver of any provision hereof shall be effective, unless in writing and signed by or on behalf of the party to be charged therewith. No waiver shall be deemed a continuing waiver or waiver in respect of any other or subsequent breach or default, unless expressly so stated in writing.

4.10. Entire Agreement . This Agreement, the exhibits and schedules hereto and thereto and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof.

4.11. Amendment . This Agreement may be amended or modified only upon the written consent of all the parties hereto.

4.12. Delays or Omissions; Remedies . It is agreed that no delay or omission to exercise any right, power or remedy accruing to any party, upon any breach, default or noncompliance by another party under this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of or in any similar breach, default or noncompliance thereafter occurring. All remedies, either under this Agreement, by law or otherwise afforded to any party, shall be cumulative and not alternative. The parties shall have all rights and remedies set forth herein and all rights and remedies that the parties have been granted at any time under any other agreement or contract and all of the rights that the parties have under any law. Any person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without any requirement to post a bond or other security or prove actual damages, which requirements each of the parties waives to the fullest extent permitted by law), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law.

4.13. Attorneys’ Fees . In the event that any suit or action is instituted to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including such reasonable fees and expenses of attorneys and accountants, which shall include all fees, costs and expenses of appeals.

4.14. Titles and Subtitles . The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

4.15. Signatures; Counterparts . This Agreement may be executed by facsimile or electronic signatures and in any number of counterparts, each of which shall be an original, but all of which together shall constitute one agreement.

4.16. Construction . Each party acknowledges that its legal counsel participated in the preparation of this Agreement and, therefore, stipulates that the rule of construction that ambiguities are to be resolved against the drafting party shall not be applied in the interpretation of this Agreement to favor any party against the other. Unless the context otherwise requires, (i) words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, (ii) the words “hereof,” “herein” and words to similar effect refer to this Agreement in its entirety, and (iii) the use of the word “including” in this Agreement shall be by way of example rather than limitation.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, this Services Agreement is hereby executed as of the date first written above.

USELL.COM, INC.			XXXXX, by XXXX, its Manager

By:			By:
Name: Nikhil Raman			Name:
Title: CEO			Title:

Each of the following affiliates or subsidiaries of uSell agrees to be bound by the terms and conditions of this Agreement as it applies to affiliates or subsidiaries:

BST DISTRIBUTION, INC. , a New York corporation

By:
	Name: Brian Tepfer
	Title: Chief Executive Officer

WE SELL CELLULAR LLC , a Delaware limited liability company		Upstream Phone Company USA, Inc. , a Delaware corporation

By:		By:
	Name: Nikhil Raman		Name: Nikhil Raman
	Title: Manager		Title: President

UPSTREAM PHONE HOLDINGS, INC. , a Delaware corporation		HD CAPITAL HOLDINGS LLC , a Delaware limited liability company

By:		By:
	Name: Nikhil Raman		Name: Daniel Brauser
	Title: President		Title: Manager

Exhibit 10.2

CONTRIBUTION AGREEMENT

THIS CONTRIBUTION AGREEMENT (“ Agreement ”) is entered into as of January 13, 2017 by and between XXXXXXXXXXX, a Delaware limited liability company (“ XXXX ”), uSell.com, Inc., a Delaware corporation (“ uSell ”) and XXXX, a Delaware limited liability company (the “ Company ”). Except as otherwise provided, any capitalized terms used but not defined herein are defined in the LLC Agreement (as defined below).

WHEREAS , XXXX and uSell formed the Company and are entering into a Limited Liability Company Agreement as of the date hereof (the “ LLC Agreement ”) in connection with such formation to reflect the respective rights, privileges, preferences and obligations of XXXX and uSell as members of the Company;

WHEREAS , XXXX is contributing $5,200,000 (the “ Capital Contribution ”) to the Company to be used to pay (i) expenses of the formation of the Company, the LLC Agreement and related expenses and transactions up to $200,000 and (ii) for the purchase of Inventory in exchange for the XXXX Interests (as defined below);

WHEREAS , uSell is contributing Services (as defined in the Services Agreement dated the date hereof between the Company and uSell (the “ Services Agreement ”)) to the Company in exchange for the uSell Interests (as defined below); and

WHEREAS , XXXX desires to make the Capital Contribution to the Company and uSell desires to contribute the Services to the Company and the Company desires to receive the Capital Contribution from XXXX and the Services from uSell.

NOW, THEREFORE , for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Capital Contribution and Services . XXXX hereby makes the Capital Contribution to the Company and the Company hereby accepts the Capital Contribution in exchange for XXXX’s receipt of the membership interests of the Company, as more fully described in, and subject to the terms and conditions provided in, the LLC Agreement (the “ XXXX Interests ”). uSell hereby agrees to perform the Services as defined in and in the manner set forth in the Services Agreement and the Company hereby agrees to the accept the Services in exchange for uSell’s receipt of the membership interests of the Company, as more fully described in, and subject to the terms and conditions provided in, the LLC Agreement (the “ uSell Interests ” and, collectively with the XXXX Interests, subject to the terms and conditions provided in the LLC Agreement, the “ Interests ”). The parties hereto acknowledge and agree that XXXX has no obligation to make any capital contribution or provide any financial assistance to the Company other than the Capital Contribution.

2. Representations and Warranties of XXXX . XXXX represents and warrants to the Company and uSell that:

(a) LLC Existence and Power . XXXX is a limited liability company duly organized, validly existing and in good standing under and by virtue of the laws of the State of Delaware.

(b) Legal Capacity and Authority . XXXX has the full legal capacity and authority to enter into this Agreement and the LLC Agreement. All actions on the part of XXXX necessary for the authorization, execution, delivery, and performance of XXXX’s obligations under this Agreement and the LLC Agreement have been taken by XXXX. Each of this Agreement and the LLC Agreement is a valid, legal and binding obligation of XXXX, enforceable according to its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization or other similar laws of general application relating to or affecting the enforcement of creditor rights, and (ii) the availability of specific performance or other equitable remedies.

(c) Non-Contravention . The execution, delivery or performance by XXXX of this Agreement and the LLC Agreement does not and will not (a) contravene or conflict with the organizational or constitutive documents of XXXX, (b) contravene or conflict with or constitute a violation of any provision of any law or order binding upon or applicable to XXXX, or (c) constitute a default under or breach of (with or without the giving of notice or the passage of time or both) or violate or give rise to any right of termination, cancellation, amendment or acceleration of any right or obligation of XXXX.

3. Representations and Warranties of uSell . uSell represents and warrants to the Company and XXXX that:

(a) Corporate Existence and Power . uSell is a corporation duly organized, validly existing and in good standing under and by virtue of the laws of the State of Delaware.

(b) Legal Capacity and Authority . uSell has the full legal capacity and authority to enter into this Agreement, the LLC Agreement and the Services Agreement. All actions on the part of uSell necessary for the authorization, execution, delivery, and performance of uSell’s obligations under this Agreement, the LLC Agreement and the Services Agreement have been taken by uSell. Each of this Agreement, the LLC Agreement and the Services Agreement is a valid, legal and binding obligation of uSell, enforceable according to its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization or other similar laws of general application relating to or affecting the enforcement of creditor rights, and (ii) the availability of specific performance or other equitable remedies.

(c) Non-Contravention . The execution, delivery or performance by uSell of this Agreement, the LLC Agreement and the Services Agreement does not and will not (a) contravene or conflict with the organizational or constitutive documents of uSell, (b) contravene or conflict with or constitute a violation of any provision of any law or order binding upon or applicable to uSell, or (c) constitute a default under or breach of (with or without the giving of notice or the passage of time or both) or violate or give rise to any right of termination, cancellation, amendment or acceleration of any right or obligation of uSell.

4. Representations and Warranties of the Company . The Company represents and warrants to XXXX and uSell that:

(a) Corporate Existence and Power . The Company is a limited liability company duly organized, validly existing and in good standing under and by virtue of the laws of the State of Delaware. The Company has all power and authority, corporate and otherwise, and all governmental licenses, franchises, permits, authorizations, consents and approvals required to own and operate its properties and assets and to carry on the Business. The Company is qualified to do business as a foreign entity in all jurisdictions where it is required to be so qualified.

(b) Legal Capacity and Authority . The Company has the full legal capacity and authority to enter into this Agreement and the Services Agreement. All actions on the part of the Company necessary for the authorization, execution, delivery, and performance of the Company’s obligations under this Agreement, the LLC Agreement and the Services Agreement have been taken by the Company. Each of this Agreement, the LLC Agreement and the Services Agreement is a valid, legal and binding obligation of the Company, enforceable according to its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization or other similar laws of general application relating to or affecting the enforcement of creditor rights, and (ii) the availability of specific performance or other equitable remedies.

(c) Non-Contravention . The execution, delivery or performance by the Company of this Agreement, the LLC Agreement and the Services Agreement does not and will not (a) contravene or conflict with the organizational or constitutive documents of the Company, (b) contravene or conflict with or constitute a violation of any provision of any law or order binding upon or applicable to the Company or the Interests, (c) constitute a default under or breach of (with or without the giving of notice or the passage of time or both) or violate or give rise to any right of termination, cancellation, amendment or acceleration of any right or obligation of the Company or require any payment or reimbursement or a loss of any material benefit relating to the Business to which the Company is entitled under any provision of any permit, contract or other instrument or obligations binding upon the Company or by which any of the Interests is or may be bound, or (d) result in the creation or imposition of any Lien (as defined below) on any of the Interests.

(d) Interests .

(i) The Interests have been duly authorized and are validly issued, fully-paid and non-assessable. Upon consummation of the transactions contemplated by this Agreement, XXXX and uSell shall own the Interests, free and clear of any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of the Interests, and any conditional sale or voting agreement or proxy, including any agreement to give any of the foregoing; provided, however , that in each case other than that certain pledge of, and grant of a security interest in, uSell’s Interests to XXXX pursuant to the Purchase Agreement and the Related Agreements (as defined in the Purchase Agreement).

(ii) The Interests are being issued in compliance with applicable laws. The Interests will not be issued in violation of the organizational documents of the Company or any other agreement, arrangement or commitment to which the Company is a party and are not subject to or in violation of any preemptive or similar right of any person.

(iii) There are no outstanding or authorized options, warrants, convertible securities or other rights, agreements, arrangement or commitments of any character relating to any equity interests in the Company or obligating the Company to issue or sell any Interests or any other interest, in the Company. Other than the organizational documents of the Company, there are no voting trusts, proxies, or other agreements or understandings in effect with respect to the voting or transfer of any of the Interests.

(e) Organizational Documents . Copies of (a) the Certificate of Formation of the Company, as certified by the Secretary of State of its state of formation, and (b) the LLC Agreement have heretofore been made available to XXXX and uSell, and such copies are each true and complete copies of such instruments and in effect on the date hereof. The Company has not taken any action in violation or derogation of its Certificate of Formation or the LLC Agreement.

5. Consulting Fee . On the date hereof, the Company shall pay to XXXX a consulting fee in the amount of $104,000, by wire transfer of immediately available funds, as consideration for the consulting services rendered by XXXX to the Company prior to the date hereof (and, for the avoidance of doubt, no other consulting fees are due and owing to XXXX for services performed to date by XXXX).

6. General Provisions .

(a) Notices . All notices required or permitted hereunder shall be in writing and shall be deemed effectively given:

(i) upon personal deliver to the party to be notified;

(ii) when sent by confirmed facsimile if sent during normal business hours of the recipient, or, if not, then on the next business day;

(iii) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or

(iv) one (1) business day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.

All communications shall be sent as follows:

If to uSell, to:

uSell.com, Inc.
33 East 33 ^rd St., Suite 1101
New York, NY 10016
Attention: Nik Raman, CEO
nik@usell.com

if to XXXX, to:

XXXX

if to Company, to:

XXXX
c/o XXXX

(b) Further Assurances . The parties hereto shall promptly execute, deliver, file or record such agreements, instruments, certificates and other documents and take such actions as the other parties may reasonably request or as may otherwise be necessary or proper to carry out the terms and provisions of this Agreement and to consummate and perfect the transactions contemplated hereby.

(c) Binding Effect . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns. This Agreement is not intended, and shall not be deemed, to create or confer any right or interests for the benefit of any person other than the parties hereto.

(d) Governing Law, Jurisdiction and Waiver of Jury Trial .

THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.

THE PARTIES HEREBY CONSENT AND AGREE THAT THE STATE OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE PARTIES PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK. EACH PARTY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. EACH PARTY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT THE ADDRESS SET FORTH IN SECTION 6(a) AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON SUCH PARTY’S ACTUAL RECEIPT THEREOF OR FIVE (5) BUSINESS DAYS AFTER DEPOSIT IN THE U.S. MAIL, PROPER POSTAGE PREPAID.

THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND/OR OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN ANY PARTY ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO.

(e) Severability . Wherever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid or illegal under applicable law such provision shall be ineffective to the extent of such prohibition or invalidity or illegality, without invalidating the remainder of such provision or the remaining provisions thereof which shall not in any way be affected or impaired thereby.

(f) Waiver . No course of dealing or omission or delay on the part of any party hereto in asserting or exercising any right hereunder shall constitute or operate as a waiver of any such right. No waiver of any provision hereof shall be effective, unless in writing and signed by or on behalf of the party to be charged therewith. No waiver shall be deemed a continuing waiver or waiver in respect of any other or subsequent breach or default, unless expressly so stated in writing.

(g) Entire Agreement . This Agreement, the exhibits and schedules hereto and thereto and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof.

(h) Amendment . This Agreement may be amended or modified only upon the written consent of the parties.

(i) Delays or Omissions; Remedies . It is agreed that no delay or omission to exercise any right, power or remedy accruing to any party, upon any breach, default or noncompliance by another party under this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of or in any similar breach, default or noncompliance thereafter occurring. All remedies, either under this Agreement, by law or otherwise afforded to any party, shall be cumulative and not alternative. The parties shall have all rights and remedies set forth herein and all rights and remedies that the parties have been granted at any time under any other agreement or contract and all of the rights that the parties have under any law. Any person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without any requirement to post a bond or other security or prove actual damages, which requirements each of the parties waives to the fullest extent permitted by law), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law.

(j) Attorneys’ Fees . In the event that any suit or action is instituted to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including such reasonable fees and expenses of attorneys and accountants, which shall include all fees, costs and expenses of appeals.

(k) Titles and Subtitles . The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

(l) Signatures; Counterparts . This Agreement may be executed by facsimile or electronic signatures and in any number of counterparts, each of which shall be an original, but all of which together shall constitute one agreement.

(m) Construction . Each party acknowledges that its legal counsel participated in the preparation of this Agreement and, therefore, stipulates that the rule of construction that ambiguities are to be resolved against the drafting party shall not be applied in the interpretation of this Agreement to favor any party against the other. Unless the context otherwise requires, (i) words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, (ii) the words “hereof,” “herein” and words to similar effect refer to this Agreement in its entirety, and (iii) the use of the word “including” in this Agreement shall be by way of example rather than limitation.

7. Survival . All representations and warranties of the parties under this Agreement shall survive XXXX’s Capital Contribution to the Company and uSell’s contribution of the Services to the Company.

[The balance of this page is intentionally left blank.]

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

	XXXX


	By:
	Name:
	Title:


	USELL.COM, INC.


	By:
	Name: Nikhil Raman
	Title: CEO



	XXXX

	By:
	Name:
	Title:

Exhibit 10.3

FORM OF NON-COMPETITION AND

CONFIDENTIALITY AGREEMENT

This Non-Competition and Confidentiality Agreement (the “Agreement”) is entered into as of January 13, 2017 (the “Effective Date”) by and among uSell.com, Inc., a Delaware corporation (“uSell”), BST Distribution, Inc., a New York corporation (“BST”), We Sell Cellular, LLC, a Delaware limited liability company (“WeSell”), and each of their affiliates, and XXXX, a Delaware limited liability LLC (the “LLC”) (collectively, the “Companies”), and _________ Tepfer (“Tepfer” or the “Executive”). The Companies and Tepfer are collectively referred to herein as the “Parties”) for all purposes under this Agreement except where apparent from the context the word uSell includes all of its affiliates.

WHEREAS, uSell owns membership interests in the LLC;

WHEREAS, Tepfer is an officer and equityholder of uSell;

WHEREAS, Tepfer is also employed by uSell through an Employment Agreement, as amended, with BST and WeSell and as an employee he provides services to uSell, BST, WeSell and their affiliates;

WHEREAS, uSell has agreed to provide certain services to the LLC pursuant to a Services Agreement between uSell and its affiliates and the LLC; and

WHEREAS, the Companies are presently and/or expect to be engaged in following the date of this Agreement, the purchasing of cell phones, smart phones, tablets and related accessories (the “Business”).

NOW, THEREFORE, in consideration of the compensation paid to Tepfer by BST and WeSell (and their affiliates) and distributions which uSell may receive from the LLC, which Tepfer acknowledges to be good and valuable consideration for Tepfer’s obligations hereunder, the Parties hereby agree as follows:

1. Non-Competition Agreement .

(a) Competition with the Companies . During the period that Tepfer is employed by uSell or any of its affiliates and for a period of one (1) year commencing on the date of termination of his employment with uSell or any of its affiliates (the “Restricted Period”), Tepfer shall not, directly or indirectly, individually or through any other person, whether as an employee, officer, employer, owner, operator, manager, advisor, consultant, agent, partner, director, stockholder, joint venturer, member, or otherwise, engage in or assist others to engage in the Business or compete in any way with any or all of the Companies anywhere in the world.

(b) Solicitation of Employees . During the Restricted Period, Tepfer agrees that he shall not, directly or indirectly, (i) solicit, recruit, induce, request, recommend or advise any employee of the Companies (or any individual who was an employee of any of the Companies during the twelve (12) month period prior to the end of the Restricted Period), (ii) cause any such individual to terminate his or her employment with any of the Companies, or refrain from renewing or extending his or her employment by or consulting relationship with any of the Companies or (iii) cause any such individual to become employed by or enter into a consulting relationship with a person other than the Companies.

(c) Solicitation of Customers/Suppliers . During the Restricted Period, Tepfer agrees that he shall not, directly or indirectly, (i) solicit, persuade or induce any customer or supplier of any of the Companies to terminate, reduce, disrupt or refrain from renewing or extending its contractual or other relationship with any of the Companies in regard to the purchase or sale of products sold, by any of the Companies or any other individual, person or entity in regard to the purchase of similar or identical to those purchased and sold, by the Companies.

(d) Extension of Restricted Period . Notwithstanding anything to the contrary herein, the Restricted Period shall only terminate on the later of (i) the Restricted Period as set forth in Section 1(a) and (ii) such time that all Liabilities have been indefeasibly paid in full and the Companies’ right to request financial accommodations under the Note Purchase Agreement has been terminated. For purposes of the foregoing sentence, (a) the term “Liabilities” shall have the meaning given to such term in the Note Purchase Agreement and (b) the term “Note Purchase Agreement” shall mean the Note Purchase Agreement dated as of January 13, 2017 by and among certain of the Companies, the Purchasers named and as defined therein and _________________________________, as agent for such Purchasers, as the same may be amended, modified and supplemented from time to time.

(e) Non-disparagement . Tepfer agrees that during the period that he is employed by uSell (or any of its affiliates), and at all times thereafter, he will refrain from making, in writing or orally, any unfavorable comments about any of the Companies, or any of their owners, officers, directors, employees or agents, or their operations, policies, or procedures, cause embarrassment or public humiliation to such persons or otherwise disparage such persons; provided , however , that nothing herein shall preclude Tepfer from responding truthfully to a lawful subpoena or other compulsory legal process or from providing truthful information otherwise required by law.

(f) No Payment . Tepfer acknowledges and agrees that no separate or additional payment will be required to be made to him in consideration of his undertakings in this Section 1, and confirms he has received adequate consideration for such undertakings and entering into this Agreement.

(g) Exception . If during the Restricted Period, any of the Companies engages in a new business that was not operated or contemplated by any of the Companies while the Executive was employed by uSell, the foregoing restrictions in Section 1 shall not apply to that business.

2. Non-Disclosure of Confidential Information .

(a) Confidential Information . For purposes of this Agreement, “Confidential Information” includes, but is not limited to, trade secrets, processes, policies, procedures, techniques, designs, drawings, know-how, show-how, technical information, specifications, computer software and source code, information and data relating to the development, research, testing, costs, marketing, the budgets and strategic plans of any of the Companies, and the identity and special needs of customers, vendors, and suppliers, databases, data, and all technology relating to the business of any of the Companies, systems, methods of operation, solicitation of leads, marketing and advertising materials, methods and manuals and forms, all of which pertain to the activities or operations of the any of the Companies, the names, home addresses and all telephone numbers and e-mail addresses of the employees and employees of customers, vendors and suppliers of any of the Companies. Confidential Information also includes, without limitation, Confidential Information received from the subsidiaries and affiliates any of the Companies. For purposes of this Agreement, the following will not constitute Confidential Information: (i) information of uSell which is permitted to compete with the LLC as specified in a Service Agreement it enters into with the LLC, (ii) information which is or subsequently becomes generally available to the public through no act or fault of the Executive, (iii) for the LLC, information set forth in the written records of the Executive or uSell prior to disclosure to any person on behalf of the LLC and (iv) information which is lawfully obtained by the Executive in writing from a third party who lawfully acquired the confidential information and who did not acquire such confidential information or trade secret, directly or indirectly, from any of the Companies and who has not breached any duty of confidentiality.

(b) Legitimate Business Interests . The Executive recognizes that the Companies have legitimate business interests to protect and as a consequence, the Executive agrees to the restrictions contained in this Agreement because they further the Companies’ legitimate business interests. These legitimate business interests include, but are not limited to (i) trade secrets; (ii) valuable confidential business, technical, and/or professional information that otherwise may not qualify as trade secrets, including, but not limited to, all Confidential Information; or (iii) substantial, significant, or key relationships with specific prospective or existing and future customers, vendors or suppliers.

(c) Confidentiality . During the term of the Executive’s employment with uSell (or any of its affiliates) and following termination of employment, for any reason, the Confidential Information shall be held by Tepfer in the strictest confidence and shall not, without the prior express written consent of the manager of the LLC, be disclosed to any person other than in connection with Tepfer’s employment by uSell (or any of its affiliates). The Executive further acknowledges that such Confidential Information as is acquired and used by any of the Companies is a special, valuable and unique asset. The Executive shall exercise all due and diligent precautions to protect the integrity of the Confidential Information and to keep it confidential whether it is in written form, on electronic media, oral, or otherwise. The Executive shall not copy any Confidential Information except to the extent necessary to his employment with uSell (or any of its affiliates) nor remove any Confidential Information or copies thereof from the premises any of the Companies except to the extent necessary to his employment with uSell. Upon termination of his employment with uSell (or any of its affiliates), the Executive shall immediately return any Confidential Information to the Companies. All records, files, materials and other Confidential Information obtained by the Executive in the course of his employment with uSell are confidential and proprietary and shall remain the exclusive property of any of the Companies. The Executive shall not, except in connection with and as required by his performance of his duties under this Agreement, for any reason use for his own benefit or the benefit of any person or entity other than any of the Companies or disclose any such Confidential Information to any person, firm, corporation, association or other entity, except to or on behalf of uSell, for any reason or purpose whatsoever without the prior express written consent of the manager of the LLC.

(d) Whistleblowing . Nothing contained in this Agreement shall be construed to prevent the Executive from reporting any act or failure to act to the Securities and Exchange Commission or other governmental body or prevent the Executive from obtaining a fee as a “whistleblower” under Rule 21F-17(a) under the Securities Exchange Act of 1934 or other rules or regulations implemented under the Dodd-Frank Wall Street Reform Act and Consumer Protection Act.

(e) Notice of Immunity under the Defend Trade Secrets Act of 2016 . In addition to the provisions of Section 2(d):

(i) The Executive will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:

(A) is made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (2) solely for the purpose of reporting or investigating a suspected violation of law; or

(B) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.

(ii) if the Executive files a lawsuit for retaliation by any of the Companies for reporting a suspected violation of law, the Executive may disclose the trade secrets of any of the Companies to his attorney and use the trade secret information in the court proceeding if the Executive:

(A) files any document containing the trade secret under seal; and

(B) does not disclose the trade secret, except pursuant to court order.

3. Equitable Relief .

(a) The Companies and the Executive recognize that the services to be rendered under this Agreement by the Executive are special, unique and of extraordinary character, and that in the event of the breach by the Executive of the terms and conditions of this Agreement or if the Executive shall or take any action in violation of Section 1 and/or Section 2, any of the Companies shall be entitled to, in addition to any other remedy which may be available at law or in equity, specific performance and injunctive relief without posting a bond or proving actual damages, in order to prevent any actual, intended or likely breach.

(b) Any action arising from or under this Agreement must be commenced only in the appropriate state or federal court located in New York County, New York. The Executive irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to take any and all future action necessary to submit to the jurisdiction of such courts. The Executive irrevocably waives any objection that they now have or hereafter may have to the laying of venue of any suit, action or proceeding brought in any such court and further irrevocably waive any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Final judgment against the Executive in any such suit shall be conclusive and may be enforced in other jurisdictions by suit on the judgment, a certified or true copy of which shall be conclusive evidence of the fact and the amount of any liability of the Executive therein described, or by appropriate proceedings under any applicable treaty or otherwise.

4. Severability .

(a) The Executive expressly agrees that the character, duration and geographical scope of the non-competition provisions set forth in this Agreement are reasonable in light of the circumstances as they exist on the date hereof. Should a decision, however, be made at a later date by a court of competent jurisdiction that any provision of this agreement is unenforceable, such provision shall be modified and interpreted to extend only over the maximum period of time for which they may be enforceable and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which they may be enforceable, all as determined by such court in such action so as to be enforceable to the maximum extent consistent with then applicable law. If, in any judicial proceeding, a court shall refuse to enforce all of the separate covenants deemed included herein because taken together they are more extensive than necessary to assure to the Companies the intended benefits of this Agreement, it is expressly understood and agreed by the parties hereto that the provisions of this Agreement that, if eliminated, would permit the remaining separate provisions to be enforced in such proceeding shall be deemed eliminated to the extent necessary, for the purposes of such proceeding, from this Agreement.

(b) If any provision of this Agreement otherwise is deemed to be invalid or unenforceable or is prohibited by the laws of the state or jurisdiction where it is to be performed, this Agreement shall be considered divisible as to such provision and such provision shall be inoperative in such state or jurisdiction and shall not be part of the consideration moving from either of the parties to the other. The remaining provisions of this Agreement shall be valid and binding and of like effect as though such provisions were not included.

5. Notices and Addresses . All notices, offers, acceptance and any other acts under this Agreement shall be in writing, and shall be sufficiently given if delivered to the addressees in person, by FedEx or similar receipted delivery next business day delivery to the addresses detailed below (or to such other address, as either of them, by notice to the other may designate from time to time), or by e-mail delivery (in which event a copy shall immediately be sent by FedEx or similar receipted delivery), as follows:

To the LLC:	XXXX
	________________
	________________
	Attention: _______

With a copy to:	Loeb & Loeb, LLP
	345 Park Avenue
	New York, NY 10154
	Email: sgiordano@loeb.com
	Attention: Scott Giordano, Esq.

To Tepfer:	________ Tepfer
	150 Executive Drive, Suite Q
	Edgewood, NY 11717
	Email: btepfer@wesell.com

To uSell, BST:	________ Tepfer
	150 Executive Drive
	Unit Q
	Edgewood, NY 11717
	Email: stepfer@wesell.com

and WeSell:	Nikhil Raman
	171 Madison Avenue, 17 ^th Floor
	New York, NY 10016
	Email: nik@usell.com

With a copy to:	Nason, Yeager, Gerson White & Lioce, P.A.
	3001 PGA Blvd., Suite 305
	Palm Beach Gardens, Florida 33410
	Email: harris@nasonyeager.com
	Attention: Michael D. Harris, Esq.

6. Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The execution of this Agreement may be by actual or facsimile signature.

7. Attorneys’ Fees . In the event that there is any controversy or claim arising out of or relating to this Agreement, or to the interpretation, breach or enforcement thereof, and any action or proceeding is commenced to enforce the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and expenses (including such fees and costs on appeal).

8. Governing Law . This Agreement shall be governed or interpreted according to the internal laws of the State of Delaware without regard to choice of law considerations and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort, or otherwise, shall also be governed by the laws of the State of Delaware without regard to choice of law considerations.

9. Entire Agreement . This Agreement constitutes the entire Agreement between the parties and supersedes all prior oral and written agreements between the parties hereto with respect to the subject matter hereof. Neither this Agreement nor any provision hereof may be changed, waived, discharged or terminated orally, except by a statement in writing signed by the party or parties against which enforcement or the change, waiver discharge or termination is sought.

10. Section and Paragraph Headings . The section and paragraph headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

11. Amendment . This Agreement shall not be amended, modified or supplemented at any time or terminated without the consent of all parties to the Agreement and the prior written consent of _____________________________.

IN WITNESS WHEREOF , the Parties have executed this Agreement as of the Effective Date above.

	XXXX

	By:

	USELL.COM, INC.

	By:
		Nikhil Raman, Chief Executive Officer

	BST DISTRIBUTION, INC.

	By:
		_____Tepfer, _____________

	WE SELL CELLULAR, LLC

	By:
		Nikhil Raman, Manager

_________ TEPFER

Exhibit 10.4

NON-COMPETITION AND CONFIDENTIALITY AGREEMENT

This Non-Competition and Confidentiality Agreement (the “Agreement”) is entered into as of January 13, 2017 (the “Effective Date”) by and among uSell.com, Inc., a Delaware corporation (“uSell”), BST Distribution, Inc., a New York corporation (“BST”), We Sell Cellular, LLC, a Delaware limited liability company (“WeSell”), and each of their affiliates, and XXXX, a Delaware limited liability LLC (the “LLC”) (collectively, the “Companies”), and Nikhil Raman (“Raman” or the “Executive”). The Companies and Raman are collectively referred to herein as the “Parties”) for all purposes under this Agreement except where apparent from the context the word uSell includes all of its affiliates.

WHEREAS, uSell owns membership interests in the LLC;

WHEREAS, Raman is an officer and equityholder of uSell;

WHEREAS, Raman is also employed by uSell, and as an employee he provides services to uSell, BST,WeSell and their affiliates;

WHEREAS, uSell has agreed to provide certain services to the LLC pursuant to a Services Agreement between uSell and its affiliates and the LLC; and

NOW, THEREFORE, in consideration of the compensation paid to Raman by uSell, which owns all outstanding equity interests of BST and WeSell (and their affiliates) and distributions which uSell may receive from the LLC, which Raman acknowledges to be good and valuable consideration for Raman’s obligations hereunder, the Parties hereby agree as follows:

1. Non-Competition Agreement.

(a) Competition with the Companies . During the period that Raman is employed by uSell or any of its affiliates and for a period of one (1) year commencing on the date of termination of his employment with uSell or any of its affiliates (the “Restricted Period”), Raman shall not, directly or indirectly, individually or through any other person, whether as an employee, officer, employer, owner, operator, manager, advisor, consultant, agent, partner, director, stockholder, joint venturer, member, or otherwise, engage in or assist others to engage in the Business or compete in any way with any or all of the Companies anywhere in the world.

(b) Solicitation of Employees . During the Restricted Period, Raman agrees that he shall not, directly or indirectly, (i) solicit, recruit, induce, request, recommend or advise any employee of the Companies (or any individual who was an employee of any of the Companies during the twelve (12) month period prior to the end of the Restricted Period), (ii) cause any such individual to terminate his or her employment with any of the Companies, or refrain from renewing or extending his or her employment by or consulting relationship with any of the Companies or (iii) cause any such individual to become employed by or enter into a consulting relationship with a person other than the Companies.

(c) Solicitation of Customers/Suppliers . During the Restricted Period, Raman agrees that he shall not, directly or indirectly, (i) solicit, persuade or induce any customer or supplier of any of the Companies to terminate, reduce, disrupt or refrain from renewing or extending its contractual or other relationship with any of the Companies in regard to the purchase or sale of products sold, by any of the Companies or any other individual, person or entity in regard to the purchase of similar or identical to those purchased and sold, by the Companies.

(d) Extension of Restricted Period. Notwithstanding anything to the contrary herein, the Restricted Period shall only terminate on the later of (i) the Restricted Period as set forth in Section 1(a) and (ii) such time that all Liabilities have been indefeasibly paid in full and the Companies’ right to request financial accommodations under the Note Purchase Agreement has been terminated. For purposes of the foregoing sentence, (a) the term “Liabilities” shall have the meaning given to such term in the Note Purchase Agreement and (b) the term “Note Purchase Agreement” shall mean the Note Purchase Agreement dated as of January 13, 2017 by and among certain of the Companies, the Purchasers named and as defined therein and _________________________________, as agent for such Purchasers, as the same may be amended, modified and supplemented from time to time.

(e) Non-disparagement . Raman agrees that during the period that he is employed by uSell (or any of its affiliates), and at all times thereafter, he will refrain from making, in writing or orally, any unfavorable comments about any of the Companies, or any of their owners, officers, directors, employees or agents, or their operations, policies, or procedures, cause embarrassment or public humiliation to such persons or otherwise disparage such persons; provided, however, that nothing herein shall preclude Raman from responding truthfully to a lawful subpoena or other compulsory legal process or from providing truthful information otherwise required by law.

(f) No Payment . Raman acknowledges and agrees that no separate or additional payment will be required to be made to him in consideration of his undertakings in this Section 1, and confirms he has received adequate consideration for such undertakings and entering into this Agreement.

2. Non-Disclosure of Confidential Information.

(b) Legitimate Business Interests. The Executive recognizes that the Companies have legitimate business interests to protect and as a consequence, the Executive agrees to the restrictions contained in this Agreement because they further the Companies’ legitimate business interests. These legitimate business interests include, but are not limited to (i) trade secrets; (ii) valuable confidential business, technical, and/or professional information that otherwise may not qualify as trade secrets, including, but not limited to, all Confidential Information; or (iii) substantial, significant, or key relationships with specific prospective or existing and future customers, vendors or suppliers.

(c) Confidentiality . During the term of the Executive’s employment with uSell (or any of its affiliates) and following termination of employment, for any reason, the Confidential Information shall be held by Raman in the strictest confidence and shall not, without the prior express written consent of the manager of the LLC, be disclosed to any person other than in connection with Raman’s employment by uSell (or any of its affiliates). The Executive further acknowledges that such Confidential Information as is acquired and used by any of the Companies is a special, valuable and unique asset. The Executive shall exercise all due and diligent precautions to protect the integrity of the Confidential Information and to keep it confidential whether it is in written form, on electronic media, oral, or otherwise. The Executive shall not copy any Confidential Information except to the extent necessary to his employment with uSell (or any of its affiliates) nor remove any Confidential Information or copies thereof from the premises any of the Companies except to the extent necessary to his employment with uSell. Upon termination of his employment with uSell (or any of its affiliates), the Executive shall immediately return any Confidential Information to the Companies. All records, files, materials and other Confidential Information obtained by the Executive in the course of his employment with uSell are confidential and proprietary and shall remain the exclusive property of any of the Companies. The Executive shall not, except in connection with and as required by his performance of his duties under this Agreement, for any reason use for his own benefit or the benefit of any person or entity other than any of the Companies or disclose any such Confidential Information to any person, firm, corporation, association or other entity, except to or on behalf of uSell, for any reason or purpose whatsoever without the prior express written consent of the manager of the LLC.

(e) Notice of Immunity under the Defend Trade Secrets Act of 2016 . In addition to the provisions of Section 2(d):

(i) The Executive will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:

(B) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.

(A) files any document containing the trade secret under seal; and

(B) does not disclose the trade secret, except pursuant to court order.

3. Equitable Relief.

4. Severability.

	To the LLC:


		Attention:


	With a copy to:	Loeb & Loeb, LLP
		345 Park Avenue
		New York, NY 10154
		Email: sgiordano@loeb.com
		Attention: Scott Giordano, Esq.

	To Raman:	Nikhil Raman
		171 Madison Avenue, 17 ^th Floor
		New York, NY 10016
		Email: nik@usell.com

	To uSell, BST:	Brian Tepfer
		150 Executive Drive
		Unit Q
		Edgewood, NY 11717
		Email: btepfer@wesell.com

	and WeSell:	Nikhil Raman
		171 Madison Avenue, 17 ^th Floor
		New York, NY 10016
		Email: nik@usell.com

	With a copy to:	Nason, Yeager, Gerson White & Lioce, P.A.
		3001 PGA Blvd., Suite 305
		Palm Beach Gardens, Florida 33410
		Email: harris@nasonyeager.com
		Attention: Michael D. Harris, Esq.

10. Section and Paragraph Headings . The section and paragraph headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

IN WITNESS WHEREOF , the Parties have executed this Agreement as of the Effective Date above.

	XXXX

	By:



	uSell.com, Inc.

