EXHIBIT 10.12
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
(Amendment No. 1)
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act 1934
Date of Report (date of earliest event reported):
(formerly Mer Telemanagement Solutions Ltd.) (Exact name of registrant as specified in charter) |
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(State of Incorporation) |
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(Address of Principal Executive Offices) (Zip Code)
(Registrant’s Telephone Number, Including Area Code)
_______________________________________________
(Former Name or Former Address, is Changed Since Last Report)
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 (see General Instruction A.2. below):
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
Ordinary Shares | SBET | Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
EXPLANATORY NOTE
This Current Report on Form 8-K/A amends the Current Report on Form 8-K filed by the registrant on February 16, 2023 (the “Original Form 8-K”). This amended Current Report fixes a technical error with the links to Exhibits 4.1 and 10.1 to 10.18. The information disclosed in the Original Form 8-K and the exhibits is unchanged.
Item 9.01 – Financial Statements and Exhibits
(d) Exhibits
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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.
SHARPLINK GAMING LTD | |||
| By: | /s/ Rob Phythian | ||
| Name: | Rob Phythian | |
| Title: | Chief Executive Officer | ||
Dated: February 17, 2023
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EXHIBIT 4.1
EXHIBIT C
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
SHARPLINK GAMING LTD.
| Warrant Shares: 8,800,000 | Initial Exercise Date: February 15, 2023 |
THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, Alpha Capital Anstalt or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on the fifth year anniversary of the Initial Exercise Date (the “Termination Date”) but not thereafter, to subscribe for and purchase from SharpLink Gaming Ltd., an Israeli corporation (the “Company”), up to 8,800,000 shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase Agreement (the “Purchase Agreement”), dated February 14, 2023, among the Company and the purchasers signatory thereto.
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Section 2. Exercise.
a) Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by wire transfer by a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation as soon as reasonably practicable of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b) Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $0.875, subject to adjustment hereunder (the “Exercise Price”). The Exercise Price shall be reduced (and only reduced) on the day a proxy statement is filed with the Commission for the purpose of obtaining Shareholder Approval, to equal the average of the five most recent Nasdaq Official Closing Prices immediately prior to such filing date, if such average is lower than the initial Exercise Price, subject to the Floor Price.
c) Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained therein is not available for the resale of the Warrant Shares by the Holder, then this Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
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| (A) = | as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
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| (B) = | the Exercise Price of this Warrant, as adjusted hereunder; and |
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| (X) = | the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
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If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this Section 2(c).
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
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“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the OTCQB Venture Market (“OTCQB”) or the OTCQX Best Market (“OTCQX”) is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (“Pink Market”) operated by the OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
Notwithstanding anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section 2(c).
d) Mechanics of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $5 per Trading Day (increasing to $10 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.
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ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.
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v. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share.
vi. Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
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e) Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
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f) Issuance Restrictions. If the Company has not obtained Shareholder Approval, then the Company may not issue upon exercise of this Warrant a number of shares of Common Stock, which, when aggregated with any shares of Common Stock issued (i) pursuant to the conversion of any Debentures issued pursuant to the Purchase Agreement, (ii) upon prior exercise of this or any other Warrant issued pursuant to the Purchase Agreement and (iii) , would exceed 5,373,540, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of the Purchase Agreement (such number of shares, the “Issuable Maximum”). The Holder and the holders of the other Warrants issued pursuant to the Purchase Agreement shall be entitled to a portion of the Issuable Maximum equal to the quotient obtained by dividing (x) the Holder’s original Subscription Amount by (y) the aggregate original Subscription Amount of all holders pursuant to the Purchase Agreement. In addition, the Holder may allocate its pro-rata portion of the Issuable Maximum among Warrants held by it in its sole discretion. Such portion shall be adjusted upward ratably in the event a Purchaser no longer holds any Warrants and the amount of shares issued to such Purchaser pursuant to its Warrants was less than such Purchaser’s pro-rata share of the Issuable Maximum. For avoidance of doubt, unless and until any required Shareholder Approval is obtained and effective, warrants issued to any registered broker-dealer as a fee in connection with the Securities issued pursuant to the Purchase Agreement as described in clause (iii) above shall provide that such warrants shall not be allocated any portion of the Issuable Maximum and shall be unexercisable unless and until such Shareholder Approval is obtained and effective.
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Section 3. Certain Adjustments.
a) Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re‑classification.
b) Subsequent Equity Sales. Subject to, and only effective upon the Company’s receipt of Shareholder Approval, if the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell, enter into an agreement to sell, or grant any option to purchase, or sell or grant any right to reprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Common Stock or Common Stock Equivalents, at an effective price per share less than the Exercise Price then in effect (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (it being understood and agreed that if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance at such effective price), then simultaneously with the consummation of each Dilutive Issuance the Exercise Price shall be reduced and only reduced to equal the Base Share Price, provided that the Base Share Price shall not be less than $___1 (subject to adjustment for reverse and forward stock splits, recapitalizations and similar transactions following the date of the Purchase Agreement). Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 3(b) in respect of an Exempt Issuance. The Company shall notify the Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of any Common Stock or Common Stock Equivalents subject to this Section 3(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 3(b), upon the occurrence of any Dilutive Issuance, the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. If the Company enters into a Variable Rate Transaction, the Company shall be deemed to have issued Common Stock or Common Stock Equivalents at the lowest possible price, conversion price or exercise price at which such securities may be issued, converted or exercised.
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c) Subsequent Rights Offerings In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, that, to the extent that the Holder's right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
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1 Greater of $0.30 and 20% of Nasdaq Official Closing Price on date of pricing; prior to Shareholder Approval, and thereafter, there shall be no minimum price.
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e) Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company (or any Subsidiary), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) or Section 2(f) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) or Section 2(f) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company's control, including not approved by the Company's Board of Directors, the Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock of the Successor Entity (which Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of (1) the 30 day volatility, (2) the 100 day volatility or (3) the 365 day volatility, each of clauses (1)-(3) as obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the highest VWAP during the period beginning on the Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(e) and (D) a remaining option time equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(e) regardless of (i) whether the Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the Initial Exercise Date.
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f) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g) Notice to Holder.
i. Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
h) Voluntary Adjustment By Company. Subject to the prior receipt of Shareholder Approval and to the rules and regulations of the Trading Market, the Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors of the Company.
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Section 4. Transfer of Warrant.
a) Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof and to the provisions of Section 4.1 of the Purchase Agreement, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the original Issue Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
d) Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant to an effective registrationstatement under the Securities Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase Agreement.
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e) Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
a) No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required to net cash settle an exercise of this Warrant.
b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
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d) Authorized Shares.
The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
e) Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance with the provisions of the Purchase Agreement.
f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
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g) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant or the Purchase Agreement, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered in accordance with the notice provisions of the Purchase Agreement.
i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
j) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
k) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
l) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
m) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
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(Signature Page Follows)
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
| SHARPLINK GAMING LTD. | |||
| By: | /s/ Rob Phythian | ||
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| Name: Rob Phythian | |
| Title: Chief Executive Officer | |||
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NOTICE OF EXERCISE
| To: | SHARPLINK GAMING LTD. |
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(1) The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] [if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4) Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
Name of Investing Entity: ________________________________________________________________________
Signature of Authorized Signatory of Investing Entity: _________________________________________________
Name of Authorized Signatory: ___________________________________________________________________
Title of Authorized Signatory: ____________________________________________________________________
Date: ________________________________________________________________________________________
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
| Name: | ______________________________________ |
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| Address: | ______________________________________ |
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| Phone Number: | ______________________________________ |
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| Email Address: | ______________________________________ |
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| Dated: _______________ __, ______ | |
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| Holder’s Signature: _______________________________
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| Holder’s Address: ________________________________ |
EXHIBIT 10.1
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this “Agreement”) is made as of the 13th day of February, 2023, by and between SHARPLINK, INC., a Minnesota corporation (the “Borrower”), and PLATINUM BANK, a Minnesota banking corporation (the “Lender”).
WITNESSETH :
WHEREAS, the Borrower has requested the Lender to extend a revolving line of credit in the original principal amount of SEVEN MILLION AND 00/100 DOLLARS ($7,000,000.00); and
WHEREAS, the Lender is willing and prepared to extend such revolving line of credit to the Borrower upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the following meanings for the purpose of this Agreement and the documents related hereto unless the context in which such term is used clearly requires otherwise:
(a) Advance: a disbursement by the Lender pursuant to Section 2 hereof.
(b) Affiliate: means any person or entity (other than a Subsidiary): (a) which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, the Borrower, (b) which beneficially owns or holds 5% or more of the equity interest of the Borrower; or (c) 5% or more of the equity interest of which is beneficially owned or held by the Borrower or a Subsidiary. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise.
(c) Banking Day: any day on which the Federal Reserve Bank of Minneapolis, Minnesota, is open for business.
(d) Borrower Documents: this Agreement, the Note, and any and all other documents now or hereafter executed and delivered by the Borrower to the Lender pursuant hereto.
(e) Borrower Organizational Documents: collectively, the following documents, each of which shall be in form and substance acceptable to the Lender:
(i) a copy of the Articles of Incorporation for the Borrower, duly certified by the Secretary of State of Minnesota;
(ii) a copy of the Bylaws for the Borrower, duly certified by an officer of the Borrower;
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(iii) a current Certificate of Good Standing for the Borrower, duly issued by the Secretary of State of Minnesota; and
(iv) a copy of the resolutions of the Borrower, authorizing the execution, delivery and performance of the Borrower Documents, duly certified by an officer of the Borrower.
(f) Change of Control: means (i) ownership of more than 49% of the direct or indirect ownership interests of the Borrower shall change without the Lender’s prior written approval.
(g) Collateral: the collateral described in and subject to the Deposit Account Pledge and Control Agreement.
(h) Default Period: means any period of time beginning on the day on which an Event of Default has occurred and ending on the date that such Event of Default has been cured or waived as determined by the Lender.
(i) Default Rate: Four percent (4.0%) in excess of the interest rate accruing under the Note.
(j) Deposit Account Pledge and Control Agreement: the Deposit Account Pledge and Control Agreement of even date herewith executed by SHGN, as pledgor, in favor of the Lender, pursuant to which SHGN, has granted to the Lender a security interest in the Pledged Account to secure, among other things, payment of the Note.
(k) Event of Default: any one or more of the events listed in Section 6.
(l) Financing Statements: the UCC-1 financing statement naming the Borrower as debtor in favor of the Lender as secured party.
(m) Guaranties: means collectively, those certain Company Guaranties dated of even date herewith executed by the Guarantors in favor of the Lender, pursuant to which each of the Guarantors have guaranteed, amongst other things, repayment of the Loan.
(n) Guarantor Organizational Documents: means collectively, the following documents each of which shall be in form and substance acceptable to the Lender:
(i) a copy of the Certificate of Incorporation or the Certificate of Formation for each Guarantor, duly certified by the Secretary of State of the State of Delaware;
(ii) a copy of the Bylaws or the Operating Agreement of each Guarantor, duly certified by an authorized officer of such Guarantor;
(iii) a current Certificate of Good Standing of each Guarantor, duly certified by the Secretary of State of the State of Delaware; and
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(iv) a copy of the resolutions of each Guarantor authorizing the execution, delivery and performance of such Guaranty and all other documents to which it is a party.
(o) Guarantors: means collectively, SHGN Acquisition Corp., a Delaware corporation., SLG 1 Holdings, LLC, a Delaware limited liability company and SLG 2 Holdings, LLC, a Delaware limited liability company.
(p) Loan: the Revolving Line of Credit.
(q) Loan Documents: collectively, the Borrower Documents, the Deposit Account Pledge and Control Agreement, the Guaranties, and any and all other documents related thereto.
(r) Maturity Date: February 26, 2025.
(s) Maximum Line: $7,000,000.00.
(t) Note: the Revolving Promissory Note of even date herewith executed by the Borrower in the original principal amount of Seven Million and 00/100 Dollars ($7,000,000.00) and payable to the order of the Lender.
(u) Obligations: any obligation of the Borrower to the Lender, whether monetary or otherwise.
(v) Person: means any individual, corporation, partnership, joint venture, limited liability company, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
(w) Pledged Account: Account No. 41780, held by Platinum Bank, and owned by SHGN, which has been pledged to the Lender pursuant to the Deposit Account Pledge and Control Agreement.
(x) Prime Rate: the Prime Rate is the Wall Street Journal Prime Rate of Interest, which is defined as the rate published in the Money Rate Section of the Wall Street Journal as the Prime Rate, with the understanding that the Lender may lend to its customers at rates that are above or below the Prime Rate. If such rate is no longer published, then in such event, Lender may use a similar rate of interest which is publicly announced by a major commercial banking institution located in Minneapolis, Minnesota.
(y) Revolving Line of Credit: the revolving line of credit established pursuant to Section 2 hereof.
(z) Revolving Line of Credit Expiration Date: the earlier of (i) the Maturity Date, or (ii) the date on which the Lender terminates the Revolving Line of Credit pursuant to Section 6 hereof.
(aa) SHGN: SHGN Acquisition Corp., a Delaware corporation.
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(bb) UCC: the Uniform Commercial Code in effect in the State of Minnesota, or in any other state whose laws are held to govern this Agreement or any portion of this Agreement.
2. REVOLVING LINE OF CREDIT.
(a) Advances. Upon the terms and subject to the conditions hereinafter set forth, the Lender shall make Advances to the Borrower pursuant to this Section 2 from time to time until and including the Revolving Line of Credit Expiration Date. The Lender shall have no obligation to make Advances if after giving effect to such requested Advances the sum of the outstanding and unpaid Advances under this Section or otherwise (the “Aggregate Borrowings”), would exceed the Maximum Line. If at any time the Aggregate Borrowings exceed the Maximum Line, the Borrower agrees to make, on demand, payment hereunder in an amount at least equal to such excess, together with accrued interest on the amount prepaid to the date of such prepayment. Subject to and upon the terms and conditions hereinafter set forth, the Borrower may borrow, repay and reborrow under this Section 2 from the date hereof to and including the Revolving Line of Credit Expiration Date. The obligation of the Borrower to repay any and all Advances made pursuant to this Section shall be evidenced by the Note, secured by the Deposit Account Pledge and Control Agreement and guaranteed by the Guarantors.
(b) Manner of Borrowing. Each time the Borrower desires to obtain an Advance pursuant to this Section 2, the Borrower shall request such Advance either orally or in writing. Each such oral or written request must specify the date of the requested Advance and the amount thereof. At the request of the Lender, an oral request must be confirmed in writing by the Borrower within three (3) Banking Days of such request.
(c) Use and Purposes. The Borrower agrees to borrow from the Lender, and the Lender agrees to lend to the Borrower, the Revolving Line of Credit. Advances under the Revolving Line of Credit shall be used by the Borrower for working capital purposes and for no other purpose, and are subject to all of the terms, provisions and conditions of this Agreement.
(d) Expenses and Advances Secured. All disbursements, advances or payments made by the Lender hereunder, all amounts expended by the Lender pursuant to Sections 6 and 8 hereof, the Lender’s attorneys’ fees, if any, and all other loan expenses, as and when advanced or incurred by the Lender, will be secured by the Deposit Account Pledge and Control Agreement and guaranteed by the Guarantors pursuant to the Guaranties.
(e) Interest. Commencing from the date hereof, the annual rate of interest to accrue on the outstanding principal balance of the Note shall be a certain, but variable per annum interest rate the Prime Rate plus fifty (50) basis points, with such rate to be adjusted on and effective as of the same day the Prime Rate changes.
The unpaid principal balance of the Note will bear interest at the above-described annual rates (the “Interest Rate”), as the same change from time to time, with such rates to be adjusted on and effective as of the same day the Prime Rate changes. Lender’s internal records of applicable interest rates shall be determinative in the absence of manifest error.
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Interest on the unpaid principal balance shall be computed on the basis of a 360 day year, but shall be charged for the actual number of days interest is unpaid (actual ÷ 360). If the Loan has not been repaid on or before the Revolving Line of Credit Expiration Date or if an Event of Default occurs, then the unpaid principal balance shall thereafter accrue interest at the Default Rate, until the unpaid principal balance is paid in full or such Event of Default is cured. If for any reason whatsoever the interest and other consideration payable to the Lender under the Loan Documents (as defined herein) exceeds the limit prescribed by any applicable usury statute or any other applicable law, then such interest and other consideration shall be reduced to the limit provided in such statute or law, so that in no event shall such interest and other consideration be in excess of such limit. If any payments of interest or other consideration have been made to the Lender in excess of such limits, such excess amount shall be applied to the principal balance or, if the Loan has been fully paid, refunded to the Borrower.
(f) Payments. Accrued interest on the Note is payable beginning on February 26, 2023, and on the twenty-sixth (26th) day of each and consecutive month thereafter. Principal and accrued interest on the Note is due and payable in full on the Revolving Line of Credit Expiration Date.
All payments shall be applied first to accrued interest, then to late payment charges and then to the payment of the principal balance on the Note; provided, however, if an Event of Default exists, the Lender may elect to apply any payments in any order as it deems appropriate. Payments of principal of, and interest on, the Note and all late payment charges, fees, expenses and other obligations of the Borrower under the Loan Documents which are payable to the Lender shall be made to the Lender without setoff or counterclaim in immediately available funds not later than 1:00 p.m. (Minneapolis time) on the due date thereof at the Lender’s office in Plymouth, Minnesota. Funds received after such time shall be deemed to have been received on the next Banking Day. Whenever any payment to be made under the Loan Documents shall be stated to be due on a day which is not a Banking Day, such payment shall be made on the next succeeding Banking Day, and such extension of time, in the case of a payment of principal, shall be included in the computation of any interest on such principal payment.
(g) Prepayment. The unpaid principal balance of the Note and accrued interest thereon may be prepaid in full or in part at any time, without premium or penalty.
(h) Late Payment Charge. In the event that any required payment of principal or interest hereunder is not made within ten (10) days after the due date thereof, the Borrower shall pay to the Lender a late payment charge equal to five percent (5%) of the amount of the overdue payment, for the purpose of reimbursing the Lender for a portion of the expense incident to handling the overdue payment. This late payment charge shall not be prorated on a daily basis as payments are received by the Lender. This provision shall not be deemed to excuse a late payment or to be a waiver of any other rights the Lender may have, including the right to declare the entire unpaid principal balance and accrued interest immediately due and payable. The Borrower agrees that the “late payment charge” is a provision for liquidated damages and represents a fair and reasonable estimate of the damages the Lender will incur by reason of the late payment, considering all circumstances known to the Borrower and the Lender on the date hereof. The Borrower further agrees that proof of actual damages will be difficult or impossible.
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(i) Protective Advances. At any time after the occurrence, and during the continuance of an Event of Default or any event or circumstance which, with the giving of notice or the passage of time, or both, would constitute an Event of Default, the Lender may initiate an Advance in its sole discretion for any reason at any time without the Borrower’s compliance with any of the conditions of this Agreement, and (i) disburse the proceeds directly to third persons in order to protect Lender’s interest in the Collateral or to perform any of Borrower’s obligations under this Agreement or under any Loan Document, or (ii) apply the proceeds to the amount of any Obligations then due and payable to the Lender.
3. CONDITIONS PRECEDENT. As a condition precedent to the extension by the Lender of the Revolving Line of Credit, the following agreements, documents and other items shall have been executed and/or delivered to the Lender by the party indicated, each of which documents, agreements and other items shall be in form and substance acceptable to the Lender:
(a) The Loan Documents, duly executed and delivered by the parties thereto.
(b) The Borrower Organizational Documents and the Guarantor Organizational Documents.
(c) Such Financing Statement and other filings, duly executed and/or delivered by the Borrower as required by the Lender to perfect the security interests granted pursuant to the Deposit Account Pledge and Control Agreement.
(d) Current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against the Borrower or any Guarantor, together with bankruptcy and judgment searches, and (ii) no financing statements have been filed (and not terminated or lapsed) against Borrower or any Guarantor except those that are acceptable to the Lender in its sole discretion, and (iii) the security interests granted pursuant to the Deposit Account Pledge and Control Agreement constitute valid and perfected liens on all accounts subject thereto.
(e) Proof of the insurance to keep all business personal property insured against risks of fire (including so called extended coverage), theft, collision (in case of collateral consisting of motor vehicles) and such other risks and in such amounts as the Lender may reasonably request, in form and substance acceptable to the Lender.
(f) Such other agreements, documents and other items as the Lender may reasonably request.
In addition to the foregoing, the obligation of the Lender to make any Advance under Section 2 shall be subject to the further conditions precedent that on the date of such Advance:
(a) the representations and warranties contained in Section 4 are true and correct on and as of the date of such Advance as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date; and
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(b) no event has occurred and is continuing, or would result from such Advance, which constituted an Event of Default.
4. REPRESENTATIONS. In order to induce the Lender to make the Revolving Line of Credit, the Borrower hereby warrants and represents to the Lender as follows:
(a) Borrower’s Existence and Power. The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Minnesota, and has all requisite power and authority to carry on its business as now conducted and as presently proposed to be conducted.
(b) Authority of the Borrower. The Borrower has full power and authority to execute and deliver the Borrower Documents and to incur and perform its obligations thereunder; the execution, delivery and performance by the Borrower of the Borrower Documents will not violate any provision the Borrower Organizational Documents or of any law, rule, regulation or court order or result in the breach of, constitute a default under, or create or give rise to any lien under, any indenture or other agreement or instrument to which the Borrower is a party or by which the Borrower or its property may be bound or affected.
(c) Enforceability Against the Borrower. Each of the Borrower Documents constitutes the legal, valid and binding obligation of the Borrower enforceable in accordance with their terms (subject, as to enforceability, to limitations resulting from bankruptcy, insolvency and other similar laws affecting creditors’ rights generally).
(d) Financial Condition. The financial statements of the Borrower and the Guarantors heretofore furnished to the Lender are complete and correct in all material respects and fairly present the respective financial condition of the Borrower and the Guarantors at the dates of such statements. Since the most recent set of financial statements delivered by the Borrower to the Lender, there have been no material adverse changes in the financial condition of the Borrower or the Guarantors.
(e) Litigation. There is no action, suit or proceeding pending or, to the knowledge of the Borrower, threatened against or affecting the Borrower or the Guarantors which, if adversely determined, would have a material adverse effect on the condition (financial or otherwise), business, properties or assets of the Borrower or the Guarantors or which would question the validity of the Loan Documents, or impair the ability of the Borrower or the Guarantors to perform their respective obligations under the foregoing agreements.
(f) Licenses. The Borrower possesses adequate licenses, permits, franchises, patents, copyrights, trademarks and trade names, or rights thereto, to conduct its business substantially as now conducted and as presently proposed to be conducted.
(g) Default. Neither the Borrower nor any of the Guarantors is in default of a material provision under any agreement, instrument, decree or order to which it is a party or by which it or its property is bound or affected.
(h) Consents. No consent, approval, order or authorization of, or registration, declaration or filing with, or notice to, any governmental authority or any third party is required in connection with the execution and delivery of the Loan Documents, or any of the agreements or instruments herein mentioned relating to the Loan to which the Borrower or the Guarantors are a party or the carrying out or performance of any of the transactions required or contemplated hereby or thereby or, if required, such consent, approval, order or authorization has been obtained or such registration, declaration or filing has been accomplished or such notice has been given prior to the date hereof.
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(i) Taxes. The Borrower and the Guarantors have filed all tax returns required to be filed and either paid all taxes shown thereon to be due, including interest and penalties, which are not being contested in good faith and by appropriate proceedings, or provided adequate reserves for payment thereof, and the Borrower has no information or knowledge of any objections to or claims for additional taxes in respect of federal income or excess profits tax returns for prior years.
(j) Ownership of Property; Liens. The Borrower and SHGN has good and marketable title to its real properties and good and sufficient title to the collateral subject to the Deposit Account Pledge and Control Agreement and its other properties, free and clear of all mortgages, liens, security interests and encumbrances (except in favor of the Lender).
(k) Judgments. There are no judgments outstanding or docketed against the Borrower or the Guarantors.
(l) No Material Adverse Change. Since the end of the fiscal year with respect to which the Borrower has delivered financial statements to the Lender, there has been no material adverse change in the financial condition, operations, assets, business or properties of the Borrower.
