Loan and Security Agreement, dated as of August 18, 2020, among Healthier Choices Management Corp., a Delaware corporation, The Vape Store, Inc., a Florida corporation and Healthy Choice Markets, Inc., a Florida corporation, and Sabby Healthcare Master Fund, Ltd., a Cayman Islands exempt company, and Sabby Volatility Warrant Master Fund, Ltd., a Cayman Islands exempt company

SECTION 1.1. Certain Defined Terms.  As used in this Agreement, the following terms shall have the following meanings:

SECTION 1.2. Terms Generally.  The definitions in Section 1.1 apply equally to both the singular and plural forms of the terms defined.  Whenever the context requires, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be construed as if followed by the words “without limitation”.  The words “herein”, “hereof” and “hereunder” and words of similar import refer to this Agreement (including the Exhibits hereto) in its entirety and not to any part hereof, unless the context otherwise requires.  All references herein to Articles, Sections, and Exhibits are references to Articles and Sections of, and Exhibits to, this Agreement unless the context otherwise requires.  Unless the context otherwise requires, any references to any agreement or other instrument or statute or regulation are to such agreement, instrument, statute or regulation as amended and supplemented from time to time (and, in the case of a statute or regulation, to any successor provisions).  Any reference in this Agreement to a “day” or number of “days” (without the explicit qualification of “business”) shall mean a calendar day or number of calendar days.  If any action or notice is to be taken or given on or by a particular day, and such day is not a Business Day, then such action or notice shall be deferred until, or may be taken or given on, the next Business Day.

SECTION 1.3. Computation of Time Periods.  In this Agreement in the computation of periods of time from a specified date to a later specified date, unless otherwise specified herein the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”.

SECTION 1.4. Accounting Terms.  All accounting terms not specifically defined herein shall be construed in accordance with GAAP consistent with those applied in the preparation of the financial statements referred to in Section 7.2.

SECTION 2.1. Advance.  Lender agrees, on the terms and conditions hereinafter set forth, to make an advance (“Advance”) on the date hereof consisting of the Term Loan in an amount equal to $2,540,000, less any Fees required to be paid hereunder.  The amount outstanding on such Term Loan shall be payable in accordance with Section 3.1 hereof and shall mature and all outstanding principal thereof, together with accrued and unpaid interest thereon, shall be due and payable on the Maturity Date.

SECTION 2.2. The Note.  The Borrower shall execute and deliver to the Lender to evidence the Advance, a term note (the “Note”) in the amount of the Face Amount.  The Note shall be substantially in the form of Exhibit A hereto with the blanks appropriately filled, and shall mature on the Maturity Date, at which time all principal and interest then outstanding thereunder shall become due and payable.

SECTION 2.3. Origination Discount.  Borrower acknowledges that on the Issue Date, the Term Loan will be funded with a non-refundable discount (the “Origination Discount”) of 5.0% of the Face Amount. The Origination Discount shall be reflected as a dollar for dollar reduction in the advance of the Face Amount on the Issue Date to Borrower. The parties intend that the Origination Discount shall be treated as consideration for the use or forbearance of money. The Borrower and Lender acknowledge that the Origination Discount will constitute original issue discount (as that term is used in Section 1273(a)(1)(B) of the Code) solely for U.S. federal, state and local income tax purposes and, as such, is not being advanced to Borrower.

SECTION 2.4. Profit Sharing; Interest.

SECTION 2.5. Costs and Expenses.  The Borrower agrees (a) to pay to Lender the Fees and (b) to reimburse Lender for all out-of-pocket costs and expenses, including, without limitation, legal expenses and documented attorneys’ fees, incurred by Lender in connection with the (i) collection, protection or enforcement of any rights in or to the Collateral (as defined in the Pledge and Security Agreement); (iii) collection of any Obligations; (iv) enforcement of this Agreement or any other Loan Document (including, without limitation, any costs and expenses of any third party provider engaged by Lender for such purpose).