	By:
		Brian Tepfer, Executive Vice President

	BST Distribution, Inc

	By:
		Brian Tepfer, Chief Executive Officer

	We Sell Cellular, LLC

	By:
		Nikhil Raman, Manager




Nikhil Raman


Nikhil Raman

Exhibit 10.5

NOTE PURCHASE AGREEMENT

XXXXXXXXXXXXX,
as Agent

PURCHASERS
From Time to Time Party Hereto,

USELL.COM, INC.,
BST DISTRIBUTION, INC.

and

WE SELL CELLULAR LLC

Dated: January 13, 2017

Table of Contents

			Page

1.	Agreement to Sell and Purchase		1
	1.1	Offering	1
	1.2	Intentionally Omitted	1
	1.3	Purchase Price	2

2.	Disbursement Letters; Closing Expenses		2

3.	Fees		2
	3.1	Maintenance Fee	2
	3.2	Closing Fee	2

4.	Closing, Delivery and Payment		2
	4.1	Closing	2
	4.2	Delivery	2

5.	Cash Management; Application of Proceeds		3
	5.1	Cash Management	3
	5.2	Application of Proceeds	4
	5.3	Disbursements from Agent Controlled Account	4

6.	Representations and Warranties of any Company		5
	6.1	Organization, Good Standing and Qualification	5
	6.2	Subsidiaries	5
	6.3	Capitalization; Voting Rights	6
	6.4	Authorization; Binding Obligations	6
	6.5	Liabilities; Solvency	6
	6.6	Agreements; Action	7
	6.7	Internal Accounting Controls; Disclosure Controls and Procedures	9
	6.8	SEC Documents; Financial Statements; Sarbanes-Oxley	9
	6.9	Obligations to Related Parties	11
	6.10	Changes	12
	6.11	Title to Properties and Assets; Liens, Etc	13
	6.12	Intellectual Property	14
	6.13	Compliance with Other Instruments	16
	6.14	Litigation	16
	6.15	Tax Returns and Payments	16
	6.16	Employees	17
	6.17	Voting Rights	17
	6.18	Compliance with Laws; Permits	17
	6.19	Environmental and Safety Laws	18
	6.20	Valid Offering	18
	6.21	Acknowledgment Regarding Purchaser’s Purchase of Notes	19
	6.22	No Material Adverse Effect; No Undisclosed Liabilities	19
	6.23	General Solicitation	19
	6.24	No Integrated Offering	19
	6.25	Listing	19

Table of Contents

			Page

	6.26	Investment Company	19
	6.27	No Disqualification Events	20
	6.28	Full Disclosure	20
	6.29	Insurance	20
	6.30	Intentionally Omitted	20
	6.31	Patriot Act	21
	6.32	ERISA	21
	6.33	Status of Certain Subsidiaries	21
	6.34	Special Purposes Entity	22

7.	Representations and Warranties of each Purchaser		22
	7.1	Organization, Good Standing and Qualification	22
	7.2	Intentionally Omitted	22
	7.3	Requisite Power and Authority	22
	7.4	Investment Representations	22
	7.5	Transfer or Resale	23
	7.6	Purchaser Bears Economic Risk	23
	7.7	Acquisition for Own Account	23
	7.8	Purchaser Can Protect Its Interest	23
	7.9	Accredited Investor	23
	7.10	Legends	23

8.	Covenants of Companies		24
	8.1	Stop-Orders	24
	8.2	Listing	24
	8.3	Market Regulations	24
	8.4	Reporting Requirements	24
	8.5	Form D and Blue Sky	26
	8.6	Reporting Status	26
	8.7	Internal Accounting Controls	27
	8.8	Listing	27
	8.9	Disclosure of Transactions	27
	8.10	Disqualification Events	27
	8.11	No Integrated Offering	28
	8.12	Use of Funds	28
	8.13	Access to Facilities	28
	8.14	Taxes	28
	8.15	Insurance	30
	8.16	Intellectual Property	31
	8.17	Properties	32
	8.18	Confidentiality	32
	8.19	Environmental Matters	32
	8.20	Compliance with Laws	32
	8.21	Licenses and Permits	32
	8.22	Further Assurances	32
	8.23	Financial Covenants	33
	8.24	Required Approvals	35

Table of Contents

			Page

	8.25	Inventory Tracking System	37
	8.26	Margin Stock	37
	8.27	FIRPTA	37
	8.28	Financing Right of First Refusal	38
	8.29	Credit Policies	38
	8.30	Intentionally Omitted	38
	8.31	Changes to Fiscal Year	38
	8.32	Reimbursement of Monitoring Expenses	39
	8.33	Limitation on Amendments to Material Agreements	39
	8.34	Regulatory Matters	39
	8.35	Deposit Accounts	39
	8.36	Post-Closing Covenant	39

9.	Covenants of Purchasers		39
	9.1	Confidentiality	39
	9.2	Non-Public Information	40
	9.3	Limitation on Acquisition of Common Stock of USELL	40

10.	Covenants of Companies and Purchasers Regarding Indemnification		41

11.	Intentionally Omitted		41

12.	Conditions Precedent		41
	12.1	Notes	41

13.	Miscellaneous		44
	13.1	Governing Law, Jurisdiction and Waiver of Jury Trial	44
	13.2	Severability	45
	13.3	Independent Nature of Purchasers	46
	13.4	Survival, Etc	46
	13.5	Successors	46
	13.6	Entire Agreement; Maximum Interest	47
	13.7	Amendment and Waiver	47
	13.8	Delays or Omissions; Remedies	48
	13.9	Notices	48
	13.10	Form of Payment	48
	13.11	Attorneys’ Fees	48
	13.12	Titles and Subtitles	49
	13.13	Signatures; Counterparts	49
	13.14	Broker’s Fees	49
	13.15	Construction	49
	13.16	Joint and Several Obligations	49
	13.17	Agency	50
	13.18	Costs and Expenses	50

iii

LIST OF EXHIBITS

Form of Term Notes	Exhibit A
Form of Security Agreement	Exhibit B
Form of Pledge Agreement	Exhibit C
Form of Subsidiary Guaranty	Exhibit D
Form of Account Control Agreement	Exhibit E

LIST OF SCHEDULES

Schedule 1	Purchaser Commitments
Schedule 6.2	Subsidiaries
Schedule 6.3	Capitalization
Schedule 6.5	Liabilities
Schedule 6.6	Agreements & Actions
Schedule 6.8	Reporting Documents
Schedule 6.9	Obligations to Related Parties
Schedule 6.10	Changes
Schedule 6.11	Permitted Encumbrances
Schedule 6.12	Intellectual Property
Schedule 6.14	Litigation
Schedule 6.15	Taxes
Schedule 6.16	Employees
Schedule 6.17	Voting Rights
Schedule 6.18	Compliance with Laws
Schedule 6.22	No Material Adverse Effect
Schedule 8.17	Properties
Schedule 8.24	Required Approvals
Schedule 8.35	Deposit Accounts
Schedule 8.36	Post-Closing Covenant
Schedule 12.1	Indebtedness to be Paid Off

NOTE PURCHASE AGREEMENT

THIS NOTE PURCHASE AGREEMENT (this “ Agreement ”) is made and entered into as of January 13, 2017, by and among USELL.COM, INC., a Delaware corporation (“ USELL ”), BST DISTRIBUTION, INC., a New York corporation (“ BST ”), WE SELL CELLULAR LLC, a Delaware limited liability company (“ WE SELL ” together with USELL and BST, each a “ Company ” and collectively the “ Companies ”), Purchasers from time to time a party hereto (each a “ Purchaser ” and collectively, the “ Purchasers ”), XXXXXXXXXXXXX, a Delaware limited liability company, as agent for each Purchaser, (the “ Agent ” and together with Purchasers, the “ Creditor Parties ”).

RECITALS

WHEREAS, Companies have authorized the sale to each Purchaser of original issue discount Secured Term Notes;

WHEREAS, each Purchaser desires to purchase the applicable Notes on the terms and conditions set forth herein; and

WHEREAS, each Company desires to issue and sell the applicable Notes to each Purchaser on the terms and conditions set forth herein.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises, representations, warranties and covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Agreement to Sell and Purchase .

1.1 Offering . Pursuant to the terms and conditions set forth in this Agreement, on the Closing Date (as defined in Section 4.1), Companies shall sell to each Purchaser, and each Purchaser shall purchase from Companies, the applicable original issue discount Notes listed on Schedule 1 under the heading “Notes” and set forth opposite such Purchaser’s name, in the original aggregate principal amount of Eight Million Six Hundred Sixty Thousand Dollars ($8,660,000) (each as amended, restated, modified and/or supplemented from time to time, an “ Note ” and collectively the “ Notes ”). The sale of the Notes (as such term is defined below) on the Closing Date shall be known as the “ Offering .” The Notes will mature on the Maturity Date (as defined in each Note). The Notes shall be substantially in the form attached hereto as Exhibit A and shall include such notations, legends or endorsements set forth therefor or required by law. The proceeds of the Notes are to be used in accordance with Section 8.12 of this Agreement.

1.2 Intentionally Omitted .

1.3 Purchase Price . The aggregate purchase price (the “ Purchase Price ”) for the Notes purchased by Purchasers shall equal Eight Million Five Hundred Seventy-Two Thousand Four Hundred Dollars ($8,572,400).

2. Disbursement Letters; Closing Expenses . Prior to the Closing Date (as defined below), Companies shall issue to each Purchaser a disbursement letter (collectively the “ Disbursement Letters ” and each, a “ Disbursement Letter ”) setting forth the Purchase Price payable by such Purchaser at such Closing Date and the recipients to receive such proceeds on behalf of Companies and to the extent that any proceeds are to be payable to any of the Companies such amounts shall be deposited in the Agent Controlled Account (as such term is defined in Section 5.1 below). All expenses incurred by Agent and Purchasers in connection with the review, documentation and closing of transactions contemplated herein and in the Related Agreements (as defined in Section 6.1) (net of deposits previously paid by Companies) shall be paid by Companies on the Closing Date, as shall be set forth in the Disbursement Letters. The Disbursement Letters shall be subject to Agent’s review and approval.

3. Fees. .

3.1 Maintenance Fee . Companies shall jointly and severally pay to Agent, for its own account, a maintenance fee in an amount equal to three-quarters of one percent (0.75%) per annum on the aggregate original principal amount of the Notes, payable in cash monthly in arrears on the first day of each month (prorated for partial months).

3.2 Closing Fee . Companies shall jointly and severally pay to Agent, for the ratable benefit of Purchasers, a closing fee in amount equal to two percent (2%) of the aggregate original principal amount of the Notes payable in cash on the Closing Date. The closing fee shall be deemed earned in full as of the Closing Date and shall not be subject to rebate or proration for any reason.

4. Closing, Delivery and Payment .

4.1 Closing . Subject to the terms and conditions herein, the closing of the Offering shall take place at such time or place as any Company and Agent may mutually agree (such date is hereinafter referred to as the “ Closing Date ”).

4.2 Delivery . At the closing of the Offering on the Closing Date, Companies will deliver to each Purchaser, among other things, the applicable Note purchased by such Purchaser, and such Purchaser will deliver to any Company the amount set forth opposite its name in the Disbursement Letter for such Purchaser by wire transfer of immediately available funds to an account designated by any Company in the Disbursement Letters. Each Company hereby acknowledges and agrees that each Purchaser’s obligation to purchase the applicable Note from any Company on the Closing Date shall be contingent upon the satisfaction (or waiver by Agent) as determined by Agent in its good faith discretion, of the conditions precedent set forth herein.

5. Cash Management; Application of Proceeds .

5.1 Cash Management . Each Company will, at its expense, establish (and revise from time to time as Agent may require) procedures acceptable to Agent, in Agent’s sole discretion, for the collection of checks, wire transfers and all other proceeds of all of such Company’s account receivable and other Collateral (“ Company Collections ”), which shall include directing all of each Company’s account debtors, including PayPal and any and all other third party payors, to send all account proceeds directly to an account designated by Agent in the name of Agent (the “ Agent Master Controlled Account ”) and depositing all Company Collections received by such Company into the Agent Master Controlled Account. USELL shall have view only rights to the Agent Master Controlled Account and the Agent Controlled Account (as defined below). Companies and Purchasers acknowledge that all proceeds of accounts receivable created by XXXX, a Delaware limited liability company jointly owned by XXXX and USELL (the “ SPE ”), shall also be deposited directly into the Agent Master Controlled Account (the “ SPE Collections ” and together with the Company Collections, collectively, the “ Collections ”). USELL, on behalf of each Company, will advise Agent daily in writing of the allocation of Collections received in the Agent Master Controlled Account as to those Collections constituting Company Collections and those constituting SPE Collections and provide Agent such other backup documentation relating to the Collections as Agent may from time to time request. Following Agent’s (i) receipt of such written allocation and such other backup documentation as shall have been requested by Agent and (ii) concurrence with such written allocation, Agent shall remit the Company Collections to an account designated by Agent in the name of Agent (the “ Agent Controlled Account ”). In addition, each Company shall provide Agent at all times with the information necessary to access and/or obtain funds from any accounts maintained by third party payors on behalf of such Company. All proceeds from the purchase of the Notes not disbursed on the Closing Date shall be remitted to the Agent Controlled Account. Companies shall maintain cash in the Agent Controlled Account in an amount sufficient to comply with Section 8.23(b). A Company may request that Agent disburse the amounts in the Agent Controlled Account (which are allocable to the transactions contemplated by this Agreement) to a Springing Controlled Account (as defined below), provided that no Event of Default has occurred and is continuing and, after giving effect to such disbursement, Companies shall be in compliance with the financial covenants set forth in Section 8.23 calculated as if such disbursement had been made for the fiscal period covered by such financial covenants. On or prior to the Closing Date, WE SELL and Citibank, N.A. shall have entered into an Account Control Agreement (as such term is defined in Section 6.1 below) with respect to deposit account number 9955566729 providing for “springing” cash dominion over such deposit account (such account, the “ Closing Date Springing Controlled Account ”). Within thirty (30) days of the Closing Date, Companies shall (a) cause HD Capital Holdings, LLC to enter into an Account Control Agreement (as such term is defined in Section 6.1 below) with Citibank, N.A. and Agent providing for “springing” cash dominion over deposit account number 3290232135 (such account, the “HD Capital Springing Controlled Account” and together with the Closing Date Springing Controlled Account, each a “ Springing Controlled Account ” and collectively the “ Springing Controlled Accounts ”) or (b) provide Agent evidence that the HD Capital Springing Controlled Account and all deposit accounts owned by HD Capital Holdings, LLC and Upstream Phone Company USA, Inc. have been closed. Each Company represents and warrants to each Purchaser that all deposit accounts owned by HD Capital Holdings, LLC (other than deposit account number 3290232135) and Upstream Phone Company USA, Inc. are zero balance accounts and covenants that all such deposit accounts shall remain as zero balance accounts until closed in accordance with the immediately preceding sentence. Each Company shall provide Agent with the information necessary for Agent to have online access to account balances and activity for each bank account maintained by such Company and its Subsidiaries and no Company shall change or permit any of its Subsidiaries to change any such information unless and until Agent shall have provided such Company written notice acknowledging Agent’s receipt of such updated information. With respect to the Springing Controlled Accounts, Agent shall not deliver to the relevant depository a notice or other instruction which provides for exclusive control over such account by Agent unless an Event of Default shall have occurred and be continuing.

5.2 Application of Proceeds . Agent is hereby directed to apply amounts deposited in the Agent Controlled Account and which are allocable to the transactions contemplated by this Agreement as follows: first, to payment of costs and expenses of Agent and Purchasers payable or reimbursable by Companies under this Agreement or any Related Agreement; second, to payment of all accrued unpaid interest on the Notes; third, to payment of principal of the Notes then due and payable; fourth, to payment of any other amounts owing constituting Liabilities (as such term is defined in Section 13.16 below) then due and payable; and fifth, absent the occurrence and continuation of an Event of Default, in accordance with Section 5.3 below.

5.3 Disbursements from Agent Controlled Account . Companies shall request that Agent consent to the release of funds from the Agent Controlled Account by written request to Agent, in form and substance acceptable to Agent, at least two (2) business days prior to the requested release. If an Event of Default has occurred and is continuing, or Companies would not otherwise be in compliance with the financial covenants set forth in Section 8.23 calculated as if such disbursement had been made for the fiscal period covered by such financial covenants., Agent shall have no obligation to authorize the release of funds from an Agent Controlled Account.

6. Representations and Warranties of any Company . Each Company hereby represents and warrants to each Purchaser as follows:

6.1 Organization, Good Standing and Qualification . Such Company and each of its Subsidiaries is a corporation, partnership or limited liability company, as the case may be, duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. Such Company and each of its Subsidiaries has the corporate, limited liability company or partnership, as the case may be, power and authority to own and operate its properties and assets and, insofar as it is or shall be a party thereto, to (1) execute and deliver (i) this Agreement, (ii) the Notes to be issued in connection with this Agreement, (iii) the Security Agreement to be dated as of the Closing Date among Companies, all of the Subsidiaries of Companies and Agent, in the form attached hereto as Exhibit B with any changes thereto as are approved by Companies and Agent (as amended, restated, modified and/or supplemented from time to time, the “ Security Agreement ”), (iv) the Pledge Agreement to be dated as of the Closing Date among Companies, certain Subsidiaries of Companies and Agent, in the form attached hereto as Exhibit C with any changes thereto as are approved by Companies and Agent (as amended, restated, modified and/or supplemented from time to time, the “ Pledge Agreement ”), (v) the Guaranty Agreement dated as of the Closing Date among all of the Subsidiaries (other than Money4Gold Precious Metals, Inc.) of Companies (collectively, “ Guarantors ”) in favor of Creditor Parties, in the form attached hereto as Exhibit D with any changes thereto as are approved by Companies and Agent (as amended, restated, modified and/or supplemented from time to time, the “ Subsidiary Guaranty ”), (vi) Account Control Agreements, in each case, dated as of the Closing Date, among Companies and the Subsidiaries of Companies, Agent and the applicable financial institution in the form attached hereto as Exhibit E with any changes thereto as are approved by Companies and Agent (as amended, restated, modified and/or supplemented from time to time, each, an “ Account Control Agreement ” and together, the “ Account Control Agreements ”), and (vii) all other documents, instruments, guarantees and agreements entered into in connection with the transactions contemplated hereby and thereby (the preceding clauses (ii) through (vii), collectively, the “ Related Agreements ”); (2) issue and sell the Notes; and (3) carry out the provisions of this Agreement and the Related Agreements and to carry on its business as presently conducted. Each Company and each of its Subsidiaries is duly qualified and is authorized to do business and is in good standing as a foreign corporation, partnership or limited liability company, as the case may be, in all jurisdictions in which the nature or location of its activities and of its properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to do so has not, or could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on (a) the business, assets, liabilities, condition (financial or otherwise), properties, operations or prospects of Companies and Subsidiaries of Companies, taken as a whole, (b) the legality, invalidity, enforceability, perfection or priority of the security interests and liens of Agent upon the Collateral (as defined in the Security Agreement) or (c) the ability of any Company and its Subsidiaries, taken as a whole, to perform their obligations under this Agreement or the Related Agreements (a “ Material Adverse Effect ”). As used herein, the term “ Subsidiary ” means, with respect to any Person, any corporation, partnership, joint venture, limited liability company, association or other entity, the management of which is, directly or indirectly, controlled by, or of which an aggregate of more than fifty percent (50%) of the voting Stock is, at the time, owned or controlled directly or indirectly by, such Person or one or more Subsidiaries of such Person. As used herein, the term “ Person ” means any individual, partnership, corporation (including a business trust and a public benefit corporation), joint stock company, estate, association, firm, enterprise, trust, limited liability company, unincorporated association, joint venture and any other entity or Governmental Authority (as defined below).

6.2 Subsidiaries . Each Company holds all right, title and interest in and to 100% of the capital stock, equity, membership interests or similar interests of each of the Subsidiaries as reflected on Schedule 6.2 , in each case, free and clear of any Liens (as defined below) (other than Liens in favor of BAM Administrative Services LLC, which shall be released simultaneously with the purchase of the Notes on the Closing Date), including any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of free and clear ownership by a current holder. Except as set forth on Schedule 6.2 , no Company nor any of its Subsidiaries directly or indirectly owns any security, equity or beneficial ownership interest in any other Person (including through joint venture or partnership agreements) or has any other interest in any other Person.

6.3 Capitalization; Voting Rights .

(a) The authorized capital stock of USELL, as of the date hereof is set forth on Schedule 6.3 .

(b) Except as disclosed on Schedule 6.3 , there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal), proxy or equity holder agreements, or arrangements or agreements of any kind for the purchase or acquisition from any Company or any Subsidiary of any of its equity interests. Except as disclosed on Schedule 6.3 , neither the offer, issuance or sale of any of the Notes nor the consummation of any transaction contemplated hereby will result in a change in the price or number of any equity interests of any Company outstanding, under anti-dilution or other similar provisions contained in or affecting any such equity interests.

(c) Except as disclosed on Schedule 6.3 , all issued and outstanding shares of each Company’s common stock: (i) have been duly authorized and validly issued and are fully paid and non-assessable; and (ii) were issued in compliance with all applicable state and federal laws concerning the issuance of equity interests.

(d) The rights, preferences, privileges and restrictions of the shares of each Company’s equities are as stated in such Company’s certificate or articles of formation.

6.4 Authorization; Binding Obligations . All corporate, partnership or limited liability company, as the case may be, action on the part of each Company and each of its Subsidiaries (including their respective officers and directors) necessary for the authorization of this Agreement and the Related Agreements, the performance of all obligations of each Company and its Subsidiaries hereunder and under the other Related Agreements at the Closing Date and the authorization, sale, issuance and delivery of the Notes has been taken or will be taken prior to the Closing Date. This Agreement and the Related Agreements, when executed and delivered and to the extent it is a party thereto, will be valid and binding obligations of each Company and each of its Subsidiaries, enforceable against each such Person in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights; and (b) general principles of equity that restrict the availability of equitable or legal remedies. The sale of the Notes is not and will not be subject to any preemptive rights or rights of first refusal that have not been properly waived or complied with.

6.5 Liabilities; Solvency .

(a) Except as set forth in the consolidated balance sheet of USELL and its Subsidiaries and WE SELL and BST, each dated September 30, 2016, or on Schedule 6.5 and for Permitted Encumbrances (as defined below), no Company nor any of its Subsidiaries has any material liabilities, except current liabilities incurred in the ordinary course of business since the date of such balance sheets.

(b) Both before and after giving effect to (a) the transactions contemplated hereby that are to be consummated on the Closing Date, (b) the disbursement of the proceeds of, or the assumption of the liability in respect of, the Notes pursuant to the instructions or agreement of Companies and (c) the payment and accrual of all transaction costs in connection with the foregoing, Companies and Guarantors, on a consolidated basis, are and will be, Solvent. For purposes of this Agreement, “ Solvent ” means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person; (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (d) such Person is not engaged in a business or transaction, and is not about to engage in a business or transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities (such as litigation, guaranties and pension plan liabilities) at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, represents the amount that can reasonably be expected to become an actual or matured liability.

6.6 Agreements; Action . Except as set forth on Schedule 6.6 :

(a) There are no agreements, understandings, instruments, contracts, judgments, orders, writs or decrees to which any Company or any of its Subsidiaries is a party or by which it is bound which may involve: (i) obligations (contingent or otherwise) of, or payments to, any Company or any of its Subsidiaries in excess of $50,000 (other than obligations of, or payments to, any Company or any of its Subsidiaries arising from purchase or sale agreements, contracts for services, marketing and advertising related agreements, etc. entered into in the ordinary course of business); or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from any Company or any of its Subsidiaries (other than licenses arising from the purchase of “off the shelf” or other standard products); or (iii) provisions restricting the development, manufacture or distribution of any Company’s or any of its Subsidiaries’ products or services; or (iv) indemnification by any Company or any of its Subsidiaries with respect to infringements of proprietary rights.

(b) Since September 30, 2016 (the “ Measurement Date ”), no Company nor any of its Subsidiaries has: (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock or equity; (ii) incurred any Indebtedness individually in excess of $50,000 or, in the case of Indebtedness individually less than $50,000, in excess of $100,000 in the aggregate; (iii) made any loans or advances to any Person not in excess, individually or in the aggregate, of $100,000, other than ordinary course advances for travel expenses; or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale of its inventory in the ordinary course of business; and as of the date of this Agreement, no Company nor any of its Subsidiaries has any outstanding Indebtedness other than Indebtedness for borrowed money owing by Companies under the BAM Facility (as hereafter defined) which shall be paid in full on the Closing Date. For purposes of this Agreement, “Indebtedness” of any Person means, without duplication: (a) all indebtedness for borrowed money; (b) all obligations issued, undertaken or assumed as the deferred purchase price of property or services, including earn-outs; (c) the face amount of all letters of credit issued for the account of such Person and without duplication, all drafts drawn thereunder and all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments issued by such Person; (d) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses; (e) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to property acquired by the Person (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property); (f) all Capital Lease Obligations; (g) the principal balance outstanding under any synthetic lease, off-balance sheet loan or similar off balance sheet financing product; (h) all obligations, whether or not contingent, to purchase, redeem, retire, defease or otherwise acquire for value any of its own stock or stock equivalents (or any stock or stock equivalent of a direct or indirect parent entity thereof) prior to the date that is 180 days after the Maturity Date, valued at, in the case of redeemable preferred stock, the greater of the voluntary liquidation preference and the involuntary liquidation preference of such stock plus accrued and unpaid dividends; (i) all indebtedness referred to in clauses (a) through (h) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contracts rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness (and for purposes of this Agreement, if such Person is not liable for the payment of such Indebtedness, the amount of Indebtedness of such Person shall be deemed to be the fair market value of such property); and (j) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (a) through (i) above. As used in this Agreement, “ Capital Lease Obligation ” means, as to any Person, any obligation that is required to be classified and accounted for as a capital lease on a balance sheet of such Person prepared in accordance with GAAP (as defined below), and the amount of such obligation shall be the capitalized amount thereof, determined in accordance with GAAP; and “ Contingent Obligation ” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto. As used in this Agreement, “ BAM Facility ” means the note purchase facility provided to Companies under the Note Purchase Agreement dated as of October 23, 2015 by and among Senior Health Insurance Company of Pennsylvania, BRE WNIC 2013 LTC Primary (collectively, the “ BAM Purchasers ”), BAM Administrative Services LLC, as agent for the BAM Purchasers (the “ BAM Agent ”) and Companies, as amended, modified and supplemented from time to time.

(c) For the purposes of subsections (a) and (b) above, all Indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same Person (including Persons any Company or any Subsidiary of any Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.

6.7 Internal Accounting Controls; Disclosure Controls and Procedures . Each Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with United States generally accepted accounting principles (“ GAAP ”) and to maintain asset and liability accountability, (iii) access to assets or incurrence of liability is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any differences. Since January 1, 2010, USELL has timely filed (taking into account any extensions of such time frames permitted by Rule 12b-25 under the Exchange Act pursuant to timely filed Forms 12b-25) and made publicly available on the Security and Exchange Commission’s (the “ SEC ”) Electronic Data Gathering, Analysis, and Retrieval system (or the successor thereto) (“ EDGAR ”) system, all certifications and statements required by (A) Rule 13a-14 or Rule 15d-14 under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) and (B) Section 906 of Sarbanes Oxley with respect to any SEC Documents (as defined below). USELL maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are effective to ensure that the information required to be disclosed by USELL in the reports that it files with or submits to the SEC (x) is recorded, processed, summarized and reported accurately within the time periods specified in the SEC’s rules and forms and (y) is accumulated and communicated to USELL’s management, including its principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding required disclosure. USELL maintains internal control over financial reporting required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such internal control over financial reporting is effective and does not contain any material weaknesses or significant deficiencies.

6.8 SEC Documents; Financial Statements; Sarbanes-Oxley .

(a) Since January 1, 2010, USELL has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Exchange Act (all of the foregoing filed prior to the date this representation is made (including all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein) being hereinafter referred to as the “ SEC Documents ”). USELL has made available to Purchasers or their respective representatives, or filed and made publicly available on EDGAR no less than five (5) days prior to the date this representation is made, true and complete copies of the SEC Documents. Except as set forth on Schedule 6.8 , each of the SEC Documents was filed with the SEC within the time frames prescribed by the SEC for the filing of such SEC Documents (including any extensions of such time frames permitted by Rule 12b-25 under the Exchange Act pursuant to timely filed Forms 12b-25) such that each filing was timely filed (or deemed timely filed pursuant to Rule 12b-25 under the Exchange Act) with the SEC. Except as set forth in Schedule 6.8 , 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. Except as set forth in Schedule 6.8 , 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 light of the circumstances under which they were made, not misleading. Since the filing of the SEC Documents, except as set forth on Schedule 6.8 , no event has occurred that would require an amendment or supplement to any of the SEC Documents and as to which such an amendment has not been filed and made publicly available on the SEC’s EDGAR system no less than five (5) days prior to the date this representation is made. Except as set forth on Schedule 6.8 , USELL has not received any written comments from the SEC staff that have not been resolved to the satisfaction of the SEC staff.

(b) USELL will file its annual report on Form 10-K for the year ended December 31, 2016 (the “ 2016 Form 10-K ”) by no later than April 15, 2017, which is within the time frame prescribed by the SEC for the filing thereof (including the extension of such time frame permitted by Rule 12b-25 under the Exchange Act pursuant to a timely filed Form 12b-25) such that the 2014 Form 10-K will be deemed timely filed with the SEC pursuant to Rule 12b-25 under the Exchange Act. The 2016 Form 10-K will comply in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the 2016 Form 10-K, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

(c) As of their respective dates, the consolidated financial statements of Companies and their Subsidiaries included in the SEC Documents (or to be included in the 2016 Form 10-K) complied (or will comply, as applicable) as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with GAAP, 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 be subject to normal year-end adjustments, may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of USELL 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). No Company, its Subsidiaries and their respective officers, directors and Affiliates or, to any Company’s Knowledge, any equity holder of any Company has made any filing with the SEC (other than the SEC Documents), issued any press release or made, distributed, paid for or approved (or engaged any other Person to make or distribute) any other public statement, report, advertisement or communication on behalf of any Company or any of its Subsidiaries or otherwise relating to any Company or any of its Subsidiaries that contains any untrue statement of a material fact or omits any statement of material fact necessary in order to make the statements therein, in the light of the circumstances under which they are or were made, not misleading or has provided any other information to Purchasers, that contains any untrue statement of a material fact or, with respect to written information, omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they are or were made, not misleading. No Company is required to file and will not be required to file any agreement, note, lease, mortgage, deed or other instrument entered into prior to the date this representation is made and to which any Company or any of its Subsidiaries is a party or by which any Company or any of its Subsidiaries is bound that has not been previously filed as an exhibit (including by way of incorporation by reference) to any Company’s reports filed or made with the SEC under the Exchange Act. The accounting firm that expressed its opinion with respect to the consolidated financial statements included in USELL’s most recently filed annual report on Form 10-K, and reviewed the consolidated financial statements included in USELL’s most recently filed quarterly report on Form 10-Q was, and the accounting firm that is expressing its opinion with respect to the consolidated financial statements to be included in the 2016 Form 10-K is, independent of Companies pursuant to the standards set forth in Rule 2-01 of Regulation S-X promulgated by the SEC and as required by the applicable rules and guidance from the Public Company Accounting Oversight Board (United States), and such firm was (or is, as applicable) otherwise qualified to render such opinion under applicable law and the rules and regulations of the SEC. There is no transaction, arrangement or other relationship between any Company and an unconsolidated or other off-balance-sheet entity that is required to be disclosed by any Company in its reports pursuant to the Exchange Act that has not been so disclosed in the SEC Documents prior to the date of this Agreement.

(d) USELL is in all material respects in compliance with the applicable provisions of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations thereunder (collectively, “ Sarbanes-Oxley ”).

(e) Except as set forth on Schedule 6.8 , no Company nor any of its Subsidiaries nor, to any Company’s Knowledge, any director, officer or employee, of any Company or any of its Subsidiaries, has received or otherwise obtained any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of any Company or any of its Subsidiaries or its internal accounting controls, including any complaint, allegation, assertion or claim that any Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices. No attorney representing any Company or any of its Subsidiaries, whether or not employed by any Company or any of its Subsidiaries, has reported evidence of a material violation of securities laws, breach of fiduciary duty or similar violation by any Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents to any Company’s board of directors or any committee thereof or to any director or officer of any Company pursuant to Section 307 of Sarbanes-Oxley, and the SEC’s rules and regulations promulgated thereunder. There have been no internal or SEC investigations regarding accounting or revenue recognition discussed with, reviewed by or initiated at the direction of the chief executive officer, principal financial officer, the board of directors or any committee thereof. USELL is not, and never has been, a “shell company” (as defined in Rule 12b-2 under the Exchange Act), except as set forth on Schedule 6.8 .

(f) As used in this Agreement, the “ Company’s Knowledge ” and similar language means, unless otherwise specified, the actual knowledge of any “officer” (as such term is defined in Rule 16a-1 under the Exchange Act) of any Company, and the knowledge any such officer would be expected to have after reasonable due diligence inquiry.

6.9 Obligations to Related Parties . Except as set forth on Schedule 6.9 , there are no obligations of any Company or any of its Subsidiaries to officers, directors, stockholders, equity holders or employees of any Company or any of its Subsidiaries other than:

(a) for payment of salary for services rendered and for bonus payments;

(b) reimbursement for reasonable expenses incurred on behalf of any Company and/or its Subsidiaries;

(c) for other standard employee benefits made generally available to all employees (including stock option agreements and restricted stock units outstanding under any stock option plan approved by the board of directors of any Company and/or any Subsidiary of such Company, as applicable);

(d) intercompany obligations among Companies and each of its Subsidiary’s financial statements; and

(e) obligations of the Company and its Subsidiaries under the BAM Facility which shall be paid in full on the Closing Date.

Except as described above, or as set forth on Schedule 6.9 , none of the officers, directors or, to the best of such Company’s Knowledge (as defined herein), other employees or equity holders of any Company or any of its Subsidiaries or any members of their immediate families, are indebted to any Company or any of its Subsidiaries, individually or in the aggregate, in excess of $50,000 or have any direct or indirect ownership interest in any firm or corporation with which any Company or any of its Subsidiaries is affiliated or with which such Company or any of its Subsidiaries has a business relationship, or any firm or corporation which competes with any Company or any of its Subsidiaries, other than passive investments in publicly traded companies (representing less than one percent (1%) of such company) which may compete with any Company or any of its Subsidiaries. Except as described above, no officer, director or equity holder of any Company or any of its Subsidiaries, or any member of their immediate families, is, directly or indirectly, interested in any material contract with any Company or any of its Subsidiaries and no agreements, understandings or proposed transactions are contemplated between any Company or any of its Subsidiaries and any such Person. Except as set forth on Schedule 6.9 and for the subsidiary guaranty provided in connection with the BAM Facility (which such subsidiary guaranty shall be terminated as of the Closing Date), no Company nor any of their Subsidiaries is a guarantor or indemnitor of any indebtedness of any other Person.

6.10 Changes . Since the Measurement Date, except as disclosed on Schedule 6.10 , there has not been:

(a) any change in the business, assets, liabilities, condition (financial or otherwise), properties, operations or prospects of any Company or any of its Subsidiaries, which individually or in the aggregate has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(b) any resignation or termination of any key officer, key employee or group of key employees of any Company or any of its Subsidiaries;

(c) any material change, except in the ordinary course of business, in the contingent obligations of any Company or any of its Subsidiaries by way of guaranty, endorsement, indemnity, warranty or otherwise;

(d) any damage, destruction or loss, whether or not covered by insurance, which has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(e) any express waiver by any Company or any of its Subsidiaries of a valuable right or of a material debt owed to it;

(f) any direct or indirect loans made by any Company or any of its Subsidiaries to any equity holder, employee, officer or director of any Company or any of its Subsidiaries, other than advances made in the ordinary course of business;

(g) any material change in any compensation arrangement or agreement with any employee, officer, director or equity holder of any Company or any of its Subsidiaries;

(h) any declaration or payment of any dividend or other distribution of the assets of any Company or any of its Subsidiaries;

(i) any labor organization activity related to any Company or any of its Subsidiaries;

(j) any debt, obligation or liability incurred, assumed or guaranteed by any Company or any of its Subsidiaries, except those for current liabilities incurred in the ordinary course of business;

(k) any sale, assignment, transfer, abandonment or other disposition of any patent, trademark, copyright, trade secret or other intangible asset owned by any Company or any of its Subsidiaries;

(l) any change in any material agreement to which any Company or any of its Subsidiaries is a party or by which any Company or any of its Subsidiaries is bound which either individually or in the aggregate has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(m) any other event or condition of any character that, either individually or in the aggregate, has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; or

(n) any arrangement or commitment by any Company or any of its Subsidiaries to do any of the acts described in subsection (a) through (m) above.

6.11 Title to Properties and Assets; Liens, Etc . Except as set forth on Schedule 6.11 , each Company and each of its Subsidiaries has good and marketable title to its properties and assets, and good title to its leasehold interests, in each case subject to no mortgage, lien, pledge, hypothecation, charge, security interest, encumbrance or adverse claim of any kind or any restrictive covenant, condition, restriction or exception of any kind that has the practical effect of creating a mortgage, lien, pledge, hypothecation, charge, security interest, encumbrance or adverse claim of any kind (including any of the foregoing created by, arising under or evidenced by any conditional sale or other title retention agreement, the interest of a lessor with respect to a Capital Lease Obligation, or any financing lease having substantially the same economic effect as any of the foregoing) (each for the foregoing, a “ Lien ”), other than the following (each a “ Permitted Encumbrance ”):

(a) (i) those Liens in favor of Agent, for the ratable benefit of the Creditor Parties and (ii) those Liens in favor of the BAM Agent in connection with the transactions contemplated by the BAM Facility, which such Liens shall be released on the Closing Date;

(b) Liens for taxes or other governmental charges not at the time due and payable, or (if foreclosure, distraint, sale or other similar proceeding shall not have been initiated) which are being contested in good faith by appropriate proceedings diligently prosecuted, so long as foreclosure, distraint, sale or other similar proceedings have not been initiated, and in each case for which each Company and its Subsidiaries maintain adequate reserves in accordance with GAAP in respect of such taxes and charges;

(c) easements, rights of way, restrictions, minor defects or irregularities in title and other similar Liens arising in the ordinary course of business and not materially detracting from the value of the property subject thereto and not interfering in any material respect with the ordinary conduct of the business of any Company or any of its Subsidiaries;

(d) Liens arising in the ordinary course of business in favor of carriers, warehousemen, mechanics and materialmen, or other similar Liens imposed by law, which remain payable without penalty or which are being contested in good faith by appropriate proceedings diligently prosecuted, which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto, and in each case for which adequate reserves in accordance with GAAP are being maintained;

(e) with respect to Companies and Guarantors, deposits, letters of credit, bank guarantees and pledges of cash in an aggregate amount not in excess of $200,000 securing (i) obligations in connection with worker’s compensation, unemployment insurance or other forms of governmental insurance or benefits, (ii) the performance of tenders, statutory obligations, bids, leases, contracts and other similar obligations (other than for borrowed money), (iii) obligations on letters of credit, surety, bid, performance or appeal bonds, or (iv) financing of insurance premiums and other insurance obligations; and

(f) Liens set forth on Schedule 6.11 securing Indebtedness outstanding as of the date of this Agreement, and not to be repaid on the Closing Date, as set forth on Schedule 6.11 , without any refinancing, extension, amendment or other modification thereof (except to the extent expressly permitted under Section 6.11 to this Agreement).