(m) Investment Company Act. Neither the Borrower nor any Guarantor is an “investment company” or a company “controlled” by an “investment company” or a “subsidiary” of an “investment company,” within the meaning of the Investment Company Act of 1940 required to be registered under the Investment Company Act of 1940.
(n) Compliance with Laws. Borrower and the Guarantors are in compliance in all material respects with the requirements of all laws, and all orders, writs, injunctions and decrees applicable to it or its properties, and except in such instance in which (a) such requirement of law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a material adverse effect.
(o) Regulation U. Neither the Borrower nor any Guarantor is engaged principally, or as one of its important activities, in the business of extending credit for the purposing of purchasing or carrying margin stock.
(p) Regulation X. The Borrower has not obtained the credit granted herein for the purpose of purchasing or carrying any securities (within the meaning of Regulation X of the Board of Governors of the Federal Reserve System) and no part of the proceeds of any Advance shall be used for any purpose which will contravene the purpose of said Regulation X.
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(q) Further Assurances. The Borrower agrees it shall execute and deliver to the Lender such further financing statements, acknowledgements, certificates and agreements as shall be reasonably requested from time to time by the Lender to protect the security provided for payment of the Note and to further the transaction contemplated by this Agreement.
(r) Reaffirmations. Each request by the Borrower for an Advance under the Note shall constitute a reaffirmation of the representations and warranties of the Borrower, including the representation that no Event of Default exists.
5. COVENANTS OF THE BORROWER. On and after the date hereof and until the payment in full of the Note and termination of the Revolving Line of Credit, and the performance of all other obligations of the Borrower hereunder, the Borrower agrees that, unless the Lender shall otherwise consent in writing:
(a) Financial Statements. The Borrower shall deliver or cause to be delivered to the Lender the following:
(i) Borrower Annual Financial Statements. Not later than 120 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2023, annual audited financial statements of the Borrower, prepared by a certified public accounting firm acceptable to Lender in conformity with GAAP, consisting of at least statements of income, cash flow, changes in financial position and equity, and a balance sheet as at the end of such year, setting forth in each case in comparative form corresponding figures from the previous annual financial statements.
(ii) Guarantor Annual Financial Statements. Not later than 120 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2023, annual audited financial statements of each Guarantor, prepared by a certified public accounting firm acceptable to Lender in conformity with GAAP, consisting of at least statements of income, cash flow, changes in financial position and equity, and a balance sheet as at the end of such year, setting forth in each case in comparative form corresponding figures from the previous annual financial statements.
(iii) Notice of Default. Immediately upon becoming aware of any Default or Event of Default, a notice describing the nature thereof and what action the Borrower proposes to take with respect thereto.
(iv) Notice of Environmental Issues. Immediately upon becoming aware of the occurrence thereof, notice of any violation as to any environmental matter by the Borrower and of the commencement of any material judicial or administrative proceeding relating to health, safety or environmental matters.
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(v) Notice of Claims and Litigation. Immediately upon becoming aware of the occurrence thereof, notice of the institution of any litigation, arbitration or governmental proceeding, or the rendering of a judgment or decision in such litigation or proceeding, which involves a claim or potential liability in excess of $50,000.00 or other claim that is material to the Borrower or the Guarantors, and the steps being taken by the persons or entities affected by such proceeding.
(vi) Other Information. From time to time, such other information regarding the business, operation and financial condition of the Borrower or the Guarantors as the Lender may reasonably request.
(b) Taxes and Claims. The Borrower and the Guarantors shall pay and discharge all taxes, assessments and governmental charges or levies imposed upon them or upon its income or profits, or upon any of its assets or properties, prior to the date on which penalties attach thereto, and all lawful claims which, if unpaid, might become a lien or charge upon the Collateral or any other property of the Borrower or any Guarantor.
(c) Insurance. The Borrower shall maintain insurance coverage with respect to business personal property with responsible insurance companies licensed to do business in the State of Minnesota as required by this Agreement. The Borrower shall furnish to the Lender written evidence as to the insurance maintained by the Borrower.
(d) Maintenance of Existence; Conduct of Business. The Borrower shall preserve all of its rights, privileges and franchises necessary or desirable in the normal conduct of its business; conduct its business in an orderly, efficient and regular manner; and shall not liquidate, merge, dissolve, suspend operations, or sell all or substantially all of its assets, or sell any assets.
(e) Maintenance of Properties. The Borrower and the Guarantors shall keep all of their assets and properties in good working order and condition, ordinary wear and tear and casualty losses excepted.
(f) Compliance with Applicable Laws. The Borrower and the Guarantors shall comply with the requirements of all applicable state and federal laws, and of all rules, regulations and orders of any governmental or other authority or agency, a breach of which would materially and adversely affect its business or credit, except where contested in good faith and by proper proceedings.
(g) Litigation. The Borrower shall promptly give to the Lender notice in writing of all litigation and of all proceedings by or before any court or governmental or regulatory agency affecting the Borrower or the Guarantors, except litigation or proceedings which, if adversely determined, would not materially affect the financial condition or business of the Borrower or the Guarantors.
(h) Liens. The Borrower shall not create, assume, incur or suffer to exist any assignment, mortgage, pledge, security interest, lien, charge or other encumbrance whatsoever upon its interest in the Collateral or any of the Borrower’s other property, whether now owned or hereafter acquired, securing any indebtedness or obligation, except for the lien in favor of the Lender.
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(i) Indebtedness. The Borrower shall not create, assume, incur or suffer to exist any material indebtedness, except for (a) the indebtedness incurred hereunder, or (b) any other indebtedness with the Lender.
(j) Guarantees. The Borrower shall not assume, guarantee, endorse or otherwise become directly or contingently liable for the obligations of any Person except the endorsement of negotiable instruments by the Borrower for deposit or collection or similar transactions in the ordinary course of business, and guarantees in favor of the Lender.
(k) Investments. The Borrower shall not make or permit to exist any loans or advances to, or make any investment or acquire any equity interest whatsoever in, any Person or Affiliate, including without limitation any partnership or joint venture, nor purchase or hold beneficially any stock or other securities or evidence of indebtedness of any Person or Affiliate.
(l) Access to Books and Inspection. The Borrower and the Guarantors shall at all times keep proper books of record and accounts for itself, and, upon request of the Lender and upon reasonable notice, the Borrower and the Guarantors shall provide any duly authorized representative of the Lender access during normal business hours to, and permit such representative to examine, copy or make extracts from, any and all books, records and documents in the Borrower’s and the Guarantors’ possession or control relating to its affairs, and to inspect any of its facilities and properties; provided, however, that the Lender shall treat all such books and records confidential and shall only be permitted to disclose the information contained therein to its legal counsel, its independent public accountants, any participating banks, or in connection with any action to collect on the Note or to enforce this Agreement or the documents related hereto, or as otherwise permitted or required by law.
(m) Access. The Borrower and the Guarantors shall grant to the Lender’s agents access to the Borrower’s and the Guarantors’ properties at any reasonable time upon reasonable notice in order to inspect the Borrower’s and the Guarantors’ property and business.
(n) Transfer of Collateral. The Borrower shall not sell, dispose of, lease, mortgage, assign, sublet or transfer any of its right, title or interest in or to any of its assets or the Collateral without the prior written consent of the Lender.
(o) Recovery of Additional Costs. If the imposition of or any change in any law, rule, regulation or guideline, or the interpretation or application of any thereof by any court or administrative or governmental authority (including any request or policy not having the force of law) shall impose, modify or make applicable any taxes (except federal, state or local income or franchise taxes imposed on the Lender), reserve requirements, capital adequacy requirements or other obligations which would (a) increase the cost to the Lender for extending or maintaining the credit facilities to which this Agreement relates, (b) reduce the amounts payable to the Lender under this Agreement, or (c) reduce the rate of return on the Lender’s capital as a consequence of the Lender’s obligations with respect to the credit facilities to which this Agreement relates, then the Borrower agrees to pay the Lender such additional amounts as will compensate the Lender therefore, within five (5) days after the Lender’s written demand for such payment, which demand shall be accompanied by an explanation of such imposition or charge and a calculation in reasonable detail of the additional amounts payable by the Borrower, which explanation and calculations shall be conclusive in the absence of manifest error.
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(p) Deposit Accounts. The Borrower and SHGN shall maintain all of their deposit accounts with the Lender, including without limitation the Pledged Account, until the Loan has been paid in full and the Lender’s obligation to make Advances under the Loan have been terminated.
(q) Security Interest in Accounts. As additional security for the payment of the Note and all other monetary obligations of Borrower to the Lender, the Borrower and SHGN have granted to the Lender and any such holder of the Note, a security interest in, a lien on, and an express contractual right to set off against, each deposit account and all deposit account balances, all other accounts of Borrower and SHGN, and all cash and any other property of the Borrower and SHGN now or hereafter maintained with, or in the possession of, the Lender or such holder of the Note.
(r) Minimum Balance of Pledged Account. The Borrower shall cause SHGN to maintain a minimum balance of $7,000,000.00 in the Pledged Account.
6. EVENTS OF DEFAULT. As used herein, the term “Event of Default” shall mean and include each or all of the following events:
(a) the Borrower or any Guarantor shall fail to pay when due, any amounts required to be paid under any of the Note or any other indebtedness of the Borrower or the Guarantors to the Lender, or any third party, or any other such indebtedness now existing or hereafter arising and whether direct or indirect, due or to become due, absolute or contingent, primary or secondary or joint or joint and several;
(b) the Borrower or the Guarantors shall fail to comply with or to perform any covenants set forth in Section 5;
(c) except as set forth in Sections 6(a) and 6(b) above, the Borrower or the Guarantors shall fail to observe or perform any of the covenants, conditions or agreements to be observed or performed by any of them under the Loan Documents or any credit or similar agreement between the Borrower or any Guarantor and the Lender for a period of thirty (30) calendar days after written notice, specifying such default and requesting that it be remedied, given to such party by the Lender;
(d) if the Borrower or any Guarantor files a voluntary petition in bankruptcy or is adjudicated a bankrupt or insolvent, or files any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law, makes an assignment for the benefit of creditors, or seeks or consents to or acquiesces in the appointment of any trustee, receiver or liquidator of the Borrower or any Guarantor of all or any substantial part of its properties or of the Collateral;
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(e) if within sixty (60) days after the commencement of any proceeding against the Borrower or any Guarantor seeking any reorganization, arrangement, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law, such proceeding is not dismissed, or if, within sixty (60) days after the appointment, without the consent or acquiescence of the Borrower or any Guarantor of any trustee, receiver or liquidator of the Borrower or any Guarantor of all or any substantial part of its properties or of the Collateral, such appointment is not vacated or stayed on appeal or otherwise, or if, within sixty (60) days after the expiration of any such stay, such appointment is not vacated;
(f) if the Borrower or any Guarantor shall be or become insolvent (whether in the equity or bankruptcy sense);
(g) any representation or warranty made by the Borrower or any Guarantor in the Loan Documents shall prove to be untrue or misleading in any material respect, or any statement, certificate or report furnished hereunder or under any of the foregoing documents by or on behalf of the Borrower or any Guarantor shall prove to be untrue or misleading in any material respect on the date when the facts set forth and recited therein are stated or certified;
(h) all or any portion of the Collateral subject to the Deposit Account Pledge and Control Agreement, or the legal, equitable or any other interest therein, shall be sold, transferred, assigned, pledged, leased or otherwise disposed of unless the prior written consent of the Lender is first obtained;
(i) any material adverse change shall occur in the condition (financial or otherwise) of the Borrower or any Guarantor which, in the reasonable opinion of the Lender, increases its risk with respect to the Note;
(j) final judgment(s) for the payment of money in excess of $25,000, individually or in the aggregate, shall be rendered against the Borrower or any Guarantor and shall remain undischarged for a period of thirty (30) days during which execution shall not be effectively stayed;
(k) any state or federal tax lien shall be filed against or with respect to the Borrower or any Guarantor;
(l) a Change of Control occurs;
(m) the Borrower or any Guarantor liquidates, dissolves, terminates or suspends its business operations or otherwise fails to operate its business in the ordinary course, or merges with another Person;
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(n) any Guarantor repudiates or purports to revoke its Guaranty or fails to perform any obligation under such Guaranty or ceases to exist for any reason;
(o) any of the Loan Documents shall at any time cease to be in full force and effect or shall be judicially declared null and void, or the validity or enforceability thereof shall be contested by the Borrower or any Guarantor, or the Lender shall cease to have a valid and perfected security interest having the priority contemplated thereunder in the collateral described therein, other than by action or inaction of the Lender, if any of the foregoing shall remain unremedied for ten (10) days or more after receipt of notice thereof to the Borrower from the Lender; or
(p) a default or event of default occurs under any other indebtedness of the Borrower or any Guarantor in favor of the Lender.
Upon the occurrence of an Event of Default, the Lender may, at its option, exercise any and all of the following rights and remedies (in addition to any other rights and remedies available to it):
(i) the Lender may refuse to make any Advances under the Revolving Line of Credit;
(ii) the Lender may terminate the Revolving Line of Credit;
(iii) the Lender may, without notice, declare immediately due and payable all unpaid principal of and accrued interest on the Note, together with all other sums payable hereunder or under the Note, and the Note shall thereupon be immediately due and payable without presentment or other demand, protest, notice of dishonor or any other notice of any kind, all of which are hereby expressly waived;
(iv) the Lender may exercise and enforce any rights and remedies available upon default to a secured party under the UCC, including the right to take possession of Collateral (without posting a bond or other form of security, which the Borrower and the Guarantors hereby waive), to proceed with or without judicial process (without a prior hearing or notice of hearing, which the Borrower and the Guarantors hereby waive) and to sell, lease or otherwise dispose of Collateral for cash or on credit (with or without giving warranties as to the condition, fitness, merchantability or title to Collateral, and in the event of a credit sale, the Obligations shall be reduced only to the extent that payments are actually received), and the Borrower and the Guarantors will, upon the Lender’s demand, assemble the Collateral and make it available to the Lender at any place designated by the Lender which is reasonably convenient to both parties;
(v) the Lender may, for any reason, apply for the appointment of a receiver of the Collateral (to which appointment the Borrower and the Guarantors hereby consent) without the necessity of posting a bond or other form of security (which the Borrower and the Guarantors hereby waive);
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(vi) the Lender may take possession of the Collateral and do anything in its sole judgment to fulfill the obligations of the Borrower hereunder, in accordance with applicable law;
(vii) the Lender may perform any or all of the Borrower’s or any Guarantors’ covenants and agreements hereunder, under any of the other Loan Documents;
(viii) set off any sum due to or incurred by the Lender against all deposits and credits of the Borrower or any Guarantor with, and any and all claims of the Borrower or any Guarantor against, the Lender. Such right shall exist whether or not the Lender shall have made any demand hereunder or under any other Loan Document, whether or not said sums, or any part thereof, or deposits and credits held for the account of the Borrower or any Guarantor is or are matured or unmatured, and regardless of the existence or adequacy of any collateral, guaranty or any other security, right or remedy available to the Lender. The Lender agrees that, as promptly as is reasonably possible after the exercise of any such setoff right, it shall notify the Borrower or the applicable Guarantor of its exercise of such setoff right; provided, however, that the failure of the Lender to provide such notice shall not affect the validity of the exercise of such setoff rights. Nothing in this Agreement shall be deemed a waiver or prohibition of or restriction on the Lender to all rights of banker’s lien, setoff and counterclaim available pursuant to law;
(ix) the Lender may exercise all of its rights or remedies under the Loan Documents and under applicable law; or
(x) the Lender shall have all the right, in addition to any other rights provided by law, to enforce its rights and remedies under the documents related hereto.
7. NOTICES. All notices, consents, requests, demands and other communications hereunder shall be given to or made upon the respective parties hereto at their respective addresses specified below or, as to any party, at such other address as may be designated by it in a written notice to the other party. All notices, requests, consents and demands hereunder shall be effective when personally delivered or duly deposited in the United States mails, certified or registered, postage prepaid, addressed as aforesaid.
IF TO THE LENDER:
Platinum Bank
605 North Highway 169, Suite 100
Plymouth, Minnesota 55441
IF TO THE BORROWER:
SharpLink, Inc.
333 Washington Avenue North, Suite 104
Minneapolis, Minnesota 55401
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8. MISCELLANEOUS.
(a) Waivers, etc. No failure on the part of the Lender to exercise, and no delay in exercising, any right or remedy hereunder or under applicable law or any document or agreement related hereto shall operate as a waiver thereof; nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
(b) Fees and Expenses. The Borrower shall reimburse the Lender for any and all reasonable costs and expenses, including without limitation attorneys’ fees, paid or incurred by the Lender in connection with (i) the preparation of the Loan Documents and any other document or agreement related hereto or thereto, and the transactions contemplated hereby, which amount shall be paid prior to the making of any advance hereunder; (ii) the closing and consummation of the transactions contemplated hereby; (iii) the negotiation of any amendments, modifications or extensions to any of the foregoing documents, instruments or agreements and the preparation of any and all documents necessary or desirable to effect such amendments, modifications or extensions; (iv) the enforcement by the Lender during the term hereof or thereafter of any of the rights or remedies of the Lender under any of the foregoing documents, instruments or agreements under applicable law, whether or not suit is filed with respect thereto; and (v) costs incurred by the Lender in connection with inspections of the Collateral. The Borrower shall pay to the Lender on demand all of the Lender’s audit fees, appraisal fees, and other fees and expenses, including but not limited to reasonable attorneys’ fees and legal expenses, in connection with the Borrower’s indebtedness to the Lender.
(c) Amendments, etc. This Agreement and the Note may not be amended or modified, nor may any of their terms (including without limitation, terms affecting the maturity of or rate of interest on the Note) be modified or waived, except by written instruments signed by the Lender and the Borrower.
(d) Successors. This Agreement shall be binding upon and inure to the benefit of the Borrower and the Lender and their respective successors and assigns; provided, however, that the Borrower may not transfer or assign its right to borrow hereunder without the prior written consent of the Lender.
(e) Offsets. Nothing in this Agreement shall be deemed a waiver or prohibition of the Lender’s right of banker’s lien, offset, or counterclaim, which right the Borrower hereby grants to the Lender.
(f) Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart.
(g) Governing Law. This Agreement, the Note and all other agreements related hereto, shall be construed in accordance with and governed by the laws of the State of Minnesota without giving effect to the choice of law provisions thereof.
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(h) Headings. The descriptive headings for the several sections of this Agreement are inserted for convenience only and shall not define or limit any of the terms or provisions hereof.
(i) Jurisdiction. The Borrower and the Guarantors consent to the personal jurisdiction of the state and federal courts located in the State of Minnesota in connection with any controversy relating in any way to the Agreement or to any transaction or matter relating to the Agreement or any of the Loan Documents, waive any argument that venue in such forums is not convenient, and agree that any litigation initiated by the Borrower or the Guarantors against the Lender relating in any way to the Agreement or to any transaction or matter relating to the Agreement shall be venued in either the District Court of Hennepin County, Minnesota, or the United States District Court, District of Minnesota. If the Borrower commences any such action in another jurisdiction or venue, the Lender at its option shall be entitled to have the case transferred to one of the jurisdictions and venues above described, or if such transfer cannot be accomplished under applicable law, to have such case dismissed without prejudice.
(j) WAIVER OF JURY TRIAL. THE BORROWER, THE GUARANTORS AND THE LENDER EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (A) UNDER THE AGREEMENT OR ANY LOAN DOCUMENTS, OR (B) ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THE AGREEMENT OR THE LOAN DOCUMENTS, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
(k) Partial Invalidity/Severability of Provisions. Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
(l) Time is of the Essence. Time is of the essence under this Agreement.
(m) Entire Agreement. This Agreement, the other Loan Documents and the other documents mentioned herein set forth the entire agreement of the parties with respect to the Loan and supersede all prior written or oral understandings and agreements with respect thereto. No modification or waiver of any provision of this Agreement shall be effective unless set forth in writing and signed by the parties hereto.
(n) Binding Effect, Assignment. This Agreement shall be binding upon and inure to the benefit of the Borrower and the Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lender.
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(o) Sale of Loan or Participations. The Lender may at any time sell, assign, transfer, syndicate, grant participations in or otherwise dispose of any portion of the Revolving Line of Credit (each such interest so disposed of being herein called a “Transferred Interest”) to banks, insurance companies or other financial institutions (hereinafter called “Transferees”), pursuant to such assignment agreements, transfer agreements, co-lender agreements, participation agreements and/or agency agreements into which the Lender and its Transferees may enter and by which the Borrower shall agree in writing to recognize. In addition, the Lender may, at any time and from time to time, in its ordinary course of business and in accordance with applicable law, (i) assign an undivided interest in the Revolving Line of Credit to an affiliate of the Lender or to any successor entity by reason of any merger affecting the Lender; or (ii) pledge or assign the same to any Federal Reserve Bank in accordance with applicable law. At the request of the Lender, in the event of any such sale, assignment, transfer or syndication, the Borrower shall execute separate new promissory notes to the assignor and its assignee, in the amounts of their respective interests in the Revolving Line of Credit after said assignment, and shall deliver the same to the assignor and the assignee, in exchange for the assignor’s existing Note. All such separate new promissory notes shall be entitled to all the rights and benefits accorded to the Note under the terms of the Loan Documents. No such assignment shall be binding upon the Borrower until the Lender gives written notice thereof to the Borrower. The Lender may divulge all information relating to the Borrower, the Guarantors, or the Collateral which the Lender has to any actual or potential Transferee, and the Borrower shall cooperate with the Lender in connection with the transfer. The Borrower agrees that each Transferee shall be entitled to the benefits hereof with respect to its Transferred Interest and that each Transferee may exercise any and all rights of banker’s lien, setoff and counterclaim as if such Transferee were a direct lender to the Borrower. If the Lender makes any assignment to a Transferee, then upon notice to the Borrower such Transferee, to the extent of such assignment (unless otherwise provided therein) shall become a lender hereunder and shall have the rights and obligations of the Lender hereunder, and the Lender shall be released from its duties and obligations under this Agreement to the extent of such assignment.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
| BORROWER: | |||
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| SHARPLINK, INC., a Minnesota corporation |
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| By: | /s/ Robert Phythian | ||
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| Robert Phythian | |
| Its: Chief Executive Officer | |||
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[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
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| LENDER: |
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| PLATINUM BANK, a Minnesota banking corporation |
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| By: | /s/ Pete Odell |
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| Pete Odell Title |
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| Its: Senior Vice President |
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EXHIBIT 10.2
REVOLVING PROMISSORY NOTE
| $7,000,000.00 | February 13, 2023 |
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| Plymouth, Minnesota |
FOR VALUE RECEIVED, the undersigned, SHARPLINK, INC., a Minnesota corporation (“Borrower”), hereby promises to pay to the order of PLATINUM BANK, a Minnesota banking corporation (“Lender”), or its assigns, the principal sum of SEVEN MILLION AND NO/100THS DOLLARS ($7,000,000.00), or so much thereof as has been advanced, or paid and re-advanced, to or for the benefit of the Borrower, pursuant to that certain Revolving Credit Agreement of even date herewith by and between the Borrower and Lender (the “Credit Agreement”), in lawful money of the United States and immediately available funds, together with interest thereon as hereinafter provided. This Note represents a revolving line of credit. Disbursement of the principal of this Note will be made pursuant to the terms of the Credit Agreement.
1. INTEREST; PAYMENTS:
The Credit Agreement sets forth the interest rate, default rate, late payment charge, payment and prepayment provisions, the maturity date and other provisions applicable to this Note, all of which are incorporated herein.
2. SECURITY:
This Note is the Note, as defined in the Credit Agreement, and is secured by the Deposit Account Pledge and Control Agreement and is guaranteed by the Guarantors. The terms of the Deposit Account Pledge and Control Agreement are incorporated herein.