SECTION 2.6. Maturity Extension.  The Borrower may (subject to the sole discretion of the Lender) extend the Scheduled Maturity Date from time to time, by delivering written notice to Lender requesting an extension of the Scheduled Maturity Date and specifying the desired length of the extension not later than the 15^th day prior to the then current Scheduled Maturity Date; provided that if the Scheduled Maturity is extended the outstanding principal shall bear interest as set forth in Section 2.4.

SECTION 3.1. Payments and Computations.

SECTION 3.2. Taxes

(a) Any and all payments by the Borrower under the Note shall be made, in accordance with Section 3.1, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of the Lender, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which the Lender is organized or any political subdivision thereof.  If the Borrower shall be required by law to deduct any such amounts from or in respect of any sum payable under the Note to the Lender, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 3.2) the Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.  The Borrower further agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made under the Note or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or the Note.

(b) The Borrower will indemnify the Lender for the full amounts payable pursuant to Section 3.2(a) (including, without limitation, any such amounts imposed by any jurisdiction on amounts payable under this Section 3.2) paid by the Lender and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such amounts were correctly or legally asserted.

SECTION 4.1. Grant of Security Interest.  The Borrower and the Guarantors, and Lender have entered into the Pledge and Security Agreement in order to grant to Lender a first priority lien and security interest in and to the Collateral (as defined in the Pledge and Security Agreement) to secure prompt repayment of any and all Obligations and in order to secure prompt performance by Borrower of its covenants and duties under the Loan Documents.

SECTION 4.2. Delivery of Additional Documentation Required.  The Borrower, the Guarantors and certain of their direct and indirect Subsidiaries, shall execute and deliver to the Lender, prior to or concurrently with the Borrower's execution and delivery of this Agreement and at any time thereafter at the request of the Lender, all financing statements, continuation financing statements, fixture filings, security agreements, assignments, endorsements of certificates of title, applications for title, affidavits, reports, notices, schedules of accounts, letters of authority, and all other documents that the Lender may reasonably request, in form reasonably satisfactory to Lender, to perfect and maintain perfected the Lender’s security interests in the Property and in order to fully consummate all of the transactions contemplated under the Loan Documents.

SECTION 5.1. Conditions Precedent to the Advance.

SECTION 6.1. Existence.  The Borrower, each Guarantor and each of the respective Subsidiaries of the Borrower and each Guarantor, is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is incorporated or organized and is duly qualified or licensed to do business in all jurisdictions where the Property owned or the business transacted by it makes such qualification necessary and where the failure to be so qualified would have a Material Adverse Effect.

SECTION 6.2. Power and Authorization.  The Borrower, each Guarantor and each of the respective Subsidiaries of the Borrower and each Guarantor, is duly authorized and empowered to execute, deliver, and perform its obligations under each Loan Document and all corporate or other action on the part of the Borrower, each Guarantor and each of their Subsidiaries requisite for the due execution, delivery, and performance of each Loan Document has been duly and effectively taken.

SECTION 6.3. Binding Obligations.  This Agreement and the other Loan Documents to which the Borrower, each Guarantor or any of their Subsidiaries, is a party are the legal, valid and binding obligations of such party and is enforceable against such party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally, or by principles governing the availability of equitable remedies.

SECTION 6.4. No Conflict.  The execution, delivery and performance by the Borrower and each Guarantor of this Agreement and the other Loan Documents to which the Borrower, any Guarantor or any of their respective Subsidiaries is or is to become a party and the transactions contemplated hereby and thereby: (i) do not require the approval or consent of, or filing with, any governmental agency or authority other than those already obtained, (ii) do not contravene any Legal Requirement applicable to or binding upon the Borrower, any Guarantor or any of their Subsidiaries and (iii) are not in contravention of the terms of the articles or certificate of incorporation, bylaws, operating agreements or other organizational documents of the Borrower, any Guarantor or any of their Subsidiaries, or of any contractual obligations.

SECTION 6.5. Taxes; Governmental Charges.  Each of the Borrower, each Guarantor and each of their Subsidiaries, has timely filed or caused to be timely filed all federal, state, province, and foreign income tax returns which are required to be filed, and has paid or caused to be paid all taxes as shown on such returns or on any assessment received by it to the extent that such taxes have become due, except for such taxes and assessments as are being contested in good faith in appropriate proceedings and reserved for in accordance with GAAP.