All machinery, equipment, fixtures, vehicles and other properties owned, leased or used by any Company or any of its Subsidiaries are in good operating condition and repair and are reasonably fit and usable for the purposes for which they are being used.

6.12 Intellectual Property .

(a) Except as set forth on Schedule 6.12 hereto, each Company and each of its Subsidiaries owns or possesses sufficient legal rights to the patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information and other proprietary rights and processes necessary for its business as now conducted and, to each Company’s Knowledge, as presently proposed to be conducted (the “ Intellectual Property ”). There are no settlements or consents, covenants not to sue, non-assertion assurances, or releases to which any Company or any of its Subsidiaries is bound, which affects its rights to own or use any Intellectual Property.

(b) Except as set forth on Schedule 6.12 hereto, the conduct of each Company’s and each of its Subsidiaries’ business as now conducted, and as presently proposed to be conducted, does not (and will not) result in any infringement or other violation of the valid Intellectual Property rights of others.

(c) Schedule 6.12 (as such schedule may be amended or supplemented from time to time) sets forth a true and complete list of (i) all registrations and applications for Intellectual Property owned by each Company and each of its Subsidiaries filed or issued by any Intellectual Property registry and (ii) all Intellectual Property licenses which are either material to the business of any Company or relate to any material portion of any Company’s or any of its Subsidiaries’ inventory, including licenses for standard software having a replacement value of more than $1,000. None of such Intellectual Property licenses are reasonably likely to be construed as an assignment of the licensed Intellectual Property to such Company or any of its Subsidiaries.

(d) Except as set forth on Schedule 6.12 hereto, there are no claims pending or, to the best of each Company’s Knowledge, threatened and no Company nor any of their Subsidiaries has received any other communications alleging that any Company or any of its Subsidiaries has infringed, diluted, misappropriated, or otherwise violated any Intellectual Property rights of any other Person, nor is any Company or any of its Subsidiaries aware of any basis therefore.

(e) Except as set forth on Schedule 6.12 hereto, no Company nor any of their Subsidiaries is aware of any infringement, dilution, misappropriation, or other violation of its Intellectual Property by any other Person.

(f) Except as set forth on Schedule 6.12 hereto, no Company nor any of their Subsidiaries utilizes any inventions, trade secrets or other Intellectual Property of any of its employees, officers, or contractors except for inventions, trade secrets or other Intellectual Property (i) that is owned by such Company or such Subsidiary as a matter of law, (ii) that is lawfully licensed to such Company or such Subsidiary, or (iii) that has been rightfully assigned to such Company or such Subsidiary.

(g) Each Company and its Subsidiaries have timely made all filings and payments with the appropriate foreign and domestic agencies required to maintain in subsistence all owned and registered Intellectual Property, and no such filing contains any misstatements of fact. All documentation necessary to maintain and effect each Company’s and its Subsidiaries’ ownership of all owned Intellectual Property, if acquired from other Persons, has been recorded in the United States Patent and Trademark Office, the United States Copyright Office and all other applicable official offices.

6.13 Compliance with Other Instruments . No Company nor any of its Subsidiaries is in violation or default of (x) any term of its certificate or articles of formation, bylaws, operating agreement or similar organizational document, or (y) any provision of any Indebtedness, mortgage, indenture, contract, agreement or instrument to which it is party or by which it is bound or of any judgment, decree, order or writ, which violation or default, in the case of this clause (y), has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. The execution, delivery and performance of and compliance with this Agreement and the Related Agreements to which it is a party, and the issuance and sale of the Notes by Companies pursuant hereto and thereto, will not, with or without the passage of time or giving of notice, result in (i) any violation, or be in conflict with or constitute a default under any such term (referred to in clause (x) above) or provision (referred to in clause (y) above), (ii) the creation of any Lien upon any of the properties or assets of any Company or any of its Subsidiaries, or (iii) the suspension, revocation, impairment, forfeiture or non-renewal of any material permit, license, authorization or approval applicable to any Company or any of its Subsidiaries, its business or operations or any of its assets or properties.

6.14 Litigation . Except as set forth on Schedule 6.14 , there is no action, suit, proceeding (whether administrative, judicial or otherwise) or governmental investigation or arbitration pending or, to any Company’s Knowledge, currently threatened against or affecting any Company or any of its Subsidiaries that prevents any Company or any of its Subsidiaries from entering into this Agreement or the other Related Agreements, or from consummating the transactions contemplated hereby or thereby, or which has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect or any change in the current equity ownership of any Company or any of its Subsidiaries, nor does any Company have any Knowledge that there is any basis to assert any of the foregoing. The estimated maximum amount of liability or exposure of each Company with respect to each litigation set forth on Schedule 6.14 does not exceed the amount set forth on Schedule 6.14 with respect thereto. No Company nor any of their Subsidiaries is a party to or subject to the provisions of any order, writ, injunction, judgment or decree of any court or Governmental Authority. There is no action, suit, proceeding or investigation by any Company or any of its Subsidiaries currently pending or which any Company or any of its Subsidiaries intends to initiate which could reasonably be expected to have a Material Adverse Effect.

6.15 Tax Returns and Payments . Each Company and each of its Subsidiaries has timely filed all tax returns (federal, state, provincial and local) required to be filed by it. All taxes shown to be due and payable on such returns, any assessments imposed, and all other taxes due and payable by any Company or any of its Subsidiaries on or before the Closing Date have been paid or will be paid prior to the time they become delinquent. There are no unpaid taxes in any material amount claimed in writing to be due from any Company by the taxing authority of any jurisdiction and there is no basis for any such claim. Except as set forth on Schedule 6.15 , no Company nor any of their Subsidiaries has been advised:

(a) that any of its returns, federal, state, provincial or other, have been or are being audited as of the date hereof; or

(b) of any adjustment, deficiency, assessment or court decision in respect of its federal, state, provincial or other taxes.

6.16 Employees . Except as set forth on Schedule 6.16 or except, in the case of USELL, as disclosed in the Exchange Act Filings, no Company nor any of their Subsidiaries has any collective bargaining agreements with any of its employees. There is no labor union organizing activity pending or, to any Company’s Knowledge, threatened with respect to any Company or any of its Subsidiaries. Except as disclosed in the SEC Documents filed prior to the date of this Agreement or on Schedule 6.16, no Company nor any of their Subsidiaries is a party to or bound by any currently effective employment contract, deferred compensation arrangement, bonus plan, incentive plan, profit sharing plan, retirement agreement or other employee compensation plan or agreement. To each Company’s Knowledge, no employee of any Company or any of its Subsidiaries, nor any consultant with whom any Company or any of its Subsidiaries has contracted, is in violation of any term of any employment contract, proprietary information agreement or any other agreement relating to the right of any such individual to be employed by, or to contract with, any Company or any of its Subsidiaries because of the nature of the business to be conducted by any Company or any of its Subsidiaries; and to each Company’s Knowledge the continued employment by each Company and its Subsidiaries of their present employees, and the performance of each Company’s and its Subsidiaries’ contracts with its independent contractors, will not result in any such violation. No Company nor any of their Subsidiaries is aware that any of its employees is obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or order of any court or administrative agency that would interfere with their duties to such Company or any of its Subsidiaries. No Company nor any of its Subsidiaries has received any notice alleging that such violation has occurred. Except for employees who have a current effective employment agreement with any Company or any of its Subsidiaries, no employee of any Company or any of its Subsidiaries has been granted the right to continued employment by any Company or any of its Subsidiaries or to any material compensation following termination of employment with any Company or any of its Subsidiaries. Except as set forth on Schedule 6.16 , no Company has any Knowledge that any officer, key employee or group of employees intends to terminate his, her or their employment with such Company or any of its Subsidiaries, nor does any Company or any of its Subsidiaries have a present intention to terminate the employment of any officer, key employee or group of employees.

6.17 Voting Rights . Except as set forth on Schedule 6.17 , to each Company’s Knowledge, no equity holder of any Company or any of its Subsidiaries has entered into any agreement with respect to the voting of equity interests of any Company or any of its Subsidiaries.

6.18 Compliance with Laws; Permits . No Company nor any of its Subsidiaries is in violation of any provision of any applicable statute, rule, regulation, order or restriction of any domestic or foreign government or any instrumentality or agency thereof in respect of the conduct of its business or the ownership of its properties which has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. No governmental orders, permissions, consents, approvals or authorizations are required to be obtained and no registrations or declarations are required to be filed in connection with the execution and delivery of this Agreement or any other Related Agreement and the issuance of any of the Notes, except such as have been duly and validly obtained or filed on or prior to the Closing Date and which are set forth on Schedule 6.18 . Each Company and each of its Subsidiaries (i) is in compliance with and (ii) has procured and is now in possession of, all material franchises, licenses, permits and similar authorizations required by any applicable law or regulation for the operation of its business in each jurisdiction wherein it is now conducting business.

6.19 Environmental and Safety Laws . There are no pending actions, suits or proceedings by or before any arbitrator or Governmental Authority pending, or to the Knowledge of each Company, threatened against such Company or any of its Subsidiaries under Environmental Law. Each Company and its Subsidiaries (i) are and have been in full compliance with Environmental Law and have no Knowledge or any material expenditure that will be required to maintain such compliance in the future; (ii) have not received any notice or claim alleging that they are not in full compliance with or otherwise have liability under Environmental Law; and (iii) have no Knowledge of any facts or circumstances that could reasonably be expected to form the basis of any such claim. No Hazardous Materials are present or are used or have been used, stored, or released by any Company or its Subsidiaries, or to their Knowledge by any other Person, at any property currently owned, or, formerly owned, leased or operated by any Company or its Subsidiaries or disposed of at any other location by any Company or its Subsidiaries except (1) in compliance with Environmental Law; and (2) in quantities and under circumstances that would not require investigation or remediation by any Company or its Subsidiaries. No Company nor any of their Subsidiaries have assumed by contract or by operation of law the liabilities arising under Environmental Law of any other Person. Each Company and its Subsidiaries have provided to Agent all material reports, audits and assessments in their possession or control regarding the environmental condition of any property currently or formerly owned or operated by such Company or any Subsidiary. As used herein, “ Environmental Law ” means all applicable laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, legally binding notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to pollution or the environment , preservation or reclamation of natural resources, the management, generation, use, handling, treatment, transportation, storage, disposal or release or threatened release of or exposure to Hazardous Materials, or occupational health and safety, “ Governmental Authority ” means any nation or government, any state, province other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and “ Hazardous Materials ” means materials, wastes or pollutants listed or defined as “hazardous materials”, “hazardous wastes” ,”toxic substances” or by words of similar import or any other substance or waste otherwise regulated by applicable Environmental Law, including nuclear materials and radioactive substances or wastes, petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes, and toxic mold.

6.20 Valid Offering . Assuming the accuracy of the representations and warranties of Purchasers contained in this Agreement, the offer, sale and issuance of the Notes will be exempt from the registration requirements of the Securities Act of 1933, as amended (the “ Securities Act ”), and will have been registered or qualified (or are exempt from registration and qualification) under the registration, permit or qualification requirements of all applicable state equity interests laws.

6.21 Acknowledgment Regarding Purchaser’s Purchase of Notes . Each Company further acknowledges that no Creditor Party is acting as a financial advisor or fiduciary of any Company (or in any similar capacity) with respect to this Agreement and the Related Agreements, and the transaction contemplated hereby and thereby, and any advice given by any Creditor Party or any of their respective representatives or agents in connection with this Agreement and the Related Agreements, and the transactions contemplated hereby and thereby is merely incidental to such Purchaser’s purchase of the Notes. Each Company further represents to each Creditor Party that such Company’s decision to enter into this Agreement and the Related Agreements has been based solely on the independent evaluation by each Company and its representatives.

6.22 No Material Adverse Effect; No Undisclosed Liabilities . Except as disclosed in the SEC Documents filed prior to the date of this Agreement or as set forth on Schedule 6.22 , since the Measurement Date, there has been no Material Adverse Effect and no circumstances exist that could reasonably be expected to be, cause or have a Material Adverse Effect.

6.23 General Solicitation . No Company, nor any of its affiliates, nor any Person acting on its or their behalf, has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of the Notes.

6.24 No Integrated Offering . No Company, nor any of its affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of any of the Notes under the Securities Act, including causing this offering of the Notes to be integrated with prior offerings by any Company for purposes of the Securities Act such that registration of any of the Notes would be required, nor will any Company take any action or steps that would require registration of the issuance of any of the Notes under the Securities Act, including causing the offering of the Notes to be integrated with other offerings for purposes of the Securities Act such that registration of any of the Notes would be required.

6.25 Listing . USELL is not in violation of any of the rules, regulations or requirements of the OTCQB (the “ Principal Market ”), and, to USELL’s Knowledge, there are no facts or circumstances that could reasonably lead to suspension or termination of trading of any Company’s common stock (the “ Common Stock ”) on the Principal Market. Since May 6, 2015, (i) the Common Stock has been listed on the Principal Market, (ii) trading in the Common Stock has not been suspended or deregistered by the SEC or the Principal Market and (iii) USELL has not received any communication, written or oral, from the SEC or the Principal Market regarding the suspension or termination of trading of the Common Stock on the Principal Market. USELL satisfies the quantitative standards for continued listing of the Common Stock on the Principal Market.

6.26 Investment Company . No Company is, and upon the Closing Date, will not be, an “investment company,” a company controlled by an “investment company,” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.

6.27 No Disqualification Events . No Company, any of its predecessors, any director, executive officer, other officer of any Company participating in the offering contemplated hereby, any beneficial owner (as that term is defined in Rule 13d-3 under the Exchange Act) of 20% or more of any Company’s outstanding voting equity securities, calculated on the basis of voting power, any “promoter” (as that term is defined in Rule 405 under the Securities Act) connected with any Company in any capacity at the time any closing, any placement agent or dealer participating in the offering of the Notes, and any of such agents’ or dealer’s directors, executive officers, other officers participating in the offering of the Notes (each, a “ Covered Person ” and, together, “ Covered Persons ”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “ Disqualification Event ”). Each Company has exercised reasonable care to determine (i) the identity of each Person that is a Covered Person; and (ii) whether any Covered Person is subject to a Disqualification Event. Each Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e). With respect to each Covered Person, each Company has established procedures reasonably designed to ensure that such Company receives notice from each such Covered Person of (i) any Disqualification Event relating to that Covered Person, and (ii) any event that would, with the passage of time, become a Disqualification Event relating to that Covered Person; in each case occurring up to and including any Closing Date. No Company is for any other reason disqualified from reliance upon Rule 506 of Regulation D under the Securities Act for purposes of the offer and sale of the Notes.

6.28 Full Disclosure . Each Company and each of its Subsidiaries has provided Purchasers with all information requested by Purchasers in connection with Purchasers’ decision to purchase the Notes, including all information each Company and its Subsidiaries believe is reasonably necessary to make such investment decision. Neither this Agreement, the Related Agreements, the exhibits and schedules hereto and thereto nor the responses contained in any executed final questionnaire provided by Companies to Agent, contain any untrue statement of a material fact nor omit to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances in which they are made, not misleading. All financial projections and other estimates provided to Purchasers by any Company or any of its Subsidiaries were based on the applicable Company’s and its Subsidiaries’ experience in the industry and on assumptions of fact and opinion as to future events which such Company and such Subsidiaries, at the date of the issuance of such projections or estimates, believed to be reasonable.

6.29 Insurance . Each Company and each of its Subsidiaries has general commercial, product liability, fire and casualty insurance policies with coverages which such Company and each of its Subsidiaries believe are customary for companies similarly situated to such Company and its Subsidiaries in the same or similar business.

6.30 Intentionally Omitted .

6.31 Patriot Act . Each Company certifies that, to the best of such Company’s Knowledge, no Company nor any of their Subsidiaries has been designated, nor is or shall be owned or controlled, by a “suspected terrorist” as defined in Executive Order 13224. Each Company hereby acknowledges that each of the Creditor Parties seeks to comply with all applicable laws concerning money laundering and related activities. In furtherance of those efforts, each Company hereby represents, warrants and covenants that: (i) none of the cash or property that any Company or any of its Subsidiaries will pay or will contribute to any Creditor Party has been or shall be derived from, or related to, any activity that is deemed criminal under United States law; and (ii) no contribution or payment by any Company or any of its Subsidiaries to any Creditor Party, to the extent that they are within such Company’s and/or its Subsidiaries’ control shall cause any Creditor Party to be in violation of the United States Bank Secrecy Act, the United States International Money Laundering Control Act of 1986, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001. Each Company shall promptly notify Agent if any of these representations, warranties or covenants ceases to be true and accurate regarding any Company or any of its Subsidiaries. Each Company shall provide any Creditor Party all additional information regarding such Company or any of its Subsidiaries that such Creditor Party deems necessary or convenient to ensure compliance with all applicable laws concerning money laundering and similar activities. Each Company understands and agrees that if at any time it is discovered that any of the foregoing representations, warranties or covenants are incorrect, or if otherwise required by applicable law or regulation related to money laundering or similar activities, the Creditor Parties may undertake appropriate actions to ensure compliance with applicable law or regulation, including but not limited to segregation and/or redemption of any Purchaser’s investment in such Company. Each Company further understands that solely to the extent required by applicable law, the Creditor Parties may release confidential information about such Company and its Subsidiaries and, if applicable, any underlying beneficial owners, to proper authorities if such Creditor Party, in its sole discretion, determines that it is in the best interests of such Creditor Party in light of relevant rules and regulations under the laws set forth in subsection (ii) above.

6.32 ERISA . Based upon the Employee Retirement Income Security Act of 1974 (“ERISA”), and the regulations and published interpretations thereunder: (i) no Company nor any of their Subsidiaries has engaged in any non-exempt Prohibited Transactions (as defined in Section 406 of ERISA and Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”)); (ii) each Company and each of its Subsidiaries has met all applicable minimum funding requirements under Section 302 of ERISA in respect of its ERISA-governed plans; (iii) no Company nor any of their Subsidiaries has any Knowledge of any event or occurrence which would cause the Pension Benefit Guaranty Corporation to institute proceedings under Title IV of ERISA to terminate any employee benefit plan(s); (iv) no Company nor any of their Subsidiaries has any fiduciary responsibility for investments with respect to any plan existing for the benefit of Persons other than such Company’s or such Subsidiary’s employees and their beneficiaries; and (v) no Company nor any of their Subsidiaries has withdrawn, completely or partially, from any multi-employer pension plan so as to incur liability under the Multiemployer Pension Plan Amendments Act of 1980.

6.33 Status of Certain Subsidiaries . Each Company certifies that (a) Money4Gold, Inc. has been legally dissolved and (b) Money4Gold Precious Metals, Inc. does not engage in any business activities, does not own any property or assets, nor does it have any material liabilities.

6.34 Special Purpose Entity . USELL and XXXXXXXXXXXX (“XXX”) are simultaneously entering into a limited liability company agreement (the “ LLC Agreement ”) in which USELL and XXXX will each own equity of a limited liability company and participate in the SPE’s management. To the extent that any representation or warranty set forth in this Article 6 would otherwise require the disclosure of the LLC Agreement, this Section 6.34 shall constitute such disclosure.

7. Representations and Warranties of each Purchaser . Each Purchaser hereby represents and warrants, severally and not jointly, to Companies as follows:

7.1 Organization, Good Standing and Qualification . Such Purchaser is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation. Such Purchaser is duly qualified and is authorized to do business and is in good standing as a foreign corporation in all jurisdictions in which the nature or location of its activities and of its properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to do so has not, or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

7.2 Intentionally Omitted .

7.3 Requisite Power and Authority . Such Purchaser has all necessary power and authority under all applicable provisions of law to execute and deliver this Agreement and the Related Agreements and to carry out their provisions. All corporate, limited liability, partnership or trust action on such Purchaser’s part required for the lawful execution and delivery of this Agreement and the Related Agreements have been taken or will be effectively taken prior to the Closing Date. Upon their execution and delivery, this Agreement and the Related Agreements will be valid and binding obligations of such Purchaser, enforceable in accordance with their terms, except:

(a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights; and

(b) as limited by general principles of equity that restrict the availability of equitable and legal remedies.

7.4 Investment Representations . Such Purchaser understands that the Notes are being offered and sold pursuant to an exemption from registration contained in the Securities Act based in part upon such Purchaser’s representations contained in this Agreement, including that such Purchaser is an “accredited investor” within the meaning of Regulation D under the Securities Act. Such Purchaser confirms that it has received or has had full access to all the information it considers necessary or appropriate to make an informed investment decision with respect to the applicable Notes to be purchased by it under this Agreement. Such Purchaser further confirms that it has had an opportunity to ask questions and receive answers from each Company regarding such Company’s and its Subsidiaries’ business, management and financial affairs and the terms and conditions of the Offering and to obtain additional information (to the extent such Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information furnished to such Purchaser or to which such Purchaser had access. Neither such inquiries nor any other due diligence investigations conducted by such Purchaser or its advisors, if any, or its representatives shall modify, amend or affect such Purchaser’s right to rely on any Company’s representations and warranties contained in Section 6.

7.5 Transfer or Resale . Such Purchaser understands that (i) the Notes have not been and are not being registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) such Purchaser shall have delivered to any Company an opinion of counsel, in a generally acceptable form, to the effect that such Notes to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) such Purchaser provides any Company with reasonable assurance that such Notes can be sold, assigned or transferred pursuant to Rule 144; (ii) any sale of the Notes made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144; and (iii) no Company nor any other Person is under any obligation to register the Notes under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.

7.6 Purchaser Bears Economic Risk . Such Purchaser understands that its investment in the Notes involves a high degree of risk. Such Purchaser has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Notes.

7.7 Acquisition for Own Account . Such Purchaser is acquiring the applicable Notes for such Purchaser’s own account for investment only, and not as a nominee or agent and not with a view towards or for resale in connection with their distribution, except pursuant to sales registered under, or exempted from, the registration requirements of, the Securities Act; provided, however, that by making the representations herein, such Purchaser does not agree to hold any of the Notes for any minimum or other specific term and reserves the right to dispose of the Notes at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act.

7.8 Purchaser Can Protect Its Interest . Such Purchaser represents that by reason of its, or of its management’s, business and financial experience, such Purchaser has the capacity to evaluate the merits and risks of its investment in the Notes and to protect its own interests in connection with the transactions contemplated in this Agreement and the Related Agreements.

7.9 Accredited Investor . Such Purchaser represents that it is an accredited investor within the meaning of Regulation D under the Securities Act. As of the Closing Date, Purchasers collectively have the sufficient liquidity to purchase the Notes.

7.10 Legends . The Notes shall bear substantially the following legend (the “ Securities Act Legend ”):

“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.”

8. Covenants of Companies . Each Company covenants and agrees with each Creditor Party as follows:

8.1 Stop-Orders . USELL will, by written notice, advise Agent, promptly after it receives notice of issuance by the SEC, any state equity interests commission or any other regulatory authority of any stop order or of any order preventing or suspending any offering of any equity interests of USELL, of the suspension of the qualification of the Common Stock for offering or sale in any jurisdiction, or the initiation of any proceeding for any such purpose.

8.2 Listing . USELL will maintain the listing or quotation, as applicable, of its Common Stock on the Principal Market, and will comply in all material respects with USELL’s reporting, filing and other obligations under the bylaws or rules of the Financial Industry Regulatory Authority (“ FINRA ”) and such exchanges, as applicable.

8.3 Market Regulations . Such Company shall notify the SEC and applicable state authorities, in accordance with their requirements, of the transactions contemplated by this Agreement, and shall take all other necessary action and proceedings as may be required and permitted by applicable law, rule and regulation, for the legal and valid issuance of the Notes to each Purchaser and promptly provide copies thereof to such Purchaser.

8.4 Reporting Requirements . Such Company will deliver, or cause to be delivered, to Agent each of the following:

(a) as soon as available, but in any event in accordance with applicable law and not later than 105 days after the end of each fiscal year of each Company, a copy of the audited consolidated balance sheet and related statements of operations, shareholders’ equity and cash flows of such Company and its Subsidiaries (and the Consolidating Financial Statement for such year) as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by independent public accountants approved by Agent (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated and consolidating financial statements present fairly in all material respects the financial condition and results of operations of such Company and its Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied. As used in this Agreement, “ Consolidating Financial Statements ” means a consolidating balance sheet and related consolidating statements of operations (in each case with a separate column for each Company, Subsidiaries and Guarantors on a combined basis, consolidating adjustments and the total consolidated amounts) as of the applicable date and for the applicable periods;

(b) as soon as available, but in any event in accordance with then applicable law and not later than 50 days after the end of each of the first three fiscal quarters of each fiscal year of each Company , a copy of the consolidated and consolidating balance sheet and related statements of operations, shareholders’ equity and cash flows of such Company and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, and if applicable setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by the principal financial officer of such Company as presenting fairly in all material respects the financial condition and results of operations of such Company and its Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;

(c) as soon as available, but in any event on or before the tenth (10 ^th ) day of every month, a copy of the consolidated and consolidating balance sheet and related statements of operations and cash flows of such Company and its Subsidiaries as of the end of the previous month, including average gross sales margins, inventory turns and EBIDTA;

(d) concurrently with the financial statements furnished pursuant to subsections (a), (b) and (c) of this Section, an officer’s certificate signed by the principal financial officer of each Company which compliance certificate shall be reasonably satisfactory to Agent, certifying such financial statements, such Company’s compliance with the terms of this Agreement and the Related Agreements, certifying that no Default or Event of Default has occurred under this Agreement or the Related Agreements, and setting forth computations in reasonable detail showing whether or not as at the end of such fiscal period there existed any breach or violation of any of the provisions of Section 8.23;

(e) intentionally omitted;

(f) as soon as practicable following receipt thereof, copies of all environmental audits and reports, whether prepared by personnel of any Company, its Subsidiaries or by independent consultants, with respect to a significant environmental matter at any premises, or which relate to an environmental claim which would reasonably be expected to result in a Material Adverse Effect. Any Company will also promptly advise Agent in writing and in reasonable detail of (i) any Company’s Knowledge of any release of any Hazardous Material required to be reported to any federal, state or local governmental or regulatory agency under any applicable Environmental Laws, (ii) any and all written communications received by any Company with respect to any environmental claims that have a reasonable possibility of giving rise to a Material Adverse Effect or with respect to any release of Hazardous Material required to be reported to any Federal, state or local governmental or regulatory agency, (iii) any remedial action taken by any Company or any other Person in response to (x) any Hazardous Material on, under or about any premises, the existence of which has a reasonable possibility of resulting in an environmental claim having a Material Adverse Effect or (y) any environmental claim that is reasonably likely to have a Material Adverse Effect, (iv) any Company’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of any premises that is reasonably likely to cause such premises or any part thereof to be subject to any restrictions on the ownership occupancy, transferability or use thereof under any Environmental Laws which would have a Material Adverse Effect and (v) any request for information from any governmental agency that suggests such agency is investigating whether any Company or any of its Affiliates may be potentially responsible for a release of Hazardous Material;

(g) promptly, but in no event later than 3 business days after any officer, director or employee of any Company or any Subsidiary obtaining actual knowledge of (A) the institution of any Litigation that (i) if adversely determined, has a reasonable possibility of exceeding $400,000 in damages; or (ii) seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated hereby; and

(h) upon Agent’s request of same such other information and/or certification from management of any Company as any Creditor Party shall request from time to time.

8.5 Form D and Blue Sky . USELL agrees to timely file a Form D with respect to the Notes as required under Regulation D and to provide a copy thereof to each Purchaser promptly after such filing. Each Company shall, on or before the Closing Date, take such action as any Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Notes for, sale to Purchaser’s at the closing occurring on the Closing Date pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of any such action so taken to Purchasers on or prior to the Closing Date. USELL shall make all filings and reports relating to the offer and sale of the Notes required under applicable securities or “Blue Sky” laws of the states of the United States following the Closing Date.

8.6 Reporting Status .

(a) From the date of this Agreement until the latest of (i) the first date on which no Notes remain outstanding and (ii) the date on which the Security Agreement terminates (the period ending on such latest date, the “ Reporting Period ”), USELL shall timely file all reports required to be filed with the SEC pursuant to the Exchange Act, and USELL shall not terminate the registration of the Common Stock under the Exchange Act or otherwise terminate its status as an issuer required to file reports under the Exchange Act, even if the securities laws would otherwise permit any such termination.

(b) With a view to making available to the holders of the Notes the benefits of Rule 144, USELL agrees to, during the Reporting Period to: (A) make and keep public information available, as those terms are understood and defined in Rule 144; (B) file with the SEC in a timely manner all reports and other documents required of USELL under the Exchange Act; and (C) furnish to each holder of Notes so long as such holder of Notes owns Notes, promptly upon request, (1) a written statement by USELL, if true, that it has complied with the reporting requirements of Rule 144 and the Exchange Act, (2) a copy of the most recent annual or quarterly report of USELL and such other reports and documents so filed by USELL if such reports are not publicly available via EDGAR, and (3) such other information as may be reasonably requested to permit the holders of Notes to sell such Notes pursuant to Rule 144 without registration.

8.7 Internal Accounting Controls . During the Reporting Period, each Company shall, and shall cause each of its Subsidiaries to: (i) at all times keep books, records and accounts with respect to all of such Person’s business activities, in accordance with sound accounting practices and GAAP consistently applied, (ii) maintain a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations, (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset and liability accountability, (C) access to assets or incurrence of liability is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any differences, (iii) in the case of USELL, timely file and make publicly available on EDGAR, all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act and (y) Section 906 of Sarbanes Oxley with respect to USELL SEC Documents, (iv) maintain disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act, (v) cause such disclosure controls and procedures to be effective at all times to ensure that the information required to be disclosed by USELL in the reports that it files with or submits to the SEC (I) is recorded, processed, summarized and reported accurately within the time periods specified in the SEC’s rules and forms and (II) is accumulated and communicated to USELL’s management, including its principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding required disclosure, (vi) maintain internal control over financial reporting required by Rule 13a-14 or Rule 15d-14 under the Exchange Act, and (vii) cause such internal control over financial reporting to be effective at all times and not contain any material weaknesses.

8.8 Listing . USELL shall take all actions necessary to remain eligible for quotation of its securities on the Principal Market. USELL shall not, and shall cause each of its Subsidiaries not to, take any action which would be reasonably expected to result in the suspension or termination of trading of the Common Stock on the Principal Market. USELL shall pay all fees and expenses in connection with satisfying its obligations under this Section 8.8.

8.9 Disclosure of Transactions . On or prior to 8:00 a.m. (New York City time) on the second (2nd) business day following the Closing Date, USELL shall file a Form 8-K with the SEC describing the terms of the transactions contemplated by this Agreement and the Related Agreements and including as exhibits to such Form 8-K this Agreement and the Related Agreements (the “ Form 8-K Filing ”). USELL shall provide Agent and the other Creditor Parties a reasonable opportunity to review the Form 8-K Filing prior to the filing thereof.

8.10 Disqualification Events . USELL will notify Purchasers in writing, prior to the Closing Date of (i) any Disqualification Event relating to any Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any Covered Person.

8.11 No Integrated Offering . Neither USELL nor any of its Subsidiaries, nor any Affiliates of the foregoing or any Person acting on the behalf of any of the foregoing, shall, directly or indirectly, make any offers or sales of any security or solicit any offers to purchase any security, under any circumstances that would require registration of any of the Notes under the Securities Act, including causing the offering of the Notes to be integrated with other offerings by any Company for purposes of the Securities Act such that any of the Notes would be required to be so registered.

8.12 Use of Funds . Each Company shall use the proceeds of the sale of the Notes solely for the following purposes: (a) to repay in full the Indebtedness owing under the BAM Facility, (b) to pay all fees, costs and expenses (including, without limitation, legal expenses) incurred in connection with the transactions contemplated by this Agreement and (c) for each Company’s working capital needs.

8.13 Access to Facilities . Each Company and each of its Subsidiaries will permit any representatives designated by Agent (or any successor of Agent), upon reasonable notice and during normal business hours, at Companies’ expense and accompanied by a representative of such Company or any Subsidiary (provided that no such prior notice shall be required to be given and no such representative of such Company or any Subsidiary shall be required to accompany Agent in the event Agent believes such access is necessary to preserve or protect the Collateral (as defined in each of the Security Agreement and each other security agreement entered into by Companies and/or any of its Subsidiaries for the benefit of any of the Creditor Parties) or following the occurrence and during the continuance of an Event of Default, to:

(a) visit and inspect any of the properties of such Company or any of its Subsidiaries;

(b) examine the corporate and financial records of such Company or any of its Subsidiaries (unless such examination is not permitted by federal, state or local law or by contract) and make copies thereof or extracts therefrom;

(c) discuss the affairs, finances and accounts of such Company or any of its Subsidiaries with the directors, officers and independent accountants of such Company or any of its Subsidiaries; and

(d) require such Company to do a physical count of the Collateral, at such Company’s expense, but not more than twice a year unless following the occurrence and during the continuance of an Event of Default.

Each Company will hold a regularly scheduled operations meeting with Creditor Parties at least monthly. Any of such meetings may be held telephonically.

8.14 Taxes .

(a) Each Company and each of its Subsidiaries will promptly pay and discharge, or cause to be paid and discharged, when due and payable, all taxes, assessments and governmental charges or levies imposed upon the income, profits, property or business of such Company and its Subsidiaries; provided, however, that any such tax, assessment, charge or levy need not be paid currently if (i) the validity thereof shall currently and diligently be contested in good faith by appropriate proceedings and (ii) if such Company and/or such Subsidiary shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP; and provided, further, that such Company and its Subsidiaries will pay all such taxes, assessments, charges or levies forthwith upon the commencement of proceedings to foreclose any lien which may have attached as security therefor.

(b) All payments made by any Company under this Agreement or any Notes shall be made free and clear of, and without deduction or withholding for or on account of, any present or future Taxes (as defined below) now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, other than Excluded Taxes (as defined below). If any Non-Excluded Taxes (as defined below) or Other Taxes (as defined below) are required to be withheld from any amounts payable to any Creditor Party under this Agreement or any Notes, the amounts so payable to such Creditor Party shall be increased to the extent necessary to yield to such Creditor Party (after payment of all Non-Excluded Taxes and Other Taxes, including those imposed on payments made pursuant to this paragraph (b) of this Section 8.14 or any such other amounts payable in this Agreement or any Notes at the rates or in the amounts specified herein or therein), an amount equal to the sum it would have received had no such withholding or deductions been made provided, however, that no Company shall be required to increase any such amounts payable to any Creditor Party with respect to any Non-Excluded Taxes that are directly attributable to such Creditor Party’s failure to comply with the requirements of paragraph (e) of this Section 8.14.

(c) In addition, each Company shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

(d) Whenever any Non-Excluded Taxes or Other Taxes are payable by any Company as promptly as possible thereafter, such Company shall send to Agent for its own account or for the account of the relevant Purchaser, as the case may be, a certified copy of an original official receipt received by such Company showing payment thereof (or such other evidence reasonably satisfactory to Agent). If any Company fails to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit to Agent the required receipts or other required documentary evidence, each Company shall indemnify the Creditor Parties for any incremental taxes, interest or penalties that may become payable by any Creditor Party as a result of any such failure.

(e) Each Purchaser (or its assignee) that is not a “United States Person” as defined in Section 7701(a)(30) of the Code (a “ Non-U.S. Purchaser ”) shall deliver to Companies and Agent two completed originals of an appropriate U.S. Internal Revenue Service Form W-8, as applicable, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Purchaser. Such forms shall be delivered by each Non-U.S. Purchaser on or before the date it becomes a party to this Agreement. In addition, each Non-U.S. Purchaser shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Purchaser. Each Non-U.S. Purchaser shall promptly notify Companies at any time it determines that it is no longer in a position to provide any previously delivered certificate to Companies (or any other form of certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this paragraph (e), a Non-U.S. Purchaser shall not be required to deliver any form pursuant to this paragraph that such Non-U.S. Purchaser is not legally able to deliver.

(f) The agreements in the preceding paragraphs (b), (c), (d), (e) and this paragraph (f) shall survive the termination of this Agreement and the payment of the Notes and all other amounts payable hereunder or thereunder or under any other Related Agreement.

As used in this Section 8.14, 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):

“ Excluded Taxes ” means, with respect to any Creditor Party, taxes imposed on or measured by its overall net income and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction (or any political subdivision thereof) under the laws of which such Creditor Party is incorporated or organized or by the jurisdiction (or any political subdivision thereof) in which the principal place of management or applicable lending office of such Creditor Party is located.

“ Non-Excluded Taxes ” means all Taxes other than (i) Excluded Taxes and (ii) Other Taxes.

“ Other Taxes ” means any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Related Agreement.

“ Taxes ” means any and all present or future taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and all liabilities with respect thereto.

8.15 Insurance .

(a) Each Company shall bear the full risk of loss from any loss of any nature whatsoever with respect to the Collateral and each Company and each of its Subsidiaries will, jointly and severally, bear the full risk of loss from any loss of any nature whatsoever with respect to the assets pledged to Agent, for the ratable benefit of the Creditor Parties, as security for the Liabilities. Furthermore, each Company will insure or cause the Collateral to be insured against loss or damage by fire, flood, sprinkler leakage, theft, burglary, pilferage, loss in transit and other risks customarily insured against by companies in similar business similarly situated as such Company and its Subsidiaries including but not limited to workers compensation, public and product liability and business interruption, and such other hazards in amounts and under insurance policies and bonds by insurers consistent with current practice and reasonably acceptable to Agent. Agent shall be named as additional insured and lender loss payee pursuant to endorsements in form and substance satisfactory to Agent. All premiums thereon shall be paid by such Company, the policies shall be delivered to Agent if requested by Agent and each such policy shall be endorsed in Agent’s name as an additional insured and lender loss payee, with an appropriate loss payable endorsement by each Company in form and substance satisfactory to Agent. If any Company or any of its Subsidiaries fails to obtain the insurance and in such amounts of coverage as otherwise required pursuant to this Section 8.15, Agent may procure such insurance and the cost thereof shall be promptly reimbursed by Companies and shall constitute Liabilities.