3. DEFAULT:
If an Event of Default, as defined in the Credit Agreement, occurs, Lender is entitled to all of the rights and remedies provided for in the Credit Agreement, the Guaranties, the Deposit Account Pledge and Control Agreement and the other Loan Documents, including without limitation the right to terminate the Borrower’s ability to obtain additional advances of principal hereunder and to declare the principal balance hereof to be immediately due and payable and any other rights and remedies of Lender at law or in equity, and Lender may enforce the covenants, agreements and undertakings of the Borrower contained in this Note, in the Credit Agreement, in the Guaranties, and in the Deposit Account Pledge and Control Agreement and may exercise the remedies provided for thereby or otherwise available in respect to this Note, the Guaranties, the Deposit Account Pledge and Control Agreement and the other Loan Documents, all in accordance with the terms thereof.
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4. WAIVERS:
Except as herein provided, the Borrower and all others who may become liable for all or part of the principal balance hereof or for any obligations of the Borrower to Lender or the holder hereof (a) jointly and severally, forever waive presentment, protest and demand, notice of protest, demand and dishonor and non-payment of this Note, and all other notices in connection with the delivery, acceptance, performance, default or enforcement of the payment of this Note, (b) agree that the time of payment of the debt or any part thereof may be extended from time to time without modifying or releasing the lien of the Deposit Account Pledge and Control Agreement, or the other Loan Documents or the liability of the Borrower or any other such parties, the right of recourse against the Borrower and such parties being hereby reserved by Lender; and (c) agree that time is of the essence. The Borrower agrees to pay all costs of collection when incurred, whether suit be brought or not, including attorneys’ fees and costs of suit and preparation therefor, and to perform and comply with each of the covenants, conditions, provisions and agreements of the Borrower contained in this Note, the Credit Agreement, the Deposit Account Pledge and Control Agreement and the other Loan Documents. It is expressly agreed by the Borrower that no extensions of time for the payment of this Note, nor the failure on the part of Lender to exercise any of its rights hereunder, under the Guaranties, under the Deposit Account Pledge and Control Agreement or under the Loan Documents, shall operate to release, discharge, modify, change or affect the original liability under this Note, the Credit Agreement, the Guaranties, the Deposit Account Pledge and Control Agreement or the other Loan Documents, either in whole or in part.
5. SEVERABILITY:
If any provision of this Note shall be illegal or unenforceable, such provision shall be deemed canceled to the same extent as though it never had appeared herein, but the remaining provisions shall not be affected thereby.
6. NOTICES:
All notices, requests, demands and other communications required or permitted to be given hereunder will be given in the manner provided in the Credit Agreement.
7. INCORPORATION OF CREDIT AGREEMENT PROVISIONS:
The provisions of the Credit Agreement waiving any right to a jury trial, providing the governing law and agreeing to jurisdiction and venue are incorporated herein and are applicable to this Note. Unless the context otherwise indicates, any capitalized term used herein, but not defined herein, shall have the meaning given such term in the Credit Agreement.
8. SUCCESSORS:
All rights, powers, privileges and immunities herein granted to Lender shall extend to its successors and assigns and any other legal holder of this Note, with full right by Lender to assign and/or sell same.
Signed on the day and year first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO REVOLVING PROMISSORY NOTE]
| SHARPLINK, INC., a Minnesota corporation | |||
| By: | /s/ Robert Phythian | ||
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| Robert Phythian | |
| Its: Chief Executive Officer | |||
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EXHIBIT 10.3
DEPOSIT ACCOUNT PLEDGE AND CONTROL AGREEMENT
THIS PLEDGE AGREEMENT (this “Agreement”) is made as of the 13th day of February, 2023, by SHGN ACQUISITION CORP., a Delaware corporation (the “Pledgor”), in favor of PLATINUM BANK, a Minnesota banking corporation (the “Lender”).
RECITALS:
WHEREAS, the Lender and SHARPLINK, INC., a Minnesota corporation (the “Borrower”) are parties to that certain Revolving Credit Agreement dated as of even date herewith (the “Credit Agreement”), pursuant to which the Lender has extended a revolving loan to the Borrower in the principal amount of $7,000,000 (the “Loan”), and which is evidenced by, among other things, the Note (as defined in the Credit Agreement); and
WHEREAS, in order to secure the payment of the Note, and each and every other debt, liability and obligation of every type and description which the Borrower may now or at any time hereafter owe to the Lender (whether such debt, liability or obligation now exists or is hereafter created or incurred, to the extent it arises under or is evidenced by the Credit Agreement, the Note, this Agreement or any other present or future instrument or agreement executed in connection with the Credit Agreement, the Note and/or this Agreement, and, to the extent it arises under or is evidenced by such documents, whether it is direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sole, joint or joint and several) (all such debts, liabilities and obligations of the Borrower to the Lender are herein collectively referred to as the “Obligations”), the Pledgor hereby agrees as follows:
| 1. | PLEDGE. The Pledgor hereby grants to the Lender a security interest (the “Security Interest”) in and to all of the Pledgor’s right, title and interest in and to the following collateral: Account No. 41780 (the “Account”) held with Lender, together with all financial assets, security entitlements with respect to such financial assets, investment property, securities and other property in the Account (collectively, the “Collateral”), together with all substitutions and replacements for and products and proceeds of any of the foregoing property, to secure the payment and performance of the Obligations. The Pledgor shall execute and deliver to the Lender any and all documents and instruments as the Lender may determine necessary in order to perfect and maintain the Security Interest granted hereunder in and to the Collateral. |
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| 2. | CONTROL/PERFECTION. Pledgor hereby grants the Lender control of the Account for the purposes of the Lender perfecting its security interest in the Account. Pledgor acknowledges and agrees that the Lender has a first priority perfected security interest in the Collateral. Pledgor hereby consents to the filing of a UCC-1 financing statement in connection with the security interest granted herein in the event the Lender determines, in its sole discretion, that the filing of a UCC-1 financing statement is necessary or advisable. During the term of this Agreement, Lender shall have the sole authority to direct the disposition of funds in the Account, without further consent by the Pledgor or any other person subject to the terms and conditions of this Agreement, and the Pledgor shall not be entitled to withdraw any funds from the Account or take any other action with respect to the Account without the prior written consent of the Lender, which may be withheld in the Lender’s sole and absolute discretion. Without limiting the generality of the foregoing, the Credit Agreement provides for the application of funds in the Account to the outstanding principal balance of the Obligations (as defined in the Credit Agreement) upon the occurrence and during the continuance of an Event of Default, as more particularly described in the Credit Agreement. |
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| 3. | COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR. As further security for the full and faithful performance of the Obligations and the payment in full of the Obligations, the Pledgor covenants, represents and warrants to the Lender as follows: |
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| (a) | The Pledgor’s right to the Collateral is not subject to any defense, right, setoff or counterclaim and the Pledgor will defend and indemnify the Lender against all claims or demands of all persons other than the Lender. No financing statement covering all or any of the Collateral is on file in any public office. |
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| (b) | The Pledgor shall not sell, convey, assign, pledge, mortgage, grant a security interest in or otherwise transfer or encumber all or any part of the Pledgor’s interest in the Collateral or other property pledged as security hereunder without the prior written consent of the Lender. |
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| (c) | The Pledgor has made no other assignment, transfer, conveyance, pledge, mortgage or grant of a security interest in the Collateral. |
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| (d) | The Pledgor hereby acknowledges that this Agreement and the pledge and security granted hereby is supported by good and valuable consideration and is binding upon the Pledgor. |
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| (e) | The Pledgor has full power and authority to execute this Agreement and to grant the security interest in the Collateral which it has granted hereunder. |
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| (f) | The Pledgor will at any time hereafter execute such control agreements, financing statements or other instruments or take such actions as the Lender may request to establish, maintain and perfect the Lender’s security interest in the Collateral. |
| 4. | TERM. This Agreement shall remain in full force and effect until the Obligations are paid in full and any obligation to provide financing to the Borrower, pursuant to the Credit Agreement, has terminated. |
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| 5. | AMENDMENT. This Agreement may not be amended or modified, nor may any of its terms, including, without limitation, terms affecting any of the Obligations, be modified or waived, except by the Lender’s written consent. |
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| 6. | DEFAULT. Upon the occurrence of an Event of Default (as defined in the Credit Agreement), the Lender shall have the following remedies: |
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| (b) | The Lender may, at its option and in the name of the Pledgor or otherwise, collect and dispose of all or any part of the Collateral, to the extent permitted under the terms of the Uniform Commercial Code as in effect in the State of Minnesota, and the Lender is specifically authorized to apply all proceeds from the disposition of any and all Collateral toward payment of the Obligations. |
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| (c) | At the Lender’s request, the Pledgor shall cooperate with the Lender and do all things necessary to enable the Lender to sell any and all of the Collateral, in compliance with all applicable securities and other laws and regulations, including but not limited to providing the Lender with financial statements and projections, tax returns, legal opinions and other information requested by the Lender. |
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| (d) | The Lender may exercise or enforce any and all rights or remedies available to the Lender by law or agreement against the Pledgor. |
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| (e) | The Lender may apply the funds in the Account to the Obligations, in a manner in which the Lender determines in its sole discretion. |
| 7. | WAIVER. The remedies provided herein, in the Credit Agreement, in the Note, in the Loan Documents, or otherwise available to the Lender at law or in equity are cumulative. No delay or failure by the Lender in the exercise of any right or remedy shall constitute a waiver thereof and no single or partial exercise by the Lender of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy. |
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| 8. | NOTICES. All notices, requests, demands and other communications hereunder shall be deemed to have been given when personally delivered or deposited in the United States mail, mailed first class, registered or certified, postage prepaid, addressed to the last known address of the respective parties. |
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| 9. | GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. |
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| 10. | TAXES. The Pledgor shall be responsible for the payment of all state and federal taxes payable as a result of any sale of any and all of the Collateral. |
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| 11. | BINDING EFFECT. This Agreement shall be binding upon and inure to the parties hereto and their heirs, assigns and successors. |
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| 12. | SEVERABILITY. In the event any provision hereof is determined to be unenforceable or invalid, such provision or such part thereof which may be unenforceable shall be deemed severed from this Agreement and the remaining provisions carried out with the same force and effect as if the severed provision or part thereof had not been made a part hereof. |
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| 13. | COUNTERPARTS. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties may execute this Agreement by signing any such counterparts. |
IN WITNESS WHEREOF, the Pledgor has executed and delivered this Agreement as of the date and year first above written.
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[SIGNATURE PAGE TO DEPOSIT ACCOUNT PLEDGE AND CONTROL AGREEMENT]
| PLEDGOR: | |||
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| SHGN ACQUISITION CORP., a Delaware corporation |
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| By: | /s/ Robert Phythian | ||
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| Robert Phythian | |
| Its: Chief Executive Officer | |||
[SIGNATURE PAGE TO DEPOSIT ACCOUNT PLEDGE AND CONTROL AGREEMENT]
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| LENDER: |
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| PLATINUM BANK, a Minnesota banking corporation |
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| By: | /s/ Pete Odell |
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| Pete Odell |
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| Its: Senior Vice President |
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EXHIBIT 10.4
COMPANY GUARANTY
BY
SHGN ACQUISITION CORP./ SLG 1 HOLDINGS LLC/ SLG 2 HOLDINGS LLC TO
PLATINUM BANK
Dated: February 13, 2023
This instrument was drafted by:
WINTHROP & WEINSTINE, P.A.
South Sixth Street, Suite 3500
Minneapolis, Minnesota 55402
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COMPANY GUARANTY
In consideration of and in order to induce PLATINUM BANK, a Minnesota banking corporation, with a banking house located in Plymouth, Minnesota (the “Lender”), to extend financial accommodations to SHARPLINK, INC., a Minnesota corporation (the “Borrower”), pursuant to that certain Revolving Credit Agreement of even date herewith by and between the Lender and the Borrower (as the same may hereafter be amended, supplemented or restated from time to time, the “Loan Agreement”) and as evidenced by that certain Revolving Promissory Note of even date herewith executed by the Borrower in the original principal amount of $7,000,000 and payable to the order of the Lender (as the same may be amended, supplement, restated or renewed from time to time, the “Note”), the undersigned (the “Guarantor”) hereby:
1. Unconditionally and absolutely guarantees to the Lender:
(a) the full and prompt payment, when due, whether at the maturity dates specified therein or theretofore upon acceleration of maturity pursuant to the provisions thereof, of principal, accrued interest, prepayment premiums and late charges, if any, on the Note, and any and all renewals thereof including notes taken in substitution therefor; and
(b) any and all other liability or indebtedness of the Borrower to the Lender whether now existing or hereafter arising, joint or joint and several, contingent or direct; and
(c) the payment and performance by the Borrower of all of its obligations under and pursuant to the Note, the Loan Agreement and any and all documents related thereto;
(the Note, the Loan Agreement and such other liability, indebtedness and obligations are herein collectively referred to as the “Obligations”); together with the full and prompt payment of any and all costs and expenses of and incidental to the collection of the Obligations or the enforcement of this Guaranty, including, without limitation, attorneys’ fees.
2. Agrees that the Lender may demand payment from the Guarantor of any installment (or portion thereof) of principal or interest on the Note, when due, and the Guarantor shall immediately pay the same to the Lender, and the Lender may demand payment or performance of any or all of the other Obligations, when such payment or performance is due or required, and the Guarantor shall immediately pay or perform the same, whether or not the Lender has (i) declared an Event of Default (as defined in the Loan Agreement), or (ii) accelerated payment of the Note, or (iii) commenced repossession of, or foreclosure of any security interest, mortgage or other lien in, any or all of the collateral securing the Note, or (iv) otherwise exercised its rights and remedies hereunder or under the Note, the documents related thereto or applicable law.
3. Waives (i) presentment, demand, notice of nonpayment, protest and notice of protest and dishonor on the Obligations; (ii) notice of acceptance of this Guaranty by the Lender; and (iii) notice of the creation or incurrence of the Obligations by the Borrower.
4. Agrees that the Lender may from time to time, without notice to the Guarantor, which notice is hereby waived by the Guarantor, extend, modify, renew or compromise the Obligations, in whole or in part, without releasing, extinguishing or affecting in any manner whatsoever the liability of the Guarantor hereunder, the foregoing acts being hereby consented to by the Guarantor.
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5. Agrees that the Lender shall not be required to first resort for payment to the Borrower or any other person, corporation or entity, or their properties or estates, or any other right or remedy whatsoever, prior to enforcing this Guaranty.
6. Agrees that this Guaranty shall be construed as a continuing, absolute, and unconditional guaranty without regard to (i) the validity, regularity or enforceability of the Obligations or the disaffirmance thereof in any insolvency or bankruptcy proceeding relating to the Borrower, or (ii) any event or any conduct or action of the Borrower or the Lender or any other party which might otherwise constitute a legal or equitable discharge of a surety or guarantor but for this provision.
7. Agrees that this Guaranty shall remain in full force and effect and be binding upon the Guarantor until the Obligations are paid in full.
8. Agrees that the Lender is expressly authorized to forward or deliver any or all collateral and security which may at any time be placed with it by the Borrower, the Guarantor or any other person, directly to the Borrower for collection and remittance or for credit, or to collect the same in any other manner and to renew, extend, compromise, exchange, release, surrender or modify the installments of, any or all of such collateral and security with or without consideration and without notice to the Guarantor and without in any manner affecting the absolute liability of the Guarantor hereunder; and that the liability of the Guarantor hereunder shall not be affected or impaired by any failure, neglect or omission on the part of the Lender to realize upon the Obligations, or upon any collateral or security therefor, nor by the taking by the Lender of any other guaranty or guaranties to secure the Obligations or any other indebtedness of the Borrower to the Lender, nor by the taking by the Lender of collateral or security of any kind nor by any act or failure to act whatsoever which, but for this provision, might or could in law or in equity act to release or reduce the Guarantor’s liability hereunder.
9. Waives any right that the Guarantor may have to collect or seek to collect from the Borrower the claim, if any, by subrogation or otherwise, acquired by the Guarantor through payment of any part or all of the Obligations until the Obligations have been paid in full.
10. Agrees that the liability of the Guarantor hereunder shall not be affected or impaired by the existence or creation from time to time, with or without notice to the Guarantor, which notice is hereby waived, of indebtedness from the Borrower to the Lender in addition to the indebtedness evidenced by the Note; the creation or existence of such additional indebtedness being hereby consented to by the Guarantor.
11. Agrees that the possession of this instrument of guaranty by the Lender shall be conclusive evidence of due execution and delivery hereof by the Guarantor.
12. Agrees that this Guaranty shall be binding upon the legal representatives, successors and assigns of the Guarantor, and shall inure to the benefit of the Lender and its successors, assigns and legal representatives; that notwithstanding the foregoing, the Guarantor shall have no right to assign or otherwise transfer the Guarantor’s rights and obligations under this Guaranty to any third party without the prior written consent of the Lender; and that any such assignment or transfer shall not release or affect the liability of the Guarantor hereunder in any manner whatsoever.
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13. Agrees that it may be joined in any action or proceeding commenced against the Borrower in connection with or based upon the Obligations and recovery may be had against it in any such action or proceeding or in any independent action or proceeding against him should the Borrower fail to duly and punctually pay any of the principal of or interest on the Obligations without any requirement that the Lender first assert, prosecute or exhaust any remedy or claim against the Borrower.
14. Agrees that upon the occurrence at any time of an Event of Default, the Lender shall have the right to set off any and all amounts due hereunder by the Guarantor to the Lender against any indebtedness or obligation of the Lender to the Guarantor.
15. Agrees that the Guarantor shall be liable to the Lender for any deficiency remaining after foreclosure of any mortgage in real estate or any security interest in personal property granted by the Borrower, the Guarantor or any third party to the Lender to secure repayment of the Obligations and the subsequent sale by the Lender of the property subject thereto to a third party (whether at a foreclosure sale or at a sale thereafter by the Lender in the event the Lender purchases said property at the foreclosure sale) notwithstanding any provision of applicable law which may prevent the Lender from obtaining a deficiency judgment against, or otherwise collecting a deficiency from, the Borrower including, without limitation, Minnesota Statutes 582.30.
16. Agrees that this Guaranty shall be deemed a contract made under and pursuant to the laws of the State of Minnesota and shall be governed by and construed under the laws of such state without giving effect to the choice of law provisions thereof; and that, wherever possible, each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of the Guaranty.
17. Agrees that no failure on the part of the Lender to exercise, and no delay in exercising, any right or remedy hereunder shall operate as or constitute a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy granted hereby or by any related document or by law.
18. Waives any and all claims against the Lender and defenses to performance and payment hereunder relating in any way, directly or indirectly, to the performance of the Lender’s obligations or exercise of any of its rights under the Note and the documents related thereto.
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19. Warrants and represents to the Lender as follows:
(a) Enforceability. This Guaranty constitutes the legal, valid and binding obligation of the Guarantor enforceable in accordance with its terms (subject, as to enforceability, to limitations resulting from bankruptcy, insolvency or other similar laws affecting creditors’ rights generally).
(b) Litigation. There is no action, suit or proceeding pending or, to the knowledge of the Guarantor, threatened against or affecting the Guarantor which, if adversely determined, would have a material adverse effect on the condition (financial or otherwise), properties or assets of the Guarantor, or which would question the validity of this Guaranty or any instrument, document or other agreement related hereto or required hereby, or impair the ability of the Guarantor to perform the Guarantor’s obligations hereunder or thereunder.
(c) Default. The Guarantor is not in default of a material provision under any agreement, instrument, decree or order to which the Guarantor is a party or by which the Guarantor or the Guarantor’s property is bound or affected.
(d) Consents. To the Guarantor’s knowledge, no consent, approval, order or authorization of, or registration, declaration or filing with, or notice to, any governmental authority or any third party is required in connection with the execution and delivery of this Guaranty or any of the agreements or instruments herein mentioned to which the Guarantor is a party or the carrying out or performance of any of the transactions required or contemplated hereby or thereby or, if required, such consent, approval, order or authorization has been obtained or such registration, declaration or filing has been accomplished or such notice has been given prior to the date hereof.
(e) Taxes. The Guarantor has filed all tax returns required to be filed and has paid all taxes shown thereon to be due, including interest and penalties, which are not being contested in good faith and by appropriate proceedings and has no information or knowledge of any objections to or claims for additional taxes in respect of federal income or excess profits tax returns for prior years.
(f) Financial Condition. The financial statements of the Guarantor furnished to the Lender are complete and correct in all respects and fairly present the financial condition of the Guarantor at the dates of such statements. Since the most recent set of financial statements delivered by the Guarantor to the Lender, there have been no material adverse changes in the financial condition of the Guarantor.
(g) Existence and Power. The Guarantor is a corporation/limited liability company duly organized, validly existing and in good standing in the State of Delaware, and is fully qualified to do business in every other jurisdiction wherein the nature of its business or the character of its properties makes such qualification necessary, and has all requisite power and authority to carry on its business as now conducted and as presently proposed to be conducted.
20. Agrees that the liability of the Guarantor and any other guarantor of the Obligations shall be joint and several.
21. Agrees to deliver to the Lender the financial information and documentation required under the Loan Agreement for the Guarantor.
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22. Agrees that (i) the Guarantor will indirectly benefit by and from the making of the loan by the Lender to the Borrower evidenced by the Note; (ii) the Guarantor has received legal and adequate consideration for the execution of this Guaranty and has executed and delivered this Guaranty to the Lender in good faith in exchange for reasonably equivalent value; (iii) the Guarantor is not presently insolvent and will not be rendered insolvent by virtue of the execution and delivery of this Guaranty; (iv) the Guarantor has not executed or delivered this Guaranty with actual intent to hinder, delay or defraud the Guarantor’s creditors; and (v) the Lender has agreed to make such loan in reliance upon this Guaranty.
23. Agrees that if, at any time, all or any part of any payment previously applied by the Lender to any of the Obligations must be returned by the Lender for any reason, whether by court order, administrative order or settlement, the Guarantor shall remain liable for the full amount returned as if said amount had never been received by the Lender, notwithstanding any term of this Guaranty or the cancellation or return of any note or other agreement evidencing the Obligations.
24. Irrevocably submits to the jurisdiction of any Minnesota state court or federal court over any action or proceeding arising out of or relating to this Guaranty, the Note and any instrument, agreement or document related thereto; agrees that all claims in respect of such action or proceeding may be heard and determined in such Minnesota state or federal court; irrevocably waives, to the fullest extent the Guarantor may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding; irrevocably consents to the service of copies of the summons and complaint and any other process which may be served in any such action or proceeding by the mailing by United States certified mail, return receipt requested, of copies of such process to the Guarantor’s last known address; and agrees that judgment final by appeal, or expiration of time to appeal without an appeal being taken, in any such action or proceeding shall be conclusive and may be enforced in any other jurisdictions by suit on the judgment or in any other manner provided by law; provided that nothing in this paragraph shall affect the right of the Lender to serve legal process in any other manner permitted by law or affect the right of Lender to bring any action or proceeding against the Guarantor or the Guarantor’s property in the courts of any other jurisdiction to the extent permitted by law.
25. WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR PERTAINING TO THIS GUARANTY OR THE OTHER LOAN DOCUMENTS.
Dated as of this 13th day of February, 2023.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO COMPANY GUARANTY]
| SHGN ACQUISITION CORP., a Delaware corporation | |||
| By: | |||
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| Robert Phythian | |
| Its: Chief Executive Officer | |||
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[SIGNATURE PAGE TO COMPANY GUARANTY]
| SLG 1 HOLDINGS, LLC, a Delaware limited liability company | |||
| By: |
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| Robert Phythian | |
| Its: President | |||
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[SIGNATURE PAGE TO COMPANY GUARANTY]
| SLG 2 HOLDINGS, LLC, a Delaware limited liability company | |||
| By: |
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| Robert Phythian | |
| Its: President | |||
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EXHIBIT 10.5
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT (this “Agreement”) is made as of the 9th day of June, 2020, by and between SPORTSHUB GAMES NETWORK, INC., a Delaware corporation (the “Borrower”), and PLATINUM BANK, a Minnesota banking corporation (the “Lender”).
WITNESSETH :
WHEREAS, the Borrower has requested the Lender to extend a multiple advance term loan in the original principal amount of TWO MILLION AND 00/100 DOLLARS ($2,000,000.00) (the “Loan”); and
WHEREAS, the Lender is willing and prepared to extend such Loan to the Borrower upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the following meanings for the purpose of this Agreement and the documents related hereto unless the context in which such term is used clearly requires otherwise:
(a) Advance: a disbursement by the Lender pursuant to Section 2 hereof.