SECTION 6.6. Licenses; Compliance with Law.  The Borrower has obtained all governmental, administrative and other licenses, permits and other authorizations required by law to be obtained or made in order to permit the operation of, and as are necessary to the carrying on of, its business. The business and operations of the Borrower, each Guarantor and each of their Subsidiaries, as conducted, are in compliance in all material respects with all Legal Requirements.

SECTION 6.7. Absence of Financing Statements.  The Borrower and each Guarantor has good and marketable title to all Property owned by it. Except as provided herein, there is no financing statement, security agreement, chattel mortgage, real estate mortgage or other document filed or recorded with any filing records, registry or other public office, that purports to cover, affect or give notice of any present or possible future lien on, or security interest in, the Property of the Borrower, any Guarantor or any of their Subsidiaries, or any rights relating thereto.

SECTION 6.8. Litigation.  Except as disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, there are no actions, suits, proceedings or investigations of any kind pending or threatened against the Borrower, any Guarantor or any of their Subsidiaries, before any court, tribunal or administrative agency or board,  that, if adversely determined, might, either in any case or in the aggregate, reasonably be expected to materially adversely affect the properties, assets, financial condition or business of the Borrower, any Guarantor or any of their Subsidiaries, or materially impair the right of the Borrower, any Guarantor and their Subsidiaries, considered as a whole, to carry on business substantially as now conducted by them, or result in any substantial liability not adequately covered by insurance, or for which adequate reserves are not maintained on the consolidated balance sheet of the Borrower or the applicable Guarantor, or which question the validity of this Agreement or any of the other Loan Documents, or might impair or prevent any action taken or to be taken pursuant hereto or thereto.  Notwithstanding the foregoing, this Section 6.8 shall not restrict Borrower’s or each Guarantor’s right to contest any such litigation, and to bond over any matter of record resulting from such litigation as a cure to any default or event of default caused pursuant to this Section 6.8.

SECTION 6.9. Solvency.  The Borrower, each Guarantor, and each of their respective Subsidiaries, is Solvent (which, for this purpose, shall be determined without giving effect to any “balloon” payment or amount owed under the Loan Documents not yet due and payable) and will continue to be Solvent after the creation of the Obligations.

SECTION 6.10. Material Contracts.  Neither the Borrower, nor any Guarantor nor any of their Subsidiaries, is in breach or in default in any material respect of or under any material contracts to which it is a party and has not received any notice of the intention of any other party thereto to terminate any material contract.

SECTION 6.11. No Material Adverse Effect.  Since March 31, 2020, (a) there has been no Material Adverse Effect, and (b) there has been no circumstance, event or occurrence, and no fact is known to the Borrower, nor to any Guarantor, nor to any of their Subsidiaries that would reasonably be expected to result in a Material Adverse Effect.

SECTION 6.12. No Default or Event of Default.  No event has occurred or is continuing which constitutes a Default or Event of Default hereunder.

SECTION 6.13. Trademarks, Patents, Licenses.  The Borrower possesses all trademarks, trademark rights, patents, patent rights, licenses, permits, trade names, trade name rights, copyrights and approvals which are required to conduct its business as now conducted without conflicting with the rights of others.

SECTION 6.14. Disclosure.  To Borrower’s and Guarantor’s knowledge, neither this Agreement, nor any of the other Loan Documents, nor any certificate or other document furnished to the Lender by or on behalf of the Borrower or any Guarantor pursuant to any Loan Document contains, or will contain, as of its date, any untrue statement of a material fact or omits to state or will omit to state, as of its date, a material fact necessary in order to make the statements contained herein and therein not misleading. There are no facts known to the Borrower or any Guarantor which, individually or in the aggregate, materially adversely affect or involve any substantial possibility of materially adversely affecting the condition, business or affairs of the Borrower or any Guarantor or its properties and assets considered as an entirety which have not been disclosed herein.