(b) No Company’s insurance coverage shall be impaired or invalidated by any act or neglect of any Company or any of their Subsidiaries and the insurer will provide Agent with no less than thirty (30) days’ notice prior of cancellation;

(c) Agent, in connection with its status as a lender loss payee, will be assigned at all times to a first lien position until such time as all the Liabilities have been indefeasibly satisfied in full.

8.16 Intellectual Property .

(a) Each Company, each Guarantor and each of its respective Subsidiaries shall maintain in full force and effect its existence, rights and franchises and all licenses and other rights to own or use Intellectual Property including registrations and applications therefor, that are necessary to the conduct of its business, as now conducted or as presently proposed to be conducted, and shall not do any act or omit to do any act whereby any of such Intellectual Property may lapse, or become abandoned, dedicated to the public, or unenforceable, or the Lien therein in favor of Agent, for the ratable benefit of the Creditor Parties, would be adversely affected,

(b) Each Company shall report to Agent (i) the filing by such Company or any Guarantor of any application to register a copyright no later than ten (10) days after such filing occurs (ii) the filing of any application to register any other Intellectual Property with any other Intellectual Property, and the issuance thereof, no later than thirty (30) days after such filing or issuance occurs and, in each case, shall, simultaneously with such report, deliver to Agent fully-executed documents required to acknowledge, confirm, register, record or perfect the Lien in such Intellectual Property. In addition, each Company and each Guarantor hereby authorize Agent to modify this Agreement by amending Schedule 6.12 to include any registrations or applications for Intellectual Property inadvertently omitted from such Schedule or are filed, registered, or acquired by any Company or any Guarantor after the date hereof and agree to cooperate with Agent in effecting any such amendment to include any new items of Intellectual Property included in the Collateral.

(c) Such Company shall, and shall cause each Guarantor to, promptly upon the reasonable request of Agent, execute and deliver to Agent any document or instrument required to acknowledge, confirm, register, record, or perfect the Lien of Agent in any part of the Intellectual Property owned by such Company and/or Guarantor.

(d) Except with the prior written consent of Agent, no Company shall, and no Company shall allow any Guarantor to, sell, assign, transfer, license, grant any option, or create or suffer to exist any Lien upon or with respect to Intellectual Property, except for the Permitted Encumbrances.

8.17 Properties . Except as set forth on Schedule 8.17 , each Company and each Guarantor will keep its properties in good repair, working order and condition, reasonable wear, tear and age excepted, and from time to time make all needful and proper repairs, renewals, replacements, additions and improvements thereto. No Company shall, and shall cause each Guarantor not to, violate, breach or incur any default under in any respect, or take or fail to take any action that (with or without notice or lapse of time or both) would constitute a violation or breach of, or default under, any term or provision of, or would result in a reversion of rights to a Person under, any lease to which any Company or any Guarantor is a party or any other agreement with respect to which any Company or any Guarantors is a party or otherwise bound or affected, except to the extent such violation, breach or default, action or inaction could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.

8.18 Confidentiality . No Company will, and no Company will permit any of its Subsidiaries to, disclose, and will not include in any public announcement, the name of any Creditor Party, unless expressly agreed to by such Creditor Party or unless and until such disclosure is required by law or applicable regulation, and then only to the extent of such requirement. Notwithstanding the foregoing, (i) each Company may disclose any Creditor Party’s identity to its current and prospective debt and equity financing sources, and (ii) each Company may file copies of this Agreement and the Related Agreements as exhibits as part of the Form 8-K Filing.

8.19 Environmental Matters . Each Company shall, and shall cause each of its Subsidiaries to, comply with, and maintain its real property, whether owned, leased, subleased or otherwise operated or occupied, in material compliance with, all applicable Environmental Laws (including by implementing any remedial action necessary to achieve such compliance) or that is required by orders and legally binding directives of any Governmental Authority.

8.20 Compliance with Laws . Each Company shall, and shall cause each of its Subsidiaries to, comply with all requirements of law of any Governmental Authority having jurisdiction over it or its business, except where the failure to comply would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

8.21 Licenses and Permits . Each Company shall, and shall cause each of its Subsidiaries to (i) comply with and (ii) procure and maintain all material licenses or permits required by any applicable law or regulation for the operation of its business in each jurisdiction wherein it is now conducting business and where the failure to comply with, procure or maintain such licenses or permits would have a Material Adverse Effect on such Company or any of its Subsidiaries.

8.22 Further Assurances . At any time or from time to time upon the request of any of the Creditor Parties, each Company shall, and shall cause its Subsidiaries and any third parties, as applicable, at Companies’ expense, to promptly and duly execute, acknowledge and deliver such further agreements, documents and instruments and do or cause to be done such other acts and things as any of the Creditor Parties may reasonably request in order to effect fully the purposes of this Agreement and the Related Agreements and to provide for payment of the obligations hereunder and under the Notes in accordance with the terms of this Agreement, the Notes and the other Related Agreements. Without limiting the foregoing, each Company shall, and shall cause each of its Subsidiaries to, at its own respective cost and expense, cause to be promptly and duly taken, executed, acknowledged and delivered all such further acts, documents and assurances as may from time to time be necessary or as any of the Creditor Parties may from time to time request in order to establish, create, preserve, protect and perfect a first priority Lien (subject only to Permitted Encumbrances) in favor of Agent for the benefit of each Creditor Party on the Collateral (including Collateral acquired after the date hereof), whether now owned or hereafter acquired.

8.23 Financial Covenants .

(a) Outstanding Principal Amount of Loan/EBITDA Ratio . No Company will, at any time, permit the ratio of outstanding principal amount of the Notes as of the last day of any fiscal quarter to annualized EBITDA during the quarterly period ended on the date set forth below to be greater than the ratio set forth below for the applicable period (the foregoing ratios shall be annualized by multiplying EBITDA for each respective fiscal quarter by four):

Fiscal Quarter		Ratio
September 30, 2017		4.00 to 1.00
December 31, 2017		3.5 to 1.00
March 31, 2018 and each fiscal quarter thereafter		3.00 to 1.00

For purposes hereof, “ EBITDA ” shall mean, with respect to Companies and the Guarantors on a consolidated basis, the net income or loss, plus (i) interest expense, income taxes (which shall not include any tax that is not measured by or levied upon net income), depreciation and amortization expense, non-cash equity compensation expense, and to the extent approved by Agent, non-cash extraordinary or non-recurring losses or expenses (including non-cash impairment charges) (in each case, without duplication, and solely to the extent recognized and deducted in such fiscal period as an expense in determining such net income), and minus (ii) to the extent recognized and added in computing net income or loss, without duplication, extraordinary or non-recurring income or gains, all as determined in accordance with GAAP.

(b) Debt Coverage Ratio . Companies shall at all times maintain a ratio of (i) the Formula Amount to (ii) Applicable Net Debt greater than or equal to 1.15 to 1.00. For purposes hereof, (i) “ Applicable Net Debt ” means, at the date of determination, the outstanding principal amount of the Notes less cash and cash equivalents on deposit in the Agent Controlled Account and allocable to the transactions contemplated by this Agreement, (ii) “ Formula Amount ” means, at the date of determination, the sum of (A) ninety percent (90%) of the book value of inventory which otherwise constitutes Eligible Inventory, but for the fact that such inventory is in transit by courier to a Company’s designated warehouse and Agent has received evidence of carrier insurance covering such inventory in amounts and issued by an insurer reasonably acceptable to Agent, (B) ninety percent (90%) of the book value of Eligible Inventory and (C) ninety percent (90%) of the book value of inventory which otherwise constitutes Eligible Inventory, but for the fact that such inventory has been purchased by a Company pursuant to an open purchase order (a copy of which has been delivered by such Company to Agent), has not yet shipped and Agent has received evidence of carrier insurance covering such inventory in amounts and issued by an insurer reasonably acceptable to Agent and (iii) “ Eligible Inventory ” means, at any time of determination, inventory owned by any Company which is acceptable to Agent in its sole discretion and (A) consists of finished goods, (B) is in good and saleable condition, (C) is not obsolete, contaminated, unmerchantable, returned, rejected, discontinued or repossessed, (D) is not in the possession of a processor, consignee or bailee, or located on premises leased or subleased to any Company unless such processor, consignee, bailee or the lessor or sublessor of such premises, as the case may be, has executed and delivered all documentation which Agent shall require to evidence the subordination or other limitation or extinguishment of such person’s or entities’ rights with respect to such inventory and Agent’s right to gain access thereto, (E) does not consist of fabricated parts, consigned items, supplies or packaging, (F) meets all standards imposed by any governmental authority, (G) is at all times subject to Agent’s duly perfected, first priority security interest and no other lien or security interest except as permitted by this Agreement, (H) is situated at a location listed in the Security Agreement, (I) Agent has received a copy of the purchase order with respect thereto, (J) has not been in any Company’s possession for more than sixty (60) consecutive days and (K) is insured for at least the gross value included in the Formula Amount less not more than a five percent (5%) deductible.

(c) Interest Coverage Ratio . Beginning with the fiscal quarter ending March 31, 2017, and for each fiscal quarter thereafter, Companies will not permit the ratio of (i) EBITDA for the three (3) month period preceding the date of determination times four (4) to (ii) the sum of all interest payments on all Indebtedness due by Companies and Guarantors and for the twelve (12) month period succeeding the date of such determination, to be less than 1.20 to 1.00.

(d) Capital Expenditures . No Company shall, and shall not permit any Subsidiary to, either make or commit or agree to make any Capital Expenditure (by purchase or capital lease) during any fiscal quarter that would cause the aggregate amount of all Capital Expenditures in such fiscal quarter to exceed $75,000 (excluding Capital Expenditures for warehouse/facility expansion not to exceed $300,000 in the aggregate) unless otherwise agreed to in writing by Agent; provided however, that (i) in the event an Event of Default exists at such time, no Capital Expenditures may be made in any amounts without the prior written consent of Agent and (ii) all assets acquired in connection with any Capital Expenditure will be subject to a perfected first priority lien in favor of Agent. For purposes of this Agreement, “ Capital Expenditures ” of any Person means the sum of, without duplication, (i) all expenditures made directly or indirectly by such Person during such period for equipment, fixed assets, real property or improvements, or for replacements or substitutes therefor or additions thereto, that have been or should be, in accordance with GAAP, reflected as additions to property, plant or equipment on a consolidated balance sheet of such Person or have a useful life of more than one year, plus (ii) the aggregate principal amount of all Indebtedness (including Capital Lease Obligations) assumed or incurred in connection with such expenditures. For purposes of this definition, the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment or with insurance proceeds shall be included in Capital Expenditures only to the extent the gross amount of such purchase price is greater than the credit granted by the seller of such equipment for the equipment being traded in at such time or the amount of such proceeds, as the case may be.

(e) Changes to GAAP . If any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in this Agreement or any Related Agreement, and either any Company or Agent shall so request, Companies and Agent shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof; provided, until so amended, such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change.

8.24 Required Approvals . (I) No Company, without the prior written consent of Agent, shall, and no Company shall permit any of its Subsidiaries to:

(a) (i) directly or indirectly declare or pay any dividends, other than dividends paid to any Company or Guarantor, (ii) issue any preferred equity that is mandatorily redeemable prior to the one year anniversary of the Maturity Date or (iii) redeem any of its preferred equity or other equity interests;

(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall any Company or any of their Subsidiaries dissolve, liquidate or merge with any other Person without the prior written consent of Agent, which consent shall not be unreasonably withheld);

(c) become subject to (including, without limitation, by way of amendment to or modification of) any agreement or instrument which by its terms would (under any circumstances) restrict any Company’s or any of their Subsidiaries, right to perform the provisions of this Agreement, any Related Agreement or any of the agreements contemplated hereby or thereby;

(d) materially alter or change the scope of the business of any Company and its Subsidiaries taken as a whole as of the Closing Date, conduct any business operations (directly or indirectly and/or passively or actively) other than business operations as in effect on the Closing Date conducted through the Companies and the Guarantors, or provide (directly or indirectly) consulting or operational support or services to any Person other than such support provided to the Companies and the Guarantors as of the Closing Date and to the SPE;

(e) (i) create, incur, assume or suffer to exist any Indebtedness, whether secured or unsecured, other than (u) any Company’s obligations owed to each Purchaser, (v) Indebtedness outstanding as of the date of this Agreement, and not required to be repaid on the Closing Date, as set forth on Schedule 8.24 attached hereto and made a part hereof, and any refinancings or replacements thereof that do not (1) increase the principal amount of such Indebtedness, (2) require additional collateral securing any such Indebtedness or (3) increase the aggregate interest rate on such Indebtedness by more than 200 bps and so long as such refinancing or replacement is otherwise on terms no less favorable to Purchasers than the Indebtedness refinanced or replaced, but without any other amendment or modification of any such Indebtedness, (w) purchase money Indebtedness and Capital Lease Obligations incurred after the date of this Agreement in an aggregate amount outstanding at any time not to exceed the lesser of (I) $250,000 or (B) three percent (3.00%) of the outstanding principal balance of the Notes, so long as (A) any lien relating thereto shall only encumber the assets purchased with the purchase money Indebtedness or subject to the capital leases and no other assets of any Company or any Guarantor, and (B) the principal amount of any such Indebtedness, when incurred, was not less than 75% nor more than 100% of the then current value of the assets purchased with the purchase money Indebtedness or subject to the capital leases, (x) insurance premium financing incurred in the ordinary course of business consistent with past practices, provided such financing is not secured by any assets other than the insurance so financed and deposits of prepayment of premiums for such insurance and such financing does not exceed $100,000 in the aggregate at any time, and (y) unsecured accrued expenses and account trade payables that are (1) entered into or incurred in the ordinary course of any Company’s and any Guarantor’s business, (2) on terms that require full payment within ninety (90) days from the date entered into or incurred and (3) are not unpaid longer than ninety (90) days from the date entered into or incurred; (ii) create, incur, assume or suffer to exist any Liens of every kind and nature except (x) Liens securing the Liabilities and (y) Permitted Encumbrances; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person (other than any Company or any Guarantor), except the endorsement of negotiable instruments by any Company or any Guarantor for deposit or collection or similar transactions in the ordinary course of business or guarantees of Indebtedness otherwise permitted to be outstanding pursuant to this clause (e); (iv) make any payment or distribution in respect of any subordinated Indebtedness of any Company or its Subsidiaries in violation of any subordination or other agreement made in favor of any Creditor Party; (v) make any optional payment or prepayment on or redemption (including by making payments to a sinking fund or analogous fund) or repurchase of any Indebtedness for borrowed money other than Indebtedness pursuant to this Agreement and other Indebtedness refinanced or replaced as and to the extent permitted by this clause (e); (vi) sell, exchange, lease or otherwise dispose of any of its assets (including the sale or discount of accounts), whether by sale, lease or other except (x) for the sale of inventory in the ordinary course of business, (y) for the disposition or transfer in the ordinary course of business of obsolete and worn-out equipment no longer necessary to the operation of the business of any Company and the sale of personal property that is replaced by equivalent property; (vii) purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory in the ordinary course of business) of any Person (or agree to do any of the foregoing at any future time); (viii) suffer or enter into, or permit any Guarantor to suffer or enter into, any transaction with any affiliate of any Company or of any Guarantor, except in the ordinary course of business and pursuant to the reasonable requirements of the business of such Company or such Guarantor upon fair and reasonable terms no less favorable to any Company or any Guarantor than would be obtained in a comparable arm’s length transaction with a Person not an affiliate of such Company or such Guarantor; or (ix) directly or indirectly make, or permit any Guarantor to make, any investment in, or any loan, dividend, capital contribution, distribution or advance to, or any acquisition of any equity or debt securities of, or to otherwise finance, any Person that is not a Guarantor (other than, with respect to this clause (ix), loans and advances to employees, directors and officers of any Company or any Guarantor for travel, entertainment, other ordinary business expenses or relocation, in an aggregate amount not to exceed at any time $100,000); or

(f) enter into any profit sharing or similar arrangement with any Person; or

(g) reconstitute Money4Gold Precious Metals, Inc. as an active entity; and

(II) No Company, without the prior written consent of Agent, shall, nor shall any Company permit any of its Subsidiaries to, create or acquire an equity or profits interest in any Person (each, a “ Specified Person ”) after the date hereof unless (i) such Specified Person becomes a party to (A) the Security Agreement (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof); (B) the Pledge Agreement (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) or another stock pledge agreement in favor of Purchasers in form and substance satisfactory to Agent (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof); (C) an Intellectual Property Security Agreement in favor of Purchasers in form and substance satisfactory to Agent (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof); (D) a guaranty in favor of Purchasers in form and substance satisfactory to Agent (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and (iii) to the extent required by Agent, satisfies each condition of this Agreement and the Related Agreements as if such Specified Person were a Subsidiary on the Closing Date.

8.25 Inventory Tracking System . Each Company and each Guarantor will maintain an inventory tracking system acceptable in all respects to Agent. Each Company and each Guarantor covenants that it shall maintain “virtual” and physical warehouses to manage, account for and hold all cell phones and cell phone accessories (the “ Inventory ”) separate and apart from any inventory purchased or held for SPE’s account. Each Company and each Guarantor will purchase Inventory on its behalf under purchase orders that are separate from any purchase order for SPE’s business (i.e., no “split” purchase orders). No Company or Guarantor shall in any event commingle any Inventory purchased on its behalf for its own account and inventory purchased for SPE’s account, and shall in all events separately track and account for, any inventory it purchases on behalf of SPE and Inventory it purchases for its own account, including any related information such as sales, revenue, expenses, identification, shipping, distribution, points of sale, location, invoicing, data entry and books and records.

8.26 Margin Stock . No Company will permit any of the proceeds of the Notes to be used directly or indirectly to “purchase” or “carry” “margin stock” or to repay Indebtedness incurred to “purchase” or “carry” “margin stock” within the respective meanings of each of the quoted terms under Regulation U of the Board of Governors of the Federal Reserve System as now and from time to time hereafter in effect.

8.27 FIRPTA . No Company, nor any of its Subsidiaries, is a “United States real property holding corporation” as such term is defined in Section 897(c)(2) of the Code and Treasury Regulation Section 1.897-2 promulgated thereunder and no Company nor any of its Subsidiaries shall at any time take any action or otherwise acquire any interest in any asset or property to the extent the effect of which shall cause such Company and/or such Subsidiary, as the case may be, to be a “United States real property holding corporation” as such term is defined in Section 897(c)(2) of the Code and Treasury Regulation Section 1.897-2 promulgated thereunder.

8.28 Financing Right of First Refusal .

(a) So long as the principal balance of any Note remains outstanding, each Company hereby grants to Purchasers a right of first refusal to provide any Additional Financing (as defined below) to be issued by any Company and/or any of its Subsidiaries, subject to the following terms and conditions. Prior to the incurrence of any additional indebtedness for any purpose, including, without limitation, for the financing of future acquisitions or inventory purchases (an “ Additional Financing ”), any Company and/or any Subsidiary of any Company, as the case may be, shall notify Agent of its intention to enter into such Additional Financing. Additional Financing shall not include capital raised from registered offerings and equity private placements, including conventional private placements. In connection therewith, any Company and/or the applicable Subsidiary thereof shall submit a fully executed term sheet (a “ Proposed Term Sheet ”) to Agent setting forth the terms, conditions and pricing of any such Additional Financing (such financing to be negotiated on “arm’s length” terms and the terms thereof to be negotiated in good faith) proposed to be entered into by any Company and/or such Subsidiary. Agent shall have the right, but not the obligation, to deliver its own proposed term sheet (the “ Purchaser Term Sheet ”) setting forth the terms and conditions upon which Purchasers would be willing to provide such Additional Financing to any Company and/or such Subsidiary. The Purchaser Term Sheet shall contain terms no less favorable to any Company and/or such Subsidiary than those outlined in the Proposed Term Sheet. Agent shall deliver such Purchaser Term Sheet within ten (10) business days of receipt of each such Proposed Term Sheet. If the provisions of the Purchaser Term Sheet are at least as favorable to any Company and/or such Subsidiary, as the case may be, as the provisions of the Proposed Term Sheet, any Company and/or such Subsidiary shall enter into and consummate the Additional Financing transaction outlined in the Purchaser Term Sheet. If Agent does not deliver a Purchaser Term Sheet in response to its receipt of a Proposed Term Sheet in accordance with this Section 8.28(a), then such Company and/or such Subsidiary, subject to compliance with the other provisions of this Agreement and the Related Agreements, may consummate the Additional Financing on the terms and conditions set forth in in such Proposed Term Sheet within 30 days of Agent’s receipt of such Proposed Term Sheet. Agent’s failure to deliver a Purchaser Term Sheet to any Company and/or Subsidiary for a particular Additional Financing does not waive Agent’s rights under this Section 8.28(a) with respect to any other Additional Financings, including an Additional Financing which is not closed within 30 days of Agent’s receipt of a Proposed Term Sheet.

(b) No Company will, and will not permit its Subsidiaries to, agree, directly or indirectly, to any restriction with any Person which limits the ability of Purchasers to consummate an Additional Financing with any Company or any of its Subsidiaries.

8.29 Credit Policies . Each Company will maintain written credit policies consistent with good business practices.

8.30 Intentionally Omitted .

8.31 Changes to Fiscal Year . No Company will, and will not permit any of its Subsidiaries to, change its fiscal year to end on a date other than December 31.

8.32 Reimbursement of Monitoring Expenses . Each Company will reimburse Agent and each Purchaser for its reasonable out of pocket expenses incurred by it in the course of monitoring any Company’s and its Subsidiaries’ compliance with this Agreement and the Related Agreements and for general, ongoing due diligence while any of the Notes remain outstanding, including reasonable travel expenses.

8.33 Limitation on Amendments to Material Agreements . No Company will, and will not permit any Guarantor to, amend, supplement or otherwise modify (pursuant to a waiver or otherwise):

(a) the articles of incorporation, certificate of designation (or corporate charter or other similar organizational document), operating agreement or bylaws (or other similar document) of any Company or any of its Subsidiaries; or

(b) the terms and conditions of any material agreements;

in each case, in any respect materially adverse to the interests of any of the Creditor Parties, without the prior written consent of Agent.

8.34 Regulatory Matters . Without providing at least 45 days prior notice to, and obtaining the prior written consent of, Agent, no Company nor any Subsidiary of any Company shall (a) be or become either of an “electric corporation,” “electric utility”, “public utility”, “gas utility” or a “gas corporation” under applicable law, or (b) be or become a “public utility” under the FPA, or a “natural-gas company” under the NGA, or any of a “public-utility company” or a “holding company” of a “public-utility company” under the Public Utility Holding Company Act of 1935, as amended.

8.35 Deposit Accounts . No Company shall, and not permit any Guarantor, to maintain or establish any new bank accounts other than, as of the Closing Date, the bank accounts set forth on Schedule 8.35 (which bank accounts constitute all of the deposit accounts, securities accounts or other similar accounts maintained by each Company and each Guarantor as of the Closing Date) without prior written notice to Agent and unless Agent and any Company or any Guarantor and the bank or other financial institution at which the account is to be opened enter into an Account Control Agreement, in form and substance reasonably satisfactory to Agent, regarding such bank account prior to the opening of such account.

8.36 Post-Closing Covenant . Any Company and Guarantors shall satisfy the requirements and/or provide to Agent each of the documents, instruments, agreements and information set forth on Schedule 8.36 , in form and substance acceptable to Agent, on or before the date specified for such requirement in such Schedule or such later date to be determined by Agent in its sole discretion, each of which shall be completed or provided in form and substance satisfactory to Agent.

9. Covenants of Purchasers . Each Purchaser covenants and agrees with Companies as follows:

9.1 Confidentiality . No Purchaser will disclose, nor will it include in any public announcement, the name of any Company, unless expressly agreed to by such Company or unless and until such disclosure is required by law or applicable regulation, and then only to the extent of such requirement; provided that after USELL has filed the Form 8-K Filing, any Purchaser may issue a customary closing press release and may include on its web site a description of USELL and the closing of the transaction under this Agreement.

9.2 Non-Public Information . No Purchaser nor its officers, directors, employees, affiliates, agents, equity holders and control persons, will effect any sales in the shares of the Common Stock while in possession of material, non-public information regarding USELL if such sales would violate applicable equity interests law. Agent and each Purchaser agree to keep confidential the Information (as defined below), except that Agent and each Purchaser shall be permitted to disclose Information (a) to the extent requested by any Governmental Authority (including any self-regulatory agency having or claiming to have jurisdiction); (b) to the extent otherwise required by applicable Law or by any subpoena or similar legal process; (c) in connection with the exercise of any remedies hereunder or in any suit, action or proceeding relating to the enforcement of its rights hereunder or under any other Related Agreement; (d) to any other party hereto; (e) subject to any agreement containing provisions substantially the same as set forth in this Section, to any prospective or actual assignees of a Note; (f) to any of its agents, representatives, officers, directors, consultants or owners who are under a duty of confidentiality to a Purchaser; or (g) to the extent such Information (i) is or becomes publicly available other than as a result of a breach of this Section, (ii) is or becomes available to Agent or any Purchaser on a non-confidential basis from a source other than any Company, any of its Subsidiaries or any of their agents or representatives or (iii) was in Agent’s or any Purchaser’s, or any of its respective agents, consultants or representatives, possession prior to being furnished to it by any Company, any of its Subsidiaries or any of their agents or representatives. For purposes hereof, “ Information ” means all information that is received from any Company, any of its Subsidiaries or any of their agents or representative relating to any Company, any of its Subsidiaries or any of their respective businesses.

9.3 Limitation on Acquisition of Common Stock of USELL . Notwithstanding anything to the contrary contained in this Agreement, any Related Agreement or any document, instrument or agreement entered into in connection with any other transactions entered into by a Purchaser and any Company (and/or Subsidiaries or Affiliates of any Company), such Purchaser (and/or Subsidiaries or Affiliates of such Purchaser) shall not acquire stock in USELL (including, without limitation, pursuant to a contract to purchase, by exercising an option or warrant, by converting any other security or instrument, by acquiring or exercising any other right to acquire, shares of stock or other security convertible into shares of stock in USELL, or otherwise, and such contracts, options, warrants, conversion or other rights shall not be enforceable or exercisable) to the extent such stock acquisition would cause any interest (including any original issue discount) payable by any Company to a Non-U.S. Purchaser not to qualify as “portfolio interest” within the meaning of Section 871(h)(2) or Section 881(c)(2) of the Code, by reason of Section 871(h)(3) or Section 881(c)(3)(B) of the Code, as applicable, taking into account the constructive ownership rules under Section 871(h)(3)(C) of the Code (the “ Stock Acquisition Limitation ”). In addition to any other remedies, if any, available to any Company, if a Purchaser exceeds the Stock Acquisition Limitation, the provisions of Section 6.7(b) shall not apply to payments made to such Purchaser to the extent any additional amounts to be paid thereunder are directly attributable to the applicable Purchaser exceeding the Stock Acquisition Limitation. The Stock Acquisition Limitation shall automatically become null and void with respect to a Purchaser, without any notice to any Company, on and after the first date upon which such Purchaser and each of its Affiliates which qualify as a Non-U.S. Purchaser no longer owns any indebtedness (including, without limitation, principal, interest, fees and charges) of any Company.

10. Covenants of Companies and Purchasers Regarding Indemnification . Each Company agrees to indemnify, hold harmless, reimburse and defend, on a joint and several basis, each Creditor Party, each of such Creditor Party’s officers, directors, independent contractors, consultants, agents, affiliates, control persons, and principal shareholders, against all claims, costs, expenses, liabilities, obligations, losses or damages (including reasonable legal fees) of any nature, incurred by or imposed upon such Creditor Party which result, arise out of or are based upon: (i) any misrepresentation by any Company or any of its Subsidiaries or breach of any warranty by any Company or any of its Subsidiaries in this Agreement, any Related Agreement or in any exhibits or schedules attached hereto or thereto; (ii) any breach or default in performance by any Company or any of its Subsidiaries of any covenant or undertaking to be performed by such Company or any of its Subsidiaries hereunder, under any other Related Agreement or any other agreement entered into by such Company and/or any of its Subsidiaries and such Creditor Party relating hereto or thereto; or (iii) the status of any Purchaser as a purchaser or holder of the Notes or of Agent as agent thereof.

11. Intentionally Omitted .

12. Conditions Precedent .

12.1 Notes . The obligation of Purchasers to purchase the Notes is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date:

(i) Related Agreements . Agent shall have received from each Company executed originals of this Agreement, the Notes and the other Related Agreements and documents and instruments to be delivered in connection therewith.

(ii) Searches, Filings, Registrations and Recordings . Agent shall have received copies of UCC, tax lien and judgment searches, or other evidence satisfactory to Agent, listing all effective financing statements which name each Company and its Subsidiaries (under present name, any previous name or any trade or doing business name) as debtor and covering all jurisdictions requested by Agent, together with copies of such other financing statements. Each document (including any UCC financing statement) required by this Agreement, or any other Related Agreements or under applicable law or reasonably requested by Agent to be filed, registered or recorded in order to create, in favor of Agent, a perfected first priority security interest (subject to Permitted Encumbrances) in or Lien upon the Collateral shall have been properly filed, registered or recorded in each jurisdiction in which the filing, registration or recordation thereof is so required or requested, and Agent shall have received an acknowledgment copy, or other evidence satisfactory to it, of each such filing, registration or recordation and satisfactory evidence of the payment of any necessary fee, tax or expense relating thereto.

(iii) Corporate Proceedings . Agent shall have received a copy of the resolutions in form and substance reasonably satisfactory to Agent, of the board of directors (or equivalent governing body) of each Company and each Guarantor authorizing (i) the execution, delivery and performance of this Agreement, the Notes and each of the other Related Agreements and (ii) the granting by any Company and each such Subsidiary of the first priority security interest in and liens upon the Collateral, in each case certified by a senior executive officer of any Company as of the Closing Date; and, such certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate.

(iv) Incumbency Certificates . Agent shall have received a certificate of the officer of each Company and each Guarantor, dated the Closing Date, as to the incumbency and signature of the officers of any Company and each Guarantor executing this Agreement, Related Agreements, any certificate or other documents to be delivered by it pursuant hereto, together with evidence of the incumbency of such officer.

(v) Organization Documents . Agent shall have received a copy of all organization documents of each Company and each Guarantor, and all amendments thereto, certified by the applicable Secretary of State of the jurisdiction of organization and the officer of such company and the written certification of the officer of such company that no amendment or modification to the organization documents of such company has become effective since the date on which the organization documents of such company were last delivered to Agent, and copies of all agreements of the holders of equity interests in such company, certified as accurate and complete by a senior executive officer of such company.

(vi) Good Standing Certificates . Agent shall have received good standing certificates for each Company and each Guarantor dated not more than fifteen (15) days prior to the Closing Date, issued by and each jurisdiction where the conduct of business activities or the ownership of its properties necessitates qualification.

(vii) Legal Opinion . Agent shall have received favorable written legal opinions in form and substance satisfactory to Agent, and each Company and each Guarantor hereby authorizes and directs such counsel to deliver such opinions to Agent and Purchasers.

(viii) No Litigation . No litigation, investigation or proceeding before or by any arbitrator or Governmental Authority shall be continuing or threatened against any Company, any of any Company’s Subsidiaries or against any officers or directors of any Company (A) in connection with this Agreement or any of the Related Agreements or any of the transactions contemplated hereby or thereby and which, in Agent’s sole and absolute discretion, is deemed material or (B) which could, in Agent’s sole and absolute discretion, have a Material Adverse Effect; and no injunction, writ, restraining order or other order of any nature materially adverse to any Company or the conduct of its business or inconsistent with the due consummation of the transactions contemplated hereby shall have been issued by any Governmental Authority.

(ix) Fees and Expenses . Agent and Purchasers shall have received all fees and expenses payable to it on or prior to the Closing Date, including those set forth in Sections 2 and 3.

(x) Insurance . Agent shall have received in form and substance satisfactory to Agent, (i) copies of any Company’s casualty insurance policies, together with loss payable endorsements naming Agent as loss payee, and (ii) copies of any Company’s liability insurance policies, together with endorsements naming Agent as an additional insured.

(xi) Payment Instructions . Agent shall have received written instructions from Companies directing the application of proceeds of the issuance of the Notes on the Closing Date, each in the form of the Disbursement Letters referred to in Section 4.2.

(xii) Consents . Agent shall have received any and all consents necessary to permit the effectuation of the transactions contemplated by this Agreement and any of the Related Agreements. Agent shall have received such third party consents and waivers of such third parties as might assert claims with respect to the Collateral, as Agent and its counsel shall deem necessary.

(xiii) Releases . Agent shall have received, in form and substance reasonably satisfactory to it, all releases, terminations and such other documents as Agent may reasonably request to evidence the repayment of the Indebtedness identified on Schedule 12.1 as to be repaid on the Closing Date and the termination or release of any Liens, if any, securing such Indebtedness.

(xiv) Solvency Certificate . Agent shall have received an officer’s certificate of each Company, dated as of the Closing Date, certifying that each Company and Guarantor, on a consolidated basis, are Solvent after giving effect to the consummation of the transactions contemplated hereby, such certificate to be in form and substance to the reasonable satisfaction of Agent.

(xv) Officer’s Certificate . Each Company shall have delivered to Agent a Certificate of such Company, in form and substance satisfactory to Agent, to the effect that (i) the representations and warranties in this Agreement are true, correct and complete on and as of the Closing Date, (ii) neither this Agreement nor any of the Related Agreements contains any untrue statement of a material fact or omits a material fact necessary to make the statements therein not misleading, (iii) such Company shall have performed all agreements and satisfied all conditions which this Agreement and the other Related Agreements on or before the Closing Date except as otherwise disclosed to and agreed to in writing by any Company and Agent, and (iv) no Default or Event of Default, or event that with the giving of notice or passage of time would constitute an Event of Default, shall have occurred and be continuing.

(xvi) Employment Agreements . Agent shall have completed satisfactory review and approval of employment agreements between each Company and each of the members of senior management of such Company.

(xvii) Due Diligence . Agent shall have completed its legal and business due diligence, including Collateral examinations, background and credit checks with respect to each Company, each Guarantor and their respective management, with results satisfactory to Agent.

(xviii) Account Debtor Notifications . Agent shall have received notification letters executed by each Company and each Guarantor in blank to account debtors of such Company and Guarantor notifying account debtors that Agent has a security interest in the accounts of each Company and each Guarantor and directing such account debtors to make payment thereof directly to the Agent Master Controlled Account.

(xix) Condition of Inventories and Properties . Agent shall be satisfied with the condition of the inventories and properties of Companies and shall have received such reports with respect thereto, in form and substance satisfactory to the Creditor Parties, as the Creditor Parties may request.

(xx) Material Agreements . Agent shall have completed its due diligence review of each Company’s material agreements, the results of which shall be satisfactory to Agent.

(xxi) Other . Agent shall have received such other approvals, legal opinions, documents, instruments and/or agreements as Agent shall reasonably request.

13. Miscellaneous .

13.1 Governing Law, Jurisdiction and Waiver of Jury Trial .

(a) THIS AGREEMENT AND THE OTHER RELATED AGREEMENTS SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.

(b) EACH COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN SUCH COMPANY, ON THE ONE HAND, AND ANY CREDITOR PARTY, ON THE OTHER HAND, PERTAINING TO THIS AGREEMENT OR ANY OF THE RELATED AGREEMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE OTHER RELATED AGREEMENTS; PROVIDED , THAT EACH CREDITOR PARTY AND EACH COMPANY ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK; AND FURTHER PROVIDED , THAT, NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE ANY CREDITOR PARTY FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION IN WHICH ANY OF THE COLLATERAL IS LOCATED TO COLLECT THE LIABILITIES, TO REALIZE ON THE COLLATERAL (AS DEFINED IN THE SECURITY AGREEMENT) OR ANY OTHER SECURITY FOR THE LIABILITIES, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF ANY CREDITOR PARTY. EACH COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH COMPANY HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS . EACH COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH COMPANY AT THE ADDRESS SET FORTH IN SECTION 13.9 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON SUCH COMPANY’S ACTUAL RECEIPT THEREOF OR FIVE (5) BUSINESS DAYS AFTER DEPOSIT IN THE U.S. MAIL, PROPER POSTAGE PREPAID.

(c) THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND/OR OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN ANY CREDITOR PARTY AND/OR ANY COMPANY ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, ANY OTHER RELATED AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.

13.2 Severability . Wherever possible each provision of this Agreement and the Related Agreements shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement or any Related Agreement shall be prohibited by or invalid or illegal under applicable law such provision shall be ineffective to the extent of such prohibition or invalidity or illegality, without invalidating the remainder of such provision or the remaining provisions thereof which shall not in any way be affected or impaired thereby.

13.3 Independent Nature of Purchasers . The obligations of each Purchaser hereunder are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser hereunder. Each Purchaser shall be responsible only for its own representations, warranties, agreements and covenants hereunder. The decision of Purchaser to purchase the Notes pursuant to this Agreement has been made by such Purchaser independently of any other Purchaser and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of any Company or any of its Subsidiaries which may have been made or given by any other Purchaser or by any agent or employee of any other Purchaser, and no Purchaser or any of its agents or employees shall have any liability to any other Purchaser (or any other Person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated hereby. Each Purchaser shall be entitled to independently protect and enforce its rights, including the rights arising out of this Agreement, the Notes and the other Related Agreements, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose.