(b) Affiliate: means any person or entity (other than a Subsidiary): (a) which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, the Borrower, (b) which beneficially owns or holds 5% or more of the equity interest of the Borrower; or (c) 5% or more of the equity interest of which is beneficially owned or held by the Borrower or a Subsidiary. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise.
(c) APA: that certain Asset Purchase Agreement dated June 9, 2020, by and among the Borrower, as buyer, Fantasy National Golf Club LLC, as seller, and Michael J. Metzger, as member.
(d) Banking Day: any day on which the Federal Reserve Bank of Minneapolis, Minnesota, is open for business.
(e) Borrower Documents: this Agreement, the Note, the Security Agreement, and any and all other documents now or hereafter executed and delivered by the Borrower to the Lender pursuant hereto.
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(f) Borrower Organizational Documents: collectively, the following documents, each of which shall be in form and substance acceptable to the Lender:
(i) a copy of the Articles of Incorporation for Borrower, duly certified by the Secretary of State of the State of Delaware;
(ii) a copy of the Bylaws for Borrower, duly certified by an officer of Borrower;
(iii) a current Certificate of Good Standing for Borrower, duly issued by the Secretary of State of the State of Delaware; and
(iv) a copy of the resolutions of Borrower, authorizing the execution, delivery and performance of the Borrower Documents, duly certified by an officer of Borrower.
(g) Change of Control: means (i) ownership of more than 49% of the direct or indirect ownership interests of the Borrower shall change without the Lender’s prior written approval.
(h) Collateral: the collateral described in and subject to the Security Agreement, and the Third Party Security Agreement.
(i) Company Guaranties: means those certain Company Guaranties dated of even date herewith executed by the Company Guarantors in favor of the Lender, pursuant to which the Company Guarantors have guaranteed, amongst other things, repayment of the Loan.
(j) Company Guarantors: collectively, LeagueSafe Management, LLC, a Minnesota limited liability company, and Virtual Fantasy Games Acquisition, LLC, a Minnesota limited liability company.
(k) Company Guarantors Organizational Documents: collectively, the following documents each of which shall be in form and substance acceptable to the Lender:
(i) a copy of the Articles of Organization for each Company Guarantor, duly certified by the Secretary of State of the State of Minnesota;
(ii) a copy of the Operating Agreement of each Company Guarantor, duly certified by an authorized manager of such Company Guarantor;
(iii) an original current Certificate of Good Standing of each Company Guarantor, duly certified by the Secretary of State of the State of Minnesota; and
(iv) a copy of the resolutions of each Company Guarantor authorizing the execution, delivery and performance of such Company Guaranty and all other documents to which it is a party.
(l) Default Period: means any period of time beginning on the day on which an Event of Default has occurred and ending on the date that such Event of Default has been cured or waived as determined by the Lender.
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(m) Default Rate: Four percent (4.0%) in excess of the interest rate accruing under the Note.
(n) Draw Period Expiration Date: December 9, 2020.
(o) Event of Default: any one or more of the events listed in Section 6.
(p) Financing Statements: the UCC-1 financing statements naming the Borrower and the Third Party Pledgor as debtors in favor of the Lender as secured party.
(q) Guaranties: collectively, the Company Guaranties and the Personal Guaranties.
(r) Guarantors: collectively, the Company Guarantors and the Personal Guarantors.
(s) Loan: as defined in the first recital.
(t) Loan Documents: collectively, the Borrower Documents, the Guaranties, the Third Party Security Agreement, the Financing Statements, and any and all other documents related thereto.
(u) Maturity Date: December 9, 2025.
(v) Note: the Term Promissory Note of even date herewith executed by the Borrower in the original principal amount of Two Million and 00/100 Dollars ($2,000,000.00) and payable to the order of the Lender.
(w) Obligations: any obligation of the Borrower to the Lender, whether monetary or otherwise.
(x) Person: means any individual, corporation, partnership, joint venture, limited liability company, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
(y) Personal Guaranties: means those certain Personal Guaranties dated of even date herewith executed by the Personal Guarantors in favor of the Lender, pursuant to which the Personal Guarantors have guaranteed, amongst other things, repayment of the Loan.
(z) Personal Guarantors: collectively, Rob Phythian and Chris Nicholas.
(aa) Premises: means all premises where the Borrower conducts its business and has any rights of possession.
(bb) Security Agreement: the Security Agreement of even date herewith executed by the Borrower, as debtor, in favor of the Lender, as secured party, pursuant to which the Borrower has granted to the Lender a security interest in and to the collateral described therein secure, among other things, payment of the Note.
(cc) Subordinated Creditor: Fantasy National Golf Club LLC, a Minnesota limited liability company.
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(dd) Subordinated Loan: a $1,000,000 loan made by Subordinated Creditor to the Borrower.
(ee) Third Party Pledgor: Virtual Fantasy Games Acquisition, LLC, a Minnesota limited liability company.
(ff) Third Party Security Agreement: the Third Party Security Agreement of even date herewith executed by the Third Party Pledgor, as debtor, in favor of the Lender, as secured party, pursuant to which the Third Party Pledgor granted to the Lender a security interest in and to the collateral described therein secure, among other things, payment of the Note.
(gg) UCC: the Uniform Commercial Code in effect in the State of Minnesota, or in any other state whose laws are held to govern this Agreement or any portion of this Agreement.
2. LOAN.
(a) Advances. Upon the terms and subject to the conditions hereinafter set forth, the Lender shall make Advances to the Borrower pursuant to this Section 2 from time to time until and including the Draw Period Expiration Date, the proceeds of which shall be utilized by the Borrower to acquire all business assets of Fantasy National Golf Club LLC pursuant to the APA. On the date of this Agreement, the Lender shall advance
$1,000,000 to be used to pay the first installment of the purchase price under Section 1.2(a) of the APA. The remaining amount of principal under the Loan shall be advanced in monthly advances to allow the Borrower to pay the required payments under the Subordinated Loan provided no Event of Default has occurred and is then continuing hereunder or under any of the Loan Documents. The obligation of the Borrower to repay any and all Advances made pursuant to this Section shall be evidenced by the Note, secured by the Security Agreement and the Third Party Security Agreement, and guaranteed by the Guarantors.
(b) Manner of Borrowing. Each time the Borrower desires to obtain an Advance pursuant to this Section 2, the Borrower shall request such Advance either orally or in writing. Each such oral or written request must specify the date of the requested Advance and the amount thereof. At the request of the Lender, an oral request must be confirmed in writing by the Borrower within three (3) Banking Days of such request.
(c) Use and Purposes. The Borrower agrees to borrow from the Lender, and the Lender agrees to lend to the Borrower, the Loan. Advances under the Loan shall be used by the Borrower for to pay the purchase price set forth in the APA and for no other purpose, and are subject to all of the terms, provisions and conditions of this Agreement.
(d) Expenses and Advances Secured. All disbursements, advances or payments made by the Lender hereunder, all amounts expended by the Lender pursuant to Sections 6 and 8 hereof, the Lender’s attorneys’ fees, if any, and all other loan expenses, as and when advanced or incurred by the Lender, will be secured by the Security Agreement and the Third Party Security Agreement, and guaranteed by the Guarantors.
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(e) Interest. The annual rate of interest to accrue on the outstanding principal balance of the Note shall be a fixed per annum interest rate equal to five and one half percent (5.50%) per annum.
Interest on the unpaid principal balance shall be computed on the basis of a 360 day year, but shall be charged for the actual number of days interest is unpaid (actual ÷ 360). If the Loan has not been repaid on or before the Maturity Date or if an Event of Default occurs, then the unpaid principal balance shall thereafter accrue interest at the Default Rate, until the unpaid principal balance is paid in full or such Event of Default is cured. If for any reason whatsoever the interest and other consideration payable to the Lender under the Loan Documents (as defined herein) exceeds the limit prescribed by any applicable usury statute or any other applicable law, then such interest and other consideration shall be reduced to the limit provided in such statute or law, so that in no event shall such interest and other consideration be in excess of such limit. If any payments of interest or other consideration have been made to the Lender in excess of such limits, such excess amount shall be applied to the principal balance or, if the Loan has been fully paid, refunded to the Borrower.
(f) Payments. Accrued interest on the Note is payable beginning on July 9, 2020, and on the ninth (9th) day of each and consecutive month thereafter until December 9, 2020. On January 9, 2021, and on the ninth (9th) day of each and every month thereafter, the Borrower shall make installment payments of principal and accrued interest in the amount of $38,202 per month. Principal and accrued interest on the Note is due and payable in full on the Maturity Date.
All payments shall be applied first to accrued interest, then to late payment charges and then to the payment of the principal balance on the Note; provided, however, if an Event of Default exists, the Lender may elect to apply any payments in any order as it deems appropriate. Payments of principal of, and interest on, the Note and all late payment charges, fees, expenses and other obligations of the Borrower under the Loan Documents which are payable to the Lender shall be made to the Lender without setoff or counterclaim in immediately available funds not later than 1:00 p.m. (Minneapolis time) on the due date thereof at the Lender’s office in Plymouth, Minnesota. Funds received after such time shall be deemed to have been received on the next Banking Day. Whenever any payment to be made under the Loan Documents shall be stated to be due on a day which is not a Banking Day, such payment shall be made on the next succeeding Banking Day, and such extension of time, in the case of a payment of principal, shall be included in the computation of any interest on such principal payment.
(g) Prepayment. The Borrower may prepay the Note at any time, in whole or in part, provided the Borrower pays to the Lender the Prepayment Fee as set forth below. The Borrower shall be required to pay the Lender on the date of such prepayment a prepayment fee (the “Prepayment Fee”) equal to:
(i) if prepayment occurs on or before June 9, 2021, the Borrower shall be required to pay a prepayment fee of three percent (3.00%) of the amount prepaid;
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(ii) if prepayment occurs after June 9, 2021, but on or before June 9, 2022, the Borrower shall be required to pay a prepayment fee of two percent (2.00%) of the amount prepaid;
(iii) if prepayment occurs after June 9, 2022, but on or before June 9, 2023, the Borrower shall be required to pay a prepayment fee of one percent (1.00%) of the amount prepaid.
At all other times, the Borrower shall be entitled to prepay the Note without penalty or premium. If the Borrower fails to pay any Prepayment Fee when due, the amount of such Prepayment Fee shall thereafter bear interest until paid at the Default Rate (computed on the basis of a 360 day year, actual days elapsed). Any prepayment of principal shall be accompanied by a payment of interest accrued to date thereon; and said prepayment shall be applied to the principal installments in the inverse order of their maturities. All partial prepayments shall be applied in such order and manner as Lender may from time to time determine in its sole discretion. A Prepayment Fee shall be due whether a prepayment is made voluntarily or, where allowed by applicable law, made involuntarily as a result of the acceleration of maturity upon a default or otherwise. Failure by Lender to collect or demand a Prepayment Fee at the time of prepayment shall not be deemed a waiver of Lender’s right to such Prepayment Fee or to any future premium.
(h) Late Payment Charge. In the event that any required payment of principal or interest hereunder is not made within ten (10) days after the due date thereof, the Borrower shall pay to the Lender a late payment charge equal to five percent (5%) of the amount of the overdue payment, for the purpose of reimbursing the Lender for a portion of the expense incident to handling the overdue payment. This late payment charge shall not be prorated on a daily basis as payments are received by the Lender. This provision shall not be deemed to excuse a late payment or to be a waiver of any other rights the Lender may have, including the right to declare the entire unpaid principal balance and accrued interest immediately due and payable. The Borrower agrees that the “late payment charge” is a provision for liquidated damages and represents a fair and reasonable estimate of the damages the Lender will incur by reason of the late payment, considering all circumstances known to the Borrower and the Lender on the date hereof. The Borrower further agrees that proof of actual damages will be difficult or impossible.
(i) Protective Advances. At any time after the occurrence, and during the continuance of an Event of Default or any event or circumstance which, with the giving of notice or the passage of time, or both, would constitute an Event of Default, the Lender may initiate an Advance in its sole discretion for any reason at any time without the Borrower’s compliance with any of the conditions of this Agreement, and (i) disburse the proceeds directly to third persons in order to protect Lender’s interest in the Collateral or to perform any of Borrower’s obligations under this Agreement or under any Loan Document, or (ii) apply the proceeds to the amount of any Obligations then due and payable to the Lender.
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3. CONDITIONS PRECEDENT. As a condition precedent to the extension by the Lender of the Loan, the following agreements, documents and other items shall have been executed and/or delivered to the Lender by the party indicated, each of which documents, agreements and other items shall be in form and substance acceptable to the Lender:
(a) The Loan Documents, duly executed and delivered by the parties thereto.
(b) The Borrower Organizational Documents and the Company Guarantor Organizational Documents.
(c) Such Financing Statement and other filings, duly executed and/or delivered by the Borrower and the Third Party Pledgor as required by the Lender to perfect the security interests granted pursuant to the Security Agreement and the Third Party Security Agreement.
(d) Current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against the Borrower or any Guarantor, together with bankruptcy and judgment searches, and (ii) no financing statements have been filed (and not terminated or lapsed) against Borrower or any Guarantor except those that are acceptable to the Lender in its sole discretion, and (iii) the security interests granted pursuant to the Security Agreement and the Third Party Security Agreement constitute valid and perfected liens on all property subject thereto.
(e) Proof of the insurance required pursuant to the Security Agreement and the Third Party Security Agreement in form and substance acceptable to the Lender.
(f) A certified copy of the APA, all closing documents that are exchanged pursuant thereto, and a certificate of closing.
(g) Origination fee in the amount of $20,000, a documentation fee of $475, and payment of all other expenses incurred by the Lender in connection with the Loan.
(h) Such other agreements, documents and other items as the Lender may reasonably request.
In addition to the foregoing, the obligation of the Lender to make any Advance under Section 2 shall be subject to the further conditions precedent that on the date of such Advance:
(a) the representations and warranties contained in Section 4 are true and correct on and as of the date of such Advance as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date; and
(b) no event has occurred and is continuing, or would result from such Advance, which constituted an Event of Default.
4. REPRESENTATIONS. In order to induce the Lender to make the Loan, the Borrower hereby warrants and represents to the Lender as follows:
(a) Borrower’s Existence and Power. The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has all requisite power and authority to carry on its business as now conducted and as presently proposed to be conducted.
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(b) Authority of the Borrower. The Borrower has full power and authority to execute and deliver the Borrower Documents and to incur and perform its obligations thereunder; the execution, delivery and performance by the Borrower of the Borrower Documents will not violate any provision the Borrower Organizational Documents or of any law, rule, regulation or court order or result in the breach of, constitute a default under, or create or give rise to any lien under, any indenture or other agreement or instrument to which the Borrower is a party or by which the Borrower or its property may be bound or affected.
(c) Enforceability Against the Borrower. Each of the Borrower Documents constitutes the legal, valid and binding obligation of the Borrower enforceable in accordance with their terms (subject, as to enforceability, to limitations resulting from bankruptcy, insolvency and other similar laws affecting creditors’ rights generally).
(d) Financial Condition. The financial statements of the Borrower and the Guarantors heretofore furnished to the Lender are complete and correct in all material respects and fairly present the respective financial condition of the Borrower and the Guarantors at the dates of such statements. Since the most recent set of financial statements delivered by the Borrower to the Lender, there have been no material adverse changes in the financial condition of the Borrower or the Guarantors.
(e) Litigation. There is no action, suit or proceeding pending or, to the knowledge of the Borrower, threatened against or affecting the Borrower or the Guarantors which, if adversely determined, would have a material adverse effect on the condition (financial or otherwise), business, properties or assets of the Borrower or the Guarantors or which would question the validity of the Loan Documents, or impair the ability of the Borrower or the Guarantors to perform their respective obligations under the foregoing agreements.
(f) Licenses. The Borrower possesses adequate licenses, permits, franchises, patents, copyrights, trademarks and trade names, or rights thereto, to conduct its business substantially as now conducted and as presently proposed to be conducted.
(g) Default. Neither the Borrower nor any Guarantor is in default of a material provision under any agreement, instrument, decree or order to which it is a party or by which it or its property is bound or affected.
(h) Consents. No consent, approval, order or authorization of, or registration, declaration or filing with, or notice to, any governmental authority or any third party is required in connection with the execution and delivery of the Loan Documents, or any of the agreements or instruments herein mentioned relating to the Loan to which the Borrower or the Third Party Pledgor are a party or the carrying out or performance of any of the transactions required or contemplated hereby or thereby or, if required, such consent, approval, order or authorization has been obtained or such registration, declaration or filing has been accomplished or such notice has been given prior to the date hereof.
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(i) Taxes. The Borrower and the Guarantors have filed all tax returns required to be filed and either paid all taxes shown thereon to be due, including interest and penalties, which are not being contested in good faith and by appropriate proceedings, or provided adequate reserves for payment thereof, and the Borrower has no information or knowledge of any objections to or claims for additional taxes in respect of federal income or excess profits tax returns for prior years.
(j) Ownership of Property; Liens. The Borrower has good and marketable title to its real properties and good and sufficient title to the collateral subject to the Security Agreement and its other properties, free and clear of all mortgages, liens, security interests and encumbrances (except in favor of the Lender).
(k) Judgments. There are no judgments outstanding or docketed against the Borrower or the Guarantors.
(l) No Material Adverse Change. Since the end of the fiscal year with respect to which the Borrower has delivered financial statements to the Lender, there has been no material adverse change in the financial condition, operations, assets, business or properties of the Borrower.
(m) Investment Company Act. Neither the Borrower or any Guarantor is an “investment company” or a company “controlled” by an “investment company” or a “subsidiary” of an “investment company,” within the meaning of the Investment Company Act of 1940 required to be registered under the Investment Company Act of 1940.
(n) Compliance with Laws. The Borrower and the Guarantors are in compliance in all material respects with the requirements of all laws, and all orders, writs, injunctions and decrees applicable to it or its properties, and except in such instance in which (a) such requirement of law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a material adverse effect.
(o) Regulation U. Neither the Borrower nor any Guarantors is engaged principally, or as one of its important activities, in the business of extending credit for the purposing of purchasing or carrying margin stock.
(p) Regulation X. The Borrower has not obtained the credit granted herein for the purpose of purchasing or carrying any securities (within the meaning of Regulation X of the Board of Governors of the Federal Reserve System) and no part of the proceeds of any Advance shall be used for any purpose which will contravene the purpose of said Regulation X.
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(q) Further Assurances. The Borrower agrees it shall execute and deliver to the Lender such further financing statements, acknowledgements, certificates and agreements as shall be reasonably requested from time to time by the Lender to protect the security provided for payment of the Note and to further the transaction contemplated by this Agreement.
(r) Reaffirmations. Each request by the Borrower for an Advance under the Note shall constitute a reaffirmation of the representations and warranties of the Borrower, including the representation that no Event of Default exists.
5. COVENANTS OF THE BORROWER. On and after the date hereof and until the payment in full of the Note and termination of the Loan, and the performance of all other obligations of the Borrower hereunder, the Borrower agrees that, unless the Lender shall otherwise consent in writing:
(a) Financial Statements. The Borrower shall deliver or cause to be delivered to the Lender the following:
(i) Annual Financial Statements. Not later than 120 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2020, annual audited financial statements of the Borrower, prepared by a certified public accounting firm acceptable to Lender in conformity with GAAP, consisting of at least statements of income, cash flow, changes in financial position and equity, and a balance sheet as at the end of such year, setting forth in each case in comparative form corresponding figures from the previous annual financial statements.
(ii) Notice of Default. Immediately upon becoming aware of any Default or Event of Default, a notice describing the nature thereof and what action the Borrower proposes to take with respect thereto.
(iii) Notice of Environmental Issues. Immediately upon becoming aware of the occurrence thereof, notice of any violation as to any environmental matter by the Borrower and of the commencement of any material judicial or administrative proceeding relating to health, safety or environmental matters.
(iv) Notice of Claims and Litigation. Immediately upon becoming aware of the occurrence thereof, notice of the institution of any litigation, arbitration or governmental proceeding, or the rendering of a judgment or decision in such litigation or proceeding, which involves a claim or potential liability in excess of $50,000.00 or other claim that is material to the Borrower or the Guarantors, and the steps being taken by the persons or entities affected by such proceeding.
(v) Other Information. From time to time, such other information regarding the business, operation and financial condition of the Borrower or the Third Party Pledgor as the Lender may reasonably request.
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With respect to the Personal Guarantor and John Lettmann:
(vi) Personal Tax Returns. As soon as available, but in no event later than 30 days after the initial due date of the filing thereof (i) copies of Personal Guarantors and John Lettmann’s federal and state tax returns, including all Schedules thereto, or (ii) if either Personal Guarantor or John Lettmann has applied for an extension of the period for filing thereof, a copy of such extension, and (iii) if such extension is filed, not later than 15 days after filing of such returns or November 1st of the year in which the extension was filed (whichever occurs first), copies of such returns.
(vii) Personal Financial Statement. As soon as available annually, but in no event later than April 30th of each year, each Personal Guarantor’s and John Lettmann’s personal financial statement, prepared by such Personal Guarantor or John Lettmann, as appropriate, on a form acceptable to Lender.
(viii) Other Information. From time to time, such other information regarding the business, operation and financial condition of the Personal Guarantor or John Lettmann as the Lender may reasonably request.
(b) Taxes and Claims. The Borrower and the Third Party Pledgor shall pay and discharge all taxes, assessments and governmental charges or levies imposed upon them or upon its income or profits, or upon any of its assets or properties, prior to the date on which penalties attach thereto, and all lawful claims which, if unpaid, might become a lien or charge upon the Collateral or any other property of the Borrower or the Third Party Pledgor.
(c) Insurance. The Borrower shall maintain insurance coverage with respect to the Collateral with responsible insurance companies licensed to do business in the State of Minnesota as required by the Security Agreement and the Third Party Security Agreement. The Borrower shall furnish to the Lender written evidence as to the insurance maintained by the Borrower.
(d) Maintenance of Existence; Conduct of Business. The Borrower shall preserve all of its rights, privileges and franchises necessary or desirable in the normal conduct of its business; conduct its business in an orderly, efficient and regular manner; and shall not liquidate, merge, dissolve, suspend operations, or sell all or substantially all of its assets, or sell any assets.
(e) Maintenance of Properties. The Borrower and the Third Party Pledgor shall keep all of their assets and properties in good working order and condition, ordinary wear and tear and casualty losses excepted.
(f) Compliance with Applicable Laws. The Borrower and the Guarantors shall comply with the requirements of all applicable state and federal laws, and of all rules, regulations and orders of any governmental or other authority or agency, a breach of which would materially and adversely affect its business or credit, except where contested in good faith and by proper proceedings.
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(g) Litigation. The Borrower shall promptly give to the Lender notice in writing of all litigation and of all proceedings by or before any court or governmental or regulatory agency affecting the Borrower or the Guarantors, except litigation or proceedings which, if adversely determined, would not materially affect the financial condition or business of the Borrower or the Guarantors.
(h) Liens. The Borrower and the Third Party Pledgor shall not create, assume, incur or suffer to exist any assignment, mortgage, pledge, security interest, lien, charge or other encumbrance whatsoever upon its interest in the Collateral or any of the Borrower’s other property, whether now owned or hereafter acquired, securing any indebtedness or obligation, except for the lien in favor of the Lender.
(i) Indebtedness. The Borrower shall not create, assume, incur or suffer to exist any material indebtedness, except for (a) the indebtedness incurred hereunder, (b) any other indebtedness with the Lender, or (c) the Subordinated Loan.
(j) Guarantees. The Borrower shall not assume, guarantee, endorse or otherwise become directly or contingently liable for the obligations of any Person except the endorsement of negotiable instruments by the Borrower for deposit or collection or similar transactions in the ordinary course of business, and guarantees in favor of the Lender.
(k) Investments. The Borrower shall not make or permit to exist any loans or advances to, or make any investment or acquire any equity interest whatsoever in, any Person or Affiliate, including without limitation any partnership or joint venture, nor purchase or hold beneficially any stock or other securities or evidence of indebtedness of any Person or Affiliate.