SECTION 7.1. Compliance with Laws, Etc.  The Borrower and each Guarantor will, and the Borrower and each Guarantor will cause their Subsidiaries to, comply, in all material respects with all applicable Legal Requirements.

SECTION 7.2. Reporting and Notice Requirements.

SECTION 7.3. Use of Proceeds.  The proceeds of the Term Loan shall be used solely for the following purposes: (a) the purchase by the Borrower of the PPE Goods and (b) the payment of fees, costs and expenses related to the transactions contemplated hereby.

SECTION 7.4. Taxes and Liens.  The Borrower and each Guarantor will pay and discharge, or will cause to be paid and discharged, and the Borrower and each Guarantor will cause each of their Subsidiaries to, pay and discharge, promptly all taxes, assessments, and governmental charges or levies imposed upon the Borrower, any Guarantor, or any of their Subsidiaries, or upon the income of any Property of the Borrower, any Guarantor, or any of their Subsidiaries, as well as all claims of any kind (including, without limitation, claims for labor, materials, supplies, and rent) which, if unpaid, might become a Lien upon any Property of the Borrower, any Guarantor, or any of their Subsidiaries, except such taxes, assessments, governmental charges or levies contested in good faith by the Borrower, any Guarantor, or any of their Subsidiaries for which adequate reserves have been maintained in accordance with GAAP.

SECTION 7.5. Maintenance of Property.  The Borrower and each Guarantor will, and the Borrower and each Guarantor will cause each of their Subsidiaries to, at all times maintain, preserve, protect, and keep, or cause to be maintained, preserved, protected, and kept, the Property of the Borrower, each Guarantor and each of their Subsidiaries, in good repair, working order, and condition (ordinary wear and tear excepted) and consistent with past practice.

SECTION 7.6. Right of Inspection.  From time to time upon reasonable notice to the Borrower or any Guarantor, as applicable, the Borrower or such Guarantor, as applicable, will permit any officer or employee of, or agent designated by, the Lender to visit and inspect any of the Properties of the Borrower, such Guarantor or any of their Subsidiaries, examine the corporate books or financial records of the Borrower, such Guarantor or any of their Subsidiaries, take copies and extracts therefrom, and discuss the affairs, finances, and accounts of the Borrower, such Guarantor or any of their Subsidiaries, with the applicable entity’s officers or certified public accountants, all as often as the Lender may reasonably desire, provided that such visits and inspections shall be made only during business hours and so as not to interfere unreasonably with the business and operations of the Borrower, such Guarantor or any of their Subsidiaries. Notwithstanding the foregoing, unless there is an Event of Default that has not been cured within applicable cure periods, the Lender shall not request any such inspection of the books or financial records of the Borrower, any Guarantor or any of their Subsidiaries more than once per any six (6) month period.  All confidential or proprietary information provided to or obtained by the Lender under this Section or under this Agreement shall be held in confidence by the Lender in the same manner and with the same degree of protection as the Lender exercises with respect to its own confidential or proprietary information.  For purposes of this Section, all information provided to the Lender pursuant hereto shall be presumed to constitute “confidential and proprietary information” unless (i) the Borrower or the applicable Guarantor indicates otherwise in writing, (ii) the information was or becomes generally available to the public other than as a result of a disclosure in violation of this Section by the Lender or its representatives, (iii) the information was or becomes available to the Lender or its representatives on a non-confidential basis from a source other than the Borrower, the applicable Guarantor, or any of their Subsidiaries, (iv) the information was within the possession of the Lender or any of its representatives prior to being furnished by or on behalf of the Borrower, the applicable Guarantor or their Subsidiaries, provided that in each case the source of such information was not bound by a confidentiality agreement in respect thereof preventing disclosure to the Lender or its representatives or (v) the information is independently developed by the Lender (but only if it does not contain or reflect, and is not based upon, in whole or in part, any information furnished hereunder which constitutes “confidential or proprietary information”).