13.4 Survival, Etc . The representations, warranties, covenants and agreements made herein shall survive any investigation made by any Creditor Party and the closing of the transactions contemplated hereby. All statements as to factual matters contained in any certificate or other instrument delivered by or on behalf of any Company pursuant hereto in connection with the transactions contemplated hereby shall be deemed to be representations and warranties by such Company hereunder solely as of the date of such certificate or instrument. All indemnities set forth herein shall survive the execution, delivery and termination of this Agreement and the Notes and the making and repayment of the obligations arising hereunder, under the Notes and under the other Related Agreements.

13.5 Successors .

(a) Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, heirs, executors and administrators of the parties hereto and shall inure to the benefit of and be enforceable by each Person which shall be a holder of any Note. Each Creditor Party may assign any or all of the Liabilities to any Person and, subject to acceptance and recordation thereof by Agent pursuant to Section 13.5(b) and receipt by Agent of a copy of the agreement or instrument pursuant to which such assignment is made (each such agreement or instrument, an “ Assignment Agreement ”), any such assignee shall succeed to all of such Creditor Party’s rights and obligations with respect thereto. Upon such assignment, such Creditor Party shall be released from all responsibility for the Collateral. Each Creditor Party may from time to time sell or otherwise grant participations in any of the Liabilities and the holder of any such participation shall, subject to the terms of any agreement between such Creditor Party and such holder, be entitled to the same benefits as such Creditor Party with respect to any security for the Liabilities in which such holder is a participant. Each Company agrees that each such holder may exercise any and all rights of banker’s lien, set-off and counterclaim with respect to its participation in the Liabilities as fully as though such Company were directly indebted to such holder in the amount of such participation. No Company may assign any of its rights or obligations hereunder without the prior written consent of Agent. All of the terms, conditions, promises, covenants, provisions and warranties of this Agreement shall inure to the benefit of each of the undersigned, and shall bind the representatives, successors and permitted assigns of each Company.

(b) Agent shall maintain, or cause to be maintained, for this purpose only as agent of Companies, (i) a copy of each Assignment Agreement delivered to it and (ii) a book entry system, within the meaning of U.S. Treasury Regulation Sections 15f.103-1(c) and 1.871-14(c) (the “ Register ”), in which it will register the name and address of each Purchaser and the name and address of each assignee of each Purchaser under this Agreement, and the principal amount of, and stated interest on, the Notes owing to each such Purchaser and assignee pursuant to the terms hereof and each Assignment Agreement. The right, title and interest of Purchasers and their assignees in and to such Notes shall be transferable only upon notation of such transfer in the Register, and no assignment thereof shall be effective until recorded therein. Each Company and each Creditor Party shall treat each Person whose name is recorded in the Register as a Purchaser pursuant to the terms hereof as a Purchaser and owner of an interest in the Liabilities hereunder for all purposes of this Agreement, notwithstanding notice to the contrary or any notation of ownership or other writing or any Notes. The Register shall be available for inspection by Companies or any Purchaser, at any reasonable time and from time to time, upon reasonable prior notice.

13.6 Entire Agreement; Maximum Interest . This Agreement, the Related Agreements, the exhibits and schedules hereto and thereto and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof. Nothing contained in this Agreement, any Related Agreement or in any document referred to herein or delivered in connection herewith shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum rate permitted by applicable law. In the event that the rate of interest required to be paid or other charges hereunder exceed the maximum rate permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by Companies to Purchasers and thus refunded to Companies. Interest and payments shall be computed on the basis of actual days elapsed in a year of 365 days.

13.7 Amendment and Waiver .

(a) This Agreement may be amended or modified only upon the written consent of Companies and Agent.

(b) The obligations of Companies and the rights of the Creditor Parties under this Agreement may be waived only with the written consent of Agent.

(c) The obligations of the Creditor Parties and the rights of Companies under this Agreement may be waived only with the written consent of Companies.

13.8 Delays or Omissions; Remedies . It is agreed that no delay or omission to exercise any right, power or remedy accruing to any party, upon any breach, default or noncompliance by another party under this Agreement or the Related Agreements, shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of or in any similar breach, default or noncompliance thereafter occurring. All remedies, either under this Agreement or the Related Agreements, by law or otherwise afforded to any party, shall be cumulative and not alternative. Purchasers and each holder of the Notes shall have all rights and remedies set forth herein and in each Related Agreement and all rights and remedies that Purchasers and holders have been granted at any time under any other agreement or contract and all of the rights that Purchasers and holders have under any law. Any Person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without any requirement to post a bond or other security or prove actual damages, which requirements each of the parties waives to the fullest extent permitted by law), to recover damages by reason of any breach of any provision of this Agreement or any Related Agreement and to exercise all other rights granted by law.

13.9 Notices . All notices required or permitted hereunder or any Related Agreement shall be in writing and shall be deemed effectively given:

(a) upon personal delivery to the party to be notified;

(b) when sent by confirmed facsimile if sent during normal business hours of the recipient, or, if not, then on the next business day;

(c) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or

(d) one (1) business day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.

All communications shall be sent as follows:

If to any Company, to:	To the address indicated under its signature on the signature pages hereto

If to Agent, to:	To the address indicated under its signature on the signature pages hereto

If to a Purchaser:	To the address indicated under its signature on the signature pages hereto

or at such other address as any Company or the applicable Creditor Party may designate by written notice to the other parties hereto given in accordance herewith.

13.10 Form of Payment . Any Company hereby covenants, acknowledges and agrees that any payments to be made to any Purchaser pursuant to this Agreement, the Notes or any Related Agreement shall be made in U.S. dollars by wire transfer of immediately available funds to such bank or location as such Purchaser may direct in writing from time to time.

13.11 Attorneys’ Fees . In the event that any suit or action is instituted to enforce any provision in this Agreement or any Related Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement and/or such Related Agreement, including such reasonable fees and expenses of attorneys and accountants, which shall include all fees, costs and expenses of appeals.

13.12 Titles and Subtitles . The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.

13.13 Signatures; Counterparts . This Agreement may be executed by facsimile or electronic signatures and in any number of counterparts, each of which shall be an original, but all of which together shall constitute one agreement.

13.14 Broker’s Fees . Each party hereto represents and warrants that no agent, broker, investment banker, person or firm acting on behalf of or under the authority of such party hereto is or will be entitled to any broker’s or finder’s fee or any other commission directly or indirectly in connection with the transactions contemplated herein, except that the Purchasers are obligated to pay a broker’s fee to World Equity Group. Each Company further agrees to indemnify each other party for any claims, losses or expenses incurred by such other party as a result of the representation in this Section 13.14 being untrue.

13.15 Construction . Each party acknowledges that its legal counsel participated in the preparation of this Agreement and the Related Agreements and, therefore, stipulates that the rule of construction that ambiguities are to be resolved against the drafting party shall not be applied in the interpretation of this Agreement or any Related Agreement to favor any party against the other. Unless the context otherwise requires, (i) words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, (ii) the words “hereof,” “herein” and words to similar effect refer to this Agreement in its entirety, and (iii) the use of the word “including” in this Agreement shall be by way of example rather than limitation.

13.16 Joint and Several Obligations .

(a) All Liabilities (as defined below) of each Company to each Creditor Party shall be joint and several, and such obligations and liabilities on the part of Companies shall in no way be affected by any extensions, renewals and forbearance granted by the Creditor Parties to any Company, failure of the Creditor Parties to give any Company any notice, any failure of the Creditor Parties to pursue to preserve its rights against any Company, the release by Agent of any collateral now or thereafter acquired from any Company, and such agreement by any Company to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by any Creditor Party to any Company or any collateral for such Liabilities or the lack thereof. As used in this Agreement, “ Liabilities ” has the meaning given to such term in the Security Agreement.

(b) Each Company expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Company may now or hereafter have against the other or other Person directly or contingently liable for the Liabilities, or against or with respect to any other’s property (including, without limitation, any property which is collateral for the Liabilities), arising from the existence or performance of this Agreement, until all Liabilities have been indefeasibly paid in full and this Agreement has been irrevocably terminated.

(c) Each Company represents and warrants to each Creditor Party that (i) such Companies have one or more common shareholders, directors and officers, (ii) the businesses and corporate activities of Companies are closely related to, and substantially benefit, the business and corporate activities of Companies, (iii) the financial and other operations of Companies are performed on a combined basis as if Companies constituted a consolidated corporate group and (iv) Companies will receive a substantial economic benefit from entering into this Agreement and will receive a substantial economic benefit from all amounts advanced by any Purchaser to either Company in connection with the transactions contemplated hereby, in each case, whether or not such amount is used directly by such Company.

13.17 Agency . Each Purchaser has pursuant to an Agency Agreement designated and appointed Agent as the administrative and collateral agent of such Purchaser under this Agreement and the Related Agreements.

13.18 Costs and Expenses . Companies jointly and severally agree to pay on demand, all costs and expenses of every kind incurred by any Purchaser or Agent: (a) in enforcing this Agreement or any of the Related Agreements, (b) in collecting any of the Liabilities from any Company or any Guarantor, (c) in realizing upon or protecting or preserving any Collateral, and (d) in connection with any amendment of, modification to, waiver or forbearance granted under, or enforcement or administration of this Agreement or any of the Related Agreements or for any other purpose in connection with this Agreement or any of the Related Agreements, in each case, to the extent any Purchaser or Agent may take such action pursuant to the terms and conditions of this Agreement or any of the Related Agreements. “ Costs and expenses ” as used in the preceding sentence shall include reasonable attorneys’ fees incurred by any Purchaser or Agent in retaining legal counsel for advice, suit, appeal, any insolvency or other proceedings under the U.S. Bankruptcy Code or otherwise, or for any purpose specified in the preceding sentence.

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the parties hereto have caused this Note Purchase Agreement to be duly executed and delivered by their duly authorized officers as of the date first set forth about.

	COMPANIES :

	USELL.COM, INC.

	By:
		Name: Nikhil Raman
		Title: Chief Executive Officer

	Address for Notices:

	171 Madison Avenue, 17 ^th Floor
	New York, New York 10016

	Facsimile: (888) 748-1120

	BST DISTRIBUTION, INC.

	By:
		Name: Brian Tepfer
		Title: Chief Executive Officer

	Address for Notices:

	150 Executive Drive, Suite O
	Edgewood, New York 11717

	Facsimile: (888) 748-1120

	WE SELL CELLULAR LLC

	By:
		Name: Nikhil Raman
		Title: Manager

	Address for Notices:

	150 Executive Drive, Suite Q
	Edgewood, New York 11717

	Facsimile: (888) 748-1120

	PURCHASER :

	XXXXXXXXXX

	By:
		Name:
		Title:

	Address for Notices:

SIGNATURE PAGE TO
NOTE PURCHASE AGREEMENT

	AGENT :

	XXXXXXXXXXXXXXXX

	By:
		Name:
		Title:

	Address for Notices:

	With a copy to:

	Loeb & Loeb LLP
	345 Park Avenue
	New York, New York 10154
	Attn: Scott J. Giordano, Esq.
	Facsimile: (212) 504-2669
	Email: sgiordano@loeb.com

SIGNATURE PAGE TO
NOTE PURCHASE AGREEMENT

Exhibit 10.6

THIS NOTE IS ISSUED WITH ORIGINAL ISSUE DISCOUNT. BEGINNING NO LATER THAN 10 DAYS AFTER THE ISSUE DATE OF THIS NOTE, USELL.COM, INC., A DELAWARE CORPORATION, LOCATED AT 171 MADISON AVENUE, 17 ^TH FLOOR, NEW YORK, NEW YORK 10016, SHALL PROMPTLY MAKE AVAILABLE TO THE HOLDER OR HOLDERS OF THIS NOTE UPON REQUEST THE INFORMATION DESCRIBED IN TREASURY REGULATION SECTION 1.1275-3(b)(1)(i).

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR (B) AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.

THIS NOTE IS REGISTERED WITH THE AGENT PURSUANT TO SECTION 13.5(b) OF THE PURCHASE AGREEMENT (AS DEFINED BELOW). TRANSFER OF ALL OR ANY PORTION OF THIS NOTE IS PERMITTED SUBJECT TO THE PROVISIONS SET FORTH IN SUCH SECTION 13.5 WHICH REQUIRE, AMONG OTHER THINGS, THAT NO TRANSFER IS EFFECTIVE UNTIL THE TRANSFEREE IS REFLECTED AS SUCH ON THE REGISTRY MAINTAINED WITH THE AGENT PURSUANT TO SUCH SECTION 13.5(b).

SECURED TERM NOTE

FOR VALUE RECEIVED, each of USELL.COM, INC., a Delaware corporation (“ USELL ”), BST DISTRIBUTION, INC., a New York corporation (“ BST ”), WE SELL CELLULAR LLC, a Delaware limited liability company (“ WE SELL ”; together with USELL and BST, the “ Companies ” and each a “ Company ”), hereby promises to pay to XXXX, a Delaware limited liability company (the “ Holder ”) or its registered assigns or successors in interest, the sum of EIGHT MILLION SIX HUNDRED SIXTY THOUSAND DOLLARS ($8,660,000), together with any accrued and unpaid interest hereon subject to the terms and conditions set forth herein.

Capitalized terms used herein without definition shall have the meanings ascribed to such terms in that certain Note Purchase Agreement, dated as January 13, 2017 (as amended, restated, modified and/or supplemented from time to time, the “ Purchase Agreement ”) among Companies, the Holder, each other Purchaser and XXXX, as agent for the Purchasers (the “ Agent ” and together with the Purchasers (including the Holder), collectively, the “ Creditor Parties ”), pursuant to which this Secured Term Note was issued.

The following term shall apply to this Secured Term Note (this “ Note ”):

“ Maturity Date ” shall mean January 13, 2020.

ARTICLE I

CONTRACT RATE AND AMORTIZATION

1.1 Contract Rate . Subject to Sections 1.7 and 2.9, interest payable on the outstanding principal amount of this Note (the “ Principal Amount ”) shall accrue at a rate per annum equal to thirteen and one-quarter percent (13.25%) (the “ Contract Rate ”). Interest shall be (i) calculated on the basis of a 365 day year and the actual number of days elapsed, and (ii) payable monthly, in arrears, commencing on February 1, 2017, and on the first business day of each consecutive calendar month thereafter through and including the Maturity Date, and on the Maturity Date, whether by acceleration or otherwise (each, an “ Interest Payment Date ”).

1.2 Contract Rate Payments . The Contract Rate shall be paid on each Interest Payment Date with respect to the number of days from, but excluding, the prior Interest Payment Date (or the issuance date with respect to the first Interest Payment Date) through and including the applicable Interest Payment Date. Interest shall also be paid in cash on the date of any payment or prepayment of this Note with respect to the Principal Amount being paid at such time.

1.3 Principal Payments . The outstanding Principal Amount together with any accrued and unpaid interest and any and all other unpaid amounts which are then owing by Companies to the Holder under this Note, the Purchase Agreement and/or any other Related Agreement shall be due and payable on the Maturity Date, whether by acceleration or otherwise.

1.4 Optional Prepayment . Companies may redeem the outstanding principal balance of this Note in whole, but not in part, at any time after July 13, 2018, upon at least fifteen (15) days’ prior written notice delivered to Agent and the Holder, at the prepayment price of 103% of the outstanding Principal Amount of this Note so redeemed plus all accrued but unpaid interest hereunder.

To exercise its right to prepay this Note as provided in this Section 1.4, Companies must deliver written notice of such election to the Agent and each Purchaser at least fifteen (15) days prior to the repayment date, as set forth in such notice, and Companies must take the same action with respect to all of the holders of any other Notes.

1.5 Mandatory Prepayment Events . Unless waived in writing by the Agent, Companies shall prepay the Notes (a) from the net proceeds of any incurrence of Indebtedness or other capital raising or financing transaction (other than net proceeds of any Indebtedness incurred as permitted by clause (e)(i) of Section 8.24 of the Purchase Agreement), (b) from the net proceeds of any insurance claims relating to any of the Collateral (unless (i) no Event of Default has occurred and is continuing, (ii) such proceeds are not greater than $1,000,000 and (iii) such proceeds are not used to replace, restore or repair such Collateral), (c) from the net proceeds of any sale of Collateral (other than as permitted by clause (e)(vi) of Section 8.24 of the Purchase Agreement) and/or (d) in the event USELL elects to dissolve the SPE under Section 9.1(c) of the LLC Agreement, each a “ Mandatory Prepayment Event .” Notwithstanding the foregoing, in the event Companies raise capital solely through the issuance of equity or receives cash proceeds from the exercise of outstanding warrants (“ Equity Raise ”), such Equity Raise shall not subject Companies to a Mandatory Prepayment Event, provided that no Event of Default exists at the time of the Equity Raise or would have occurred but for the passage of time or the giving of notice, or both, in which case the Equity Raise would create a Mandatory Prepayment Event. Any prepayments made by Companies pursuant to a Mandatory Prepayment Event shall be applied to the outstanding principal balance of all of the Notes then outstanding on a pro rata basis (based upon the respective outstanding principal amounts thereof). All Principal Amounts required to be prepaid due to a Mandatory Prepayment Event are required to be prepaid at a prepayment price of 103% of the outstanding Principal Amount of this Note so redeemed plus accrued but unpaid interest hereunder.

1.6 Events of Default . The occurrence of any of the following events set forth in this Section 1.6 shall constitute an event of default (“ Event of Default ”) hereunder:

(a) Failure to Pay . Any Company fails to pay when due any installment of principal, interest or other fees hereon in accordance herewith, or any Company fails to pay any of the other Liabilities (under and as defined in the Security Agreement) within three (3) business days of when due;

(b) Breach of Covenant . Any Company or any of its Subsidiaries breaches any covenant or any other term or condition of this Note, the Purchase Agreement or any Related Agreement in any material respect and such breach, if subject to cure, continues for a period of fifteen (15) days after the occurrence thereof;

(c) Breach of Representations and Warranties . Any representation, warranty or statement made or furnished by any Company or any of its Subsidiaries in this Note, the Purchase Agreement or any other Related Agreement shall at any time be false or misleading in any material respect on the date as of which made or deemed made;

(d) Default Under Other Agreements . The occurrence of any default (or similar term) or other event relating to any Indebtedness or Contingent Obligation of any Company or any of such Company’s Subsidiaries beyond the period of grace (if any), (i) the effect of which default or other event is to cause, or permit the holder or holders of such indebtedness or beneficiary or beneficiaries of such Contingent Obligation to cause, such Indebtedness to become due prior to its stated maturity or any such Contingent Obligation to become payable and (ii) (x) the aggregate amount of any such Indebtedness to become due prior to its stated maturity and any such Contingent Obligations to become payable is in excess of $100,000, or (y) such default or other event is reasonably likely to result in a Material Adverse Effect;

(e) Bankruptcy . Any Company or any of its Subsidiaries shall (i) apply for, consent to or suffer to exist the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit of creditors, (iii) commence a voluntary case under the federal bankruptcy laws (as now or hereafter in effect), (iv) be adjudicated a bankrupt or insolvent, (v) file a petition seeking to take advantage of any other law providing for the relief of debtors, (vi) acquiesce to, without challenge within fifteen (15) days of the filing thereof, or failure to have dismissed, within forty-five (45) days, any petition filed against it in any involuntary case under such bankruptcy laws, or (vii) take any action for the purpose of effecting any of the foregoing;

(f) Judgments . Attachments or levies are made upon any Company’s or any of its Subsidiary’s assets or a judgment is rendered against any Company or any of its Subsidiaries or any of its or their property involving a liability which is in excess of $100,000 in the aggregate with any other such liability (other than liability covered under available insurance) or could reasonably be expected to have a Material Adverse Effect and which shall not have been vacated, discharged, stayed or bonded within thirty (30) days from the entry thereof;

(g) Insolvency . Any Company or any of its Subsidiaries shall admit in writing its inability, or be generally unable, to pay its debts as they become due or cease operations of its present business;

(h) Change of Control . A Change of Control (as defined below) shall occur with respect to any Company or any Guarantor, unless the Agent shall have expressly consented to such Change of Control in writing. A “Change of Control” shall mean (i) any event or circumstance as a result of which any “Person” or “group” (as such terms are defined in Sections 13(d) and 14(d) of the Exchange Act, as in effect on the date hereof), other than a Holder of a Note, is or becomes the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of 20% or more on a fully diluted basis of the then outstanding voting equity interests of any Company or any Guarantor (other than a “Person” or “group” that beneficially owns 20% or more of such outstanding voting equity interests of any Company or any Guarantor on the Closing Date), (ii) any event or circumstance as a result of which USELL shall at any time own less than 100% of all issued and outstanding equity interests of any of the following entities: HD Capital Holdings LLC, Upstream Phone Company USA, Inc., BST Distribution, Inc. and/or Upstream Holdings, Inc., (iii) any event or circumstance as a result of which BST Distribution, Inc. shall at any time own less than 100% of all issued an outstanding equity interests of We Sell Cellular, LLC, (iv) any change in the composition of the Board of Directors of any Company or any Guarantor (the “ Board ”) such that the Continuing Directors (as defined below) cease for any reason to constitute at least a majority of the Board (as used herein, “ Continuing Directors ” means those individuals who as of the Closing Date constituted the Board and each other director that was elected by at least 66 2/3% of the Continuing Directors, or as applicable, such director’s nomination for election to the Board is recommended by 66 2/3% of the Continuing Directors), (v) any Company or any of the Guarantors merges or consolidates with, or sells all or substantially all of its assets to, any other Person, or (vi) the consummation of a purchase, tender or exchange offer made to, and accepted by, the holders of more than a majority of the outstanding shares of common stock of any Company or any Guarantor;

(i) Failure of Liens . The Agent’s lien on any Collateral deemed material by Agent shall fail or cease to be a first priority validly perfected security interest; or

(j) Breach of Covenant . The Company or any of its Subsidiaries breaches any covenant set forth in Section 5 or 8 of the Purchase Agreement.

1.7 Default Interest . Following the occurrence and during the continuance of any Event of Default, Companies shall pay additional interest on the outstanding Principal Amount of this Note, at a rate per annum which is determined by adding five percent (5.0%) per annum to the Contract Rate (“ Default Interest Rate ”), and all outstanding obligations under this Note, the Purchase Agreement and each other Related Agreement, including unpaid interest, shall continue to accrue interest at the Default Interest Rate from the date of such Event of Default until the date such Event of Default is cured or waived in writing by the Agent.

1.8 Acceleration . If any Event of Default shall have occurred and be continuing, (a) if such event is an Event of Default specified in Section 1.6(e), all of the Notes at the time outstanding shall automatically become immediately due and payable together with interest accrued thereon, without any requirement of presentment, demand, protest or notice of any kind, all of which are hereby waived, and (b) if such event is not an Event of Default specified in Section 1.6(e) (as a result of which the Notes have already been accelerated), the Agent or the holders of a majority of the outstanding principal amount of the Notes may at their option, by notice in writing to Companies, declare all of the Notes to be, and all of the Notes shall thereupon be and become, immediately due and payable together with interest accrued thereon, without any requirement of further presentment, demand, protest or other notice of any kind, all of which are hereby waived and with the consent of the Creditor Parties, the Agent shall exercise on behalf of the Creditor Parties (including the holders of all of the Notes) all rights and remedies available to them under the Security Agreement and any other Related Agreement.

ARTICLE II

MISCELLANEOUS

2.1 Cumulative Remedies . The remedies under this Note shall be cumulative.

2.2 Failure or Indulgence Not Waiver . No failure or delay on the part of the Holder (or the Agent on behalf of the Holder) hereof in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. All rights and remedies existing hereunder are cumulative to, and not exclusive of, any rights or remedies otherwise available.

2.3 Notices . Any notice herein required or permitted to be given shall be given in writing in accordance with the terms of the Purchase Agreement.

2.4 Amendment Provision . The term “ Note ” and all references thereto, as used throughout this instrument, shall mean this instrument as originally executed, or if later amended or supplemented, then as so amended or supplemented, and any successor instrument as such successor instrument may be amended or supplemented.

2.5 Assignability . This Note shall be binding upon each Company and its successors and assigns, and shall inure to the benefit of the Holder and its successors and assigns, and may be assigned by the Holder in accordance with the requirements of the Purchase Agreement. No Company may assign any of its obligations under this Note without the prior written consent of the Holder, any such purported assignment without such consent being null and void.

2.6 Cost of Collection . In case of the occurrence of an Event of Default under this Note, Companies shall pay the Holder (and the Agent on behalf of the Holder) the Holder’s (and the Agent’s) costs of collection, including reasonable fees associated with the hiring of experts and reasonable attorneys’ fees.

2.7 Governing Law, Jurisdiction and Waiver of Jury Trial .

(a) THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.

(b) EACH COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE AND/OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY COMPANY, ON THE ONE HAND, AND THE HOLDER AND/OR ANY OTHER CREDITOR PARTY, ON THE OTHER HAND, PERTAINING TO THIS NOTE OR ANY OF THE OTHER RELATED AGREEMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR ANY OF THE RELATED AGREEMENTS; PROVIDED , THAT EACH COMPANY ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK; AND FURTHER PROVIDED , THAT NOTHING IN THIS NOTE SHALL BE DEEMED OR OPERATE TO PRECLUDE THE HOLDER AND/OR ANY OTHER CREDITOR PARTY FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION WHERE ANY OF THE COLLATERAL IS LOCATED TO COLLECT THE LIABILITIES (AS DEFINED IN THE SECURITY AGREEMENT), TO REALIZE ON THE COLLATERAL (AS DEFINED IN THE SECURITY AGREEMENT) OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE HOLDER AND/OR ANY OTHER CREDITOR PARTY. EACH COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH COMPANY HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS . EACH COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH COMPANY AT THE ADDRESS SET FORTH IN THE PURCHASE AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH COMPANY’S ACTUAL RECEIPT THEREOF OR FIVE (5) DAYS AFTER DEPOSIT IN THE U.S. MAIL, PROPER POSTAGE PREPAID.

(c) EACH COMPANY DESIRES THAT ITS DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND/OR OF ARBITRATION, EACH COMPANY HERETO WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE HOLDER AND/OR ANY OTHER CREDITOR PARTY, ON THE ONE HAND, AND EACH COMPANY, ON THE OTHER HAND, ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS NOTE, ANY OTHER RELATED AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.

2.8 Severability . In the event that any provision of this Note is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of this Note.

2.9 Maximum Payments . Nothing contained herein shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the rate of interest required to be paid or other charges hereunder exceed the maximum rate permitted by such law, any payments in excess of such maximum rate shall be credited against amounts owed by Companies to the Holder and thus refunded to Companies.

2.10 Security Interest . The Agent, for the ratable benefit of the Creditor Parties, has been granted a security interest in certain assets of Companies and the Guarantors as more fully described in the Security Agreement and the other Related Agreements.

2.11 Construction; Counterparts . Each party acknowledges that its legal counsel participated in the preparation of this Note and, therefore, stipulates that the rule of construction that ambiguities are to be resolved against the drafting party shall not be applied in the interpretation of this Note to favor any party against the other. Unless the context otherwise requires, (i) words in the singular or plural include the singular and plural and pronouns stated in either the masculine, the feminine or neuter gender shall include the masculine, feminine and neuter, (ii) the words “hereof,” “herein” and words to similar effect refer to this Note in its entirety, and (iii) the use of the word “including” in this Note shall be by way of example rather than limitation. This Note may be executed by the parties hereto in one or more counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same instrument. Any signature delivered by a party by facsimile or electronic transmission shall be deemed to be an original signature hereto.

2.12 Registered Obligation . This Note shall be registered (and such registration shall thereafter be maintained) as set forth in Section 13.5(b) of the Purchase Agreement. Notwithstanding any document, instrument or agreement relating to this Note to the contrary, transfer of this Note (or the right to any payments of principal or stated interest thereunder) may only be effected by (i) surrender of this Note and either the reissuance by Companies of this Note to the new holder or the issuance by Companies of a new instrument to the new holder or (ii) registration of such holder as an assignee in accordance with Section 13.5 of the Purchase Agreement.

[Balance of page intentionally left blank; signature page follows]

IN WITNESS WHEREOF , each Company has caused this Secured Term Note to be signed in its name effective as of this 13 day of January, 2017.

	USELL.COM, INC.

	By:
		Name: Nikhil Raman
		Title: Chief Executive Officer

	BST DISTRIBUTION, INC.

	By:
		Name: Brian Tepfer
		Title: Chief Executive Officer

	WE SELL CELLULAR LLC

	By:
		Name: Nikhil Raman
		Title: Manager

SIGNATURE PAGE TO
SECURED TERM NOTE

Exhibit 10.7

SECURITY AGREEMENT

THIS SECURITY AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “ Agreement” ) dated as of January 13, 2017 among USELL.COM, INC., a Delaware corporation (“ USELL ”), BST DISTRIBUTION, INC., a New York corporation (“ BST ”), WE SELL CELLULAR LLC, a Delaware limited liability company (“ WE SELL ”; together with USELL and BST, the “ Companies ” and each a “ Company ”), HD CAPITAL HOLDINGS LLC, a Delaware limited liability company (“ HD Capital ”), UPSTREAM PHONE COMPANY USA, INC., a Delaware corporation (“ UPSTREAM ”), and UPSTREAM PHONE HOLDINGS, INC., a Delaware corporation (“ UPSTREAM HOLDINGS ”); together with HD CAPITAL, and UPSTREAM, each a “ Subsidiary ” and collectively, the “ Subsidiaries ”), together with each other Person who becomes a party to this Agreement by execution of a joinder in the form of Exhibit A attached hereto, is hereinafter sometimes referred to individually as a “ Debtor ” and, collectively, as the “ Debtors ”) and XXXXX, a Delaware limited liability company, in its capacity as Agent (together with its successors and assigns in such capacity, the “ Secured Party ”) for the benefit of itself and each of the Purchasers (as hereinafter defined).

WITNESSETH:

WHEREAS , XXXXX and the other Purchasers from time to time parties to the Note Purchase Agreement (as hereafter defined) (each a “ Purchaser ”, and together with their successors and assigns and each other purchaser of a Note (as defined below) and their respective successors and assigns, individually and collectively, the “ Purchasers ”) will purchase from the Companies certain senior secured notes each made by the Companies and dated as of the date hereof in an original aggregate principal amount of $8,660,000 (such notes, together with any promissory notes or other securities issued in exchange or substitution therefor or replacement thereof, and as any of the same may be amended, supplemented, restated or modified and in effect from time to time, the “ Notes ”);

AND WHEREAS , the Notes are being acquired by Purchasers, and Purchasers have made certain financial accommodations to the Companies pursuant to a Note Purchase Agreement dated as of the date hereof among the Companies, the Secured Party and Purchasers (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Note Purchase Agreement ”). Capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Note Purchase Agreement;

AND WHEREAS , each Debtor will derive substantial benefit and advantage from the financial accommodations to the Companies set forth in the Note Purchase Agreement and the Notes, and it will be to each such Debtor’s direct interest and economic benefit to assist the Companies in procuring said financial accommodations from Purchasers;

AND WHEREAS , to induce Purchasers to enter into the Note Purchase Agreement and purchase the Notes, (i) each Debtor (other than the Companies) will guaranty the Liabilities (as hereinafter defined) of the Companies pursuant to the terms of one or more guaranties by each such Debtor in favor of Secured Party (on its behalf and on behalf of the Purchasers) (such guaranties, as amended, restated, modified or supplemented and in effect from time to time, individually and collectively, the “ Subsidiary Guaranty ”) and (ii) each Debtor will pledge and grant a security interest in all of its right, title and interest in and to the Collateral (as hereinafter defined) as security for its Liabilities for the benefit of the Secured Party, Purchasers and their respective successors and assigns.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Section 1. Definitions. Capitalized terms used herein without definition and defined in the Note Purchase Agreement are used herein as defined therein. In addition, as used herein:

“ Accounts ” means any “account,” as such term is defined in the UCC, and, in any event, shall include, without limitation, “supporting obligations” as defined in the UCC.

“ Chattel Paper ” means any “chattel paper,” as such term is defined in the UCC.

“ Collateral ” shall have the meaning ascribed thereto in Section 3 hereof.

“ Commercial Tort Claims ” means “commercial tort claims”, as such term is defined in the UCC.

“ Contracts ” means all contracts, undertakings, or other agreements (other than rights evidenced by Chattel Paper, Documents or Instruments) in or under which a Debtor may now or hereafter have any right, title or interest, including, without limitation, with respect to an Account, any agreement relating to the terms of payment or the terms of performance thereof.

“ Copyrights ” means any copyrights, rights and interests in copyrights, works protectable by copyrights, copyright registrations and copyright applications, including, without limitation, the copyright registrations and applications listed on Schedule III attached hereto (if any), and all renewals of any of the foregoing, all income, royalties, damages and payments now and hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation, damages and payments for past, present and future infringements of any of the foregoing and the right to sue for past, present and future infringements of any of the foregoing.

“ Deposit Accounts ” means all “deposit accounts” as such term is defined in the UCC, now or hereafter held in the name of a Debtor.

“ Documents ” means any “documents,” as such term is defined in the UCC, and shall include, without limitation, all documents of title (as defined in the UCC), bills of lading or other receipts evidencing or representing Inventory or Equipment.

“ Equipment ” means any “equipment,” as such term is defined in the UCC and, in any event, shall include, Motor Vehicles.

“ Event of Default ” shall have the meaning set forth in the Notes.

“ Excluded Assets ” means each of the following: any lease, license or other agreement or any property subject to a capital lease, purchase money security interest or similar arrangement, to the extent (1) disclosed on Schedule X attached hereto and (2) that a grant of a Lien thereon in favor of Secured Party would violate or invalidate such lease, license, agreement or capital lease, purchase money security interest or similar arrangement or create a right of termination in favor of any other party thereto (other than the Debtors), so long as such provision exists and so long as such lease, license or agreement was not entered into in contemplation of circumventing the obligation to provide Collateral hereunder or in violation of the Note Purchase Agreement, other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law including the bankruptcy code, or principles of equity.

“ General Intangibles ” means any “general intangibles,” as such term is defined in the UCC, and, in any event, shall include, without limitation, all right, title and interest in or under any Contract, models, drawings, materials and records, claims, literary rights, goodwill, rights of performance, Copyrights, Trademarks, Patents, warranties, rights under insurance policies and rights of indemnification.

“ Goods ” means any “goods”, as such term is defined in the UCC, including, without limitation, fixtures and embedded Software to the extent included in “goods” as defined in the UCC.

“ Governmental Authority ” means the government of the United States of America or any other nation, or any political subdivision thereof, whether state or local, or any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administration powers or functions of or pertaining to government over any Debtor or any of its Subsidiaries, or any of their respective properties, assets or undertakings.

“ Instruments ” means any “instrument,” as such term is defined in the UCC, and shall include, without limitation, promissory notes, drafts, bills of exchange, trade acceptances, letters of credit, letter of credit rights (as defined in the UCC), and Chattel Paper.

“ Inventory ” means any “inventory,” as such term is defined in the UCC.

“ Investment Property ” means any “investment property”, as such term is defined in the UCC.

“ Liabilities ” means all obligations, liabilities and indebtedness of every nature of Debtors from time to time owed or owing under or in respect of this Agreement, the Note Purchase Agreement, the Notes, the Account Control Agreements, the Pledge Agreement, the Subsidiary Guaranty, any of the other Security Documents and any of the other Transaction Documents, as the case may be, including, without limitation, the principal amount of all debts, claims and indebtedness, accrued and unpaid interest and all fees, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and/or from time to time hereafter owing, due or payable whether before or after the filing of a bankruptcy, insolvency or similar proceeding under applicable federal, state, foreign or other law and whether or not an allowed claim in any such proceeding.

“ Lien ” has the meaning set forth in the Note Purchase Agreement.

“ Motor Vehicles ” shall mean motor vehicles, tractors, trailers and other like property, whether or not the title thereto is governed by a certificate of title or ownership. The term “Motor Vehicles” shall specifically include mobile drilling rigs.

“ Patents ” means any patents and patent applications, including, without limitation, the inventions and improvements described and claimed therein, all patentable inventions and those patents and patent applications listed on Schedule IV attached hereto (if any), and the reissues, divisions, continuations, renewals, extensions and continuations-in-part of any of the foregoing, and all income, royalties, damages and payments now or hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation, damages and payments for past, present and future infringements of any of the foregoing and the right to sue for past, present and future infringements of any of the foregoing.

“ Permitted Encumbrance ” has the meaning set forth in the Note Purchase Agreement.

“ Proceeds ” means “proceeds,” as such term is defined in the UCC and, in any event, includes, without limitation, (a) any and all proceeds of any insurance, indemnity, warranty or guaranty payable with respect to any of the Collateral, (b) any and all payments (in any form whatsoever) made or due and payable from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any Governmental Authority (or any person acting under color of Governmental Authority), and (c) any and all other amounts from time to time paid or payable under, in respect of or in connection with any of the Collateral.

“ Representative ” means any Person acting as agent, representative or trustee on behalf of the Secured Party from time to time.

“ Security Documents ” means this Agreement, the Subsidiary Guaranty, the Account Control Agreements, the Pledge Agreement, the Trademark Security Agreement by USELL in favor of the Secured Party, and any other documents securing the Liens of the Secured Party hereunder.

“ Software ” means all “software” as such term is defined in the UCC, now owned or hereafter acquired by a Debtor, other than software embedded in any category of Goods, including, without limitation, all computer programs and all supporting information provided in connection with a transaction related to any program.

“ Trademarks ” means any trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos, other business identifiers, prints and labels on which any of the foregoing have appeared or appear, all registrations and recordings thereof, and all applications in connection therewith, including, without limitation, the trademarks and applications listed in Schedule V attached hereto (if any) and renewals thereof, and all income, royalties, damages and payments now or hereafter due and/or payable under or with respect to any of the foregoing, including, without limitation, damages and payments for past, present and future infringements of any of the foregoing and the right to sue for past, present and future infringements of any of the foregoing.

“ Transaction Documents ” means the Note Purchase Agreement, the Notes, the Security Documents and the other Related Agreements.

“ UCC ” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided, that to the extent that the Uniform Commercial Code is used to define any term herein and such term is defined differently in different Articles or Divisions of the Uniform Commercial Code, the definition of such term contained in Article or Division 9 shall govern.