(l) Access to Books and Inspection. The Borrower shall at all times keep proper books of record and accounts for itself, and, upon request of the Lender and upon reasonable notice, the Borrower shall provide any duly authorized representative of the Lender access during normal business hours to, and permit such representative to examine, copy or make extracts from, any and all books, records and documents in the Borrower’s possession or control relating to its affairs, and to inspect any of its facilities and properties; provided, however, that the Lender shall treat all such books and records confidential and shall only be permitted to disclose the information contained therein to its legal counsel, its independent public accountants, any participating banks, or in connection with any action to collect on any of the Note or to enforce this Agreement or the documents related hereto, or as otherwise permitted or required by law.
(m) Access. The Borrower shall grant to the Lender’s agents access to the Borrower’s properties at any reasonable time upon reasonable notice in order to inspect the Borrower’s property and business.
(n) Transfer of Collateral. The Borrower and the Third Party Pledgor shall not sell, dispose of, lease, mortgage, assign, sublet or transfer any of its right, title or interest in or to any of its assets or the Collateral without the prior written consent of the Lender.
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(o) Recovery of Additional Costs. If the imposition of or any change in any law, rule, regulation or guideline, or the interpretation or application of any thereof by any court or administrative or governmental authority (including any request or policy not having the force of law) shall impose, modify or make applicable any taxes (except federal, state or local income or franchise taxes imposed on Lender), reserve requirements, capital adequacy requirements or other obligations which would (a) increase the cost to Lender for extending or maintaining the credit facilities to which this Agreement relates, (b) reduce the amounts payable to Lender under this Agreement, or (c) reduce the rate of return on Lender’s capital as a consequence of Lender’s obligations with respect to the credit facilities to which this Agreement relates, then the Borrower agrees to pay Lender such additional amounts as will compensate Lender therefore, within five (5) days after Lender’s written demand for such payment, which demand shall be accompanied by an explanation of such imposition or charge and a calculation in reasonable detail of the additional amounts payable by the Borrower, which explanation and calculations shall be conclusive in the absence of manifest error.
(p) Deposit Accounts. The Borrower shall maintain all of their deposit accounts with Lender until the Loan has been paid in full and the Lender’s obligation to make Advances under the Loan have been terminated.
(q) Security Interest in Accounts. As additional security for the payment of the Note and all other monetary obligations of Borrower to Lender, the Borrower has granted to Lender and any such holder of the Note, a security interest in, a lien on, and an express contractual right to set off against, each deposit account and all deposit account balances, all other accounts of Borrower, and all cash and any other property of the Borrower now or hereafter maintained with, or in the possession of, Lender or such holder of the Note.
(r) Payment of Subordinated Loan. Upon the occurrence and during the continuance of an Event of Default, the Borrower shall not make any payments under the Subordinated Loan without the prior written consent of the Lender.
6. EVENTS OF DEFAULT. As used herein, the term “Event of Default” shall mean and include each or all of the following events:
(a) the Borrower or the Guarantors shall fail to pay when due, any amounts required to be paid under any of the Note or any other indebtedness of the Borrower or the Guarantors to the Lender, or any third party, or any other such indebtedness now existing or hereafter arising and whether direct or indirect, due or to become due, absolute or contingent, primary or secondary or joint or joint and several;
(b) the Borrower or the Guarantors shall fail to comply with or to perform any covenants set forth in Section 5;
(c) except as set forth in Sections 6(a) and 6(b) above, the Borrower or the Guarantors shall fail to observe or perform any of the covenants, conditions or agreements to be observed or performed by any of them under the Loan Documents or any credit or similar agreement between the Borrower or any Guarantor and the Lender for a period of thirty (30) calendar days after written notice, specifying such default and requesting that it be remedied, given to such party by the Lender;
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(d) if the Borrower or any Guarantor files a voluntary petition in bankruptcy or is adjudicated a bankrupt or insolvent, or files any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law, makes an assignment for the benefit of creditors, or seeks or consents to or acquiesces in the appointment of any trustee, receiver or liquidator of the Borrower or any Guarantors of all or any substantial part of its properties or of the Collateral;
(e) if within sixty (60) days after the commencement of any proceeding against the Borrower or any Guarantor seeking any reorganization, arrangement, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law, such proceeding is not dismissed, or if, within sixty (60) days after the appointment, without the consent or acquiescence of the Borrower or the Third Party Pledgor of any trustee, receiver or liquidator of the Borrower or any Guarantor of all or any substantial part of its properties or of the Collateral, such appointment is not vacated or stayed on appeal or otherwise, or if, within sixty (60) days after the expiration of any such stay, such appointment is not vacated;
(f) if the Borrower or either Company Guarantor shall be or become insolvent (whether in the equity or bankruptcy sense) or either of the Personal Guarantors shall die;
(g) any representation or warranty made by the Borrower or any Guarantor in the Loan Documents shall prove to be untrue or misleading in any material respect, or any statement, certificate or report furnished hereunder or under any of the foregoing documents by or on behalf of the Borrower or any Guarantor shall prove to be untrue or misleading in any material respect on the date when the facts set forth and recited therein are stated or certified;
(h) all or any portion of the Collateral subject to the Security Agreement, or the Third Party Security Agreement, or the legal, equitable or any other interest therein, shall be sold, transferred, assigned, pledged, leased or otherwise disposed of unless the prior written consent of the Lender is first obtained;
(i) any material adverse change shall occur in the condition (financial or otherwise) of the Borrower or any Guarantor which, in the reasonable opinion of the Lender, increases its risk with respect to the Note;
(j) final judgment(s) for the payment of money in excess of $25,000, individually or in the aggregate, shall be rendered against the Borrower or any Guarantor and shall remain undischarged for a period of thirty (30) days during which execution shall not be effectively stayed;
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(k) any state or federal tax lien shall be filed against or with respect to the Borrower or the Guarantors;
(l) a Change of Control occurs;
(m) a default or event of default occurs under the Subordinated Loan;
(n) the Borrower or the Third Party Pledgor liquidate, dissolve, terminate or suspend its business operations or otherwise fails to operate its business in the ordinary course, or merges with another Person;
(o) the Guarantors repudiates or purports to revoke his or its Guaranty or the Third Party Pledgor Third Party Security Agreement, or fails to perform any obligation under such Guaranty or Third Party Security Agreement or ceases to exist for any reason;
(p) any of the Loan Documents shall at any time cease to be in full force and effect or shall be judicially declared null and void, or the validity or enforceability thereof shall be contested by the Borrower or any Guarantor, or the Lender shall cease to have a valid and perfected security interest having the priority contemplated thereunder in the collateral described therein, other than by action or inaction of the Lender, if any of the foregoing shall remain unremedied for ten (10) days or more after receipt of notice thereof to the Borrower from the Lender; or
(q) a default or event of default occurs under any other indebtedness of the Borrower or any Guarantor in favor of the Lender.
Upon the occurrence of an Event of Default, the Lender may, at its option, exercise any and all of the following rights and remedies (in addition to any other rights and remedies available to it):
(i) the Lender may refuse to make any Advances under the Loan;
(ii) the Lender may terminate the Loan;
(iii) the Lender may, without notice, declare immediately due and payable all unpaid principal of and accrued interest on the Note, together with all other sums payable hereunder or under the Note, and the Note shall thereupon be immediately due and payable without presentment or other demand, protest, notice of dishonor or any other notice of any kind, all of which are hereby expressly waived;
(iv) the Lender may exercise and enforce any rights and remedies available upon default to a secured party under the UCC, including the right to take possession of Collateral (without posting a bond or other form of security, which the Borrower and the Guarantors hereby waive), to proceed with or without judicial process (without a prior hearing or notice of hearing, which the Borrower and the Guarantor hereby waive) and to sell, lease or otherwise dispose of Collateral for cash or on credit (with or without giving warranties as to the condition, fitness, merchantability or title to Collateral, and in the event of a credit sale, the Obligations shall be reduced only to the extent that payments are actually received), and the Borrower and the Third Party Pledgor will, upon Lender’s demand, assemble the Collateral and make it available to the Lender at any place designated by the Lender which is reasonably convenient to both parties;
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(v) the Lender may, for any reason, apply for the appointment of a receiver of the Collateral (to which appointment the Borrower and the Guarantors hereby consent) without the necessity of posting a bond or other form of security (which the Borrower and the Guarantors hereby waive);
(vi) the Lender may take possession of the Collateral and do anything in its sole judgment to fulfill the obligations of the Borrower hereunder, in accordance with applicable law;
(vii) the Lender may perform any or all of the Borrower’s or any Guarantor’s covenants and agreements hereunder, under any of the other Loan Documents;
(viii) set off any sum due to or incurred by the Lender against all deposits and credits of the Borrower or any Guarantor with, and any and all claims of the Borrower or any Guarantor against, the Lender. Such right shall exist whether or not the Lender shall have made any demand hereunder or under any other Loan Document, whether or not said sums, or any part thereof, or deposits and credits held for the account of the Borrower or any Guarantor is or are matured or unmatured, and regardless of the existence or adequacy of any collateral, guaranty or any other security, right or remedy available to the Lender. The Lender agrees that, as promptly as is reasonably possible after the exercise of any such setoff right, it shall notify the Borrower or the applicable Guarantor of its exercise of such setoff right; provided, however, that the failure of the Lender to provide such notice shall not affect the validity of the exercise of such setoff rights. Nothing in this Agreement shall be deemed a waiver or prohibition of or restriction on the Lender to all rights of banker’s lien, setoff and counterclaim available pursuant to law;
(ix) the Lender may exercise all of its rights or remedies under the Loan Documents and under applicable law; or
(x) the Lender shall have all the right, in addition to any other rights provided by law, to enforce its rights and remedies under the documents related hereto.
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7. NOTICES. All notices, consents, requests, demands and other communications hereunder shall be given to or made upon the respective parties hereto at their respective addresses specified below or, as to any party, at such other address as may be designated by it in a written notice to the other party. All notices, requests, consents and demands hereunder shall be effective when personally delivered or duly deposited in the United States mails, certified or registered, postage prepaid, addressed as aforesaid.
IF TO THE LENDER:
Platinum Bank
605 North Hwy 169, Suite 100
Plymouth, Minnesota 55441 IF TO THE BORROWER:
SportsHub Games Network, Inc.
323 Washington Avenue North, Suite 320
Minneapolis, Minnesota 55401
8. MISCELLANEOUS.
(a) Waivers, etc. No failure on the part of the Lender to exercise, and no delay in exercising, any right or remedy hereunder or under applicable law or any document or agreement related hereto shall operate as a waiver thereof; nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
(b) Fees and Expenses. The Borrower shall reimburse the Lender for any and all reasonable costs and expenses, including without limitation attorneys’ fees, paid or incurred by the Lender in connection with (i) the preparation of the Loan Documents and any other document or agreement related hereto or thereto, and the transactions contemplated hereby, which amount shall be paid prior to the making of any advance hereunder; (ii) the closing and consummation of the transactions contemplated hereby; (iii) the negotiation of any amendments, modifications or extensions to any of the foregoing documents, instruments or agreements and the preparation of any and all documents necessary or desirable to effect such amendments, modifications or extensions; (iv) the enforcement by the Lender during the term hereof or thereafter of any of the rights or remedies of the Lender under any of the foregoing documents, instruments or agreements under applicable law, whether or not suit is filed with respect thereto; and (v) costs incurred by the Lender in connection with inspections of the Collateral. The Borrower shall pay to Lender on demand all of Lender’s audit fees, appraisal fees, and other fees and expenses, including but not limited to reasonable attorneys’ fees and legal expenses, in connection with the Borrower’s indebtedness to Lender.
(c) Amendments, etc. This Agreement and the Note may not be amended or modified, nor may any of their terms (including without limitation, terms affecting the maturity of or rate of interest on the Note) be modified or waived, except by written instruments signed by the Lender and the Borrower.
(d) Successors. This Agreement shall be binding upon and inure to the benefit of the Borrower and the Lender and their respective successors and assigns; provided, however, that the Borrower may not transfer or assign its right to borrow hereunder without the prior written consent of the Lender.
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(e) Offsets. Nothing in this Agreement shall be deemed a waiver or prohibition of the Lender’s right of banker’s lien, offset, or counterclaim, which right the Borrower hereby grants to the Lender.
(f) Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart.
(g) Governing Law. This Agreement, the Note and all other agreements related hereto, shall be construed in accordance with and governed by the laws of the State of Minnesota without giving effect to the choice of law provisions thereof.
(h) Headings. The descriptive headings for the several sections of this Agreement are inserted for convenience only and shall not define or limit any of the terms or provisions hereof.
(i) Jurisdiction. The Borrower and the Third Party Pledgor consent to the personal jurisdiction of the state and federal courts located in the State of Minnesota in connection with any controversy relating in any way to the Agreement or to any transaction or matter relating to the Agreement or any of the Loan Documents, waive any argument that venue in such forums is not convenient, and agree that any litigation initiated by the Borrower or the Third Party Pledgor against Lender relating in any way to the Agreement or to any transaction or matter relating to the Agreement shall be venued in either the District Court of Hennepin County, Minnesota, or the United States District Court, District of Minnesota. If the Borrower commences any such action in another jurisdiction or venue, Lender at its option shall be entitled to have the case transferred to one of the jurisdictions and venues above described, or if such transfer cannot be accomplished under applicable law, to have such case dismissed without prejudice.
(j) WAIVER OF JURY TRIAL. THE BORROWER, THE THIRD PARTY PLEDGOR AND LENDER EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (A) UNDER THE AGREEMENT OR ANY LOAN DOCUMENTS, OR (B) ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THE AGREEMENT OR THE LOAN DOCUMENTS, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
(k) Partial Invalidity/Severability of Provisions. Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
(l) Time is of the Essence. Time is of the essence under this Agreement.
(m) Entire Agreement. This Agreement, the other Loan Documents and the other documents mentioned herein set forth the entire agreement of the parties with respect to the Loan and supersede all prior written or oral understandings and agreements with respect thereto. No modification or waiver of any provision of this Agreement shall be effective unless set forth in writing and signed by the parties hereto.
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(n) Binding Effect, Assignment. This Agreement shall be binding upon and inure to the benefit of the Borrower and the Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lender.
(o) Sale of Loan or Participations. The Lender may at any time sell, assign, transfer, syndicate, grant participations in or otherwise dispose of any portion of the Loan (each such interest so disposed of being herein called a “Transferred Interest”) to banks, insurance companies or other financial institutions (hereinafter called “Transferees”), pursuant to such assignment agreements, transfer agreements, co-lender agreements, participation agreements and/or agency agreements into which the Lender and its Transferees may enter and by which the Borrower shall agree in writing to recognize. In addition, the Lender may, at any time and from time to time, in its ordinary course of business and in accordance with applicable law, (i) assign an undivided interest in the Loan to an affiliate of the Lender or to any successor entity by reason of any merger affecting the Lender; or (ii) pledge or assign the same to any Federal Reserve Bank in accordance with applicable law. At the request of the Lender, in the event of any such sale, assignment, transfer or syndication, the Borrower shall execute separate new promissory notes to the assignor and its assignee, in the amounts of their respective interests in the Loan after said assignment, and shall deliver the same to the assignor and the assignee, in exchange for the assignor’s existing Note. All such separate new promissory notes shall be entitled to all the rights and benefits accorded to the Note under the terms of the Loan Documents. No such assignment shall be binding upon the Borrower until the Lender gives written notice thereof to the Borrower. The Lender may divulge all information relating to the Borrower, the Third Party Pledgor, or the Collateral which the Lender has to any actual or potential Transferee, and the Borrower shall cooperate with the Lender in connection with the transfer. The Borrower agrees that each Transferee shall be entitled to the benefits hereof with respect to its Transferred Interest and that each Transferee may exercise any and all rights of banker’s lien, setoff and counterclaim as if such Transferee were a direct lender to the Borrower. If the Lender makes any assignment to a Transferee, then upon notice to the Borrower such Transferee, to the extent of such assignment (unless otherwise provided therein) shall become a lender hereunder and shall have the rights and obligations of the Lender hereunder, and the Lender shall be released from its duties and obligations under this Agreement to the extent of such assignment.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO TERM LOAN AGREEMENT]
| BORROWER: | |||
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| SPORTSHUB GAMES NETWORK, INC., a Delaware corporation |
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| By: | /s/ Rob Phythian | ||
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| Rob Phythian | |
| Its: President | |||
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[SIGNATURE PAGE TO TERM LOAN AGREEMENT]
| LENDER: | |||
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| PLATINUM BANK, a Minnesota banking corporation |
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| By: | /s/ Pete Odell | ||
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| Pete Odell | |
| Title | |||
| Its: Senior Vice President | |||
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EXHIBIT 10.6
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT (this “Amendment”) is made and entered into as of the 4th day of November, 2021, by and between SPORTSHUB GAMES NETWORK, INC., a Delaware corporation (the “Borrower”), LEAGUESAFE MANAGEMENT, LLC, a Minnesota limited liability company, and VIRTUAL FANTASY GAMES ACQUISITION, LLC, a Minnesota limited liability company (collectively, the “Company Guarantors”), ROB PHYTHIAN, an individual, and CHRIS NICHOLAS, an individual (the “Released Guarantors” and together with the Company Guarantors, collectively, the “Guarantors”) and PLATINUM BANK, a Minnesota banking corporation (the “Lender”).
WITNESSETH:
WHEREAS, the Borrower and the Lender are parties to that certain Term Loan Agreement dated June 9, 2020 (the “Loan Agreement”), which sets forth the terms and conditions of a term loan to the Borrower in the principal amount of up to $2,000,000 (the “Loan”); and
WHEREAS, the obligation of the Borrower to repay the Loan is evidenced by that certain Term Promissory Note dated as of June 9, 2020 (the “Note”), executed by the Borrower and payable to the Lender in the original principal amount of $2,000,000.00; and
WHEREAS, the obligations of the Borrower under the Loan Agreement and the Note have been guaranteed by the Company Guarantors pursuant to those certain Company Guaranties dated as of June 9, 2020 (the “Company Guaranties”) executed by the Company Guarantors in favor of the Lender; and
WHEREAS, the obligations of the Borrower under the Loan Agreement and the Note have been guaranteed by the Released Guarantors pursuant to those certain Personal Guaranties dated as of June 9, 2020 (the “Personal Guaranties”) executed by the Released Guarantors in favor of the Lender; and
WHEREAS, the Borrower has requested that the Lender (i) release the Released Guarantors from the Personal Guaranties, and (ii) make certain modifications to the Loan; and
WHEREAS, the Lender has agreed to such request, subject to the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Recitals. All of the recitals set forth above shall bind the parties hereto and are hereby made a part of this Amendment.
2. Capitalized Terms. All capitalized terms not otherwise defined herein shall have the meaning assigned to such capitalized term as set forth in the Loan Agreement.
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3. Required Deposit. As a condition precedent to the execution by the Lender of this Amendment, the Borrower has deposited $700,000.00 into the Pledged Account (as defined in Section 4.D. below). Such funds shall at all times be pledged to the Lender pursuant to the Deposit Account Pledge and Control Agreement (as defined in Section 4.D. below).
4. Amendments to Loan Agreement.
A. Any and all references to “the Agreement” or “this Agreement” in the Loan Agreement shall now mean and refer to the Loan Agreement, as modified by this Amendment.
B. Section 1(e) of the Loan Agreement is hereby deleted in its entirety and replaced with the following:
(e) Borrower Documents: this Agreement, the Note, the Security Agreement, the Deposit Account Pledge and Control Agreement, and any and all other documents now or hereafter executed and delivered by the Borrower to the Lender pursuant hereto.
C. Section 1(h) of the Loan Agreement is hereby deleted in its entirety and replaced with the following:
(h) Collateral: the collateral described in and subject to the Security Agreement, the Third Party Security Agreement and the Deposit Account Pledge and Control Agreement.
D. The following definitions are hereby added to the Loan Agreement as Sections 1(hh) and 1(ii):
(hh) Deposit Account Pledge and Control Agreement: the Deposit Account Pledge and Control Agreement dated March 27, 2020, as amended by that certain Amendment to Deposit Account Pledge and Control Agreement dated November, 2021, each executed by the Borrower, as debtor, in favor of the Lender, as secured party, pursuant to which the Borrower has granted to the Lender a security interest in the Pledged Account to secure, among other things, payment of the Note.
(ii) Pledged Account: Account No. 713932, held by Platinum Bank, and owned by the Borrower, which has been pledged to the Lender pursuant to the Deposit Account Pledge and Control Agreement.
E. The following covenant is hereby added to the Loan Agreement as Section 5(s):
(s) Minimum Balance of Pledged Account. The Borrower shall cause the Pledged Account to maintain a minimum balance of $5,700,000.00. Such funds shall at all times be pledged to the Lender pursuant to the Deposit Account Pledge and Control Agreement.
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5. Release of Guaranties. Contemporaneously with the execution of this Amendment, the Lender has executed and delivered to the Released Guarantors that certain Release of Guaranties of even date herewith, pursuant to which the Lender has released and discharged the Released Guarantors from any and all obligations under the Personal Guaranties.
6. Reaffirmation of the Loan Documents. The Borrower and the Guarantors hereby repeat and reaffirm each and all of their obligations under the Loan Documents, and agree that the Loan Documents are in full force and effect as of the date hereof, not subject to any offset, defense or counterclaim.
7. Consent of and Reaffirmation of Company Guaranties. The Company Guarantors hereby consent to the terms of this Amendment, repeats and reaffirms each and all of their obligations under the Company Guaranties and agree that the Company Guaranties guarantee repayment of the Note.
8. Original Terms. Except as expressly amended herein, the Loan Documents shall be and remain in full force and effect in accordance with their original terms.
9. Legal Representation. The Borrower and the Guarantors hereby represent, warrant and agree that they have fully considered the terms of this Amendment and the documents related hereto and have had the opportunity to discuss this Amendment and the documents related hereto with their legal counsel, and that they are executing the same without any coercion or duress on the part of the Lender.
10. Authority. The Borrower and the Guarantors hereby represent and warrant to the Lender that the Borrower and the Guarantors have full power and authority to execute and deliver this Amendment and to incur and perform their respective obligations hereunder; the execution, delivery and performance by the Borrower and the Guarantors of this Amendment will not violate any provision of the organizational documents of the Borrower or the Guarantors or any law, rule, regulation or court order or result in the breach of, constitute a default under, or create or give rise to any lien under, any indenture or other agreement or instrument to which Borrower or the Guarantors are a party or by which the Borrower or the Guarantors or its respective properties may be bound or affected.
11. No Waiver. The Borrower and the Guarantors hereby acknowledge and agree that, by executing and delivering this Amendment, the Lender is not waiving any existing Event of Default, whether known or unknown, or any event, condition or circumstance, whether known or unknown, which with the giving of notice or the passage of time or both would constitute an Event of Default, nor is the Lender waiving any of its rights or remedies under the Loan Documents.
12. No Setoff. The Borrower and the Guarantors acknowledge and agree with the Lender that no events, conditions or circumstances have arisen or exist as of the date hereof which would give the Borrower or the Guarantors the right to assert a defense, counterclaim and/or setoff any claim by the Lender for payment of amounts owing under the Note. Any defense, right of setoff or counterclaim which might otherwise be available to the Borrower or the Guarantors is hereby fully and finally waived and released in all respects.
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13. Merger. All prior oral and written communications, commitments, alleged commitments, promises, alleged promises, agreements, and alleged agreements by or among the Lender and/or the Borrower and/or the Guarantors in connection with the Loan are hereby merged into the Loan Documents, as amended by this Amendment; shall be of no further force or effect; and shall not be enforceable unless expressly set forth in the Loan Documents, as amended by this Amendment. All commitments, promises, and agreements of the parties hereto are set forth in this Amendment and the Loan Documents and no other commitments, promises, or agreements, oral or written, of any of the parties hereto shall be enforceable against any such party.