SECTION 7.7. Insurance.  The Borrower and each Guarantor shall maintain residential and commercial risk insurance (the “Policies”) (i) covering the customary risks for the business that the Borrower and each Guarantor is engaged in and all Collateral (as defined in the Pledge and Security Agreement) that is capable of being insured and (ii) naming the Lender and its successors or assigns as their interests may appear as Lender’s loss payee (in the case of property insurance) and an additional insured (in the case of liability insurance), and the Borrower and each Guarantor will, and the Borrower and each Guarantor will cause each of their Subsidiaries to, maintain insurance of similar types and coverages as maintained on the date hereof and consistent with past practice, with financially sound and reputable insurance companies and associations acceptable to the Lender based on the Lender’s reasonable judgment (or as to workers’ compensation or similar insurance, in an insurance fund or by self-insurance authorized by the jurisdiction in which its operations are carried on). Promptly following the request of the Lender, the Borrower and each Guarantor shall deliver to the Lender certificates evidencing the Policies.

SECTION 7.8. Notice of Litigation.  The Borrower or any Guarantor, as applicable, will promptly notify Lender in writing of any litigation, legal proceeding or dispute, other than disputes in the ordinary course of business or, whether or not in the ordinary course of business, involving amounts in excess of $100,000, and any investigation of Borrower, the applicable Guarantor or any their Subsidiaries, by any Governmental Authority, adversely affecting the Borrower, the applicable Guarantor or any of their Subsidiaries, whether or not fully covered by insurance, and regardless of the subject matter thereof.

SECTION 7.9. Maintenance of Office.  The Borrower will maintain its chief executive office at 3800 North 28^th Way, Hollywood, FL 33020, or at such other place in the United States of America as the Borrower shall designate upon written notice to the Lender, where notices, presentations and demands to or upon the Borrower in respect of the Loan Documents to which the Borrower is a party may be given or made.  The Borrower shall notify the Lender in writing of the intent of the Borrower to relocate any of its Property at least five (5) Business Days prior to the date of such proposed relocation.

SECTION 7.10. Existence.  The Borrower and each Guarantor will, and the Borrower and each Guarantor shall cause each of their Subsidiaries to, preserve and maintain its legal existence and all of its material rights, privileges, licenses, contracts and property and assets used or useful to its business.

SECTION 7.11. Further Assurances.  The Borrower and each Guarantor will, and the Borrower and each Guarantor shall cause each of their Subsidiaries to, cooperate with the Lender and execute such further instruments and documents as the Lender shall reasonably request to carry out to its satisfaction the transactions contemplated by this Agreement and the other Loan Documents.

SECTION 7.12. Post-Closing Covenants.  The Borrower will deliver to Lender:

SECTION 8.1. Impairment of Rights.  The Borrower will not, each Guarantor will not, and the Borrower and each Guarantor will not permit any of their Subsidiaries to, undertake any action or engage in any transaction or activity to impair the Lender’s rights hereunder.

SECTION 8.2. Restrictions on Debt.  The Borrower will not, each Guarantor will not, and the Borrower and each Guarantor will not permit any of their respective Subsidiaries to, create, incur, assume, guarantee, endorse or be or remain liable, contingently or otherwise, with respect to any Debt other than:

SECTION 8.3. Restrictions on Liens.  The Borrower will not, each Guarantor will not, and the Borrower and each Guarantor will not permit any of their Subsidiaries to, (i) create or incur or suffer to be created or incurred or to exist any Lien upon any of their Property, or upon the income or profits therefrom, which is not removed of record, bonded off, or dismissed within fifteen (15) Business Days after the date of notice of such filing; (ii) transfer any of such Property or the income or profits therefrom for the purpose of subjecting the same to the payment of Debt or performance of any other obligation in priority to payment of its general creditors; (iii) acquire, or agree or have an option to acquire, any property or assets upon conditional sale or other title retention or purchase money security agreement, device or arrangement; (iv) suffer to exist for a period of more than thirty (30) days after the same shall have been incurred any Debt or claim or demand against it that if unpaid might by law or upon bankruptcy or insolvency, or otherwise, be given any priority whatsoever over its general creditors; or (v) sell, assign, pledge or otherwise transfer any accounts, contract rights, general intangibles, chattel paper or instruments, with or without recourse; provided that the Borrower, each Guarantor and any of their Subsidiaries may create or incur or suffer to be created or incurred or to exist (the “Permitted Liens”):

SECTION 8.4. Mergers and Acquisitions.