Section 2. Representations, Warranties and Covenants of Debtors . Each Debtor represents and warrants to, and covenants with, the Secured Party as follows:

(a) Such Debtor has or will have rights in and the power to transfer the Collateral in which it purports to grant a security interest pursuant to Section 3 hereof (subject, with respect to after acquired Collateral, to such Debtor acquiring the same) and no Lien other than Permitted Encumbrances exists or will exist upon such Collateral at any time.

(b) This Agreement is effective to create in favor of Secured Party a valid security interest in and Lien upon all of such Debtor’s right, title and interest in and to the Collateral, and upon (i) the filing of appropriate UCC financing statements in the jurisdictions listed on Schedule I attached hereto, (ii) each Deposit Account being subject to an Account Control Agreement (as hereinafter defined) between the applicable Debtor and depository institution and the Secured Party on behalf of Purchasers, (iii) filings in the United States Patent and Trademark Office, or United States Copyright Office with respect to Collateral that is Patents and Trademarks, or Copyrights, as the case may be, (iv) the filing of the Mortgages in the jurisdictions listed on Schedule I hereto, (v) the delivery to the Secured Party of the Pledged Collateral together with assignments in blank, (vi) the security interest created hereby being noted on each certificate of title evidencing the ownership of any Motor Vehicle in accordance with Section 4.1(d) hereof and (vii) delivery to the Secured Party or its Representative of Instruments duly endorsed by such Debtor or accompanied by appropriate instruments of transfer duly executed by such Debtor with respect to Instruments not constituting Chattel Paper, such security interest will be a duly perfected first priority perfected security interest (subject to Permitted Encumbrances) in all of the Collateral.

(c) All of the Equipment, Inventory and Goods owned by such Debtor is located at the places as specified on Schedule I attached hereto. Except as disclosed on Schedule I , none of the Collateral is in the possession of any bailee, warehousemen, processor or consignee. Schedule I discloses such Debtor’s name as of the date hereof as it appears in official filings in the state or province, as applicable, of its incorporation, formation or organization, the type of entity of such Debtor (including corporation, partnership, limited partnership or limited liability company), organizational identification number issued by such Debtor’s state of incorporation, formation or organization (or a statement that no such number has been issued), such Debtor’s state or province, as applicable, of incorporation, formation or organization and the chief place of business, chief executive office and the office where such Debtor keeps its books and records and the states in which such Debtor conducts its business. Such Debtor has only one state or province, as applicable, of incorporation, formation or organization. Such Debtor does not do business and has not done business during the past five (5) years under any trade name or fictitious business name except as disclosed on Schedule II attached hereto.

(d) No Copyrights, Patents or Trademarks listed on Schedules III, IV and V , respectively, if any, have been adjudged invalid or unenforceable or have been canceled, in whole or in part, or are not presently subsisting. Each of such Copyrights, Patents and Trademarks (if any) is valid and enforceable. Such Debtor is the sole and exclusive owner of the entire and unencumbered right, title and interest in and to each of such Copyrights, Patents and Trademarks, identified on Schedules III, IV and V , as applicable, as being owned by such Debtor, free and clear of any liens, charges and encumbrances, including without limitation licenses, shop rights and covenants by such Debtor not to sue third persons. Such Debtor has adopted, used and is currently using, or has a current bona fide intention to use, all of such Trademarks and Copyrights. Such Debtor has no notice of any suits or actions commenced or threatened with reference to the Copyrights, Patents or Trademarks owned by it.

(e) Each Debtor agrees to deliver to the Secured Party an updated Schedule I, II, III, IV and/or V within five (5) Business Days of any change thereto.

(f) All depositary and other accounts including, without limitation, Deposit Accounts, securities accounts, brokerage accounts and other similar accounts, maintained by each Debtor are described on Schedule VI hereto, which description includes for each such account the name of the Debtor maintaining such account, the name, address and telephone and telecopy numbers of the financial institution at which such account is maintained, the account number and the account officer, if any, of such account. No Debtor shall open any new Deposit Accounts, securities accounts, brokerage accounts or other accounts unless such Debtor shall have given Secured Party ten (10) Business Days’ prior written notice of its intention to open any such new accounts. Each Debtor shall deliver to Secured Party a revised version of Schedule VI showing any changes thereto within five (5) Business Days of any such change. Each Debtor hereby authorizes the financial institutions at which such Debtor maintains an account to provide Secured Party with such information with respect to such account as Secured Party from time to time reasonably may request, and each Debtor hereby consents to such information being provided to Secured Party. In addition, all of such Debtor’s depositary, security, brokerage and other accounts including, without limitation, Deposit Accounts shall be subject to the provisions of Section 4.5 hereof.

(g) Such Debtor does not own any Commercial Tort Claim except for those disclosed on Schedule VII hereto (if any).

(h) Such Debtor does not have any interest in real property with respect to real property except as disclosed on Schedule VIII (if any). Each Debtor shall deliver to Secured Party a revised version of Schedule VIII showing any changes thereto within ten (10) Business Days of any such change. Except as otherwise agreed to by Secured Party, all such interests in real property with respect to such real property are subject to a mortgage and deed of trust (in form and substance satisfactory to Secured Party) in favor of Secured Party (hereinafter, a “ Mortgage ”).

(i) Each Debtor shall duly and properly record each interest in real property held by such Debtor except with respect to easements, rights of way, access agreements, surface damage agreements, surface use agreements or similar agreements that such Debtor, using prudent customs and practices in the industry in which it operates, does not believe are of material value or material to the operation of such Debtor’s business or, with respect to state and federal rights of way, are not capable of being recorded as a matter of state and federal law.

(j) All Equipment (including, without limitation, Motor Vehicles) owned by a Debtor and subject to a certificate of title or ownership statute is described on Schedule IX hereto.

Section 3. Collateral . As collateral security for the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Liabilities, each Debtor hereby pledges and grants to the Secured Party, for the benefit of itself and each Purchaser, a Lien on and security interest in and to all of such Debtor’s right, title and interest in the following properties and assets of such Debtor, whether now owned by such Debtor or hereafter acquired and whether now existing or hereafter coming into existence and wherever located (all being collectively referred to herein as “ Collateral ”):

(a) all Instruments, together with all payments thereon or thereunder:

(b) all Accounts;

(d) all General Intangibles (including payment intangibles (as defined in the UCC) and Software);

(e) all Equipment;

(f) all Documents;

(g) all Contracts;

(h) all Goods;

(i) all Investment Property, including without limitation all equity interests now owned or hereafter acquired by such Debtor;

(j) all Deposit Accounts, including, without limitation, the balance from time to time in all bank accounts maintained by such Debtor;

(k) all Commercial Tort Claims specified on Schedule VII ;

(l) all Trademarks, Patents and Copyrights;

(m) all books and records pertaining to the other Collateral; and

(n) all other tangible and intangible property of such Debtor, including, without limitation, all interests in real property, Proceeds, tort claims, products, accessions, rents, profits, income, benefits, substitutions, additions and replacements of and to any of the property of such Debtor described in the preceding clauses of this Section 3 (including, without limitation, any proceeds of insurance thereon, insurance claims and all rights, claims and benefits against any Person relating thereto), other rights to payments not otherwise included in the foregoing, and all books, correspondence, files, records, invoices and other papers, including without limitation all tapes, cards, computer runs, computer programs, computer files and other papers, documents and records in the possession or under the control of such Debtor, any computer bureau or service company from time to time acting for such Debtor.

Notwithstanding anything to the contrary contained herein or in any Transaction Document, in no event shall the security interest granted herein or therein attach to any Excluded Assets.

Section 4. Covenants; Remedies . In furtherance of the grant of the pledge and security interest pursuant to Section 3 hereof, each Debtor hereby agrees with the Secured Party as follows:

4.1 Delivery and Other Perfection; Maintenance, etc.

(a) Delivery of Instruments, Documents, Etc . Each Debtor shall deliver and pledge to the Secured Party or its Representative any and all Instruments, negotiable Documents, Chattel Paper and certificated securities (accompanied by stock powers executed in blank, which stock powers may be filled in and completed at any time upon the occurrence of any Event of Default) duly endorsed and/or accompanied by such instruments of assignment and transfer executed by such Debtor in such form and substance as the Secured Party or its Representative may request; provided , that so long as no Event of Default shall have occurred and be continuing, each Debtor may retain for collection in the ordinary course of business any Instruments, negotiable Documents and Chattel Paper received by such Debtor in the ordinary course of business, and the Secured Party or its Representative shall, promptly upon request of a Debtor, make appropriate arrangements for making any other Instruments, negotiable Documents and Chattel Paper pledged by such Debtor available to such Debtor for purposes of presentation, collection or renewal (any such arrangement to be effected, to the extent deemed appropriate by the Secured Party or its Representative, against a trust receipt or like document). If a Debtor retains possession of any Chattel Paper, negotiable Documents or Instruments pursuant to the terms hereof, such Chattel Paper, negotiable Documents and Instruments shall be marked with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the security interest of XXXX, in its capacity as Agent for the benefit of Purchasers, as secured party.”

(b) Other Documents and Actions . Each Debtor shall give, execute, deliver, file and/or record any financing statement, registration, notice, instrument, document, agreement, Mortgage or other papers that may be necessary or desirable (in the reasonable judgment of the Secured Party or its Representative) to create, preserve, perfect or validate the security interest granted pursuant hereto (or any security interest or mortgage contemplated or required hereunder, including with respect to Section 2(h) of this Agreement) or to enable the Secured Party or its Representative to exercise and enforce the rights of the Secured Party hereunder with respect to such pledge and security interest, provided that notices to account debtors in respect of any Accounts or Instruments shall be subject to the provisions of clause (e) below. Notwithstanding the foregoing each Debtor hereby irrevocably authorizes the Secured Party at any time and from time to time to file in any filing office in any jurisdiction any initial financing statements (and other similar filings or registrations under other applicable laws and regulations pertaining to the creation, attachment, or perfection of security interests) and amendments thereto that (a) indicate the Collateral (i) as all assets of such Debtor or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC, or (ii) as being of an equal or lesser scope or with greater detail, and (b) contain any other information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether such Debtor is an organization, the type of organization and any organization identification number issued to such Debtor, and (ii) in the case of a financing statement filed as a fixture filing, a sufficient description of real property to which the Collateral relates. Each Debtor agrees to furnish any such information to the Secured Party promptly upon request. Each Debtor also ratifies its authorization for the Secured Party to have filed in any jurisdiction any like initial financing statements or amendments thereto if filed prior to the date hereof.

(c) Books and Records . Each Debtor (or a Company on behalf of a Debtor) shall maintain at its own cost and expense complete and accurate books and records of the Collateral, including, without limitation, a record of all payments received and all credits granted with respect to the Collateral and all other dealings with the Collateral. Upon the occurrence and during the continuation of any Event of Default, each Debtor shall deliver and turn over any such books and records (or true and correct copies thereof) to the Secured Party or its Representative at any time on demand. Each Debtor shall permit any Representative of the Secured Party, in accordance with Section 8.13 of the Note Purchase Agreement, to inspect such books and records at any time during reasonable business hours and will provide photocopies thereof at such Debtor’s expense to the Secured Party upon request of the Secured Party.

(d) Motor Vehicles . Each Debtor shall, promptly upon acquiring same, cause the Secured Party to be listed as the lienholder on each certificate of title or ownership covering any items of Equipment, including Motor Vehicles, having a value in excess of $50,000 individually or in the aggregate for all such items of Equipment of the Debtor, or otherwise comply with the certificate of title or ownership laws of the relevant jurisdiction issuing such certificate of title or ownership in order to properly evidence and perfect Secured Party’s security interest in the assets represented by such certificate of title or ownership.

(e) Notice to Account Debtors; Verification . (i) Upon the occurrence and during the continuance of any Event of Default (or if any rights of set-off (other than set-offs against an Account arising under the Contract giving rise to the same Account) or contra accounts may be asserted, upon request of the Secured Party or its Representative, each Debtor shall promptly notify (and each Debtor hereby authorizes the Secured Party and its Representative so to notify) each account debtor in respect of any Accounts or Instruments or other Persons obligated on the Collateral that such Collateral has been assigned to the Secured Party hereunder, and that any payments due or to become due in respect of such Collateral are to be made directly to the Secured Party, and (ii) the Secured Party and its Representative shall have the right at any time or times to make direct verification with the account debtors or other Persons obligated on the Collateral of any and all of the Accounts or other such Collateral.

(f) Intellectual Property . Each Debtor represents and warrants that the Copyrights, Patents and Trademarks listed on Schedules III, IV and V , respectively (if any), constitute all of the registered Copyrights and all of the Patents and Trademarks now owned by such Debtor. If such Debtor shall (i) obtain rights to any new patentable inventions, any registered Copyrights or any Patents or Trademarks, or (ii) become entitled to the benefit of any registered Copyrights or any Patents or Trademarks or any improvement on any Patent, the provisions of this Agreement above shall automatically apply thereto and such Debtor shall give to Secured Party prompt written notice thereof. Each Debtor hereby authorizes Secured Party to modify this Agreement by amending Schedules III, IV and V , as applicable, to include any such registered Copyrights or any such Patents and Trademarks. Each Debtor shall have the duty (i) to prosecute diligently any patent, trademark, or service mark applications pending as of the date hereof or hereafter, (ii) to preserve and maintain all rights in the Copyrights, Patents and Trademarks, to the extent material to the operations of the business of such Debtor and (iii) to ensure that the Copyrights, Patents and Trademarks are and remain enforceable, to the extent material to the operations of the business of such Debtor. Any expenses incurred in connection with such Debtor’s obligations under this Section 4.1(f) shall be borne by such Debtor. Except for any such items that a Debtor reasonably believes (using prudent industry customs and practices) are no longer necessary for the on-going operations of its business, no Debtor shall abandon any material right to file a patent, trademark or service mark application, or abandon any pending patent, trademark or service mark application or any other Copyright, Patent or Trademark without the prior written consent of Secured Party, which consent shall not be unreasonably withheld.

(g) Further Identification of Collateral . Each Debtor will, when and as often as requested by the Secured Party or its Representative, furnish to the Secured Party or such Representative, statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as the Secured Party or its Representative may reasonably request, all in reasonable detail.

(h) Investment Property . Each Debtor will take any and all actions required or requested by the Secured Party, from time to time, to (i) cause the Secured Party to obtain exclusive control of any Investment Property owned by such Debtor in a manner acceptable to the Secured Party and (ii) obtain from any issuers of Investment Property and such other Persons, for the benefit of the Secured Party, written confirmation of the Secured Party’s control over such Investment Property. For purposes of this Section 4.1(h) , the Secured Party shall have exclusive control of Investment Property if (i) such Investment Property consists of certificated securities and a Debtor delivers such certificated securities to the Secured Party (with appropriate endorsements if such certificated securities are in registered form); (ii) such Investment Property consists of uncertificated securities and either (x) a Debtor delivers such uncertificated securities to the Secured Party or (y) the issuer thereof agrees, pursuant to documentation in form and substance satisfactory to the Secured Party, that it will comply with instructions originated by the Secured Party without further consent by such Debtor, and (iii) such Investment Property consists of security entitlements and either (x) the Secured Party becomes the entitlement holder thereof or (y) the appropriate securities intermediary agrees, pursuant to the documentation in form and substance satisfactory to the Secured Party, that it will comply with entitlement orders originated by the Secured Party without further consent by any Debtor.

(i) Commercial Tort Claims . Each Debtor shall promptly notify Secured Party of any Commercial Tort Claim acquired by it that concerns a claim in excess of $50,000 and unless otherwise consented to by Secured Party, such Debtor shall enter into a supplement to this Agreement granting to Secured Party a Lien on and security interest in such Commercial Tort Claim.

4.2 Other Liens . Debtors will not create, permit or suffer to exist, and will defend the Collateral against and take such other action as is necessary to remove, any Lien on the Collateral except Permitted Encumbrances, and will defend the right, title and interest of the Secured Party in and to the Collateral and in and to all Proceeds thereof against the claims and demands of all Persons whatsoever.

4.3 Preservation of Rights . Whether or not any Event of Default has occurred or is continuing, the Secured Party and its Representative may, but shall not be required to, take any steps the Secured Party or its Representative deems necessary or appropriate to preserve any Collateral or any rights against third parties to any of the Collateral, including obtaining insurance for the Collateral at any time when such Debtor has failed to do so, and Debtors shall promptly pay, or reimburse the Secured Party for, all expenses incurred in connection therewith.

4.4 Formation of Subsidiaries; Name Change; Location; Bailees .

(a) No Debtor shall form or acquire any subsidiary (other than SPE) unless (i) such Debtor pledges all of the stock or equity interests of such subsidiary to the Secured Party pursuant to an agreement in a form agreed to by the Secured Party, (ii) such subsidiary becomes a party to this Agreement and all other applicable Security Documents and (iii) the formation or acquisition of such Subsidiary is not prohibited by the terms of the Transaction Documents.

(b) No Debtor shall (i) reincorporate or reorganize itself under the laws of any jurisdiction other than the jurisdiction in which it is incorporated or organized as of the date hereof, or (ii) otherwise change its name, identity or corporate structure, in each case, without the prior written consent of Secured Party, which consent shall not be unreasonably withheld. Each Debtor will notify Secured Party promptly in writing prior to any such change in the proposed use by such Debtor of any tradename or fictitious business name other than any such name set forth on Schedule II attached hereto.

(c) Except for the sale of Inventory in the ordinary course of business and other sales of assets expressly permitted by the terms of the Note Purchase Agreement, each Debtor will keep the Collateral at the locations specified in Schedule I . Each Debtor will give Secured Party thirty (30) day’s prior written notice of any change in such Debtor’s chief place of business or of any new location for any of the Collateral.

(d) If any Collateral is at any time in the possession or control of any warehousemen, bailee, consignee or processor, such Debtor shall promptly notify Secured Party of such fact and, upon the request of Secured Party or its Representative, notify such warehousemen, bailee, consignee or processor of the Lien and security interest created hereby and shall instruct such Person to hold all such Collateral for Secured Party’s account subject to Secured Party’s instructions.

(e) Each Debtor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement without the prior written consent of Secured Party and agrees that it will not do so without the prior written consent of Secured Party, subject to such Debtor’s rights under Section 9-509(d)(2) to the UCC.

(f) No Debtor shall enter into any Contract that restricts or prohibits the grant to Secured Party of a security interest in Accounts, Chattel Paper, Instruments or payment intangibles or the proceeds of the foregoing.

4.5 Bank Accounts and Securities Accounts .

(a) On or prior to the date hereof, the Secured Party and each Debtor, as applicable, shall enter into an account control agreement or securities account control agreement, as applicable (each an “ Account Control Agreement ”), in a form reasonably acceptable to the Secured Party, with each financial institution with which such Debtor maintains from time to time any Deposit Accounts (general or special), securities accounts, brokerage accounts or other similar accounts, which financial institutions are set forth on Schedule VI attached hereto. Pursuant to the Account Control Agreements and pursuant hereto, each such Debtor grants and shall grant to the Secured Party a continuing lien upon, and security interest in, all such accounts and all funds at any time paid, deposited, credited or held in such accounts (whether for collection, provisionally or otherwise) or otherwise in the possession of such financial institutions, and each such financial institution shall act as the Secured Party’s agent in connection therewith. Following the Closing Date, no Debtor shall establish any Deposit Account, securities account, brokerage account or other similar account with any financial institution unless prior thereto the Secured Party and such Debtor shall have entered into an Account Control Agreement with such financial institution which purports to cover such account. Each Debtor shall deposit and keep on deposit all of its funds into a Deposit Account which is subject to an Account Control Agreement.

(b) Each Debtor shall comply with all cash management terms and provisions applicable to a Company under Section 5.1 of the Note Purchase Agreement. Upon and during the continuance of an Event of Default, subject to the foregoing, each Debtor hereby agrees that all payments received by the Secured Party whether by cash, check, wire transfer or any other instrument, or otherwise received by the Secured Party and whether in respect of the Accounts or as proceeds of other Collateral or otherwise will be the sole and exclusive property of the Secured Party. Each Debtor, and any of its Affiliates, employees, agents and other Persons acting for or in concert with such Debtor shall, acting as trustee for the Secured Party, receive, as the sole and exclusive property of the Secured Party, any moneys, checks, notes, drafts or other payments relating to and/or proceeds of Accounts or other Collateral which come into the possession or under the control of such Debtor or any Affiliates, employees, agent or other Persons acting for or in concert with such Debtor, and immediately upon receipt thereof, such Debtor or Persons shall deposit the same or cause the same to be deposited in kind, in compliance with Section 5.1 of the Note Purchase Agreement.

4.6 Events of Default, Etc. During the period during which an Event of Default shall have occurred and be continuing:

(a) each Debtor shall, at the request of the Secured Party or its Representative, assemble the Collateral and make it available to Secured Party or its Representative at a place or places designated by the Secured Party or its Representative which are reasonably convenient to Secured Party or its Representative, as applicable, and such Debtor;

(b) the Secured Party or its Representative may make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of payment, arrange for payment in installments, or otherwise modify the terms of, any of the Collateral;

(c) the Secured Party shall have all of the rights and remedies with respect to the Collateral of a secured party under the UCC (whether or not said UCC is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including, without limitation, the right, to the maximum extent permitted by law, to: (i) exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if the Secured Party were the sole and absolute owner thereof (and each Debtor agrees to take all such action as may be appropriate to give effect to such right) and (ii) to the appointment of a receiver or receivers for all or any part of the Collateral or business of a Debtor, whether such receivership be incident to a proposed sale or sales of such Collateral or otherwise and without regard to the value of the Collateral or the solvency of any person or persons liable for the payment of the Liabilities secured by such Collateral. Each Debtor hereby consents to the appointment of such receiver or receivers, waives any and all defenses to such appointment and agrees that such appointment shall in no manner impair, prejudice or otherwise affect the rights of Secured Party under this Agreement. Each Debtor hereby expressly waives notice of a hearing for appointment of a receiver and the necessity for bond or an accounting by the receiver;

(d) the Secured Party or its Representative in its discretion may, in the name of the Secured Party or in the name of a Debtor or otherwise, demand, sue for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral, but shall be under no obligation to do so;

(e) the Secured Party or its Representative may take immediate possession and occupancy of any premises owned, used or leased by a Debtor and exercise all other rights and remedies which may be available to the Secured Party;

(f) the Secured Party may, upon reasonable notice (such reasonable notice to be determined by Secured Party in its sole and absolute discretion, which shall not be less than ten (10) days), with respect to the Collateral or any part thereof which shall then be or shall thereafter come into the possession, custody or control of the Secured Party or its Representative, sell, lease, license, assign or otherwise dispose of all or any part of such Collateral, at such place or places as the Secured Party deems best, and for cash or for credit or for future delivery (without thereby assuming any credit risk), at public or private sale, without demand of performance or notice of intention to effect any such disposition or of the time or place thereof (except such notice as is required above or by applicable statute and cannot be waived), and the Secured Party or anyone else may be the purchaser, lessee, licensee, assignee or recipient of any or all of the Collateral so disposed of at any public sale (or, to the extent permitted by law, at any private sale) and thereafter hold the same absolutely, free from any claim or right of whatsoever kind, including any right or equity of redemption (statutory or otherwise), of Debtors, any such demand, notice and right or equity being hereby expressly waived and released. The Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the sale may be so adjourned; and

(g) the rights, remedies and powers conferred by this Section 4.6 are in addition to, and not in substitution for, any other rights, remedies or powers that the Secured Party may have under any Transaction Document, at law, in equity or by or under the UCC or any other statute or agreement. The Secured Party may proceed by way of any action, suit or other proceeding at law or in equity and no right, remedy or power of the Secured Party will be exclusive of or dependent on any other. The Secured Party may exercise any of its rights, remedies or powers separately or in combination and at any time.

The proceeds of each collection, sale or other disposition under this Section 4.6 shall be applied in accordance with Section 4.9 hereof.

4.7 Deficiency . If the proceeds of sale, collection or other realization of or upon the Collateral are insufficient to cover the costs and expenses of such realization and the payment in full of the Liabilities, Debtors shall remain jointly and severally liable for any deficiency.

4.8 Private Sale . Each Debtor recognizes that the Secured Party may be unable to effect a public sale of any or all of the Collateral consisting of securities by reason of certain prohibitions contained in the Securities Act of 1933, as amended (the “ Act ”), and applicable state securities laws, but may be compelled to resort to one or more private sales thereof to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such Collateral for their own account for investment and not with a view to the distribution or resale thereof. Each Debtor acknowledges and agrees that any such private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale and each Debtor agrees that it is not commercially unreasonable for Secured Party to engage in any such private sales or dispositions under such circumstances. The Secured Party shall be under no obligation to delay a sale of any of the Collateral to permit a Debtor to register such Collateral for public sale under the Act, or under applicable state securities laws, even if Debtors would agree to do so. The Secured Party shall not incur any liability as a result of the sale of any such Collateral, or any part thereof, at any private sale provided for in this Agreement conducted in a commercially reasonable manner, and so long as Secured Party conducts such sale in a commercially reasonable manner each Debtor hereby waives any claims against the Secured Party arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale or was less than the aggregate amount of the Liabilities, even if the Secured Party accepts the first offer received and does not offer the Collateral to more than one offeree.

Each Debtor further agrees to do or cause to be done all such other acts and things as may be necessary to make such sale or sales of any portion or all of any such Collateral valid and binding and in compliance with any and all applicable laws, regulations, orders, writs, injunctions, decrees or awards of any and all courts, arbitrators or governmental instrumentalities, domestic or foreign, having jurisdiction over any such sale or sales, all at such Debtor’s expense. Each Debtor further agrees that a breach of any of the covenants contained in this Section 4.8 will cause irreparable injury to the Secured Party, that the Secured Party has no adequate remedy at law in respect of such breach and, as a consequence, agrees that each and every covenant contained in this Section 4.8 shall be specifically enforceable against Debtors, and each Debtor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred and is continuing.

4.9 Application of Proceeds . The proceeds of any collection, sale or other realization of all or any part of the Collateral, and any other cash at the time held by the Secured Party under this Agreement, shall be applied to the Liabilities in such order as Secured Party shall elect.

4.10 Attorney-in-Fact. Each Debtor hereby irrevocably constitutes and appoints the Secured Party, 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 such Debtor and in the name of such Debtor or in its own name, from time to time in the discretion of the Secured Party, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute and deliver any and all documents and instruments which may be necessary or desirable to perfect or protect any security interest granted hereunder, to maintain the perfection or priority of any security interest granted hereunder, or to otherwise accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, hereby gives the Secured Party the power and right, on behalf of such Debtor, without notice to or assent by such Debtor (to the extent permitted by applicable law), to do the following:

(a) to take any and all appropriate action and to execute and deliver any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement;

(b) upon the occurrence and during the continuation of an Event of Default, to ask, demand, collect, receive and give acquittance and receipts for any and all moneys due and to become due under any Collateral and, in the name of such Debtor or its own name or otherwise, to take possession of and endorse and collect any checks, drafts, notes, acceptances or other Instruments for the payment of moneys due under any Collateral and to file any claim or to take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Secured Party for the purpose of collecting any and all such moneys due under any Collateral whenever payable and to file any claim or to take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by the Secured Party for the purpose of collecting any and all such moneys due under any Collateral whenever payable;

(c) to pay or discharge charges or liens levied or placed on or threatened against the Collateral, to effect any insurance called for by the terms of this Agreement and to pay all or any part of the premiums therefor;

(d) to direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due, and to become due thereunder, directly to the Secured Party or as the Secured Party shall direct, and to receive payment of and receipt for any and all moneys, claims and other amounts due, and to become due at any time, in respect of or arising out of any Collateral;

(e) upon the occurrence and during the continuation of an Event of Default, to sign and indorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications and notices in connection with accounts and other Documents constituting or relating to the Collateral;

(f) upon the occurrence and during the continuation of an Event of Default, to commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any part thereof and to enforce any other right in respect of any Collateral;

(g) upon the occurrence and during the continuation of an Event of Default, to defend any suit, action or proceeding brought against a Debtor with respect to any Collateral;

(h) upon the occurrence and during the continuation of an Event of Default, to settle, compromise or adjust any suit, action or proceeding described above and, in connection therewith, to give such discharges or releases as the Secured Party may deem appropriate;

(i) to the extent that a Debtor’s authorization given in Section 4.1(b) of this Agreement is not sufficient to file such financing statements with respect to this Agreement, with or without such Debtor’s signature, or to file a photocopy of this Agreement in substitution for a financing statement, as the Secured Party may deem appropriate and to execute in such Debtor’s name such financing statements and amendments thereto and continuation statements which may require such Debtor’s signature;

(j) upon the occurrence and during the continuation of an Event of Default, generally to sell, transfer, pledge, make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though the Secured Party were the absolute owners thereof for all purposes; and

(k) to do, at the Secured Party’s option and at such Debtor’s expense, at any time, or from time to time, all acts and things which the Secured Party reasonably deems necessary to protect or preserve or, upon the occurrence and during the continuation of an Event of Default, realize upon the Collateral and the Secured Party’s lien therein, in order to effect the intent of this Agreement, all as fully and effectively as such Debtor might do.

Each Debtor hereby ratifies, to the extent permitted by law, all that such attorneys lawfully do or cause to be done by virtue hereof provided the same is performed in a commercially reasonable manner. The power of attorney granted hereunder is a power coupled with an interest and shall be irrevocable until the Liabilities are indefeasibly paid in full in cash and this Agreement is terminated in accordance with Section 4.12 hereof.

Each Debtor also authorizes the Secured Party, at any time from and after the occurrence and during the continuation of any Event of Default, (x) to communicate in its own name with any party to any Contract with regard to the assignment of the right, title and interest of such Debtor in and under the Contracts hereunder and other matters relating thereto and (y) to execute, in connection with any sale of Collateral provided for in Section 4.6 hereof, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral.

4.11 Perfection. Prior to or concurrently with the execution and delivery of this Agreement, each Debtor shall:

(a) file such financing statements, assignments for security and other documents in such offices as may be necessary or as the Secured Party or the Representative may request to perfect the security interests granted by Section 3 of this Agreement;

(b) at Secured Party’s request, deliver to the Secured Party or its Representative the originals of all Instruments together with, in the case of Instruments constituting promissory notes, allonges attached thereto showing such promissory notes to be payable to the order of a blank payee;

(c) deliver to the Secured Party or its Representative an Account Control Agreement for each Deposit Account owned by such Debtor, acceptable in all respects to Secured Party, duly executed by the applicable Debtor and the financial institution at which such Debtor maintains such Deposit Account; and

(d) deliver to the Secured Party or its Representative the originals of all Motor Vehicle Titles, duly endorsed indicating the Secured Party’s interest therein as a lienholder, together with such other documents as may be required consistent with Section 4.1(d) hereof to perfect the security interest granted by Section 3 in all such Motor Vehicles (if any).

4.12 Termination; Partial Release of Collateral . This Agreement and the Liens and security interests granted hereunder shall not terminate until the termination of the Note Purchase Agreement and the Notes and the full and complete performance and indefeasible satisfaction of all the Liabilities (i) in respect of the Transaction Documents (including, without limitation, the indefeasible payment in full in cash of all such Liabilities) and (ii) with respect to which claims have been asserted by Agent and/or Purchasers, whereupon the Secured Party shall forthwith cause to be assigned, transferred and delivered, against receipt but without any recourse, warranty or representation whatsoever, any remaining Collateral to or on the order of Debtors. The Secured Party shall also execute and deliver to Debtors upon such termination and at Debtors’ expense such UCC termination statements, certificates for terminating the liens on the Motor Vehicles (if any) and such other documentation as shall be reasonably requested by Debtors to effect the termination and release of the Liens and security interests in favor of the Secured Party affecting the Collateral.

4.13 Further Assurances . At any time and from time to time, upon the written request of the Secured Party or its Representative, and at the sole expense of Debtors, Debtors will promptly and duly execute and deliver any and all such further instruments, documents and agreements and take such further actions as the Secured Party or its Representative may reasonably require in order for the Secured Party to obtain the full benefits of this Agreement and of the rights and powers herein granted in favor of the Secured Party, including, without limitation, using Debtors’ best efforts to secure all consents and approvals necessary or appropriate for the assignment to the Secured Party of any Collateral held by Debtors or in which a Debtor has any rights not heretofore assigned, the filing of any financing or continuation statements under the UCC with respect to the liens and security interests granted hereby, transferring Collateral to the Secured Party’s possession (if a security interest in such Collateral can be perfected by possession), placing the interest of the Secured Party as lienholder on the certificate of title of any Motor Vehicle, obtaining waivers of liens from landlords and mortgagees and delivering to Secured Party all such Account Control Agreements as Secured Party shall require duly executed by the applicable Debtor and the financial institution at which such Debtor maintains a Deposit Account covered by such Account Control Agreement. Each Debtor also hereby authorizes the Secured Party and its Representative to file any such financing or continuation statement without the signature of such Debtor to the extent permitted by applicable law.

4.14 Limitation on Duty of Secured Party . The powers conferred on the Secured Party under this Agreement are solely to protect the Secured Party’s interest on behalf of itself and Purchasers in the Collateral and shall not impose any duty upon it to exercise any such powers. The Secured Party shall be accountable only for amounts that it actually receives as a result of the exercise of such powers and neither the Secured Party nor its Representative nor any of their respective officers, directors, employees or agents shall be responsible to Debtors for any act or failure to act, except for gross negligence or willful misconduct. Without limiting the foregoing, the Secured Party and any Representative shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in their possession if such Collateral is accorded treatment substantially equivalent to that which the relevant Secured Party or any Representative, in its individual capacity, accords its own property consisting of the type of Collateral involved, it being understood and agreed that neither the Secured Party nor any Representative shall have any responsibility for taking any necessary steps (other than steps taken in accordance with the standard of care set forth above) to preserve rights against any Person with respect to any Collateral.

Also without limiting the generality of the foregoing, neither the Secured Party nor any Representative shall have any obligation or liability under any Contract or license by reason of or arising out of this Agreement or the granting to the Secured Party of a security interest therein or assignment thereof or the receipt by the Secured Party or any Representative of any payment relating to any Contract or license pursuant hereto, nor shall the Secured Party or any Representative be required or obligated in any manner to perform or fulfill any of the obligations of Debtors under or pursuant to any Contract or license, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payment received by it or the sufficiency of any performance by any party under any Contract or license, or to present or file any claim, or to take any action to collect or enforce any performance or the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.

Section 5. Miscellaneous .

5.1 No Waiver . No failure on the part of the Secured Party or any of its Representatives to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by the Secured Party or any of its Representatives of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The rights and remedies hereunder provided are cumulative and may be exercised singly or concurrently, and are not exclusive of any rights and remedies provided by law.

5.2 Governing Law . All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.

5.3 Notices . All notices, approvals, requests, demands and other communications hereunder shall be delivered or made in the manner set forth in, and shall be effective in accordance with the terms of, the Note Purchase Agreement; provided, that, to the extent any such communication (i) is being made or sent to a Debtor that is not a Company, such communication shall be effective as to such Debtor if made or sent to any Company in accordance with the foregoing or (ii) is being made or sent to Agent, such communication shall be made to Agent at the address set forth below Agent’s signature hereto. Debtors and Agent may change their respective notice addresses by written notice given to each other party five (5) days prior to the effectiveness of such change.

5.4 Amendments, Etc. The terms of this Agreement may be waived, altered or amended only by an instrument in writing duly executed by the Debtor sought to be charged or benefited thereby and the Secured Party. Any such amendment or waiver shall be binding upon the Secured Party and the Debtor sought to be charged or benefited thereby and their respective successors and assigns.

5.5 Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of each of the parties hereto, provided , that no Debtor shall assign or transfer its rights hereunder without the prior written consent of the Secured Party. Secured Party, in its capacity as Agent, may assign its rights hereunder without the consent of Debtors, in which event such assignee shall be deemed to be Secured Party hereunder with respect to such assigned rights; provided, so long as no Event of Default has occurred and is continuing, the Secured Party shall not assign any of its rights hereunder to a competitor of any Company.

5.6 Counterparts; Headings. This Agreement may be authenticated in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may authenticate this Agreement by signing any such counterpart. This Agreement may be authenticated by manual signature or facsimile, .pdf or similar electronic signature, all of which shall be equally valid. The headings in this Agreement are for convenience of reference only and shall not alter or otherwise affect the meaning hereof.

5.7 Severability. If any provision hereof is invalid and unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (a) the other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in favor of the Secured Party and its Representative in order to carry out the intentions of the parties hereto as nearly as may be possible and (b) the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.

5.8 SUBMISSION TO JURISDICTION; WAIVER OF VENUE; SERVICE OF PROCESS. EACH DEBTOR HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND EACH DEBTOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF SECURED PARTY TO BRING PROCEEDINGS AGAINST ANY DEBTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY A DEBTOR AGAINST SECURED PARTY, ANY PURCHASER OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK (AND SECURED PARTY AND PURCHASERS HEREBY SUBMIT TO THE JURISDICTION OF SUCH COURT). EACH DEBTOR HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH ACTION OR PROCEEDING BY MAILING BY REGISTERED OR CERTIFIED MAIL A COPY THEREOF TO SUCH DEBTOR AT THE ADDRESS FOR NOTICES TO IT IN ACCORDANCE WITH SECTION 5.3 OF THIS AGREEMENT AND AGREES THAT SUCH NOTICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT OF SECURED PARTY OR ANY PURCHASER TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.

5.9 WAIVER OF RIGHT TO TRIAL BY JURY. EACH DEBTOR AND SECURED PARTY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH DEBTOR AND SECURED PARTY AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION 5.9 AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

5.10 Joint and Several . The obligations, covenants and agreements of Debtors hereunder shall be the joint and several obligations, covenants and agreements of each Debtor, whether or not specifically stated herein without preferences or distinction among them.

5.11 Agent .

(a) Each Purchaser has pursuant to an Agency Agreement designated and appointed the Agent as the administrative agent of such Purchaser under this Agreement and the Related Agreements.