14. Release. The Borrower and the Guarantors hereby release and forever discharge the Lender and its past, present and future officers, directors, attorneys, insurers, servants, representatives, employees, shareholders, subsidiaries, affiliates, participants, partners, predecessors, principals, agents, successors and assigns of and from any and all existing or future claims, demands, obligations, interests, suits, actions or causes of action, at law or in equity, whether arising by contract, statute, common law or otherwise, both direct and indirect, of whatsoever kind or nature, arising out of or by reason of or in connection with the Loan, the Loan Documents, this Amendment, any prior amendments or agreements or the documents related hereto or thereto or any acts, omissions, or conduct occurring on or before the date hereof.
15. Costs and Expenses. The Borrower and the Guarantors shall pay all costs and expenses, including attorneys’ fees, paid or incurred by the Lender in connection with the preparation of this Amendment and the documents related hereto and the closing and consummation of the transaction contemplated hereby.
16. Further Assurances. Each of the undersigned hereby agrees to execute and deliver such other further agreements, documents and instruments as is deemed necessary or advisable by the Lender in order to effectuate the purposes of this Amendment and the documents related hereto.
17. No Default. The Borrower and the Guarantors hereby represent and warrant to the Lender that no Event of Default, or event which with the giving of notice or the passage of time or both would constitute an Event of Default, has occurred and is continuing.
18. Counterparts. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Amendment by signing any such counterpart.
19. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Minnesota without giving effect to the choice of law provisions thereof.
20. Headings. The descriptive headings for the several sections of this Amendment are inserted for convenience only and not to define or limit any of the terms or provisions hereof.
21. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their heirs, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have made and entered into this Amendment as of the day and year first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO AMENDMENT AGREEMENT]
| BORROWER: | |||
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| SPORTSHUB GAMES NETWORK, INC, a Delaware corporation |
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| By: | /s/ Christian Peterson | ||
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| Christian Peterson | |
| Its: President | |||
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[SIGNATURE PAGE TO AMENDMENT AGREEMENT]
| COMPANY GUARANTOR: |
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| VIRTUAL FANTASY GAMES ACQUISITION, LLC, a Minnesota limited liability company |
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| By: |
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| SportsHub Technologies LLC, its Member |
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| By: | /s/ Rob Phythian |
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| Name: | Rob Phythian |
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| Its: | Chief Executive Officer/Chief Manager |
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| S-2 |
[SIGNATURE PAGE TO AMENDMENT AGREEMENT]
| COMPANY GUARANTOR: | |||
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| LEAGUESAFE MANAGEMENT, LLC, a Minnesota limited liability company |
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| By: |
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| SportsHub Technologies LLC, its Member | |
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| By: | /s/ Rob Phythian |
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| Name: | Rob Phythian |
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| Its: | Chief Executive Officer/Chief Manager |
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| S-3 |
[SIGNATURE PAGE TO AMENDMENT AGREEMENT]
| RELEASED GUARANTOR: | |||
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| /s/ ROB PHYTHIAN |
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| ROB PHYTHIAN, an individual | |||
| S-4 |
[SIGNATURE PAGE TO AMENDMENT AGREEMENT]
| RELEASED GUARANTOR: | |||
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| /s/ CHRIS NICHOLAS |
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| CHRIS NICHOLAS, an individual | |||
| S-5 |
[SIGNATURE PAGE TO AMENDMENT AGREEMENT]
| LENDER: | |||
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| PLATINUM BANK, a Minnesota banking corporation |
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| By: | /s/ Pete Odell | ||
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| Pete Odell | |
| Its: Senior Vice President | |||
| S-6 |
EXHIBIT 10.7
CONSENT, ASSUMPTION AND SECOND AMENDMENT AGREEMENT
THIS CONSENT, ASSUMPTION AND SECOND AMENDMENT AGREEMENT (this “Agreement”) is made and entered into as of February 13, 2023, by and between SHGN ACQUISITION CORP., a Delaware corporation (the “New Borrower”) as successor by merger to SportsHub Games Network, Inc. (the “Existing Borrower”), LEAGUESAFE MANAGEMENT, LLC, a Minnesota limited liability company (“LeagueSafe”), and VIRTUAL FANTASY GAMES ACQUISITION, LLC, a Minnesota limited liability company (“Virtual Fantasy,” and together with LeagueSafe, collectively, the “Guarantors”) and PLATINUM BANK, a Minnesota banking corporation (the “Lender”).
RECITALS:
WHEREAS, the Existing Borrower and the Lender are parties to that certain Term Loan Agreement dated June 9, 2020, as amended by that certain Amendment Agreement dated as of November 4, 2021, (collectively, the “Loan Agreement”), which sets forth the terms and conditions of a term loan to the Existing Borrower in the principal amount of up to $2,000,000 (the “Loan”); and
WHEREAS, the obligation of the Existing Borrower to repay the Loan is evidenced by that certain Term Promissory Note dated as of June 9, 2020 (the “Existing Note”), executed by the Existing Borrower and payable to the Lender in the original principal amount of $2,000,000.00; and
WHEREAS, the obligations of the Existing Borrower under the Loan Agreement and the Existing Note have been guaranteed by the Company Guarantors pursuant to those certain Company Guaranties each dated as of June 9, 2020 (the “Company Guaranties”) executed by the Guarantors in favor of the Lender; and
WHEREAS, the Existing Note is secured by, among other things, (i) that certain Security Agreement dated as of June 9, 2020 (the “Borrower Security Agreement”), executed by Existing Borrower, as debtor, in favor of the Lender, as secured party, and (ii) that certain Third Party Security Agreements dated as of June 9, 2020 (the “Pledgor Security Agreement” and together with the Borrower Security Agreement, collectively the “Security Agreements”), executed by Virtual Fantasy, as debtor, in favor of the Lender, as secured party; and
WHEREAS, the Existing Note is further secured by, among other things, that certain Deposit Account Pledge and Control Agreement dated March 27, 2020 executed by the Existing Borrower, as pledgor, in favor of the Lender, as amended (the “Existing Deposit Account Pledge Agreement”), executed by the Existing Borrower, as pledgor, in favor of the Lender; and
WHEREAS, as of the date hereof, the outstanding principal balance of the Existing Note is $____________; and
WHEREAS, the Loan Agreement, Existing Note, the Security Agreements, and the Existing Deposit Account Pledge Agreement, and all other documents evidencing the loan are collectively referred to as the “Loan Documents”; and
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WHEREAS, the New Borrower has requested that the Lender consent to the merger of the Existing Borrower with and into the New Borrower and as a result, the assumption of the Loan and the Loan Documents by the New Borrower as successor by merger; and
WHEREAS, the Lender is willing to agree to the foregoing in accordance with the terms and subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Loan Agreement.
2. Assumption by New Borrower. The New Borrower hereby acknowledges receipt of the Loan Documents. The New Borrower hereby assumes the Loan and agrees to pay when due all amounts due and payable under the Amended and Restated Note (as defined below) and the other Loan Documents and assumes and agrees to be bound by and perform each and all of the terms, obligations, covenants, representations, warranties and agreements of the Existing Borrower under and pursuant to the Loan Documents in all respects as provided therein, as though such documents had been originally made, executed and delivered by the New Borrower.
3. Amendments to Loan Agreement. The Loan Agreement is hereby amended as follows:
A. Each and every reference in the Loan Agreement to “Agreement” shall now mean and refer to the Loan Agreement, as amended by this Agreement.
B. Any and all references in the Loan Agreement to “Borrower” shall now mean and refer to the New Borrower. The New Borrower agrees that each of the obligations of the “Borrower” under the Loan Agreement shall now be obligations of the New Borrower.
C. The definition of “Deposit Account Pledge and Control Agreement” located in Section 1(hh) of the Loan Agreement is hereby modified by deleting the definition in its entirety and replacing it with “the Amended and Restated Deposit Account Pledge and Control Agreement dated February 13, 2023 executed by the Borrower, as debtor, in favor of the Lender, pursuant to which the Borrower has granted to the Lender a security interest in the Pledged Account to secure, among other things, payment of the Note.”
D. The definition of “Note” located in Section 1(v) of the Loan Agreement is hereby modified by deleting the definition in its entirety and replacing it with “the Amended and Restated Revolving Term Promissory Note dated February 13, 2023, in the original principal amount of One Million Two Hundred Sixty-Seven Thousand One Hundred Ninety- Nine and 23/100ths Dollars ($1,267,199.23) and payable to the order of the Lender.”
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4. Amended and Restated Note. Contemporaneously with and as a condition precedent to the Lender entering into this Agreement, to evidence the New Borrower’s obligation to repay the Loan, the New Borrower has executed and delivered to the Lender an Amended and Restated Term Promissory Note dated as of even date herewith (the “Amended and Restated Note”) in the original principal amount of $1,267,199.23. The Amended and Restated Note is an amendment and restatement of the Existing Note, and is given in substitution and not as repayment thereof. Each and every reference in the Loan Documents to the “Note” shall now mean and refer to the Amended and Restated Note.
5. Amended and Restated Deposit Account Pledge Agreement. Contemporaneously with and as a condition precedent to the Lender entering into this Agreement, to evidence the New Borrower’s agreement to assume the obligations of the Existing Borrower under the Existing Deposit Account Pledge Agreement, the New Borrower has executed and delivered to the Lender an Amended and Restated Deposit Account Pledge and Control Agreement dated as of even date herewith (the “Amended and Restated Deposit Account Pledge Agreement”). The Amended and Restated Deposit Account Pledge Agreement is an amendment and restatement of the Existing Deposit Account Pledge Agreement.
6. Amendment to Loan Documents. Any and all references in the other Loan Documents to “Borrower” shall now mean and refer to the New Borrower. The New Borrower agrees that each of the obligations of the “Borrower” under the Loan Documents shall now be obligations of the New Borrower.
7. Consent of the Lender. Provided the New Borrower has satisfied all conditions precedent to this Agreement, Lender hereby consents to the merger of the Existing Borrower with and into the New Borrower, it being expressly acknowledged and agreed by the New Borrower that the provisions of the Loan Documents shall continue to govern any further contemplated consents required from the Lender.
8. Priority and Validity of the Security Agreements. The New Borrower and Virtual Fantasy each represent and warrant to the Lender that the Security Agreements grant to the Lender valid and first priority security interests in the collateral described therein, and such security interests secure, among other things, all of the New Borrower’s obligations under the Existing Note, as amended and restated by the Amended and Restated Note, and will continue in full force and effect until the Amended and Restated Note is satisfied in full.
9. Consent and Reaffirmation of Guaranties. The Guarantors hereby repeat and reaffirm each and all of their respective obligations under the respective Guaranties and agree that the Guaranties are in full force and effect as of the date hereof, not subject to any offset, claim or defense. The Guarantors agree that their Guaranties guaranty the Existing Note, as amended and restated by the Amended and Restated Note.
10. Reaffirmation of Loan Documents. The New Borrower and the Guarantors each acknowledge and agree that the Loan Documents, as modified by this Agreement, the Amended and Restated Note, the Amended and Restated Deposit Account Pledge Agreement and the other documents referred to herein, remain in full force and effect in accordance with their respective terms, not subject to any defense, counterclaim or right of offset. The New Borrower further acknowledges and agrees that the representations and warranties set forth in Article 4 of the Loan Agreement, as amended pursuant to this Agreement, are true and correct with respect to the New Borrower as if such representations and warranties were made on the date of this Agreement.
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11. Required Due Diligence. As a condition precedent to the Lender entering into this Agreement, the Lender shall have received and approved the following documents: (a) copies of the documents evidencing the merger of the Existing Borrower with and into the New Borrower, including but not limited to an agreement and plan of merger; (b) certified certificate of formation, bylaws, and a current certificate of good standing from the State of Delaware for the New Borrower, together with resolutions of the board of directors of the New Borrower, authorizing the transaction contemplated hereby; (c) UCC-3 Financing Statement Amendments to the existing UCC-1 Financing Statements to amend the name of the debtor from the Existing Borrower to the New Borrower, and other filings, duly executed and/or delivered by the New Borrower as required by the Lender to perfect the security interests granted pursuant to the Borrower Security Agreement and the Amended and Restated Deposit Account Pledge Agreement, (d) current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against the New Borrower together with bankruptcy and judgment searches, and (ii) the security interests granted pursuant to the Borrower Security Agreement and the Amended and Restated Deposit Account Pledge Agreement constitute valid and perfected first priority liens on all property subject thereto, and (e) such other documents evidencing the transaction contemplated hereby as requested by the Lender.
12. Further Assurances. The New Borrower hereby agrees to execute such other agreements, documents and instruments as are deemed necessary or advisable by the Lender in order to effectuate the purpose of this Agreement.
13. Costs and Expenses. The New Borrower shall pay all costs and expenses, including recording fees, attorneys’ fees and title fees, paid or incurred by the Lender in connection with the preparation of this Agreement and the closing and consummation of the transaction contemplated hereby.
14. Legal Representation. The New Borrower hereby warrants, represents, and agrees that it has fully considered the terms of this Agreement and has had the opportunity to discuss this Agreement with their respective legal counsel, and is executing the same without any coercion or duress on the part of the Lender.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota.
16. Headings. The descriptive headings for the several sections of this Agreement are inserted for convenience only and shall not define or limit any of the terms or provisions hereof.
17. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.
18. Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart.
19. Original Terms. Except as expressly amended herein or in an amendment or modification to any of the Loan Documents dated ever herewith, the Loan Documents shall be and remain in full force and effect in accordance with their original terms.
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20. Merger. All prior oral and written communications, commitments, alleged commitments, promises, alleged promises, agreements, and alleged agreements by or among the Lender, the New Borrower and the Guarantors in connection with the Loan are hereby merged into the Loan Documents, as amended by this Agreement, the Amended and Restated Note, the Amended and Restated Deposit Account Pledge Agreement and the documents related hereto; shall be of no further force or effect; and shall not be enforceable unless expressly set forth in the Loan Documents, as amended by this Agreement and the documents related hereto. All commitments, promises, and agreements of the parties hereto are set forth in the Loan Documents, as amended by this Agreement and the documents related hereto, and no other commitments, promises, or agreements, oral or written, of any of the parties hereto shall be enforceable against any such party.
21. Release of Claims. The New Borrower hereby releases and forever discharges the Lender and its past, present and future officers, directors, attorneys, insurers, servants, representatives, employees, shareholders, subsidiaries, affiliates, participants, partners, predecessors, principals, agents, successors and assigns of and from any and all any and all claims, defenses, demands, obligations, interests, suits, actions or causes of action, at law or in equity, whether arising by contract, statute, common law or otherwise, both direct and indirect, of whatsoever kind or nature, including without limitation those arising out of or by reason of or in connection with the Loan, the Loan Documents, this Agreement or any acts, omissions, or conduct occurring in connection therewith on or before the date hereof.
22. No Default; No Waiver. The New Borrower hereby represents and warrants to the Lender that no Default, or event which with the giving of notice or the passage of time or both would constitute a Default, has occurred and is continuing. Further, the execution of this Agreement by the Lender shall not be construed as a waiver of any existing Event of Default, or a waiver of Lender’s ability to declare and Event of Default based on a condition that may exist and that the Lender may have knowledge of as of the date of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the day and year first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO CONSENT, ASSUMPTION AND SECOND AMENDMENT AGREEMENT]
| NEW BORROWER: | |||
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| SHGN ACQUISITION CORP., a Delaware corporation |
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| By: | /s/ Rob Phythian | ||
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| Name: | Rob Phythian | |
| Its: | Chief Executive Officer | ||
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| GUARANTORS: |
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| VIRTUAL FANTASY GAMES ACQUISITION, LLC, a Minnesota limited liability company |
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| By: | /s/ Rob Phythian |
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| Name: | Rob Phythian |
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| Its: | President |
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| LEAGUESAFE MANAGEMENT, LLC, a Minnesota limited liability company |
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| By: | /s/ Rob Phythian |
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| Name: | Rob Phythian |
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| Its: | Chief Executive Officer |
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| S-1 |
[SIGNATURE PAGE TO CONSENT, ASSUMPTION AND SECOND AMENDMENT AGREEMENT]
| LENDER: | |||
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| PLATINUM BANK, a Minnesota banking corporation |
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| By: | /s/ Pete Odell | ||
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| Pete Odell | |
| Its Senior Vice President | |||
| S-2 |
EXHIBIT 10.8
AMENDED AND RESTATED TERM PROMISSORY NOTE
| $1,267,199.23 | February 13, 2023 |
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| Plymouth, Minnesota |
FOR VALUE RECEIVED, the undersigned, SHGN ACQUISITION CORP., a Delaware corporation (successor by merger to SportsHub Games Network, Inc.) (the “Borrower”), hereby promises to pay to the order of PLATINUM BANK, a Minnesota banking corporation (the “Lender”), or its assigns, the principal sum of ONE MILLION TWO HUNDRED SIXTY-SEVEN THOUSAND ONE HUNDRED NINETY-NINE AND 23/100THS DOLLARS ($1,267,199.23), advanced to or for the benefit of the Borrower, pursuant to that certain Term Loan Agreement dated June 9, 2020 by and between the Borrower and the Lender (the “Loan Agreement”), in lawful money of the United States and immediately available funds, together with interest thereon as hereinafter provided. This Note represents a multiple advance term loan. Disbursement of the principal of this Note will be made pursuant to the terms of the Loan Agreement.
1. INTEREST; PAYMENTS:
The Loan Agreement sets forth the interest rate, default rate, late payment charge, payment and prepayment provisions, the maturity date and other provisions applicable to this Note, all of which are incorporated herein.
2. SECURITY:
This Note is the Note, as defined in the Loan Agreement, and is secured by, amongst other things, the Security Agreement, the Third Party Security Agreement, and guaranteed by the Guarantors. The terms of the Security Agreement are incorporated herein.
3. DEFAULT:
If an Event of Default, as defined in the Loan Agreement, occurs, the Lender is entitled to all of the rights and remedies provided for in the Loan Agreement, the Security Agreement, the Third Party Security Agreement, and the other Loan Documents, including without limitation the right to terminate the Borrower’s ability to obtain additional advances of principal hereunder and to declare the principal balance hereof to be immediately due and payable and any other rights and remedies of the Lender at law or in equity, and the Lender may enforce the covenants, agreements and undertakings of the Borrower contained in this Note, in the Loan Agreement, in the Security Agreement, and in the Third Party Security Agreement, and may exercise the remedies provided for thereby or otherwise available in respect to this Note, the Security Agreement, the Third Party Security Agreement, and the other Loan Documents, all in accordance with the terms thereof.
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4. WAIVERS:
Except as herein provided, the Borrower and all others who may become liable for all or part of the principal balance hereof or for any obligations of the Borrower to the Lender or the holder hereof (a) jointly and severally, forever waive presentment, protest and demand, notice of protest, demand and dishonor and non-payment of this Note, and all other notices in connection with the delivery, acceptance, performance, default or enforcement of the payment of this Note, (b) agree that the time of payment of the debt or any part thereof may be extended from time to time without modifying or releasing the lien of the Security Agreement, the Third Party Security Agreement, or the other Loan Documents or the liability of the Borrower or any other such parties, the right of recourse against the Borrower and such parties being hereby reserved by the Lender; and (c) agree that time is of the essence. The Borrower agrees to pay all costs of collection when incurred, whether suit be brought or not, including attorneys’ fees and costs of suit and preparation therefor, and to perform and comply with each of the covenants, conditions, provisions and agreements of the Borrower contained in this Note, the Loan Agreement, the Security Agreement, the Third Party Security Agreement, and the other Loan Documents. It is expressly agreed by the Borrower that no extensions of time for the payment of this Note, nor the failure on the part of the Lender to exercise any of its rights hereunder, under the Security Agreement or under the Loan Documents, shall operate to release, discharge, modify, change or affect the original liability under this Note, the Loan Agreement, the Security Agreement, the Third Party Security Agreement, or the other Loan Documents, either in whole or in part.
5. SEVERABILITY:
If any provision of this Note shall be illegal or unenforceable, such provision shall be deemed canceled to the same extent as though it never had appeared herein, but the remaining provisions shall not be affected thereby.
6. NOTICES:
All notices, requests, demands and other communications required or permitted to be given hereunder will be given in the manner provided in the Loan Agreement.
7. INCORPORATION OF LOAN AGREEMENT PROVISIONS:
The provisions of the Loan Agreement waiving any right to a jury trial, providing the governing law and agreeing to jurisdiction and venue are incorporated herein and are applicable to this Note. Unless the context otherwise indicates, any capitalized term used herein, but not defined herein, shall have the meaning given such term in the Loan Agreement.
8. SUCCESSORS:
All rights, powers, privileges and immunities herein granted to the Lender shall extend to its successors and assigns and any other legal holder of this Note, with full right by the Lender to assign and/or sell same.
9. AMENDMENT AND RESTATEMENT
This Note constitutes an amendment and restatement of that certain Term Promissory Note dated June 9, 2020 (the “Existing Note”), executed by the Borrower and payable to the Lender in the original principal amount of $2,000,000.00 and is given in replacement of, but not in payment for, the Existing Note. This Note is not a novation of an indebtedness of the Borrower to the Lender.
Signed on the day and year first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO AMENDED AND RESTATED TERM PROMISSORY NOTE]
| SHGN ACQUISITION CORP., a Delaware corporation | |||
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| By: | /s/ Rob Phythian | ||
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| Name: | Rob Phythian | |
| Its: | Chief Executive Officer | ||
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EXHIBIT 10.9
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this “Agreement”), is made as of this 9th day of June, 2020, by SPORTSHUB GAMES NETWORK, INC., a Delaware corporation (the “Debtor”), in favor of PLATINUM BANK, a Minnesota banking corporation (the “Secured Party”).
In order to secure the obligations of the Debtor to the Secured Party under and pursuant to that certain Term Loan Agreement of even date herewith (as the same may hereafter be amended, supplemented or restated from time to time, the “Loan Agreement”) by and between the Debtor and Secured Party and as evidenced by, among other things, the Note (as defined from time to time in the Loan Agreement) and each and every other debt, liability and obligation of every type and description which the Debtor may now or at any time hereafter owe to the Secured Party, including, without limitation, the “Obligations” (as defined from time to time in the Loan Agreement) (whether such debt, liability or obligation now exists or is hereafter created or incurred, whether it arises under or is evidenced by this Agreement or any other present or future instrument or agreement or by operation of law, and whether it is direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sole, joint or joint and several) (all such debts, liabilities and obligations of the Debtor to the Secured Party are herein collectively referred to as the “Secured Obligations”), the Debtor hereby agrees as follows:
1. SECURITY INTEREST AND COLLATERAL. In order to secure the payment and performance of the Secured Obligations, the Debtor hereby grants to the Secured Party a security interest (herein called the “Security Interest”) in and to the following property (hereinafter collectively referred to as the “Collateral”):
any and all of the Debtor’s furniture, fixtures, machinery, equipment, inventory, accounts (including, but not limited to, all health-care-insurance receivables), deposit accounts, vehicles, prepaid insurance, letter-of-credit rights, supplies, patents, patent rights, copyrights, trademarks, trade names, goodwill, royalty rights, franchise rights, chattel paper (including, but not limited to, electronic chattel paper and tangible chattel paper), license rights, documents, instruments, investment property, software, payment intangibles, general intangibles and any and all other goods, now owned or hereafter acquired by the Debtor and wherever located and, without limitation, all of the Debtor’s other assets,
together with all supporting obligations, substitutions and replacements for and products and proceeds of any of the foregoing property and, in the case of all tangible Collateral, together with (i) all accessories, attachments, parts, equipment, accessions and repairs now or hereafter attached or affixed to or used in connection with any such goods, and (ii) all warehouse receipts, bills of lading and other documents now or hereafter covering such goods.
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2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The Debtor hereby represents and warrants to, and covenants and agrees with, the Secured Party as follows:
(a) The Collateral will be used primarily for business purposes. The tangible Collateral shall be located on the real property located at 323 Washington Avenue North, Suite 320, Minneapolis, Minnesota 55401.
(b) The Debtor is a Delaware corporation and the address of the Debtor’s chief executive office is 323 Washington Avenue North, Suite 320, Minneapolis, Minnesota 55401, and it keeps and will keep all of its books and records with respect to all of its accounts at such address. The Debtor shall not change its state of organization or chief executive office without the Secured Party’s prior written consent.