SECTION 8.5. Related Party Transactions.  The Borrower will not, each Guarantor will not, and the Borrower and each Guarantor will not permit any of their Subsidiaries to, permit or suffer to be conducted transactions with any Affiliates or officers or directors of the Borrower, any Guarantor or any of their Subsidiaries or their Affiliates in connection with the Property, other than those contemplated by the Loan Documents, without the prior written approval of Lender, which approval shall not be unreasonably withheld. The Borrower will not, and each Guarantor will not, pay any of their respective Affiliates, a management fee or any compensation under any management agreement, without the prior written consent of the Lender.

SECTION 8.6. Issuance of Equity Securities.  The Borrower will not and each Guarantor will not issue, or consent to the issuance by any of their respective Subsidiaries, of any equity securities or any warrants, options or subscription or conversion rights entitling the holder thereof to purchase or obtain any equity securities of the Borrower, any Guarantor or any of their respective Subsidiaries, as applicable, without the prior written consent of the Lender, which consent will not be unreasonably withheld.

SECTION 8.7. Investments; Loans.  The Borrower will not, each Guarantor will not, and the Borrower and each Guarantor will not permit any of their respective Subsidiaries to, acquire obligations or Capital Stock of, or loan or advance money to, any Person, other than (i) direct obligations of the United States, (ii) obligations insured by the Federal Deposit Insurance Corporation, or (iii) obligations unconditionally guaranteed by the United States.

SECTION 8.8. Dispositions.  The Borrower and each Guarantor shall not, and the Borrower and each Guarantor shall cause each of their Subsidiaries not to, without the written consent of Lender (which consent shall not be unreasonably withheld), voluntarily sell, assign, lease, transfer, trade, withdraw, redeem, substitute or otherwise dispose of any of the Collateral (as defined in the Pledge and Security Agreement) or any material assets of the Borrower, any Guarantor, or any of their Subsidiaries, or enter into any agreement to do so; provided that the Borrower may sell the PPE Goods and the Borrower and Guarantors may sell inventory in the ordinary course of business without the consent of Lender.  The Borrower shall not, and the Borrower and each Guarantor shall cause each of their Subsidiaries not to, execute any other document, such as a Power of Attorney, or similar instrument, in favor of any person to deal with the Collateral (as defined in the Pledge and Security Agreement).

SECTION 8.9. Dividends and Distributions.  The Borrower will not directly or indirectly, declare or pay any dividends on accounts of any equity securities of the Borrower, now or hereafter outstanding, or set aside or otherwise deposit or invest any sums for such purpose, or apply or set apart any sum, or make any other distribution (by reduction of capital or otherwise) in respect of any such equity securities or agree to do any of the foregoing.

SECTION 8.10. Changes in Organizational Documents.  The Borrower will not, each Guarantor will not, and the Borrower and each Guarantor shall cause each of their Subsidiaries not to, amend in any respect its certificate of incorporation (including any provisions or resolutions relating to capital stock), by-laws or other organizational documents in a manner materially adverse to the Lender, without the prior written consent of the Lender; provided that such consent will not be unreasonably withheld.

SECTION 9.1. Events of Default.  If any of the following events (“Events of Default”) shall occur and, after written notice thereof by the Lender to the Borrower, shall not have been cured within five (5) calendar days (in the case of monetary defaults) or ten (10) calendar days (in the case of all other defaults capable of being cured) unless a shorter period of time is specified below:

SECTION 10.1. Survival of Representations and Warranties.  All representations and warranties in each Loan Document shall survive the delivery of the Note and the making of the Term Loan, and shall continue after the repayment of the Note and the Maturity Date until all Obligations are indefeasibly paid in full, and any investigation at any time made by or on behalf of the Lender shall not diminish the Lender’s right to rely thereon.