(b) Nothing in this Section 5.11 shall be deemed to limit or otherwise affect the rights of Secured Party or Purchasers to exercise any remedy provided in this Agreement or any other Transaction Document.

(c) If pursuant to any Related Agreement, Secured Party is given the discretion to allocate proceeds received by Secured Party pursuant to the exercise of remedies under the Related Agreements or at law or in equity (including without limitation with respect to any secured creditor remedies exercised against the Collateral and any other collateral security provided for under any Related Agreement), Secured Party shall apply such proceeds to the then outstanding Liabilities in such order as Secured Party shall elect.

5.12 No Strict Construction . The language used in this Agreement 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.

5.13 ENTIRE AGREEMENT; AMENDMENT . THIS AGREEMENT, TOGETHER WITH THE OTHER TRANSACTION DOCUMENTS, SUPERSEDES ALL OTHER PRIOR ORAL OR WRITTEN AGREEMENTS BETWEEN SECURED PARTY, THE DEBTORS, THEIR AFFILIATES AND PERSONS ACTING ON THEIR BEHALF WITH RESPECT TO THE MATTERS DISCUSSED HEREIN, AND THIS AGREEMENT, TOGETHER WITH THE OTHER TRANSACTION DOCUMENTS AND THE OTHER INSTRUMENTS REFERENCED HEREIN AND THEREIN, CONTAIN THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE MATTERS COVERED HEREIN AND THEREIN AND, EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR THEREIN, NEITHER THE SECURED PARTY NOR ANY DEBTOR MAKES ANY REPRESENTATION, WARRANTY, COVENANT OR UNDERTAKING WITH RESPECT TO SUCH MATTERS. AS OF THE DATE OF THIS AGREEMENT, THERE ARE NO UNWRITTEN AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE MATTERS DISCUSSED HEREIN. NO PROVISION OF THIS AGREEMENT MAY BE AMENDED, MODIFIED OR SUPPLEMENTED OTHER THAN BY AN INSTRUMENT IN WRITING SIGNED BY THE DEBTORS AND THE SECURED PARTY.

- Remainder of Page Intentionally Left Blank; Signature Page Follows -

IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement to be duly executed and delivered as of the day and year first above written.

DEBTORS:

USELL.COM, INC. ,			BST DISTRIBUTION, INC. ,
a Delaware corporation			a New York corporation

By:			By:
	Name:	Nikhil Raman		Name:	Brian Tepfer
	Title:	Chief Executive Officer		Title:	Chief Executive Officer

WE SELL CELLULAR LLC , a Delaware limited liability company			UPSTREAM PHONE COMPANY USA, INC. , a Delaware corporation

By:			By:
	Name:	Nikhil Raman		Name:	Nikhil Raman
	Title:	Manager		Title:	Chief Executive Officer

UPSTREAM PHONE HOLDINGS, INC. a Delaware corporation			HD CAPITAL HOLDINGS LLC , a Delaware limited liability company

By:			By:
	Name:	Nikhil Raman		Name:	Daniel Brauser
	Title:	Chief Executive Officer		Title:	Manager

SIGNATURE PAGE TO
SECURITY AGREEMENT

	SECURED PARTY :

	XXXXXX , a Delaware limited liability company, in its capacity as Agent for Purchasers

	By:
		Name:
		Title:

	Notice Address:

SIGNATURE PAGE TO
SECURITY AGREEMENT

Exhibit 10.8

SUBSIDIARY GUARANTY

This SUBSIDIARY GUARANTY (as amended, restated, supplemented, or otherwise modified and in effect from time to time, this “ Guaranty ”) is made as of this 13 day of January, 2017, jointly and severally, by usell.com, Inc., a Delaware corporation (“ usell ”), BST Distribution, Inc., a New York corporation (“ BST ”), WE SELL CELLULAR LLC, a Delaware limited liability company (“ We Sell ” and together with usell and BST, each a “ Company ” and collectively the “ Companies ”), HD Capital Holdings LLC, a Delaware limited liability company (“ HD Capital ”), Upstream Phone Company USA, Inc., a Delaware corporation (“ Upstream ”), and Upstream Phone Holdings, Inc., a Delaware corporation (“ Upstream Holdings ” and together with HD Capital, Upstream, and with each other person or entity who becomes a party to this Guaranty by execution of a joinder in the form of Exhibit A attached hereto, each referred to individually as a “ Guarantor ” and collectively as the “ Guarantors ”); in favor of XXXXXXXXXXX, a Delaware limited liability company, in its capacity as agent (together with its successors and assigns in such capacity, the “ Agent ”) for the benefit of the Purchasers (as defined below).

WITNESSETH:

WHEREAS , XXXX (“ Purchaser ”, and together with its successors and assigns and each other purchaser of a Note (as defined below) and their respective successors and assigns, individually and collectively, the “ Purchasers ”) have made, and may make, loans and certain other financial accommodations (collectively, the “ Loans ”) the Companies, as evidenced by those certain senior secured notes dated as of the Closing Date in an original aggregate principal amount of $8,660,000 (such notes, together with any promissory notes or other securities issued in exchange or substitution therefor or replacement thereof, and as any of the same may be amended, supplemented, restated or modified and in effect from time to time, the “ Notes ”);

WHEREAS , the Notes are being acquired by each Purchaser, together with their successors and assigns and each other purchaser of a Note and their respective successors and assigns, individually and collectively, the “ Purchasers ”, pursuant to a Note Purchase Agreement dated as of the date hereof among the Purchasers, the Companies and the Agent (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Note Purchase Agreement ”);

WHEREAS , pursuant to a Pledge Agreement dated as of the Closing Date by the usell, BST and Upstream Holdings in favor of the Agent, usell, BST and Upstream Holdings have pledged a lien on and security interest in all of the issued and outstanding equity interests owned by usell, BST and Upstream Holdings;

WHEREAS , pursuant to a Security Agreement dated as of the Closing Date (as the same may be amended, restated, supplemented or otherwise modified and in effect from time to time, the “ Security Agreement ”) by the “Debtors” (as defined therein) in favor of the Agent, such Debtors have granted the Agent, for its benefit and the benefit of the Purchasers, a first priority security interest in, lien upon and pledge of each of their rights in the Collateral (as defined in the Security Agreement); and

WHEREAS , the Guarantors are direct or indirect subsidiaries of the Companies and, as such, will derive substantial benefit and advantage from the Loans and other financial accommodations available to the Companies set forth in the Note Purchase Agreement, the Notes and the other Related Agreements (together, the “ Transaction Documents ”), and it will be to each Guarantor’s direct interest and economic benefit to assist the Companies in procuring said Loans and other financial accommodations from Purchasers.

NOW, THEREFORE , for and in consideration of the premises and in order to induce Purchasers to make the Loans, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby jointly and severally agrees as follows:

1. Definitions : Capitalized terms used herein without definition and defined in the Note Purchase Agreement are used herein as defined therein. In addition, as used herein:

“ Bankruptcy Code ” shall mean the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq. ), as amended and in effect from time to time thereunder.

“ Obligations ” shall mean (i) all obligations, liabilities and indebtedness of every nature of each Company from time to time owed or owing to the Purchasers and Agent arising under, out of or in connection with the Note Purchase Agreement, the Notes, the Loans and the other Transaction Documents, including, without limitation, the principal amount of all debts, claims and indebtedness, accrued and unpaid interest and all fees, taxes, indemnities, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and/or from time to time hereafter owing, due or payable, whether before or after the filing of a bankruptcy, insolvency or similar proceeding under applicable federal, state, foreign or other law and whether or not an allowed claim in any such proceeding, and (ii) all obligations, liabilities and indebtedness of every nature of any subsequent Guarantor from time to time owed or owing to the Purchasers and/or Agent, under or in respect of this Guaranty, the Pledge Agreement, the Security Agreement, the Note Purchase Agreement, the Notes, the Loans and the other Transaction Documents, as the case may be, including, without limitation, the principal amount of all debts, claims and indebtedness, accrued and unpaid interest and all fees, taxes, indemnities, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and/or from time to time hereafter owing, due or payable, whether before or after the filing of a bankruptcy, insolvency or similar proceeding under applicable federal, state, foreign or other law and whether or not an allowed claim in any such proceeding.

2. Guaranty of Payment .

(a) Each Guarantor, jointly and severally, hereby unconditionally and irrevocably guarantees the full and prompt payment and performance to Purchasers and Agent, on behalf of itself and in its capacity as agent for the benefit of Purchasers, when due, upon demand, at maturity or by reason of acceleration or otherwise and at all times thereafter, of any and all of the Obligations.

(b) Each Guarantor acknowledges that valuable consideration supports this Guaranty, including, without limitation, the consideration set forth in the recitals above, as well as any commitment to lend, extension of credit or other financial accommodation, whether heretofore or hereafter made by Purchasers to any Company; any extension, renewal or replacement of any of the Obligations; any forbearance with respect to any of the Obligations or otherwise; any cancellation of an existing guaranty; any purchase of any Company’s assets by any Purchaser or Agent; or any other valuable consideration.

(c) Each Guarantor agrees that all payments under this Guaranty shall be made in United States currency and in the same manner as provided for the Obligations.

(d) Notwithstanding any provision of this Guaranty to the contrary, it is intended that this Guaranty, and any interests, liens and security interests granted by Guarantors as security for this Guaranty, not constitute a “Fraudulent Conveyance” (as defined below) in the event that this Guaranty or such interest is subject to the Bankruptcy Code or any applicable fraudulent conveyance or fraudulent transfer law or similar law of any state. Consequently, Guarantors, Agent and Purchasers agree that if this Guaranty, or any such interests, liens or security interests securing this Guaranty, would, but for the application of this sentence, constitute a Fraudulent Conveyance, this Guaranty and each such lien and security interest shall be valid and enforceable only to the maximum extent that would not cause this Guaranty or such interest, lien or security interest to constitute a Fraudulent Conveyance, and this Guaranty shall automatically be deemed to have been amended accordingly at all relevant times. For purposes hereof, “ Fraudulent Conveyance ” means a fraudulent conveyance under Section 548 of the Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the provisions of any applicable fraudulent conveyance or fraudulent transfer law or similar law of any state, as in effect from time to time.

3. Costs and Expenses . Each Guarantor, jointly and severally, agrees to pay on demand, all reasonable costs and expenses of every kind incurred by any Purchaser or Agent: (a) in enforcing this Guaranty, (b) in collecting any of the Obligations from any Company or any Guarantor, (c) in realizing upon or protecting or preserving any collateral for this Guaranty or for payment of any of the Obligations, and (d) in connection with any amendment of, modification to, waiver or forbearance granted under, or enforcement or administration of any Transaction Document or for any other purpose in connection with any Transaction Document, in each case, to the extent Purchaser or Agent may take such action pursuant to the terms and conditions of this Agreement. “ Costs and expenses ” as used in the preceding sentence shall include, without limitation, reasonable attorneys’ fees incurred by any Purchaser or Agent in retaining legal counsel for advice, suit, appeal, any insolvency or other proceedings under the Bankruptcy Code or otherwise, or for any purpose specified in the preceding sentence.

Nature of Guaranty: Continuing, Absolute and Unconditional .

(a) This Guaranty is and is intended to be a continuing guaranty of payment of the Obligations, and not of collectibility, and is intended to be independent of and in addition to any other guaranty, endorsement, collateral or other agreement held by Purchasers or Agent therefor or with respect thereto, whether or not furnished by a Guarantor. None of Purchasers and Agent shall be required to prosecute collection, enforcement or other remedies against any Company, any other Guarantor or guarantor of the Obligations or any other person or entity, or to enforce or resort to any of the Collateral or other rights or remedies pertaining thereto, before calling on a Guarantor for payment. The obligations of each Guarantor to repay the Obligations hereunder shall be unconditional. Guarantor shall have no right to exercise any right of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which it may now or hereafter have against any Company in connection with this Guaranty until the termination of this Guaranty in accordance with Section 8 below, and hereby waives any benefit of, and any right to participate in, any security or collateral given to Purchasers to secure payment of the Obligations, and each Guarantor agrees that it will not take any action to enforce any obligations of any Company to such Guarantor prior to the Obligations being finally and irrevocably paid in full in cash, provided that, in the event of the bankruptcy or insolvency of any Company, to the extent the Obligations have not been finally and irrevocably paid in full in cash, Agent, for the benefit of itself and Purchasers, and Purchasers shall be entitled notwithstanding the foregoing, to file in the name of any Guarantor or in its own name a claim for any and all indebtedness owing to a Guarantor by such Company (exclusive of this Guaranty), vote such claim and to apply the proceeds of any such claim to the Obligations.

(b) For the further security of Purchasers and without in any way diminishing the liability of the Guarantors, following the occurrence and during the continuance of an Event of Default, all debts and liabilities, present or future of the Companies to the Guarantors and all monies received from any Company or for its account by the Guarantors in respect thereof shall be received in trust for Purchasers and Agent and promptly following receipt shall be paid over to Agent, for its benefit and in its capacity as Agent for the benefit of Purchasers, until all of the Obligations have been paid in full in cash. This assignment and postponement is independent of and severable from this Guaranty and shall remain in full effect whether or not any Guarantor is liable for any amount under this Guaranty.

(c) This Guaranty is absolute and unconditional and shall not be changed or affected by any representation, oral agreement, act or thing whatsoever, except as herein provided. This Guaranty is intended by the Guarantors to be the final, complete and exclusive expression of the guaranty agreement among the Companies (as limited by the express terms of this Guaranty), the Guarantors, the Agent and Purchasers. No modification or amendment of any provision of this Guaranty shall be effective against any party hereto unless in writing and signed by a duly authorized officer of such party. This Guaranty, together with the other Transaction Documents, supersedes all other prior oral or written agreements between each Purchaser, the Guarantors, the Agent, their Affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Guaranty, together with the other Transaction Documents and the other instruments referenced herein and therein, contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither any Guarantor, the Agent nor any Purchaser makes any representation, warranty, covenant or undertaking with respect to such matters. As of the date of this Guaranty, there are no unwritten agreement between the parties with respect to the matters discussed herein. No provision of this Guaranty may be amended, modified or supplemented other than by an instrument in writing signed by the parties hereto.

(d) Each Guarantor hereby releases each Company from all, and agrees not to assert or enforce (whether by or in a legal or equitable proceeding or otherwise) any “claims” (as defined in Section 101(5) of the Bankruptcy Code), whether arising under any law, ordinance, rule, regulation, order, policy or other requirement of any domestic or foreign Governmental Authority or any instrumentality or agency thereof, having jurisdiction over the conduct of its business or assets or otherwise, to which the Guarantors are or would at any time be entitled by virtue of its obligations hereunder, any payment made pursuant hereto or the exercise by any Purchaser or Agent of its rights with respect to the Collateral, including any such claims to which such Guarantors may be entitled as a result of any right of subrogation, exoneration or reimbursement.

Certain Rights and Obligations .

(a) Each Guarantor acknowledges and agrees that Purchasers and Agent, for its benefit and as agent for the benefit of Purchasers, may, without notice, demand or any reservation of rights against such Guarantor and without affecting such Guarantor’s obligations hereunder, from time to time:

(i) renew, extend, increase, accelerate or otherwise change the time for payment of, the terms of or the interest on the Obligations or any part thereof or grant other indulgences to any Company or others;

(ii) accept from any person or entity and hold collateral for the payment of the Obligations or any part thereof, and modify, exchange, enforce or refrain from enforcing, or release, compromise, settle, waive, subordinate or surrender, with or without consideration, such collateral or any part thereof;

(iii) accept and hold any endorsement or guaranty of payment of the Obligations or any part thereof, and discharge, release or substitute any such obligation of any such endorser or guarantor, or discharge, release or compromise any Guarantor, or any other person or entity who has given any security interest in any collateral as security for the payment of the Obligations or any part thereof, or any other person or entity in any way obligated to pay the Obligations or any part thereof, and enforce or refrain from enforcing, or compromise or modify, the terms of any obligation of any such endorser, guarantor, or person or entity;

(iv) dispose of any and all collateral securing the Obligations in its reasonable discretion, as it may deem appropriate, and direct the order or manner of such disposition and the enforcement of any and all endorsements and guaranties relating to the Obligations or any part thereof as Agent in its reasonable discretion may determine;

(v) subject to the terms of the Notes, determine the manner, amount and time of application of payments and credits, if any, to be made on all or any part of any component or components of the Obligations (whether principal, interest, fees, costs, and expenses, or otherwise), including, without limitation, the application of payments received from any source to the payment of indebtedness other than the Obligations even though Purchasers might lawfully have elected to apply such payments to the Obligations or to amounts which are not covered by this Guaranty; and

(vi) take advantage or refrain from taking advantage of any security or accept or make or refrain from accepting or making any compositions or arrangements when and in such manner as Agent, in its sole discretion, may deem appropriate;

and generally do or refrain from doing any act or thing which might otherwise, at law or in equity, release the liability of such Guarantor as a guarantor or surety in whole or in part, and in no case shall Purchasers or Agent be responsible or shall any Guarantor be released either in whole or in part for any act or omission in connection with Purchasers or Agent having sold any security at less than its value.

(b) Following the occurrence and during the continuance of an Event of Default, and upon demand by Agent, each Guarantor, jointly and severally, hereby agrees to pay the Obligations to the extent hereinafter provided and to the extent unpaid:

(i) without deduction by reason of any setoff, defense (other than payment) or counterclaim of any Company or any other Guarantor;

(ii) without requiring presentment, protest or notice of nonpayment or notice of default to any Guarantor, to any Company or to any other person or entity;

(iii) without demand for payment or proof of such demand or filing of claims with a court in the event of receivership, bankruptcy or reorganization of any Company or any other Guarantor;

(iv) without requiring Purchasers or Agent to resort first to any Company (this being a guaranty of payment and not of collection), to any other Guarantor, or to any other guaranty or any collateral which Purchasers or Agent may hold;

(v) without requiring notice of acceptance hereof or assent hereto by any Purchaser or Agent; and

(vi) without requiring notice that any of the Obligations has been incurred, extended or continued or of the reliance by any Purchaser or Agent upon this Guaranty;

all of which each Guarantor hereby waives.

(c) Each Guarantor’s obligation hereunder shall not be affected by any of the following, all of which such Guarantor hereby waives:

(i) any failure to perfect or continue the perfection of any security interest in or other lien on any collateral securing payment of any of the Obligations or any Guarantor’s obligation hereunder;

(ii) the invalidity, unenforceability, propriety of manner of enforcement of, or loss or change in priority of any document or any such security interest or other lien or guaranty of the Obligations;

(iii) any failure to protect, preserve or insure any such collateral;

(iv) failure of a Guarantor to receive notice of any intended disposition of such collateral;

(v) any defense arising by reason of the cessation from any cause whatsoever of liability of any Company including, without limitation, any failure, negligence or omission by any Purchaser or Agent in enforcing its claims against any Company;

(vi) any release, settlement or compromise of any obligation of any Company, any other Guarantor or any other guarantor of the Obligations;

(vii) the invalidity or unenforceability of any of the Obligations;

(viii) any change of ownership of any Company, any other Guarantor or any other guarantor of the Obligations or the insolvency, bankruptcy or any other change in the legal status of any Company, any other Guarantor or any other guarantor of the Obligations;

(ix) any change in, or the imposition of, any law, decree, regulation or other governmental act which does or might impair, delay or in any way affect the validity, enforceability or the payment when due of the Obligations;

(x) the existence of any claim, setoff or other rights which the Guarantor, any Company, any other Guarantor or guarantor of the Obligations or any other person or entity may have at any time against any Purchaser, Agent or any Company in connection herewith or any unrelated transaction;

(xi) any Purchaser’s or Agent’s election in any case instituted under chapter 11 of the Bankruptcy Code, of the application of section 1111(b)(2) of the Bankruptcy Code;

(xii) any use of cash collateral, or grant of a security interest by any Company, as debtor in possession, under sections 363 or 364 of the Bankruptcy Code;

(xiii) the disallowance of all or any portion of any of any Purchaser’s or Agent’s claims for repayment of the Obligations under sections 502 or 506 of the Bankruptcy Code;

(xiv) any stay or extension of time for payment by any Company or any other Guarantor resulting from any proceeding under the Bankruptcy Code or any similar law; or

(xv) any other fact or circumstance which might otherwise constitute grounds at law or equity for the discharge or release of a Guarantor from its obligations hereunder, all whether or not such Guarantor shall have had notice or knowledge of any act or omission referred to in the foregoing clauses (i) through (xiv) of this Section 5(c) .

6. Representations and Warranties . Each Guarantor further represents and warrants to Purchasers and Agent that: (a) such Guarantor is a corporation or other entity duly incorporated or organized, as applicable, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable, and has full power, authority and legal right to own its property and assets and to transact the business in which it is presently engaged; (b) such Guarantor has full power, authority and legal right to execute and deliver, and to perform its obligations under, this Guaranty, and has taken all necessary action to authorize the guarantee hereunder on the terms and conditions of this Guaranty and to authorize the execution, delivery and performance of this Guaranty; (c) this Guaranty has been duly executed and delivered by such Guarantor and constitutes a legal, valid and binding obligation of such Guarantor enforceable against such Guarantor in accordance with its terms, except to the extent that such enforceability is subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and moratorium laws and other laws of general application affecting enforcement of creditors’ rights generally, or the availability of equitable remedies, which are subject to the discretion of the court before which an action may be brought; and (d) the execution, delivery and performance by each Guarantor of this Guaranty do not require any action by or in respect of, or filing with, any governmental body, agency or official and do not violate, conflict with or cause a breach or a default under any provision of (i) applicable law or regulation, (ii) the organizational documents of any Guarantor, (iii) any judgment, injunction, order, decree or other instrument binding upon it, or (iv) any agreement binding upon it.

7. Negative Covenants . Each Guarantor covenants with Purchasers and Agent that such Guarantor shall not grant any security interest in or permit any lien, claim or encumbrance upon any of its assets in favor of any person or entity other than liens and security interests in favor of Purchasers and Agent and Permitted Encumbrances. Each Guarantor agrees that it shall not take any action or engage in any transaction that such Guarantor is prohibited from taking or engaging in pursuant to the terms of the Note Purchase Agreement. In addition, each Guarantor agrees to comply with the terms of Section 8 of the Note Purchase Agreement to the same extent that any Company is required to cause the Guarantors to comply with such Section of the Note Purchase Agreement. Each Company, by its signature hereto, hereby acknowledges and agrees that any breach by a Guarantor of any term or provision of this Guaranty or the Security Agreement, which is not cured to the Agent’s reasonable satisfaction within any applicable cure or grace period, shall constitute an “Event of Default” under the Note.

8. Termination . This Guaranty shall not terminate until such time, if any, as (i) all Obligations shall be finally and irrevocably paid in full in cash, (ii) no Notes shall remain outstanding, (iii) all commitments to lend under the Note Purchase Agreement shall have terminated and (iv) there shall exist no other outstanding payment or reimbursement obligations (other than contingent indemnification obligations for which no claims shall have been asserted) of the Borrower or the Guarantors to the Agent under any of the Transaction Documents. Thereafter, but subject to the following, Agent, on its behalf and as agent for Purchasers, shall take such action and execute such documents as the Guarantors may request (and at the Guarantors’ cost and expense) in order to evidence the termination of this Guaranty. Payment of all of the Obligations owing from time to time shall not operate as a discontinuance of this Guaranty. Each Guarantor further agrees that, to the extent that any Company makes a payment or payments to Purchasers or Agent on the Obligations, or Purchasers or Agent receive any proceeds of collateral securing the Obligations or any other payments with respect to the Obligations, which payment or receipt of proceeds or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be returned or repaid to any Company, its estate, trustee, receiver, debtor in possession or any other person or entity, including, without limitation, the Guarantors, under any insolvency or bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such payment, return or repayment, the obligation or part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date when such initial payment, reduction or satisfaction occurred, and this Guaranty shall continue in full force notwithstanding any contrary action which may have been taken by any Purchaser or Agent in reliance upon such payment, and any such contrary action so taken shall be without prejudice to any Purchaser’s or Agent’s rights under this Guaranty and shall be deemed to have been conditioned upon such payment having become final and irrevocable.

9. Guaranty of Performance . Each Guarantor also guarantees the full, prompt and unconditional performance of all obligations and agreements of every kind owed or hereafter to be owed by the Companies and the Guarantors to Purchasers and Agent under the Note Purchase Agreement, the Notes, and the other Transaction Documents. Every provision for the benefit of Purchasers and Agent contained in this Guaranty shall apply to the guaranty of performance given in this paragraph.

10. Assumption of Liens and Obligations . To the extent that a Guarantor has received or shall hereafter receive distributions or transfers from any Company of property or cash that are subject, at the time of such contribution, to liens and security interests in favor of Purchasers and/or the Agent in accordance with the Notes, the Security Agreement or any other Transaction Document, such Guarantor hereby expressly agrees that (i) it shall hold such assets subject to such liens and security interests, and (ii) it shall be liable for the payment of the Obligations secured thereby. Each Guarantor’s obligations under this Section 10 shall be in addition to its obligations as set forth in other sections of this Guaranty and not in substitution therefor or in lieu thereof.

11.

Miscellaneous .

(a) The terms “Company” and “Guarantor” as used in this Guaranty shall include: (i) any successor individual or individuals, association, partnership, limited liability company or corporation to which all or substantially all of the business or assets of such Company or such Guarantor shall have been transferred and (ii) any other association, partnership, limited liability company, corporation or entity into or with which such Company or such Guarantor shall have been merged, consolidated, reorganized, or absorbed.

(b) Without limiting any other right of any Purchaser or Agent, whenever any Purchaser or Agent has the right to declare any of the Obligations to be immediately due and payable (whether or not it has been so declared), Agent, on its behalf and in its capacity as agent for the benefit of Purchasers, at its sole election without notice to the undersigned may appropriate and set off against the Obligations:

(i) any and all indebtedness or other moneys due or to become due to any Guarantor by any Purchaser or Agent in any capacity; and

(ii) any credits or other property belonging to any Guarantor (including all account balances, whether provisional or final and whether or not collected or available) at any time held by or coming into the possession of any Purchaser or Agent, or any affiliate of any Purchaser or Agent, whether for deposit or otherwise;

whether or not the Obligations or the obligation to pay such moneys owed by any Purchaser or Agent is then due, and the applicable Purchaser or Agent shall be deemed to have exercised such right of set off immediately at the time of such election even though any charge therefor is made or entered on such Purchaser’s or Agent’s records subsequent thereto. Agent agrees to notify such Guarantor in a reasonably practicable time of any such set-off; however, failure to so notify such Guarantor shall not affect the validity of any set-off.

(c) Each Guarantor’s obligation hereunder is to pay the Obligations in full in cash when due according to the Notes, the other Transaction Documents, this Guaranty and the other agreements, documents and instruments governing the Obligations to the extent provided herein, and shall not be affected by any stay or extension of time for payment by any Company or any other Guarantor resulting from any proceeding under the Bankruptcy Code or any similar law.

(d) No course of dealing between any Company or any Guarantor and Purchasers or Agent and no act, delay or omission by Purchasers or Agent in exercising any right or remedy hereunder or with respect to any of the Obligations shall operate as a waiver thereof or of any other right or remedy, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Any Purchaser or Agent may remedy any default by any Company under any agreement with any Company or with respect to any of the Obligations in any reasonable manner without waiving the default remedied and without waiving any other prior or subsequent default by any Company. All rights and remedies of Purchasers and Agent hereunder are cumulative.

(e) This Guaranty shall inure to the benefit of the parties hereto and their respective successors and assigns.

(f) Agent may assign its rights hereunder without the consent of Guarantors, in which event such assignee shall be deemed to be Agent hereunder with respect to such assigned rights.

(g) Captions of the sections of this Guaranty are solely for the convenience of the parties hereto, and are not an aid in the interpretation of this Guaranty and do not constitute part of the agreement of the parties set forth herein.

(h) If any provision of this Guaranty is unenforceable in whole or in part for any reason, the remaining provisions shall continue to be effective.

(i) All questions concerning the construction, validity, enforcement and interpretation of this Guaranty shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. Each Guarantor hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each Guarantor hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing by registered or certified mail a copy thereof to such party at the address for such notices to it under this Guaranty and agrees that such service shall constitute good and sufficient service of process and notice thereof as of the date that is five (5) business days after the mailing thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.

(j) Notices . All notices, approvals, requests, demands and other communications hereunder shall be delivered or made in the manner set forth in, and shall be effective in accordance with the terms of, the Note Purchase Agreement or, in the case of communications to the Agent, directed to the notice address set forth in the Security Agreement; provided, that any communication shall be effective as to any Guarantor if made or sent to the Company in accordance with the foregoing.

12.

WAIVERS .

(a) EACH GUARANTOR WAIVES THE BENEFIT OF ALL VALUATION, APPRAISAL AND EXEMPTION LAWS.

(b) UPON THE OCCURRENCE OF A DEFAULT OR EVENT OF DEFAULT, EACH GUARANTOR HEREBY WAIVES ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR TO THE EXERCISE BY ANY PURCHASER OR AGENT, ON ITS BEHALF AND IN ITS CAPACITY AS AGENT FOR THE BENEFIT OF PURCHASERS, OF ITS RIGHTS TO REPOSSESS THE COLLATERAL WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON THE COLLATERAL WITHOUT PRIOR NOTICE OR HEARING. EACH GUARANTOR ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO THIS TRANSACTION AND THIS GUARANTY.

(c) EACH GUARANTOR WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS GUARANTY, OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PURCHASER OR AGENT. EACH GUARANTOR AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH GUARANTOR FURTHER AGREES THAT ITS RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY.

13. Agent . The terms and provisions of Section 5.11 of the Security Agreement which set forth the appointment of the Agent are hereby incorporated by reference herein as if fully set forth therein.

14.

Payments Free of Taxes .

(a)

Definitions . In this Section 14 :

(i) “ Excluded Taxes ” means, with respect to the Agent or the Purchasers, or any other recipient of any payment to be made by or on account of any obligations of any Guarantor under this Guaranty, or under any other Security Document, income or franchise taxes imposed on (or measured by) its net income by the United States of America or such other jurisdiction under the laws of which such recipient is organized or in which its principal office is located.

(ii) “ Governmental Authority ” means the government of the United States of America or any other nation, or any political subdivision thereof, whether state or local, or any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government over the Company or any of its Subsidiaries, or any of their respective properties, assets or undertakings.

(iii) “ Indemnified Taxes ” means Taxes other than Excluded Taxes.

(iv) “ Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

(b) Any and all payments by or on account of any obligation of any of the Guarantors under this Guaranty or any other Security Document shall be made without any set-off, counterclaim or deduction and free and clear of and without deduction for any Indemnified Taxes; provided that if any Guarantor shall be required to deduct any Indemnified Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 14(b) ), the Agent or Purchasers, as applicable, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Guarantor shall make such deductions and (iii) such Guarantor shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.

(c) Indemnification by the Guarantors . Each Guarantor shall indemnify the Agent and the Purchasers, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes paid by the Agent or Purchasers, as applicable, on or with respect to any payment by or on account of any obligation of such Guarantor under this Guaranty and the other Transaction Documents (including Indemnified Taxes or imposed or asserted on or attributable to amounts payable under this Section 14 ) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate of the Agent or any Purchaser as to the amount of such payment or liability under this Section 14 shall be delivered to such Guarantor and shall be conclusive absent manifest error.

15. Counterparts; Headings . This Guaranty may be executed in two or more identical counterparts, all of which together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party; provided that a facsimile, .pdf or similar electronically transmitted signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original signature. The headings in this Guaranty are for convenience of reference only and shall not alter or otherwise affect the meaning hereof.

16. Rights of Contribution . The Guarantors hereby agree as among themselves that, if any Guarantor shall make an Excess Payment (as defined below), such Guarantor shall have a right of contribution from each other Guarantor in an amount equal to such other Guarantor’s Contribution Share (as defined below) of such Excess Payment. The payment obligations of any Guarantor under this Section 16 shall be subordinate and subject in right of payment to the Obligations until such time as the Obligations have been paid in full in cash and all commitments to lend under the Note Purchase Agreement have expired or terminated, and none of the Guarantors shall exercise any right or remedy under this Section 16 against any other Guarantor until such Obligations have been paid in full in cash and all commitments to lend under the Note Purchase Agreement have expired or terminated. For purposes of this Section 16 , (a) “ Excess Payment ” shall mean the amount paid by any Guarantor in excess of its Ratable Share of any Obligations; (b) “ Ratable Share ” shall mean, for any Guarantor in respect of any payment of Obligations, the ratio (expressed as a percentage) as of the date of such payment of Obligations of (i) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Guarantor (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such Guarantor hereunder) to (ii) the amount by which the aggregate present fair salable value of all assets and other properties of Companies and Guarantors exceeds the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of the Guarantors hereunder) of the Companies and Guarantors, provided, however, that, for purposes of calculating the Ratable Shares of the Guarantors in respect of any payment of Obligations, any Guarantor that became a Guarantor subsequent to the date of any such payment shall be deemed to have been a Guarantor on the date of such payment and the financial information for such Guarantor as of the date such Guarantor became a Guarantor shall be utilized for such Guarantor in connection with such payment; and (c) “ Contribution Share ” shall mean, for any Guarantor in respect of any Excess Payment made by any other Guarantor, the ratio (expressed as a percentage) as of the date of such Excess Payment of (i) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such Guarantor (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the Obligations) of Companies and Guarantors other than the maker of such Excess Payment; provided, however, that, for purposes of calculating the Contribution Shares of the Guarantors in respect of any Excess Payment, any Guarantor that became a Guarantor subsequent to the date of any such Excess Payment shall be deemed to have been a Guarantor on the date of such Excess Payment and the financial information for such Guarantor as of the date such Guarantor became a Guarantor shall be utilized for such Guarantor in connection with such Excess Payment. This Section 16 shall not be deemed to affect any right of subrogation, indemnity, reimbursement or contribution that any Guarantor may have under law against any Company in respect of any payment of Obligations.

[rest of page intentionally left blank; signature page follows]

IN WITNESS WHEREOF, each Company and the Guarantors have executed this Guaranty as of the date first written above.

USELL.COM, INC. , a Delaware corporation		BST DISTRIBUTION, INC. , a New York corporation

By:		By:
	Name: Nikhil Raman		Name: Brian Tepfer
	Title: Chief Executive Officer		Title: Chief Executive Officer

WE SELL CELLULAR LLC , a Delaware limited liability company		Upstream Phone Company USA, Inc. , a Delaware corporation

By:		By:
	Name: Nikhil Raman		Name: Nikhil Raman
	Title: Manager		Title: Chief Executive Officer

UPSTREAM PHONE HOLDINGS, INC. , a Delaware corporation		HD CAPITAL HOLDINGS LLC , a Delaware limited liability company

By:		By:
	Name: Nikhil Raman		Name: Daniel Brauser
	Title: Chief Executive Officer		Title: Manager

SIGNATURE PAGE TO

SUBSIDIARY GUARANTY

Exhibit 10.9

TRADEMARK SECURITY AGREEMENT

THIS TRADEMARK SECURITY AGREEMENT (the “ Agreement ”) made as of this 13 day of January, 2017 by USELL.COM, INC., a Delaware corporation (“ Grantor ”), in favor of XXXX, a Delaware limited liability company, in its capacity as agent (together with its successors and assigns in such capacity, the “ Agent ”) for the benefit of itself and Purchasers (as defined in the Purchase Agreement described below) (together with its successors and assigns in such capacity, “ Grantee ”):

WITNESSTH

WHEREAS, XXXX (“ Purchaser ”, and together with its successors and assigns and each other purchaser of a Note (as defined below) and their respective successors and assigns, individually and collectively, the “ Purchasers ”) have made, and may make, loans and certain other financial accommodations to Grantor and the other Companies (as defined in the Note Purchase Agreement described below), as evidenced by those certain senior secured notes dated as of the date hereof in an original aggregate principal amount of $8,660,000 (such notes, together with any promissory notes or other securities issued in exchange or substitution therefor or replacement thereof, and as any of the same may be amended, supplemented, restated or modified and in effect from time to time, each a “ Note ”, and collectively, the “ Notes ”);

WHEREAS, the Notes are being acquired by each Purchaser, pursuant to a Note Purchase Agreement dated as of the date hereof among the Purchasers, the Grantor, the other Companies (as defined therein) and the Agent (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Purchase Agreement ”);

WHEREAS , pursuant to a Security Agreement dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified and in effect from time to time, the “ Security Agreement ”) by the “ Debtors ” (as defined therein) in favor of the Agent, such Debtors have granted the Agent, for its benefit and the benefit of the Purchasers, a security interest in substantially all of the assets of the Debtors including all right, title and interest of Grantor in, to and under all now owned and hereafter acquired Trademarks (as defined in the Security Agreement), Trademark registrations, Trademark applications and Trademark licenses, together with the goodwill of the business symbolized by Grantor’s Trademarks, and all products and proceeds thereof; and

WHEREAS , to induce Purchasers to make financial accommodations to the Companies under and as defined in the Purchase Agreement and the Note, Grantor has agreed to pledge and grant a security interest in all of its right, title and interest in and to the Trademark Collateral (as hereinafter defined) as security for its Liabilities (as defined in the Security Agreement) for the benefit of the Grantee, Purchasers and their respective successors and assigns.

NOW, THEREFORE, in consideration of the premises set forth herein and for other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, Grantor agrees as follows:

1. Incorporation of Security Agreement. The Security Agreement and the terms and provisions thereof are hereby incorporated herein in their entirety by this reference thereto. All terms capitalized but not otherwise defined herein shall have the same meanings herein as in the Security Agreement.