(c) If any part or all of the Collateral will become so related to particular real estate as to become a fixture, the Debtor will promptly advise the Secured Party as to real estate concerned and the record owner thereof and execute and deliver any and all instruments necessary to perfect the Security Interest therein and to assure that such Security Interest will be prior to the interest therein of the owner of the real estate.
(d) During the preceding one (1) year, the Debtor has not changed its name or operated or conducted business under any trade name or “d/b/a” which is different from its corporate name. The Debtor shall promptly notify the Secured Party of any change in such name or if it operates or conducts business under any trade name or “d/b/a” which is different from such name.
(e) The Debtor has (or will have at the time the Debtor acquires rights in Collateral hereafter acquired or arising) and will maintain absolute title to each item of Collateral free and clear of all security interests, liens and encumbrances, except the Security Interest, and such other security interests as are permitted under the Loan Agreement (the Security Interest and the security interests permitted under the Loan Agreement are hereinafter collectively referred to as the “Permitted Interests”), and will defend the Collateral against all claims or demands of all persons other than the Secured Party and those holding Permitted Interests. Except as permitted in the Loan Agreement, the Debtor will not sell or otherwise dispose of the Collateral or any interest therein except that until an Event of Default (as defined in the Loan Agreement) has occurred the Debtor may sell inventory in the ordinary course of its business.
(f) The Debtor will not permit any Collateral to be located in any state (and, if a county filing is required, in any county) in which a financing statement covering such Collateral is required to be, but has not in fact been, filed.
(g) The Debtor authorizes the Secured Party to file all of the Secured Party’s financing statements and amendments to financing statements, and all terminations of the filings of other secured parties, all with respect to the Collateral, in such form and substance as the Secured Party, in its sole discretion, may determine (including, without limitation, describing such property as “all assets”).
(h) All rights to payment and all instruments, documents, chattel paper and other agreements constituting or evidencing Collateral are (or will be when arising or issued) the valid, genuine and legally enforceable obligation, subject to no defense, set-off or counterclaim (other than those arising in the ordinary course of business) of each account debtor or other obligor named therein or in the Debtor’s records pertaining thereto as being obligated to pay such obligation. The Debtor will not agree to any modification, amendment or cancellation of any such obligation without the Secured Party’s prior written consent, and will not subordinate any such right to payment to claims of other creditors of such account debtor or other obligor.
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(i) The Debtor will (i) keep all Collateral in good repair, working order and condition, normal depreciation excepted, and will, from time to time, replace any worn, broken or defective parts thereof; (ii) other than taxes and other governmental charges contested in good faith and by appropriate proceedings, promptly pay all taxes and other governmental charges levied or assessed upon or against any Collateral or upon or against the creation, perfection or continuance of the Security Interest; (iii) keep all Collateral free and clear of all security interests, liens and encumbrances except the Permitted Interests; (iv) at all reasonable times, permit the Secured Party or its representatives to examine or inspect any Collateral, wherever located, and to examine, inspect and copy the Debtor’s books and records pertaining to the Collateral and its business and financial condition and to discuss with account debtors and other obligors requests for verifications of amounts owed to the Debtor; (v) keep accurate and complete records pertaining to the Collateral and pertaining to the Debtor’s business and financial condition and will submit to the Secured Party such periodic reports concerning the Collateral and the Debtor’s business and financial condition as the Secured Party may from time to time reasonably request; (vi) promptly notify the Secured Party of any loss or material damage to any Collateral or of any material adverse change, known to the Debtor, in the prospect of payment of any sums due on or under any instrument, chattel paper or account constituting Collateral; (vii) if the Secured Party at any time so requests promptly deliver to the Secured Party any instrument, document or chattel paper constituting Collateral, duly endorsed or assigned by the Debtor to the Secured Party; (viii) at all times keep all Collateral insured against risks of fire (including so called extended coverage), theft, collision (in case of collateral consisting of motor vehicles) and such other risks and in such amounts as the Secured Party may reasonably request, with any loss payable to the Secured Party to the extent of its interest and notify the Secured Party in writing of any loss or damage to the Collateral or any part; (ix) from time to time execute such financing statements or other forms, including, without limitation, patent and trademark recordation forms, as the Secured Party may reasonably deem required to be filed in order to perfect the Security Interest and, if any Collateral is covered by a certificate of title, execute such documents as may be required to have the Security Interest properly noted on a certificate of title; (x) pay when due or reimburse the Secured Party on demand for all costs of collection of any of the Secured Obligations and all other out-of-pocket expenses (including in each case all attorneys’ fees) incurred by the Secured Party in connection with the creation, perfection, satisfaction or enforcement of the Security Interest or the execution or creation, continuance or enforcement of this Agreement or any or all of the Secured Obligations including expenses incurred in any litigation or bankruptcy or insolvency proceedings; (xi) execute, deliver or endorse any and all instruments, documents, assignments, security agreements and other agreements and writings which the Secured Party may at any time reasonably request in order to secure, protect, perfect or enforce the Security Interest and the Secured Party’s rights under this Agreement, including, without limitation, an assignment of claim with respect to any account which is a government receivable; (xii) not use or keep any Collateral, or permit it to be used or kept, for any unlawful purpose or in violation of any federal, state or local law, statute or ordinance; (xiii) permit the Secured Party at any time and from time to time to send requests (both before and after the occurrence of an Event of Default under the Loan Agreement) to account debtors or other obligors for verification of amounts owed to Debtor; and (xiv) not permit any Collateral to become part of or to be affixed to any real property, without first assuring to the reasonable satisfaction of the Secured Party that the Security Interest will be prior and senior to any interest or lien then held or thereafter acquired by any mortgagee of such real property or the owner or purchaser of any interest therein. If the Debtor at any time fails to perform or observe any agreement contained in this Section 2(i), and if such failure shall continue for a period of ten (10) calendar days after the Secured Party gives the Debtor written notice thereof (or, in the case of the agreements contained in clauses (viii) and (ix) of this Section 2(i), immediately upon the occurrence of such failure, without notice or lapse of time) the Secured Party may (but need not) perform or observe such agreement on behalf and in the name, place and stead of the Debtor (or, at the Secured Party’s option, in the Secured Party’s own name) and may (but need not) take any and all other actions which the Secured Party may reasonably deem necessary to cure or correct such failure (including, without limitation, the payment of taxes, the satisfaction of security interests, liens or encumbrances (other than Permitted Interests), the performance of obligations under contracts or agreements with account debtors or other obligors, the procurement and maintenance of insurance, the execution of financing statements, the endorsement of instruments, and the procurement of repairs, transportation or insurance); and, except to the extent that the effect of such payment would be to render any loan or forbearance of money usurious or otherwise illegal under any applicable law, the Debtor shall thereupon pay the Secured Party on demand the amount of all moneys expended and all costs and expenses (including attorneys’ fees) incurred by the Secured Party in connection with or as a result of the Secured Party’s performing or observing such agreements or taking such actions, together with interest thereon from the date expended or incurred by the Secured Party at the rate provided for in the Note. To facilitate the performance or observance by the Secured Party of such agreements of the Debtor, the Debtor hereby irrevocably appoints (which appointment is coupled with an interest) the Secured Party, or its delegate, as the attorney-in-fact of the Debtor with the right (but not the duty) from time to time to create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of the Debtor, any and all instruments, documents, financing statements, forms, applications for insurance and other agreements and writings required to be obtained, executed, delivered or endorsed by the Debtor under this Section 2.
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3. ASSIGNMENT OF INSURANCE. The Debtor hereby assigns to the Secured Party, as additional security for the payment of the Secured Obligations, any and all moneys (including but not limited to proceeds of insurance and refunds of unearned premiums) due or to become due under, and all other rights of the Debtor under or with respect to, any and all policies of insurance covering the Collateral, and the Debtor hereby directs the issuer of any such policy to pay any such moneys to the Secured Party. Before and upon the occurrence of an Event of Default, and at any time thereafter, the Secured Party may (but need not) in its own name or in the Debtor’s name, execute and deliver proofs of claim, receive all such moneys (subject to the Debtor’s rights), endorse checks and other instruments representing payment of such monies, and adjust, litigate, compromise or release any claim against the issuer of any such policy. The Debtor shall cause the Secured Party to be named as lender loss payee with respect to all of the Debtor’s property insurance and shall cause the Secured Party to be named as additional insured with respect to all liability insurance.
4. COLLECTION OF ACCOUNTS. The Secured Party may, or at the Secured Party’s request, the Debtor shall, either prior to or after the occurrence of an Event of Default, and at any time thereafter, notify any account debtor or any obligor on an instrument to make payment directly to a post office box specified by and under the sole control of the Secured Party, whether or not the Secured Party was theretofore making collections with respect thereto, and the Secured Party shall be entitled to take control of any proceeds thereof. If so requested by the Secured Party, the Debtor shall insert appropriate language on each invoice directing its customers to make payment to such post office box. The Debtor hereby authorizes and directs the Secured Party to deposit into a special collateral account to be established and maintained with the Secured Party all checks, drafts and cash payments, received in said lock box. All deposits in said collateral account shall constitute proceeds of Collateral and shall not constitute payment of any of the Secured Obligations. At its option, the Secured Party may, at any time, apply finally collected funds on deposit in said collateral account to the payment of the Secured Obligations in such order of application as the Secured Party may determine, or permit the Debtor to withdraw all or any part of the balance on deposit in said collateral account. If a collateral account is so established the Debtor agrees that it will promptly deliver to the Secured Party for deposit into said collateral account, all payments on accounts and chattel paper received by it. All such payments shall be delivered to the Secured Party in the form received (except for the Debtor’s endorsement where necessary). Until so deposited, all payments on accounts and chattel paper received by the Debtor shall be held in trust by the Debtor for and as the property of the Secured Party and shall not be commingled with any funds or property of the Debtor.
5. DEBTOR’S PREMISES. The Debtor hereby grants the Secured Party the right, at any time following the occurrence of an Event of Default and without notice or consent, to take exclusive possession of all Premises and any other location where the Debtor conducts its business or has any rights or possession until the earlier of the payment in full and discharge of all Secured Obligations and termination of the Loan or final sale or disposition of all items constituting Collateral and delivery of those items to purchasers. Secured Party may use the Premises to store, process, manufacture, sell, use and liquidate or otherwise dispose of items that are Collateral and for any other incidental purposes deemed appropriate by the Secured Party in good faith. The Secured Party shall not be obligated to pay rent or other compensation for the possession or use of any Premises, but if the Secured Party elects to pay rent or other compensation to the owner of any Premises or any sublandlord of any Premises in order to have access to the Premises, then the Debtor shall promptly reimburse the Secured Party for all such amounts, as well as all taxes, fees, charges and other expenses at any time payable by the Secured Party with respect to the Premises by reason of the execution, delivery, recordation, performance or enforcement of any terms of this Agreement or any other Loan Document.
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6. REMEDIES. Upon the occurrence of an Event of Default, and at any time thereafter, the Secured Party may exercise any one or more of the following rights or remedies if any or all of the Secured Obligations are not paid when due: (i) exercise and enforce any or all rights and remedies available after default to a secured party under the Uniform Commercial Code, including but not limited to the right to take possession of any Collateral, proceeding without judicial process or by judicial process (without a prior hearing or notice thereof, which the Debtor hereby expressly waives), and the right to sell, lease or otherwise dispose of or use any or all of the Collateral; (ii) the Secured Party may require the Debtor to assemble the Collateral and make it available to the Secured Party at a place to be designated by the Secured Party which is reasonably convenient to both parties; (iii) exercise its rights under any lessors’ agreements regardless of whether or not the Debtor is in default under such leases; and (iv) exercise or enforce any or all other rights or remedies available to the Secured Party by law or agreement against the Collateral, against the Debtor or against any other person or property. The Secured Party is hereby granted a non-exclusive, worldwide and royalty-free license to use or otherwise exploit all trademarks, franchises, copyrights and patents of the Debtor that the Secured Party deems necessary or appropriate to the disposition of any Collateral. If notice to the Debtor of any intended disposition of Collateral or any other intended action is required by law in a particular instance, such notice shall be deemed commercially reasonable if given (in the manner specified in Section 7 below) at least ten (10) calendar days prior to the date of intended disposition or other action.
7. MISCELLANEOUS. This Agreement does not contemplate a sale of accounts or chattel paper, and, as provided by law, the Debtor is entitled to any surplus and shall remain liable for any deficiency. This Agreement can be waived, modified, amended, terminated or discharged, and the Security Interest can be released, only explicitly in a writing signed by the Secured Party. A waiver signed by the Secured Party shall be effective only in the specific instance and for the purpose given. Mere delay or failure to act shall not preclude the exercise or enforcement of any of the Secured Party’s rights or remedies. All rights and remedies of the Secured Party shall be cumulative and may be exercised singularly or concurrently, at the Secured Party’s option, and the exercise or enforcement of any one such right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other. All notices to be given to the Debtor shall be deemed sufficiently given if deposited in the United States mails, registered or certified, postage prepaid, or personally delivered to the Debtor at its address set forth herein. The Secured Party’s duty of care with respect to Collateral in its possession (as imposed by law) shall be deemed fulfilled if the Secured Party exercises reasonable care in physically safe keeping such Collateral or, in the case of Collateral in the custody or possession of a bailee or other third person, exercises reasonable care in the selection of the bailee or other third person, and the Secured Party need not otherwise preserve, protect, insure or care for any Collateral. The Secured Party shall not be obligated to preserve any rights the Debtor may have against any other party, to realize on the Collateral at all or in any particular manner or order, or to apply any cash proceeds of Collateral in any particular order of application. This Agreement shall be binding upon and inure to the benefit of the Debtor and the Secured Party and their respective heirs, representatives, successors and assigns and shall take effect when signed by the Debtor and delivered to the Secured Party, and the Debtor waives notice of the Secured Party’s acceptance hereof. The Secured Party may execute this Agreement if appropriate for the purpose of filing, but the failure of the Secured Party to execute this Agreement shall not affect or impair the validity or effectiveness of this Agreement. Except to the extent otherwise required by law, this Agreement shall be governed by the laws of the State of Minnesota and, unless the context otherwise requires, all terms used herein which are defined in Articles 1 and 9 of the Uniform Commercial Code, as in effect in said state, shall have the meanings therein stated and all capitalized terms used herein which are defined in the Loan Agreement shall have the meanings therein stated. If any provision or application of this Agreement is held unlawful or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or applications which can be given effect, and this Agreement shall be construed as if the unlawful or unenforceable provision or application had never been contained herein or prescribed hereby. All representations and warranties contained in this Agreement shall survive the execution, delivery and performance of this Agreement and the creation and payment of the Secured Obligations.
IN WITNESS WHEREOF, the Debtor has executed and delivered to the Secured Party this Agreement as of the day and year first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO SECURITY AGREEMENT]
| SPORTSHUB GAMES NETWORK, INC., a Delaware corporation | |||
| By: | /s/ Rob Phythian | ||
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| Rob Phythian | |
| Its: President | |||
| Debtor's Address: |
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| 323 Washington Avenue North, Suite 320 Minneapolis, Minnesota 55401 |
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EXHIBIT 10.10
THIRD PARTY SECURITY AGREEMENT
THIS THIRD PARTY SECURITY AGREEMENT (this “Agreement”), is made as of this 9th day of June, 2020, by VIRTUAL FANTASY GAMES ACQUISITION, LLC, a Minnesota limited liability company (the “Debtor”), in favor of PLATINUM BANK, a Minnesota banking corporation (the “Secured Party”).
In order to secure the obligations of SportsHub Games Network, Inc., a Delaware corporation (the “Borrower”) to the Secured Party under and pursuant to that certain Term Loan Agreement of even date herewith (as the same may hereafter be amended, supplemented or restated from time to time, the “Loan Agreement”) by and between the Borrower and the Secured Party and as evidenced by, among other things, the Note (as defined from time to time in the Loan Agreement) and each and every other debt, liability and obligation of every type and description which the Borrower may now or at any time hereafter owe to the Secured Party, including, without limitation, the “Obligations” (as defined from time to time in the Loan Agreement) (whether such debt, liability or obligation now exists or is hereafter created or incurred, whether it arises under or is evidenced by this Agreement or any other present or future instrument or agreement or by operation of law, and whether it is direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sole, joint or joint and several) (all such debts, liabilities and obligations of the Borrower to the Secured Party are herein collectively referred to as the “Secured Obligations”), the Debtor hereby agrees as follows:
1. SECURITY INTEREST AND COLLATERAL. In order to secure the payment and performance of the Secured Obligations, the Debtor hereby grants to the Secured Party a security interest (herein called the “Security Interest”) in and to the following property (hereinafter collectively referred to as the “Collateral”):
any and all of the Debtor’s furniture, fixtures, machinery, equipment, inventory, accounts (including, but not limited to, all health-care-insurance receivables), deposit accounts, vehicles, prepaid insurance, letter-of-credit rights, supplies, patents, patent rights, copyrights, trademarks, trade names, goodwill, royalty rights, franchise rights, chattel paper (including, but not limited to, electronic chattel paper and tangible chattel paper), license rights, documents, instruments, investment property, software, payment intangibles, general intangibles and any and all other goods, now owned or hereafter acquired by the Debtor and wherever located and, without limitation, all of the Debtor’s other assets,
together with all supporting obligations, substitutions and replacements for and products and proceeds of any of the foregoing property and, in the case of all tangible Collateral, together with (i) all accessories, attachments, parts, equipment, accessions and repairs now or hereafter attached or affixed to or used in connection with any such goods, and (ii) all warehouse receipts, bills of lading and other documents now or hereafter covering such goods.
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2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The Debtor hereby represents and warrants to, and covenants and agrees with, the Secured Party as follows:
(a) The Collateral will be used primarily for business purposes. The tangible Collateral shall be located on the real property located at 323 Washington Avenue North, Suite 320, Minneapolis, Minnesota 55401.
(b) The Debtor is a Minnesota limited liability company and the address of the Debtor’s chief executive office is 323 Washington Avenue North, Suite 320, Minneapolis, Minnesota 55401, and it keeps and will keep all of its books and records with respect to all of its accounts at such address. The Debtor shall not change its state of organization or chief executive office without the Secured Party’s prior written consent.
(c) If any part or all of the Collateral will become so related to particular real estate as to become a fixture, the Debtor will promptly advise the Secured Party as to real estate concerned and the record owner thereof and execute and deliver any and all instruments necessary to perfect the Security Interest therein and to assure that such Security Interest will be prior to the interest therein of the owner of the real estate.
(d) During the preceding one (1) year, the Debtor has not changed its name or operated or conducted business under any trade name or “d/b/a” which is different from its corporate name. The Debtor shall promptly notify the Secured Party of any change in such name or if it operates or conducts business under any trade name or “d/b/a” which is different from such name.
(e) The Debtor has (or will have at the time the Debtor acquires rights in Collateral hereafter acquired or arising) and will maintain absolute title to each item of Collateral free and clear of all security interests, liens and encumbrances, except the Security Interest, and such other security interests as are permitted under the Loan Agreement (the Security Interest and the security interests permitted under the Loan Agreement are hereinafter collectively referred to as the “Permitted Interests”), and will defend the Collateral against all claims or demands of all persons other than the Secured Party and those holding Permitted Interests. Except as permitted in the Loan Agreement, the Debtor will not sell or otherwise dispose of the Collateral or any interest therein except that until an Event of Default (as defined in the Loan Agreement) has occurred the Debtor may sell inventory in the ordinary course of its business.
(f) The Debtor will not permit any Collateral to be located in any state (and, if a county filing is required, in any county) in which a financing statement covering such Collateral is required to be, but has not in fact been, filed.
(g) The Debtor authorizes the Secured Party to file all of the Secured Party’s financing statements and amendments to financing statements, and all terminations of the filings of other secured parties, all with respect to the Collateral, in such form and substance as the Secured Party, in its sole discretion, may determine (including, without limitation, describing such property as “all assets”).
(h) All rights to payment and all instruments, documents, chattel paper and other agreements constituting or evidencing Collateral are (or will be when arising or issued) the valid, genuine and legally enforceable obligation, subject to no defense, set-off or counterclaim (other than those arising in the ordinary course of business) of each account debtor or other obligor named therein or in the Debtor’s records pertaining thereto as being obligated to pay such obligation. The Debtor will not agree to any modification, amendment or cancellation of any such obligation without the Secured Party’s prior written consent, and will not subordinate any such right to payment to claims of other creditors of such account debtor or other obligor.
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(i) The Debtor will (i) keep all Collateral in good repair, working order and condition, normal depreciation excepted, and will, from time to time, replace any worn, broken or defective parts thereof; (ii) other than taxes and other governmental charges contested in good faith and by appropriate proceedings, promptly pay all taxes and other governmental charges levied or assessed upon or against any Collateral or upon or against the creation, perfection or continuance of the Security Interest; (iii) keep all Collateral free and clear of all security interests, liens and encumbrances except the Permitted Interests; (iv) at all reasonable times, permit the Secured Party or its representatives to examine or inspect any Collateral, wherever located, and to examine, inspect and copy the Debtor’s books and records pertaining to the Collateral and its business and financial condition and to discuss with account debtors and other obligors requests for verifications of amounts owed to the Debtor; (v) keep accurate and complete records pertaining to the Collateral and pertaining to the Debtor’s business and financial condition and will submit to the Secured Party such periodic reports concerning the Collateral and the Debtor’s business and financial condition as the Secured Party may from time to time reasonably request; (vi) promptly notify the Secured Party of any loss or material damage to any Collateral or of any material adverse change, known to the Debtor, in the prospect of payment of any sums due on or under any instrument, chattel paper or account constituting Collateral; (vii) if the Secured Party at any time so requests promptly deliver to the Secured Party any instrument, document or chattel paper constituting Collateral, duly endorsed or assigned by the Debtor to the Secured Party; (viii) at all times keep all Collateral insured against risks of fire (including so called extended coverage), theft, collision (in case of collateral consisting of motor vehicles) and such other risks and in such amounts as the Secured Party may reasonably request, with any loss payable to the Secured Party to the extent of its interest and notify the Secured Party in writing of any loss or damage to the Collateral or any part; (ix) from time to time execute such financing statements or other forms, including, without limitation, patent and trademark recordation forms, as the Secured Party may reasonably deem required to be filed in order to perfect the Security Interest and, if any Collateral is covered by a certificate of title, execute such documents as may be required to have the Security Interest properly noted on a certificate of title; (x) pay when due or reimburse the Secured Party on demand for all costs of collection of any of the Secured Obligations and all other out-of-pocket expenses (including in each case all attorneys’ fees) incurred by the Secured Party in connection with the creation, perfection, satisfaction or enforcement of the Security Interest or the execution or creation, continuance or enforcement of this Agreement or any or all of the Secured Obligations including expenses incurred in any litigation or bankruptcy or insolvency proceedings; (xi) execute, deliver or endorse any and all instruments, documents, assignments, security agreements and other agreements and writings which the Secured Party may at any time reasonably request in order to secure, protect, perfect or enforce the Security Interest and the Secured Party’s rights under this Agreement, including, without limitation, an assignment of claim with respect to any account which is a government receivable; (xii) not use or keep any Collateral, or permit it to be used or kept, for any unlawful purpose or in violation of any federal, state or local law, statute or ordinance; (xiii) permit the Secured Party at any time and from time to time to send requests (both before and after the occurrence of an Event of Default under the Loan Agreement) to account debtors or other obligors for verification of amounts owed to Debtor; and (xiv) not permit any Collateral to become part of or to be affixed to any real property, without first assuring to the reasonable satisfaction of the Secured Party that the Security Interest will be prior and senior to any interest or lien then held or thereafter acquired by any mortgagee of such real property or the owner or purchaser of any interest therein. If the Debtor at any time fails to perform or observe any agreement contained in this Section 2(i), and if such failure shall continue for a period of ten (10) calendar days after the Secured Party gives the Debtor written notice thereof (or, in the case of the agreements contained in clauses (viii) and (ix) of this Section 2(i), immediately upon the occurrence of such failure, without notice or lapse of time) the Secured Party may (but need not) perform or observe such agreement on behalf and in the name, place and stead of the Debtor (or, at the Secured Party’s option, in the Secured Party’s own name) and may (but need not) take any and all other actions which the Secured Party may reasonably deem necessary to cure or correct such failure (including, without limitation, the payment of taxes, the satisfaction of security interests, liens or encumbrances (other than Permitted Interests), the performance of obligations under contracts or agreements with account debtors or other obligors, the procurement and maintenance of insurance, the execution of financing statements, the endorsement of instruments, and the procurement of repairs, transportation or insurance); and, except to the extent that the effect of such payment would be to render any loan or forbearance of money usurious or otherwise illegal under any applicable law, the Debtor shall thereupon pay the Secured Party on demand the amount of all moneys expended and all costs and expenses (including attorneys’ fees) incurred by the Secured Party in connection with or as a result of the Secured Party’s performing or observing such agreements or taking such actions, together with interest thereon from the date expended or incurred by the Secured Party at the rate provided for in the Note. To facilitate the performance or observance by the Secured Party of such agreements of the Debtor, the Debtor hereby irrevocably appoints (which appointment is coupled with an interest) the Secured Party, or its delegate, as the attorney-in-fact of the Debtor with the right (but not the duty) from time to time to create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of the Debtor, any and all instruments, documents, financing statements, forms, applications for insurance and other agreements and writings required to be obtained, executed, delivered or endorsed by the Debtor under this Section 2.