SECTION 10.2. Amendments, Etc.  No amendment or waiver of any provision of this Agreement or the Note, nor consent to any departure by the Borrower or any Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Lender, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

SECTION 10.3. Notices, Etc.  All notices and other communications provided for hereunder shall be in writing and shall be effective when actually delivered addressed as follows: if to the Borrower or any Guarantors, at their address at 3800 North 28^th Way, Hollywood, FL 33020, Attention: John Ollet, Chief Financial Officer, with a copy to Cozen O’Connor, Southeast Financial Center, 200 South Biscayne Blvd., Suite 3000, Miami, FL 33131, Attention: Matin Schrier, Esq.; if to the Lender, at its address at 10 Mountainview Road, Suit 206 Upper Saddle River, NJ 07458, Attention: Robert Grundstein, with a copy to Olshan Frome Wolosky LLP, 1325 Avenue of the Americas, New York, NY 10019, Attention: Adam Friedman, Esq.; or as to the Borrower or the Lender at such other address as shall be designated by such party in a written notice to the other parties.

SECTION 10.4. No Waiver; Remedies.  No failure on the part of either party to exercise, and no delay in exercising, any right under any Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

SECTION 10.5. Indemnification.  The Borrower and the Guarantors shall indemnify and hold the Lender and its officers, directors, agents, employees, advisors and counsel and their respective Affiliates (each such person being an “Indemnitee”), harmless from and against any and all losses, claims, damages, liabilities, costs or expenses (including attorneys’ fees and expenses) imposed on, reasonably incurred by or asserted against any of them by a party that is not an Indemnitee in connection with any litigation, investigation, claim or proceeding commenced or threatened related to the negotiation, preparation, execution, delivery, enforcement, performance or administration of this Agreement, any other Loan Document, or any undertaking or proceeding related to any of the transactions contemplated hereby or any act, omission, event or transaction related or attendant thereto (including, without limitation, brokerage commissions alleged to be due on account of the placing of the investment), including amounts paid in settlement (to the extent agreed to in writing by Borrower), court costs, and the reasonable fees and expenses of counsel except that the Borrower and the Guarantors shall not have any obligation under this Section 10.5 to indemnify an Indemnitee with respect to a matter covered hereby resulting from the gross negligence or willful misconduct of such Indemnitee as determined pursuant to a final, non-appealable order of a court of competent jurisdiction (but without limiting the obligations of the Borrower as to any other Indemnitee).  To the extent that the undertaking to indemnify, pay and hold harmless set forth in this Section may be unenforceable because it violates any law or public policy, the Borrower and the Guarantors shall pay the maximum portion which it is permitted to pay under applicable law to the Lender in satisfaction of indemnified matters under this Section.  To the extent permitted by applicable law, the Borrower and the Guarantors shall not assert, and the Borrower and each of the Guarantors hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any of the other Loan Document or any undertaking or transaction contemplated hereby.  All amounts due under this Section shall be payable upon demand. The foregoing indemnity shall survive the payment of the Obligations and the termination or non-renewal of this Agreement.

SECTION 10.6. Right of Set-off.  Upon the occurrence and during the continuance of any Event of Default, the Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other Debt at any time owing by the Lender to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under any Loan Document, whether or not the Lender shall have made any demand under the Note and although such obligations may be unmatured. Lender agrees promptly to notify the Borrower after any such set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such set-off and application.  The rights of the Lender under this Section are in addition to other rights and remedies (including, without limitation, other rights of set-off) which such the Lender may have.

SECTION 10.7. Binding Effect.  This Agreement shall become effective when it shall have been executed by the Borrower, the Guarantors and the Lender and thereafter shall be binding upon and inure to the benefit of the Borrower, the Guarantors, the Lender and their respective successors and assigns, except that neither the Borrower, nor any Guarantor, nor the Lender (except as provided in Section 10.8) shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the other.

SECTION 10.8. Assignments and Participations.  The Lender may assign all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of the Note held by it) to any Affiliate of Lender.