2. Grant and Reaffirmation of Grant of Security Interests. To secure the payment and performance of the Liabilities, Grantor hereby grants to Grantee, for its benefit and the benefit of Purchasers, and hereby reaffirms its prior grant pursuant to the Security Agreement of, a continuing security interest in Grantor’s entire right, title and interest in and to the following (all of the following items or types of property being herein collectively referred to as the “ Trademark Collateral ”), whether now owned or existing or hereafter created, acquired or arising:

(a) each Trademark, Trademark registration and Trademark application, including, without limitation, the Trademarks, Trademark registrations (together with any reissues, continuations or extensions thereof) and Trademark applications referred to in Schedule 1 annexed hereto, and all of the goodwill of the business connected with the use of, and symbolized by, each Trademark, Trademark registration and Trademark application;

(b) each Trademark license and all of the goodwill of the business connected with the use of, and symbolized by, each Trademark license; and

(c) all products and proceeds of the foregoing, including without limitation, any claim by Grantor against third parties for past, present or future (a) infringement or dilution of any Trademark or Trademark registration including, without limitation, the Trademarks and Trademark registrations referred to in Schedule 1 annexed hereto, the Trademark registrations issued with respect to the Trademark applications referred in Schedule 1 and the Trademarks licensed under any Trademark license, or (b) injury to the goodwill associated with any Trademark, Trademark registration or Trademark licensed under any Trademark license.

This security interest is granted in conjunction with the security interests granted to Grantee pursuant to the Security Agreement and is not intended to increase the rights of Grantee or the obligations of Grantor beyond the rights and obligations contained in the Security Agreement. Grantor hereby acknowledges and affirms that the rights and remedies of Grantee with respect to the security interest in the Trademark Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event of any conflict between any provision of this Trademark Security Agreement and the Security Agreement, the Security Agreement shall govern.

[Signature Page Follows]

IN WITNESS WHEREOF, Grantor has duly executed this Agreement as of the date first written above.

	USELL.COM, INC., a Delaware corporation

	By:
		Name: Nikhil Raman
		Title: Chief Executive Officer

Agreed and Accepted
As of the Date First Written Above

XXXX, a Delaware limited
liability company, in its capacity as Agent for Purchasers

By:
	Name:
	Title:

SIGNATURE PAGE TO
TRADEMARK SECURITY AGREEMENT

Exhibit 10.10

PLEDGE AGREEMENT

THIS PLEDGE AGREEMENT made as of this 13 day of January, 2017 (as amended, restated, supplemented or otherwise modified from time to time, this “ Agreement ”), among USELL.COM, INC., a Delaware corporation (“ USELL ”), BST DISTRIBUTION, INC., New York corporation (“ BST ”), UPSTREAM PHONE HOLDINGS, INC., a Delaware corporation (“ Upstream Holdings ”); together with USELL and BST, the “ Pledgors ” and each, the “ Pledgor ”) and XXXX, a Delaware limited liability company, in its capacity as agent (“ Agent ”) for the Purchasers identified below (in such capacity, together with its successors and assigns, the “ Pledgee ”).

WHEREAS:

A. Each Pledgor, other than Upstream Holdings, and We Sell Cellular LLC (“ We Sell ”) have executed and delivered to XXXX (“ Purchaser ”, and together with its successors and assigns and each other purchaser of a Note (as defined below) and their respective successors and assigns, individually and collectively, the “ Purchasers ”) those certain senior secured notes each made by the applicable Pledgor and dated as of the date hereof in an original aggregate principal amount of $8,660,000 (such notes, together with any promissory notes or other securities issued in exchange or substitution therefor or replacement thereof, and as any of the same may be amended, supplemented, restated or modified and in effect from time to time, the “ Notes ”). The Notes were issued pursuant to a certain Note Purchase Agreement dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified, the “ Note Purchase Agreement ”), among the Pledgors, We Sell, the Agent and the Purchasers. References to the “ Transaction Documents ” shall mean the Note Purchase Agreement, the Notes and the other Related Agreements.

B. Upstream Holdings and the other Guarantors named and as defined therein have executed and delivered to Pledgee a Subsidiary Guaranty dated as of the date hereof (as amended, restated, supplemented, restated or modified from time to time, the “ Subsidiary Guaranty ”).

C. Each Pledgor legally and beneficially owns the interests specified on Exhibit A hereto and each other corporation or other entity, the stock or other equity interests and securities of which are owned or acquired by Pledgor and described on an addendum hereto from time to time executed by Pledgor in form and substance satisfactory to Pledgee, is referred to herein as a “ Pledge Entity ” and collectively as the “ Pledge Entities ”; provided that the parties hereto agree that, as of the date hereof, the Pledge Entities specified on Exhibit A are the only Pledge Entities.

D. Pursuant to a Security Agreement dated as of the date hereof by and among the Agent, the Pledgors, the other entities party thereto as “Debtors” and Pledgee (as the same may be amended, restated, modified or supplement and in effect from time to time, the “ Security Agreement ”), each Pledgor has granted Pledgee, for its benefit and the benefit of the Purchasers, a first priority security interest in, lien upon and pledge of all of such Pledgor’s rights in such Pledgor’s Collateral (as defined in the Security Agreement).

E. To induce the Purchasers to enter into the Note Purchase Agreement, purchase the Notes and to make the financial accommodations available to the Pledgors and We Sell under the Note Purchase Agreement, and in order to secure the payment and performance by each Pledgor of the Liabilities (as hereafter defined), each Pledgor has agreed to pledge to Pledgee all of the capital stock and other equity interests and securities (the “ Pledged Equity ”) of the Pledge Entities now or hereafter owned or acquired by such Pledgor to secure the Liabilities. For purposes of this Agreement, “ Liabilities ” means all Liabilities (as defined in the Security Agreement), and all obligations, liabilities and indebtedness of every nature of Pledgors from time to time owed or owing under or in respect of this Agreement, the Note Purchase Agreement, the Notes, the Security Agreement, the Account Control Agreements, the Subsidiary Guaranty and any of the other Transaction Documents, as the case may be, including, without limitation, the principal amount of all debts, claims and indebtedness, accrued and unpaid interest and all fees, costs and expenses, whether primary, secondary, direct, contingent, fixed or otherwise, heretofore, now and/or from time to time hereafter owing, due or payable whether before or after the filing of a bankruptcy, insolvency or similar proceeding under applicable federal, state, foreign or other law and whether or not an allowed claim in any such proceeding.

NOW, THEREFORE , in consideration of the premises and in order to induce the Purchasers to purchase the Notes under the Note Purchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Pledgor hereby agrees with Pledgee as follows:

1. Defined Terms . Unless otherwise defined herein, all capitalized terms used herein shall have the meanings given them in the Note Purchase Agreement.

Pledge .

(a) Each Pledgor hereby pledges, assigns, hypothecates, transfers, delivers and grants to Pledgee, for the benefit of itself and the Purchasers, a first lien on and first priority perfected security interest in (i) all of the Pledged Equity and other equity interests of the Pledge Entities now owned or hereafter acquired by such Pledgor (collectively, the “ Pledged Interests ”), (ii) any other shares of Pledged Equity hereafter pledged or referred to be pledged to the Pledgee pursuant to this Agreement; (ii) all “investment property” as such term is defined in §9-102(a)(49) of the UCC (as defined below) with respect thereto; (iv) any “security entitlement” as such term is defined in § 8-102(a)(17) of the UCC with respect thereto; (v) all books and records relating to the foregoing; and (vi) all Accessions and Proceeds (as each is defined in the UCC) of the foregoing, including, without limitation, all distributions (cash, stock, or otherwise), dividends, stock dividends, securities, cash, instruments, rights to subscribe, purchase, or sell, and other property, rights, and interest that such Pledgor is at any time entitled to receive or is otherwise distributed in respect of, or in exchange for, any or all of the Pledged Collateral (as defined below), and without affecting the obligations of any Pledgor under any provision of the Security Agreement, in the event of any consolidation or merger in which any Pledgor is not the surviving corporation, all shares of each class or Pledged Equity of the successor entity formed by or resulting from such consolidation or merger (the collateral described in clauses (i) through (vi) of this Section 2 being collectively referred to as the “ Pledged Collateral ”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Liabilities. All of the Pledged Interests now owned by each Pledgor which are presently represented by certificates are listed on Exhibit A hereto, which certificates, with undated assignments separate from certificates or stock/membership interest powers duly executed in blank by such Pledgor and irrevocable proxies, are being delivered to Pledgee simultaneously herewith. Upon the creation or acquisition of any new Pledged Interests, Pledgor shall execute an Addendum in the form of Exhibit B attached hereto (a “ Pledge Addendum ”). Any Pledged Collateral described in a Pledge Addendum executed by Pledgor shall thereafter be deemed to be listed on Exhibit A hereto. Pledgee shall maintain possession and custody of the certificates representing the Pledged Interests and any additional Pledged Collateral.

(b) Each Pledged Interest consisting of either (i) a membership interest in a Person that is a limited liability company or (ii) a partnership interest in a Person that is a partnership (if any) (1) is not and will not be evidenced by a certificate and (2) is not and will not be deemed a “security” governed by Article 8 of the UCC.

3. Representations and Warranties of Pledgors . Each Pledgor represents and warrants to Pledgee, and covenants with Pledgee, that:

(a) Exhibit A sets forth (i) the authorized capital stock and other equity interests of each Pledge Entity, (ii) the number of shares of capital stock and other equity interests of each Pledge Entity that are issued and outstanding as of the date hereof, and (iii) the percentage of the issued and outstanding shares of capital stock and other equity interests of each Pledge Entity held by such Pledgor. Such Pledgor is the record and beneficial owner of, and has good and marketable title to, the Pledged Interests of such Pledgor, and such shares are and will remain free and clear of all pledges, liens, security interests and other encumbrances and restrictions whatsoever, except the liens and security interests in favor of Pledgee created by this Agreement (other than Liens in favor of BAM Administrative Services LLC, which shall be released simultaneously with the purchase of the Notes on the Closing Date);

(b) Except as set forth on Exhibit A , there are no outstanding options, warrants or other similar agreements with respect to the Pledged Interests or any of the other Pledged Collateral;

(c) This Agreement is the legal, valid and binding obligation of each Pledgor, enforceable against each Pledgor in accordance with its terms except to the extent that such enforceability is subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and moratorium laws and other laws of general application affecting enforcement of creditors’ rights generally, or the availability of equitable remedies, which are subject to the discretion of the court before which an action may be brought;

(d) The Pledged Interests have been duly and validly authorized and issued, are fully paid and non-assessable, and the Pledged Interests listed on Exhibit A constitute all of the issued and outstanding capital stock or other equity interests of the Pledge Entities;

(e) No consent, approval or authorization of or designation or filing with any governmental or regulatory authority on the part of any Pledgor is required in connection with the pledge and security interest granted under this Agreement;

(f) The execution, delivery and performance of this Agreement will not violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, which are applicable to any Pledgor, or of the articles or certificate of incorporation, certificate of formation, bylaws or any other similar organizational documents of any Pledgor or any Pledge Entity or of any securities issued by any Pledgor or any Pledge Entity or of any mortgage, indenture, lease, contract, or other agreement, instrument or undertaking to which any Pledgor or any Pledge Entity is a party or which is binding upon any Pledgor or any Pledge Entity or upon any of the assets of any Pledgor or any Pledge Entity, and will not result in the creation or imposition of any lien, charge or encumbrance on or security interest in any of the assets of any Pledgor or any Pledge Entity, except as otherwise contemplated by this Agreement;

(g) The pledge, assignment and delivery of the Pledged Interests and the other Pledged Collateral pursuant to this Agreement creates a valid first lien on and perfected first priority security interest in such Pledged Interests and Pledged Collateral and the proceeds thereof in favor of Pledgee, subject to no prior pledge, lien, mortgage, hypothecation, security interest, charge, option or encumbrance or to any agreement purporting to grant to any third party a security interest in the property or assets of Pledgor which would include the Pledged Interests or any other Pledged Collateral (other than Liens in favor of BAM Administrative Services LLC, which shall be released simultaneously with the purchase of the Notes on the Closing Date). Until this Agreement is terminated pursuant to Section 11 hereof, each Pledgor covenants and agrees that it will defend, for the benefit of Pledgee, Pledgee’s right, title and security interest in and to the Pledged Interests, the other Pledged Collateral and the proceeds thereof against the claims and demands of all other persons or entities; and

(h) No Pledgor nor any Pledged Entity (i) will become a person whose property or interests in property are blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism (66 Fed. Reg. 49079(2001), (ii) will engage in any dealings or transactions prohibited by Section 2 of such executive order, or (iii) will otherwise become a person on the list of Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any other Office of Foreign Asset Control regulation or executive order.

4. Dividends, Distributions, Etc. If, prior to irrevocable repayment in full in cash of the Liabilities, any Pledgor shall receive any certificate (including, without limitation, any certificate representing a dividend or a distribution in connection with any reclassification, increase or reduction of capital, or issued in connection with any reorganization, merger or consolidation), or any options or rights, whether as an addition to, in substitution for, or in exchange for any of the Pledged Interests or otherwise, such Pledgor agrees, in each case, to accept the same as Pledgee’s agent and to hold the same in trust for Pledgee, and to deliver the same promptly (but in any event within five days) to Pledgee in the exact form received, with the endorsement of such Pledgor when necessary and/or with appropriate undated assignments separate from certificates or stock powers duly executed in blank, to be held by Pledgee subject to the terms hereof, as additional Pledged Collateral. The applicable Pledgor shall promptly deliver to Pledgee (i) a Pledge Addendum with respect to such additional certificates, and (ii) any financing statements or amendments to financing statements as requested by Pledgee. Each Pledgor hereby authorizes Pledgee to attach each such Pledge Addendum to this Agreement. Except as provided in Section 5(b) below, all sums of money and property so paid or distributed in respect of the Pledged Interests which are received by any Pledgor shall, until paid or delivered to Pledgee, be held by Pledgor in trust as additional Pledged Collateral.

Voting Rights; Dividends; Certificates .

(a) So long as no Event of Default (as defined in the Notes) has occurred and is continuing, each Pledgor shall be entitled (subject to the other provisions hereof, including, without limitation, Section 8 below) to exercise its voting and other consensual rights with respect to the Pledged Interests and otherwise exercise the incidents of ownership thereof in any manner not inconsistent with this Agreement, the Note Purchase Agreement and/or any of the other Transaction Documents. Each Pledgor hereby grants to Pledgee or its nominee, an irrevocable proxy to exercise all voting, corporate and limited liability company rights relating to the Pledged Interests in any instance, which proxy shall be effective, at the discretion of Pledgee, upon the occurrence and during the continuance of an Event of Default. Upon the request of Pledgee at any time, each Pledgor agrees to deliver to Pledgee such further evidence of such irrevocable proxy or such further irrevocable proxies to vote the Pledged Interests as Pledgee may request.

(b) So long as no Event of Default shall have occurred and be continuing, each Pledgor shall be entitled to receive cash dividends or other distributions made in respect of the Pledged Interests, to the extent permitted to be made pursuant to the terms of the Notes and the Note Purchase Agreement. Upon the occurrence and during the continuance of an Event of Default, in the event that any Pledgor, as record and beneficial owner of the Pledged Interests, shall have received or shall have become entitled to receive, any cash dividends or other distributions in the ordinary course, such Pledgor shall deliver to Pledgee, and Pledgee shall be entitled to receive and retain, for the benefit of Pledgee and the Purchasers, all such cash or other distributions as additional security for the Liabilities.

(c) Subject to any sale or other disposition by Pledgee of the Pledged Interests, any other Pledged Collateral or other property pursuant to this Agreement, upon the indefeasible full payment in cash, satisfaction and termination of all of the Liabilities and the termination of this Agreement pursuant to Section 11 hereof and of the liens and security interests hereby granted, the Pledged Interests, the other Pledged Collateral and any other property then held as part of the Pledged Collateral in accordance with the provisions of this Agreement shall be returned to the applicable Pledgor or to such other persons or entities as shall be legally entitled thereto.

(d) Each Pledgor shall cause all Pledged Interests (other than the Pledged Interests consisting of limited liability company interests) to be certificated at all times while this Agreement is in effect.

6. Rights of Pledgee . Pledgee shall not be liable for failure to collect or realize upon the Liabilities or any collateral security or guaranty therefor, or any part thereof, or for any delay in so doing, nor shall Pledgee be under any obligation to take any action whatsoever with regard thereto. Any or all of the Pledged Interests held by Pledgee hereunder may, if an Event of Default has occurred and is continuing, without notice, be registered in the name of Pledgee or its nominee, and Pledgee or its nominee may thereafter without notice exercise all voting and corporate rights at any meeting with respect to any Pledge Entity and exercise any and all rights of conversion, exchange, subscription or any other rights, privileges or options pertaining to any of the Pledged Interests as if it were the absolute owner thereof, including, without limitation, the right to vote in favor of, and to exchange at its discretion any and all of the Pledged Interests upon the merger, consolidation, reorganization, recapitalization or other readjustment with respect to any Pledge Entity or upon the exercise by any Pledge Entity, any Pledgor or Pledgee of any right, privilege or option pertaining to any of the Pledged Interests, and in connection therewith, to deposit and deliver any and all of the Pledged Interests with any committee, depository, transfer agent, registrar or other designated agency upon such terms and conditions as Pledgee may reasonably determine, all without liability except to account for property actually received by Pledgee, but Pledgee shall have no duty to exercise any of the aforesaid rights, privileges or options and shall not be responsible for any failure to do so or delay in so doing.

7. Remedies . Upon the occurrence and during the continuance of an Event of Default, Pledgee may exercise in respect of the Pledged Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party under the Uniform Commercial Code (“ UCC ”) of the jurisdiction applicable to the affected Pledged Collateral from time to time. Without limiting the foregoing, Pledgee may, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon any Pledgor or any other person or entity (all and each of which demands, advertisements and/or notices are hereby expressly waived), upon the occurrence and during the continuance of an Event of Default forthwith collect, receive, appropriate and realize upon the Pledged Collateral, or any part thereof, and/or may forthwith date and otherwise fill in the blanks on any assignments separate from certificates or stock power or otherwise sell, assign, give an option or options to purchase, contract to sell or otherwise dispose of and deliver said Pledged Collateral, or any part thereof, in one or more portions at one or more public or private sales or dispositions, at any exchange or broker’s board or at any of Pledgee’s offices or elsewhere upon such terms and conditions as Pledgee may deem advisable and at such prices as it may deem best, for any combination of cash and/or securities or other property or on credit or for future delivery without assumption of any credit risk, with the right to Pledgee upon any such sale, public or private, to purchase the whole or any part of said Pledged Collateral so sold, free of any right or equity of redemption in Pledgor, which right or equity is hereby expressly waived or released. Pledgee shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization, sale or disposition, after deducting all costs and expenses of every kind incurred therein or incidental to the safekeeping of any and all of the Pledged Collateral or in any way relating to the rights of Pledgee hereunder, including reasonable attorneys’ fees and legal expenses, to the payment, in whole or in part, of the Liabilities, in such order as Pledgee may elect. Each Pledgor shall remain liable for any deficiency remaining unpaid after such application. Only after so paying over such net proceeds and after the payment by Pledgee of any other amount required by any provision of law, including, without limitation, Section 9-608 of the UCC, need Pledgee account for the surplus, if any, to any Pledgor. Each Pledgor agrees that Pledgee need not give more than ten (10) days’ notice of the time and place of any public sale or of the time after which a private sale or other intended disposition is to take place and that such notice is reasonable notification of such matters. No notification need be given to any Pledgor if it has signed after default a statement renouncing or modifying any right to notification of sale or other intended disposition. Notwithstanding any provision in any operating agreement or shareholder agreement of any issuer of the Pledged Collateral or the Delaware Limited Liability Company Act or the Business Corporation Law of the State of New York to the contrary, the undersigned constituting all of the members and/or shareholders of each issuer hereby acknowledge that such member and/or shareholder, as applicable, may pledge to the Agent all of such member’s and/or shareholder’s right, title and interest in such issuer, and upon foreclosure the successful bidder (which may include the Agent) will be deemed admitted as a member and/or shareholder, as applicable, of such issuer, and will automatically succeed to all of such pledged right, title and interest, including without limitation such members’ and/or shareholder’s limited liability company and equity interests, right to vote and participate in the management and business affairs of the issuer, right to a share of the profits and losses of the issuer and right to receive distributions from the issuer.

8. No Disposition, Etc. Until the irrevocable payment in full in cash of the Liabilities, each Pledgor agrees that it will not sell, assign, transfer, exchange, or otherwise dispose of, or grant any option with respect to, the Pledged Interests or any other Pledged Collateral, nor will any Pledgor create, incur or permit to exist any pledge, lien, mortgage, hypothecation, security interest, charge, option or any other encumbrance with respect to any of the Pledged Interests or any other Pledged Collateral, or any interest therein, or any proceeds thereof, except for the lien and security interest of Pledgee provided for by this Agreement and the Security Agreement and Permitted Encumbrance, as defined in the Note Purchase Agreement.

Sale of Pledged Interests .

(a) Each Pledgor recognizes that Pledgee may be unable to effect a public sale or disposition (including, without limitation, any disposition in connection with a merger of a Pledge Entity) of any or all the Pledged Interests by reason of certain prohibitions contained in the Securities Act, and applicable state securities laws, but may be compelled to resort to one or more private sales or dispositions thereof to a restricted group of purchasers who will be obliged to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof. Each Pledgor acknowledges and agrees that any such private sale or disposition may result in prices and other terms (including the terms of any securities or other property received in connection therewith) less favorable to the seller than if such sale or disposition were a public sale or disposition and each Pledgor agrees that it is not commercially unreasonable for Pledgee to engage in any such private sales or dispositions under such circumstances. Pledgee shall be under no obligation to delay a sale or disposition of any of the Pledged Interests in order to permit any Pledgor or a Pledge Entity to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if such Pledgor or a Pledge Entity would agree to do so.

(b) Each Pledgor further agrees to do or cause to be done all such other acts and things as may be reasonably necessary to make such sales or dispositions of the Pledged Interests valid and binding and in compliance with any and all applicable laws, regulations, orders, writs, injunctions, decrees or awards of any and all courts, arbitrators or governmental instrumentalities, domestic or foreign, having jurisdiction over any such sales or dispositions, all at such Pledgor’s expense; provided that no Pledgor shall have any obligation to register the Pledged Interests as securities under the Securities Act or the applicable state securities laws solely by virtue of this Section 9(b) . Each Pledgor further agrees that a breach of any of the covenants contained in Sections 4 , 5(a) , 5(b) , 8 , 9 and 24 will cause irreparable injury to Pledgee and that Pledgee has no adequate remedy at law in respect of such breach and, as a consequence, agrees, without limiting the right of Pledgee to seek and obtain specific performance of other obligations of each Pledgor contained in this Agreement, that each and every covenant referenced above shall be specifically enforceable against each Pledgor, and each Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants.

(c) Each Pledgor further agrees to indemnify and hold harmless the Purchasers, Pledgee and their respective successors and assigns, their respective officers, directors, employees, attorneys, independent contractors, consultants and agents, and any person or entity in control of any thereof, from and against any loss, liability, claim, damage and expense, including, without limitation, legal fees and expenses (in this paragraph collectively called the “ Indemnified Liabilities ”), under federal and state securities laws or otherwise insofar as such Indemnified Liability (i) arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in any registration statement, prospectus or offering memorandum or in any preliminary prospectus or preliminary offering memorandum or in any amendment or supplement to any thereof or in any other writing prepared by any Pledgor in connection with the offer, sale or resale of all or any portion of the Pledged Collateral unless such untrue statement of material fact was provided by Pledgee, in writing, specifically for inclusion therein, or (ii) arises out of or is based upon any omission or alleged omission to state therein a material fact required to be stated or necessary to make the statements therein not misleading, such indemnification to remain operative regardless of any investigation made by or on behalf of Pledgee or any successor thereof, or any person or entity in control of any thereof. In connection with a public sale or other distribution, each Pledgor will provide customary indemnification to any underwriters, their successors and assigns, officers and directors and each person or entity who controls any such underwriter (within the meaning of the Securities Act). If and to the extent that the foregoing undertakings in this paragraph may be unenforceable for any reason, each Pledgor agrees to jointly and severally make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. The obligations of each Pledgor under this paragraph (c) shall survive any termination of this Agreement.

(d) Each Pledgor further agrees not to exercise any and all rights of subrogation it may have against a Pledge Entity upon the sale or disposition of all or any portion of the Pledged Collateral by Pledgee pursuant to the terms of this Agreement until the termination of this Agreement in accordance with Section 11 below.

10. No Waiver; Cumulative Remedies . Pledgee shall not by any act, delay, omission or otherwise be deemed to have waived any of its remedies hereunder, and no waiver by Pledgee shall be valid unless in writing and signed by Pledgee, and then only to the extent therein set forth. A waiver by Pledgee of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which Pledgee would otherwise have on any further occasion. No course of dealing between any Pledgor and Pledgee and no failure to exercise, nor any delay in exercising on the part of Pledgee or the Purchasers of, any right, power or privilege hereunder or under the other Transaction Documents shall impair such right or remedy or operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided are cumulative and may be exercised singly or concurrently, and are not exclusive of any rights or remedies provided by law or in the Note Purchase Agreement.

11. Termination . This Agreement and the liens and security interests granted hereunder shall terminate and Pledgee, at each Pledgor’s sole cost and expense, shall return any Pledged Interests or other Pledged Collateral then held by Pledgee in accordance with the provisions of this Agreement to Pledgor upon the termination of the Note Purchase Agreement and the full and complete performance and indefeasible satisfaction of all of the Liabilities (i) in respect of the Notes (including, without limitation, the indefeasible payment in full in cash of all such Liabilities) and (ii) with respect to which claims have been asserted by Pledgee and/or Purchasers.

12. Possession of Collateral . Beyond the exercise of reasonable care to assure the safe custody of the Pledged Interests in the physical possession of Pledgee pursuant hereto, neither Pledgee, nor any nominee of Pledgee, shall have any duty or liability to collect any sums due in respect thereof or to protect, preserve or exercise any rights pertaining thereto (including any duty to ascertain or take action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to the Pledged Collateral and any duty to take any necessary steps to preserve rights against any parties with respect to the Pledged Collateral), and shall be relieved of all responsibility for the Pledged Collateral upon surrendering them to any Pledgor. Each Pledgor assumes the responsibility for being and keeping itself informed of the financial condition of a Pledge Entity and of all other circumstances bearing upon the risk of non-payment of the Liabilities, and Pledgee shall have no duty to advise any Pledgor of information known to Pledgee regarding such condition or any such circumstance. Pledgee shall have no duty to inquire into the powers of a Pledge Entity or its officers, directors, managers, members, partners or agents thereof acting or purporting to act on its behalf.

13. Taxes and Expenses . Each Pledgor will jointly and severally pay to Pledgee within the Applicable Time Frame (as hereafter defined) (a) any taxes (excluding income taxes, franchise taxes or other taxes levied on gross earnings, profits or the like of Pledgee) payable or ruled payable by any Governmental Authority (as defined in the Security Agreement) in respect of this Agreement, together with interest and penalties, if any, and (b) all expenses, including the fees and expenses of counsel for Pledgee and of any experts and agents that Pledgee may incur in connection with (i) the administration, modification or amendment of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Pledged Collateral, (iii) the exercise or enforcement of any of the rights of Pledgee hereunder, or (iv) the failure of Pledgor to perform or observe any of the provisions hereof. For purposes hereof, the term “Applicable Time Frame” means the earlier of (a) ten (10) days after Pledgee’s written demand for such payment and (b) the date set forth in Pledgee’s written demand for such payment if such payment is required to be made by Pledgee prior to the ten (10) day period referred to in the foregoing clause “(a).”

14. Pledgee Appointed Attorney-In-Fact . Each Pledgor hereby irrevocably appoints Pledgee as such Pledgor’s attorney-in-fact, with full authority in the place and stead of such Pledgor and in the name of such Pledgor or otherwise, from time to time in Pledgee’s discretion, to take any action and to execute any instrument that Pledgee deems reasonably necessary or advisable to accomplish the purposes of this Agreement, including, without limitation, to receive, endorse and collect all instruments made payable to such Pledgor representing any dividend, interest payment or other distribution in respect of the Pledged Collateral or any part thereof and to give full discharge for the same, when and to the extent permitted by this Agreement; provided that the power of attorney granted hereunder shall only be exercised by Pledgee after the occurrence and during the continuance of an Event of Default.

15. Governing Law; Jurisdiction; Jury Trial . All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing by registered or certified mail a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof five (5) business days after the mailing thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Notwithstanding the foregoing, the Pledgee may enforce its rights and remedies in any other jurisdiction applicable to the Pledged Collateral. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.

16. Counterparts . This Agreement may be executed in two or more identical counterparts, all of which together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile, .pdf or similar electronically transmitted signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original signature.

17. Headings . The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.

18. Severability . If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction.

19. ENTIRE AGREEMENT; AMENDMENTS . THIS AGREEMENT, TOGETHER WITH THE OTHER TRANSACTION DOCUMENTS, SUPERSEDES ALL OTHER PRIOR ORAL OR WRITTEN AGREEMENTS BETWEEN ANY PLEDGOR, PLEDGEE, THEIR AFFILIATES AND PERSONS ACTING ON THEIR BEHALF WITH RESPECT TO THE MATTERS DISCUSSED HEREIN, AND THIS AGREEMENT, TOGETHER WITH THE OTHER TRANSACTION DOCUMENTS AND THE OTHER INSTRUMENTS REFERENCED HEREIN AND THEREIN, CONTAIN THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE MATTERS COVERED HEREIN AND THEREIN AND, EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR THEREIN, NEITHER THE PLEDGEE NOR ANY PLEDGOR MAKES ANY REPRESENTATION, WARRANTY, COVENANT OR UNDERTAKING WITH RESPECT TO SUCH MATTERS. AS OF THE DATE OF THIS AGREEMENT, THERE ARE NO UNWRITTEN AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE MATTERS DISCUSSED HEREIN. EXCEPT AS SET FORTH IN SECTION 2(A) HEREOF, NO PROVISION OF THIS AGREEMENT MAY BE AMENDED, MODIFIED OR SUPPLEMENTED OTHER THAN BY AN INSTRUMENT IN WRITING SIGNED BY THE PLEDGOR AND PLEDGEE.

20. Notices . All notices, approvals, requests, demands and other communications hereunder shall be delivered or made in the manner set forth in, and shall be effective in accordance with the terms of, the Note Purchase Agreement, in the case of communications to the Agent, directed to the notice address set forth in the Security Agreement.

21. Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, including any purchasers of the Notes. Pledgor shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of Pledgee. Pledgee may assign its rights hereunder without the consent of Pledgor, in which event such assignee shall be deemed to be Pledgee hereunder with respect to such assigned rights.

22. No Third Party Beneficiaries . This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person or entity.

23. Surviva l. All representations, warranties, covenants and agreements of Pledgor and Pledgee shall survive the execution and delivery of this Agreement.

24. Further Assurances . Each Pledgor agrees that it will, at any time and from time to time upon the written request of Pledgee, execute and deliver all assignments separate from certificates or stock powers, financing statements and such further documents and do such further acts and things as Pledgee may reasonably request consistent with the provisions hereof in order to carry out the intent and accomplish the purpose of this Agreement and the consummation of the transactions contemplated hereby.

25. No Strict Construction . The language used in this Agreement 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.

26. Pledgee Authorized . Each Pledgor hereby authorizes Pledgee to file one or more financing or continuation statements and amendments thereto (or similar documents required by any laws of any applicable jurisdiction) relating to all or any part of the Pledged Interests or other Pledged Collateral without the signature of such Pledgor.

27. Pledgor Acknowledgement . Each Pledgor acknowledges receipt of an executed copy of this Agreement. Each Pledgor waives the right to receive any amount that it may now or hereafter be entitled to receive (whether by way of damages, fine, penalty, or otherwise) by reason of the failure of the Pledgee to deliver to any Pledgor a copy of any financing statement or any statement issued by any registry that confirms registration of a financing statement relating to this Agreement.

28. Agent . The terms and provisions of Section 5.11 of the Security Agreement which set forth the appointment of the Pledgee as Agent are hereby incorporated by reference herein as if fully set forth herein.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement to be duly executed and delivered by their duly authorized officers on the date first above written.

	PLEDGORS :

	USELL.COM, INC. , a Delaware corporation

	By:
		Name: Nikhil Raman
		Title: Chief Executive Officer

	bst distribution, inc. , a New York corporation

	By:
		Name: Brian Tepfer
		Title: Chief Executive Officer

	UPSTREAM PHONE HOLDINGS, INC. , a Delaware corporation

	By:
		Name: Nikhil Raman
		Title: Chief Executive Officer

SIGNATURE PAGE TO

PLEDGE AGREEMENT

	PLEDGEE :

	XXXXX, a Delaware limited liability company, in its capacity as agent for the Purchasers

	By:
		Name:
		Title:

SIGNATURE PAGE TO

PLEDGE AGREEMENT

ACKNOWLEDGEMENT

Each of the undersigned hereby (i) acknowledges receipt of a copy of the foregoing Pledge Agreement, (ii) waives any rights or requirement at any time hereafter to receive a copy of such Pledge Agreement in connection with the registration of any Pledged Interests (as defined therein) in the name of Pledgee or its nominee or the exercise of voting rights by Pledgee, (iii) agrees promptly to note on its books and records the grant of the security interest in the stock or other equity interests of the undersigned as provided in such Pledge Agreement and (iv) agrees, to the extent it is a limited laibility company, not to certificate any of its membership interests.

Dated: January 13, 2017

HD CAPITAL HOLDINGS LLC, a Delaware limited liability company		BST DISTRIBUTION, INC., a New York corporation

By:		By:
	Name: Daniel Brauser		Name: Brian Tepfer
	Title: Manager		Title: Chief Executive Officer

UPSTREAM PHONE COMPANY USA, INC., a Delaware corporation		WE SELL CELLULAR LLC, a Delaware limited liability company

By:		By:
	Name: Nikhil Raman		Name: Nikhil Raman
	Title: Chief Executive Officer		Title: Manager

UPSTREAM PHONE HOLDINGS, INC., a Delaware corporation		XXXX

By:		By:
	Name: Nikhil Raman		Name:
	Title: Chief Executive Officer		Title:

SIGNATURE PAGE TO

ACKNOWLEDGMENT TO

PLEDGE AGREEMENT

EXHIBIT 10.11

AMENDMENT NO. 1 TO MANAGEMENT AGREEMENT

This Amendment No. 1 to Management Agreement (this “ Amendment ”) is entered into as of this 13th day of January, 2017, by and among uSell.com, a Delaware corporation (“ uSell ”), Scott Tepfer (“ Scott ”), Brian Tepfer (“ Brian ” and together with Scott, the “ Tepfers ”), Daniel Brauser (“ Brauser ”) and Nikhil Raman (“ Raman ”).

BACKGROUND

uSell, the Tepfers, Brauser and Raman are parties to a Management Agreement dated as of October 1, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “ Management Agreement ”) which governs the management of the business and operations of BST Distribution Inc., a New York corporation (the “ Corporation ”) and We Sell Cellular, LLC, a Delaware limited liability company (the “ LLC ”).

uSell, the Corporation and the LLC are entering into a Note Purchase Agreement dated as of the date hereof with ___________________, other Purchasers party thereto from time to time and _______________________, as agent for itself and the other Purchasers (the “ Note Purchase Agreement ”). In connection with the transactions contemplated by the Note Purchase Agreement, the parties hereto have agreed to amend the Management Agreement.

NOW, THEREFORE, good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Definitions . All capitalized terms not otherwise defined herein shall have the meanings given to them in the Management Agreement.

2. Amendment to Management Agreement . Subject to satisfaction of the conditions precedent set forth in Section 3 below, Article VII of the Management Agreement is amended in its entirety to provide as follows:

“ARTICLE VII
LOAN OBLIGATIONS

Until such time as all Liabilities have been indefeasibly paid in full and the Companies’ right to request financial accommodations under the Note Purchase Agreement has been terminated, the Parties acknowledge that notwithstanding anything contained in this Agreement to the contrary (including without limitation the restrictions contained in Section 4.01), the transactions, rights and obligations contemplated by the Pledge Agreement and the Security Agreement including without limitation the rights of the Agent to transfer the shares of the Corporation in connection with the Agent’s exercise of secured creditor remedies) shall be exempt from all restrictions contained in this Agreement. For purposes hereof, (a) the terms “Liabilities,” “Companies,” “Pledge Agreement,” and “Security Agreement” shall have the meanings given to those terms in the Note Purchase Agreement and (b) the term “Note Purchase Agreement” shall mean the Note Purchase Agreement dated as of January 13, 2017 by and among uSell, the Corporation, the LLC, the Purchasers named and as defined therein and _________________________, as agent (the “Agent”) for such Purchasers, as the same may be amended, modified, restated and supplemented from time to time.”

3. Conditions Precedent to Effectiveness . This Amendment shall become effective upon execution of uSell, the Tepfers, Brauser and Raman.

4. Representations and Warranties . Each Party hereto hereby represents and warrants as follows:

(a) This Amendment and the Management Agreement, as amended hereby, constitute legal, valid and binding obligations of such Party and are enforceable against such Party in accordance with their respective terms.

(b) Upon the effectiveness of this Amendment, each Party hereby reaffirms all covenants, representations and warranties made in the Management Agreement to the extent the same are not amended hereby and agree that all such covenants, representations and warranties shall be deemed to have been remade as of the effective date of this Amendment.

5. Effect on the Management Agreement .

(a) Upon the effectiveness hereof, each reference in the Management Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to the Loan Agreement as amended hereby.

(b) Except as specifically provided herein, the Management Agreement shall remain in full force and effect, and are hereby ratified and confirmed.

6. Governing Law . This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns and shall be governed by and construed in accordance with the laws of the State of Delaware.

7. Headings . Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.

8. Counterparts; Electronic Transmission . This Amendment may be executed by the parties hereto in one or more counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same agreement. Any signature delivered by a party by facsimile or other electronic transmission shall be deemed to be an original signature hereto.

[Signature Page Follows]

IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first written above.

	USELL.COM, INC.


	Scott Tepfer


	Brian Tepfer


	Daniel Brauser


	Nikhil Raman

Acknowledged and agreed to:

BST DISTRIBUTION, INC.

By:
	Brian Tepfer
	Chief Executive Officer

WE SELL CELLULAR, LLC

By:
	Nikhil Raman
	Manager