SECTION 10.9. Limitation on Agreements.  All agreements between the Borrower, the Guarantors or the Lender, whether now existing or hereafter arising and whether written or oral, are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of demand being made in respect of an amount due under any Loan Document or otherwise, shall the amount paid, or agreed to be paid, to the Lender for the use, forbearance, or detention of the money to be loaned under the Note or any other Loan Document or otherwise or for the payment or performance of any covenant or obligation contained herein or in any other Loan Document exceed the Highest Lawful Rate.  If, as a result of any circumstance whatsoever, fulfillment of or compliance with any provision hereof or of any of such documents at the time performance of such provision shall be due or at any other time shall involve exceeding the amount permitted to be contracted for, taken, reserved, charged or received by the Lender under applicable usury or similar law, then, ipso facto, the obligation to be fulfilled or complied with shall be reduced (firstly by reducing the stated interest rate and thereafter, if and to the extent required, by reducing any other amount comprising interest) to the limit prescribed by such applicable usury or similar law, and if, from any such circumstance, the Lender shall ever receive interest or anything which might be deemed interest under applicable law which would exceed the Highest Lawful Rate, such amount which would be excessive interest shall be applied to the reduction of the principal amount owing on account of the Note or the amounts owing on other obligations of the Borrower to the Lender under any Loan Document and not to the payment of interest, or if such excessive interest exceeds the unpaid principal balance of the Note and the amounts owing on other obligations of the Borrower to the Lender under any Loan Document, as the case may be, such excess shall be refunded to the Borrower.  All sums paid or agreed to be paid to the Lender for the use, forbearance, or detention of the indebtedness of the Borrower to the Lender shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full term of such indebtedness until payment in full of the principal (including the period of any renewal or extension thereof) so that the interest on account of such indebtedness shall not exceed the Highest Lawful Rate.  Notwithstanding anything to the contrary contained in any Loan Document, it is understood and agreed that if at any time the rate of interest which accrues on the outstanding principal balance of the Note shall exceed the Highest Lawful Rate, the rate of interest which accrues on the outstanding principal balance of the Note shall be limited to the Highest Lawful Rate, but any subsequent reductions in the rate of interest which accrues on the outstanding principal balance of the Note shall not reduce the rate of interest which accrues on the outstanding principal balance of such Note below the Highest Lawful Rate until the total amount of interest accrued on the outstanding principal balance of the Note, taken in the aggregate, equals the amount of interest which would have accrued if such interest rate had at all times been in effect and not been reduced.  In the event that any rate of interest under the Note or any Loan Document is reduced due to the effect of this Section 10.9 and there is a subsequent increase in the Highest Lawful Rate prior to the full payment of the Obligations, such interest rate shall, automatically without any action of the Borrower or Lender, be increased to the then applicable Highest Lawful Rate.  The terms and provisions of this Section 10.9 shall control and supersede every other provision of all Loan Documents.

SECTION 10.10. Severability.  In case any one or more of the provisions contained in any Loan Document to which the Borrower or any Guarantor is a party or in any instrument contemplated thereby, or any application thereof, shall be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained therein, and any other application thereof, shall not in any way be affected or impaired thereby.

SECTION 10.11. Governing Law.  This Agreement and the Note shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts made and to be performed entirely within such state without regards to the conflicts of laws principles thereof other than mandatory provisions of law.

SECTION 10.12. SUBMISSION TO JURISDICTION; WAIVERS.  THE BORROWER, EACH GUARANTOR AND THE LENDER IRREVOCABLY AND UNCONDITIONALLY:

(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN THE STATE OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;

(b) WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND AGREES NOT TO PLEAD OR CLAIM THE SAME; AND

(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH LEGAL ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING OF A COPY THEREOF (BY REGISTERED OR CERTIFIED MAIL OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL POSTAGE PREPAID) TO THE ADDRESS SET FORTH IN SECTION 10.3 HEREOF OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES HERETO SHALL HAVE BEEN NOTIFIED IN WRITING PURSUANT TO SECTION 10.3.

(d) THE BORROWER, EACH GUARANTOR AND THE LENDER EACH WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY LEGAL ACTION ARISING UNDER THIS AGREEMENT.

SECTION 10.13. Execution in Counterparts.  This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Agreement or any other Loan Document (other than the Note and the Deed of Trust) by fax transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement or such other Loan Document.