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3. ASSIGNMENT OF INSURANCE. The Debtor hereby assigns to the Secured Party, as additional security for the payment of the Secured Obligations, any and all moneys (including but not limited to proceeds of insurance and refunds of unearned premiums) due or to become due under, and all other rights of the Debtor under or with respect to, any and all policies of insurance covering the Collateral, and the Debtor hereby directs the issuer of any such policy to pay any such moneys to the Secured Party. Before and upon the occurrence of an Event of Default, and at any time thereafter, the Secured Party may (but need not) in its own name or in the Debtor’s name, execute and deliver proofs of claim, receive all such moneys (subject to the Debtor’s rights), endorse checks and other instruments representing payment of such monies, and adjust, litigate, compromise or release any claim against the issuer of any such policy. The Debtor shall cause the Secured Party to be named as lender loss payee with respect to all of the Debtor’s property insurance and shall cause the Secured Party to be named as additional insured with respect to all liability insurance.
4. COLLECTION OF ACCOUNTS. The Secured Party may, or at the Secured Party’s request, the Debtor shall, either prior to or after the occurrence of an Event of Default, and at any time thereafter, notify any account debtor or any obligor on an instrument to make payment directly to a post office box specified by and under the sole control of the Secured Party, whether or not the Secured Party was theretofore making collections with respect thereto, and the Secured Party shall be entitled to take control of any proceeds thereof. If so requested by the Secured Party, the Debtor shall insert appropriate language on each invoice directing its customers to make payment to such post office box. The Debtor hereby authorizes and directs the Secured Party to deposit into a special collateral account to be established and maintained with the Secured Party all checks, drafts and cash payments, received in said lock box. All deposits in said collateral account shall constitute proceeds of Collateral and shall not constitute payment of any of the Secured Obligations. At its option, the Secured Party may, at any time, apply finally collected funds on deposit in said collateral account to the payment of the Secured Obligations in such order of application as the Secured Party may determine, or permit the Debtor to withdraw all or any part of the balance on deposit in said collateral account. If a collateral account is so established the Debtor agrees that it will promptly deliver to the Secured Party for deposit into said collateral account, all payments on accounts and chattel paper received by it. All such payments shall be delivered to the Secured Party in the form received (except for the Debtor’s endorsement where necessary). Until so deposited, all payments on accounts and chattel paper received by the Debtor shall be held in trust by the Debtor for and as the property of the Secured Party and shall not be commingled with any funds or property of the Debtor.
5. DEBTOR’S PREMISES. The Debtor hereby grants the Secured Party the right, at any time following the occurrence of an Event of Default and without notice or consent, to take exclusive possession of all Premises and any other location where the Debtor conducts its business or has any rights or possession until the earlier of the payment in full and discharge of all Secured Obligations and termination of the Loan or final sale or disposition of all items constituting Collateral and delivery of those items to purchasers. Secured Party may use the Premises to store, process, manufacture, sell, use and liquidate or otherwise dispose of items that are Collateral and for any other incidental purposes deemed appropriate by the Secured Party in good faith. The Secured Party shall not be obligated to pay rent or other compensation for the possession or use of any Premises, but if the Secured Party elects to pay rent or other compensation to the owner of any Premises or any sublandlord of any Premises in order to have access to the Premises, then the Debtor shall promptly reimburse the Secured Party for all such amounts, as well as all taxes, fees, charges and other expenses at any time payable by the Secured Party with respect to the Premises by reason of the execution, delivery, recordation, performance or enforcement of any terms of this Agreement or any other Loan Document.
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6. REMEDIES. Upon the occurrence of an Event of Default, and at any time thereafter, the Secured Party may exercise any one or more of the following rights or remedies if any or all of the Secured Obligations are not paid when due: (i) exercise and enforce any or all rights and remedies available after default to a secured party under the Uniform Commercial Code, including but not limited to the right to take possession of any Collateral, proceeding without judicial process or by judicial process (without a prior hearing or notice thereof, which the Debtor hereby expressly waives), and the right to sell, lease or otherwise dispose of or use any or all of the Collateral; (ii) the Secured Party may require the Debtor to assemble the Collateral and make it available to the Secured Party at a place to be designated by the Secured Party which is reasonably convenient to both parties; (iii) exercise its rights under any lessors’ agreements regardless of whether or not the Debtor is in default under such leases; and (iv) exercise or enforce any or all other rights or remedies available to the Secured Party by law or agreement against the Collateral, against the Debtor or against any other person or property. The Secured Party is hereby granted a non-exclusive, worldwide and royalty-free license to use or otherwise exploit all trademarks, franchises, copyrights and patents of the Debtor that the Secured Party deems necessary or appropriate to the disposition of any Collateral. If notice to the Debtor of any intended disposition of Collateral or any other intended action is required by law in a particular instance, such notice shall be deemed commercially reasonable if given (in the manner specified in Section 7 below) at least ten (10) calendar days prior to the date of intended disposition or other action.
7. SURETY PROVISIONS. The Debtor hereby:
(a) waives (i) presentment, demand, notice of nonpayment, protest and notice of protest on the Secured Obligations; and (ii) notice of the creation or incurrence of the Secured Obligations;
(b) agrees that the Secured Party may from time to time, without notice to the Debtor, which notice is hereby waived by the Debtor, extend, renew or compromise the Secured Obligations, in whole or in part, without releasing, extinguishing or affecting in any manner whatsoever the security interest granted hereunder, the foregoing acts being hereby consented to by the Debtor;
(c) agrees that the Secured Party shall not be required to first resort for payment to any other person, entity or corporation, their properties or estates, or any other right or remedy whatsoever, prior to enforcing this Agreement;
(d) agrees that this Agreement shall be construed as a continuing, absolute and unconditional agreement without regard to (i) the validity, regularity or enforceability of the Secured Obligations, or the disaffirmance thereof in any insolvency or bankruptcy proceeding relating to the Debtor, or (ii) any event or any conduct or action of the Secured Party or any other party, which might otherwise constitute a legal or equitable discharge of a surety or of the security interest granted hereunder but for this provision;
(e) agrees that this Agreement shall remain in full force and effect and be binding upon the Debtor until the credit expires and the Secured Obligations are paid in full;
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(f) agrees that the Secured Party is expressly authorized to renew, extend, compromise, exchange, release or surrender any or all collateral and security pledged by the Debtor or any other party to the Secured Party to secure all or any part of the Secured Obligations, with or without consideration and without notice to the Debtor and without in any manner affecting the security interest granted hereunder; and that the security interest granted hereunder shall not be affected or impaired by any failure, neglect or omission on the part of the Secured Party to realize upon the Secured Obligations, or upon any collateral or security therefor, nor by the taking by the Secured Party of any other security agreement or guaranty to secure the Secured Obligations or any other indebtedness of the Debtor to the Secured Party, nor by any act or failure to act whatsoever which but for this provision might or could in law or in equity act to release the security interest granted hereunder;
(g) agrees that the security interest granted hereunder shall not be affected or impaired by the existence or creation from time to time, with or without notice to the Debtor, which notice is hereby waived, of indebtedness from the Debtor to the Secured Party in addition to the Secured Obligations, the creation or existence of such additional indebtedness being hereby consented to by the Debtor;
(h) agrees that the possession of this security interest by the Secured Party shall be conclusive evidence of due execution and delivery hereof by the Debtor;
(i) agrees that the Debtor may be joined in any action or proceeding commenced in connection with or based upon the Secured Obligations and this Agreement may be enforced in any such action or proceeding or in any independent action or proceeding against the Debtor should the Debtor fail to duly and punctually pay any of the principal of or interest or prepayment premium, if any, on the Secured Obligations, without any requirement that the Secured Party first assert, prosecute or exhaust any remedy or claim against any other party;
(j) agrees that no waiver by the Secured Party of any Event of Default under the Loan Agreement shall be a waiver of any other Event of Default under the Loan Agreement or of the same Event of Default on a later occasion; no delay or failure by the Secured Party to exercise any right or remedy hereunder or under applicable law shall be a waiver of such right or remedy; and no single or partial exercise by the Secured Party of any such right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy at any other time; and
(k) agrees that each remedy of the Secured Party hereunder is distinct and cumulative to every other right or remedy under this Agreement, the documents related hereto, or afforded by law, and may be exercised concurrently or independently.
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8. MISCELLANEOUS. This Agreement does not contemplate a sale of accounts or chattel paper, and, as provided by law, the Debtor is entitled to any surplus and shall remain liable for any deficiency. This Agreement can be waived, modified, amended, terminated or discharged, and the Security Interest can be released, only explicitly in a writing signed by the Secured Party. A waiver signed by the Secured Party shall be effective only in the specific instance and for the purpose given. Mere delay or failure to act shall not preclude the exercise or enforcement of any of the Secured Party’s rights or remedies. All rights and remedies of the Secured Party shall be cumulative and may be exercised singularly or concurrently, at the Secured Party’s option, and the exercise or enforcement of any one such right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other. All notices to be given to the Debtor shall be deemed sufficiently given if deposited in the United States mails, registered or certified, postage prepaid, or personally delivered to the Debtor at its address set forth herein. The Secured Party’s duty of care with respect to Collateral in its possession (as imposed by law) shall be deemed fulfilled if the Secured Party exercises reasonable care in physically safe keeping such Collateral or, in the case of Collateral in the custody or possession of a bailee or other third person, exercises reasonable care in the selection of the bailee or other third person, and the Secured Party need not otherwise preserve, protect, insure or care for any Collateral. The Secured Party shall not be obligated to preserve any rights the Debtor may have against any other party, to realize on the Collateral at all or in any particular manner or order, or to apply any cash proceeds of Collateral in any particular order of application. This Agreement shall be binding upon and inure to the benefit of the Debtor and the Secured Party and their respective heirs, representatives, successors and assigns and shall take effect when signed by the Debtor and delivered to the Secured Party, and the Debtor waives notice of the Secured Party’s acceptance hereof. The Secured Party may execute this Agreement if appropriate for the purpose of filing, but the failure of the Secured Party to execute this Agreement shall not affect or impair the validity or effectiveness of this Agreement. Except to the extent otherwise required by law, this Agreement shall be governed by the laws of the State of Minnesota and, unless the context otherwise requires, all terms used herein which are defined in Articles 1 and 9 of the Uniform Commercial Code, as in effect in said state, shall have the meanings therein stated and all capitalized terms used herein which are defined in the Loan Agreement shall have the meanings therein stated. If any provision or application of this Agreement is held unlawful or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or applications which can be given effect, and this Agreement shall be construed as if the unlawful or unenforceable provision or application had never been contained herein or prescribed hereby. All representations and warranties contained in this Agreement shall survive the execution, delivery and performance of this Agreement and the creation and payment of the Secured Obligations.
IN WITNESS WHEREOF, the Debtor has executed and delivered to the Secured Party this Agreement as of the day and year first above written.
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[SIGNATURE PAGE TO THIRD PARTY SECURITY AGREEMENT
| VIRTUAL FANTASY GAME ACQUISITION, LLC, a Minnesota limited liability company | |||
| By: | SportsHub Technologies LLC, its Member | ||
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| By: | /s/ Rob Phythian | ||
| Rob Phythian | |||
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| Its: Chief Executive Office/Chief Manager |
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| Debtor’s Address: |
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| 323 Washington Avenue North, Suite 320 Minneapolis, Minnesota 55401 |
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EXHIBIT 10.11
AMENDED AND RESTATED
DEPOSIT ACCOUNT PLEDGE AND CONTROL AGREEMENT
THIS AMENDED AND RESTATED DEPOSIT ACCOUNT PLEDGE AND CONTROL AGREEMENT (this “Agreement”) is made as of the _13th day of February, 2023, by SHGN ACQUISITION CORP., a Delaware corporation (successor by merger to SportsHub Games Network, Inc.) (the “Pledgor”), in favor of PLATINUM BANK, a Minnesota banking corporation (the “Lender”).
R E C I T A L S:
WHEREAS, the Pledgor and the Lender are parties to that certain Revolving Credit Agreement dated as of March 27, 2020 (as the same has been or may hereafter be amended from time to time, the “Revolving Credit Agreement”), pursuant to which the Lender has extended a revolving loan to the Pledgor in the principal amount of $5,000,000 (the “Revolving Loan”), and which is evidenced by, among other things, the Amended and Restated Revolving Promissory Note of even date herewith (the “Revolving Note”) in the original principal amount of $5,000,000;
WHEREAS, the Pledgor and the Lender are parties to that certain Term Loan Agreement dated as of June 9, 2020 (as the same has been or may hereafter be amended from time to time, the “Term Loan Agreement” and together with the Revolving Credit Agreement, “the Credit Agreements”) pursuant to which the Lender has extended a term loan to the Pledgor in the principal amount of $2,000,000 (the “Term Loan”), and which is evidenced by, among other things, the Amended and Restated Term Promissory Note dated as of even date herewith (the “Term Note” and together with the Revolving Note, collectively, the “Notes”) in the original principal amount of $1,267,199.23;
WHEREAS, in order to secure the payment of the Notes, and each and every other debt, liability and obligation of every type and description which the Pledgor may now or at any time hereafter owe to the Lender (whether such debt, liability or obligation now exists or is hereafter created or incurred, to the extent it arises under or is evidenced by the Credit Agreements, the Notes, this Agreement or any other present or future instrument or agreement executed in connection with the Credit Agreements, the Notes and/or this Agreement, and, to the extent it arises under or is evidenced by such documents, whether it is direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sole, joint or joint and several) (all such debts, liabilities and obligations of the Pledgor to the Lender are herein collectively referred to as the “Obligations”), the Pledgor hereby agrees as follows:
| 1. | PLEDGE. The Pledgor hereby grants to the Lender a security interest (the “Security Interest”) in and to all of the Pledgor’s right, title and interest in and to the following collateral: Account No. _________ (the “Account”) held with Lender, together with all financial assets, security entitlements with respect to such financial assets, investment property, securities and other property in the Account (collectively, the “Collateral”), together with all substitutions and replacements for and products and proceeds of any of the foregoing property, to secure the payment and performance of the Obligations. The Pledgor shall execute and deliver to the Lender any and all documents and instruments as the Lender may determine necessary in order to perfect and maintain the Security Interest granted hereunder in and to the Collateral. |
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| 2. | CONTROL/PERFECTION. Pledgor hereby grants the Lender control of the Account for the purposes of the Lender perfecting its security interest in the Account. Pledgor acknowledges and agrees that the Lender has a first priority perfected security interest in the Collateral. Pledgor hereby consents to the filing of a UCC-1 financing statement in connection with the security interest granted herein in the event the Lender determines, in its sole discretion, that the filing of a UCC-1 financing statement is necessary or advisable. During the term of this Agreement, Lender shall have the sole authority to direct the disposition of funds in the Account, without further consent by the Pledgor or any other person subject to the terms and conditions of this Agreement, and the Pledgor shall not be entitled to withdraw any funds from the Account or take any other action with respect to the Account without the prior written consent of the Lender, which may be withheld in the Lender’s sole and absolute discretion. Without limiting the generality of the foregoing, the Credit Agreements provides for the application of funds in the Account to the outstanding principal balance of the Obligations (as defined in the Credit Agreements) upon the occurrence and during the continuance of an Event of Default, as more particularly described in the Credit Agreements. |
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| 3. | COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR. As further security for the full and faithful performance of the Obligations and the payment in full of the Obligations, the Pledgor covenants, represents and warrants to the Lender as follows: |
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| (a) | The Pledgor’s right to the Collateral is not subject to any defense, right, setoff or counterclaim and the Pledgor will defend and indemnify the Lender against all claims or demands of all persons other than the Lender. No financing statement covering all or any of the Collateral is on file in any public office. |
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| (b) | The Pledgor shall not sell, convey, assign, pledge, mortgage, grant a security interest in or otherwise transfer or encumber all or any part of the Pledgor’s interest in the Collateral or other property pledged as security hereunder without the prior written consent of the Lender. |
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| (c) | The Pledgor has made no other assignment, transfer, conveyance, pledge, mortgage or grant of a security interest in the Collateral. |
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| (d) | The Pledgor hereby acknowledges that this Agreement and the pledge and security granted hereby is supported by good and valuable consideration and is binding upon the Pledgor. |
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| (e) | The Pledgor has full power and authority to execute this Agreement and to grant the security interest in the Collateral which it has granted hereunder. |
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| (f) | The Pledgor will at any time hereafter execute such control agreements, financing statements or other instruments or take such actions as the Lender may request to establish, maintain and perfect the Lender’s security interest in the Collateral. |
| 4. | TERM. This Agreement shall remain in full force and effect until the Obligations are paid in full and any obligation to provide financing to the Pledgor, pursuant to the Credit Agreements, has terminated. |
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| 5. | AMENDMENT. This Agreement may not be amended or modified, nor may any of its terms, including, without limitation, terms affecting any of the Obligations, be modified or waived, except by the Lender’s written consent. |
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| 6. | DEFAULT. Upon the occurrence of an Event of Default (as defined in the Credit Agreements), the Lender shall have the following remedies: |
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| (a) | The Lender may, at its option, declare all or any part of the Obligations immediately due and payable without presentment or other notice or demand and exercise any and all rights under the Credit Agreements, the Notes and the documents related thereto. |
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| (b) | The Lender may, at its option and in the name of the Pledgor or otherwise, collect and dispose of all or any part of the Collateral, to the extent permitted under the terms of the Uniform Commercial Code as in effect in the State of Minnesota, and the Lender is specifically authorized to apply all proceeds from the disposition of any and all Collateral toward payment of the Obligations. |
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| (c) | At the Lender’s request, the Pledgor shall cooperate with the Lender and do all things necessary to enable the Lender to sell any and all of the Collateral, in compliance with all applicable securities and other laws and regulations, including but not limited to providing the Lender with financial statements and projections, tax returns, legal opinions and other information requested by the Lender. |
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| (d) | The Lender may exercise or enforce any and all rights or remedies available to the Lender by law or agreement against the Pledgor. |
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| (e) | The Lender may apply the funds in the Account to the Obligations, in a manner in which the Lender determines in its sole discretion. |
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| 7. | WAIVER. The remedies provided herein, in the Credit Agreements, in the Notes, in the Loan Documents, or otherwise available to the Lender at law or in equity are cumulative. No delay or failure by the Lender in the exercise of any right or remedy shall constitute a waiver thereof and no single or partial exercise by the Lender of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy. | |
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| 8. | NOTICES. All notices, requests, demands and other communications hereunder shall be deemed to have been given when personally delivered or deposited in the United States mail, mailed first class, registered or certified, postage prepaid, addressed to the last known address of the respective parties. |
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| 9. | GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. |
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| 10. | TAXES. The Pledgor shall be responsible for the payment of all state and federal taxes payable as a result of any sale of any and all of the Collateral. |
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| 11. | BINDING EFFECT. This Agreement shall be binding upon and inure to the parties hereto and their heirs, assigns and successors. |
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| 12. | SEVERABILITY. In the event any provision hereof is determined to be unenforceable or invalid, such provision or such part thereof which may be unenforceable shall be deemed severed from this Agreement and the remaining provisions carried out with the same force and effect as if the severed provision or part thereof had not been made a part hereof. |
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| 13. | COUNTERPARTS. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties may execute this Agreement by signing any such counterparts. |
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| 14. | AMENDMENT AND RESTATEMENT. This Agreement amends and restates in its entirety that certain Deposit Account Pledge And Control Agreement dated March 27, 2020, executed by Pledgor in favor of Lender. |
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IN WITNESS WHEREOF, the Pledgor has executed and delivered this Agreement as of the date and year first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO AMENDED AND RESTATED DEPOSIT ACCOUNT PLEDGE AND CONTROL AGREEMENT]
| PLEDGOR: | |||
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| SHGN ACQUISITION CORP., a Delaware corporation |
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| By: | /s/ Rob Phythian | ||
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| Name: | Rob Phythian | |
| Its: | Chief Executive Officer | ||
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EXHIBIT 10.12
EXHIBIT 10.13
SECOND AMENDMENT AGREEMENT
THIS SECOND AMENDMENT AGREEMENT (this “Amendment”) is made and entered into as of the day of November, 2021, by and between SPORTSHUB GAMES NETWORK, INC., a Delaware corporation (the “Borrower”), LEAGUESAFE MANAGEMENT, LLC, a Minnesota limited liability company (“LeagueSafe”), and VIRTUAL FANTASY GAMES ACQUISITION, LLC, a Minnesota limited liability company (“Virtual Fantasy,” and together with LeagueSafe, collectively, the “Pledgors”) and PLATINUM BANK, a Minnesota banking corporation (the “Lender”).
W I T N E S S E T H:
WHEREAS, the Borrower and the Lender are parties to that certain Revolving Credit Agreement dated March 27, 2020, as amended by that certain Amendment Agreement dated as of June 9, 2021 (the “Credit Agreement”), which sets forth the terms and conditions of a revolving line of credit to the Borrower in the principal amount of up to $5,000,000 (the “Loan”); and
WHEREAS, the obligation of the Borrower to repay the Loan is evidenced by that certain Revolving Promissory Note dated as of March 27, 2020 (the “Note”), executed by the Borrower and payable to the Lender in the original principal amount of $5,000,000.00; and
WHEREAS, the Note is secured by, among other things, (i) that certain Security Agreement dated as of March 27, 2020 (the “Borrower Security Agreement”), executed by Borrower, as debtor, in favor of the Lender, as secured party, (ii) those certain Third Party Security Agreements dated as of March 27, 2020 (the “Pledgor Security Agreements”), executed by each of the Pledgors, as debtors, in favor of the Lender, as secured party, and (iii) that certain Deposit Account Pledge and Control Agreement dated March 27, 2020 (the “Deposit Account Pledge Agreement”, and together with the Borrower Security Agreement and the Pledgor Security Agreements, collectively, the “Security Agreements”), executed by Borrower, as pledgor, in favor of the Lender, as secured party ; and
WHEREAS, the Borrower has requested that the Lender make certain modifications to the Loan; and
WHEREAS, the Lender has agreed to such request, subject to the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Recitals. All of the recitals set forth above shall bind the parties hereto and are hereby made a part of this Amendment.
2. Capitalized Terms. All capitalized terms not otherwise defined herein shall have the meaning assigned to such capitalized term as set forth in the Credit Agreement.
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3. Amendments to Credit Agreement.
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| A. | Any and all references to “the Agreement” or “this Agreement” in the Credit Agreement shall now mean and refer to the Credit Agreement, as modified by this Amendment. | |
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| B. | Section 1(p) of the Credit Agreement is hereby deleted in its entirety and replaced with the following: | |
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| (p) Maximum Line: $4,120,650.63. | |
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| C. | Section 5(r) of the Credit Agreement is hereby deleted in its entirety and replaced with the following: | |
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| (r) Minimum Balance of Pledged Account. The Borrower shall cause the Pledged Account to maintain a minimum balance of $5,700,000.00. Such funds shall at all times be pledged to the Lender pursuant to the Deposit Account Pledge and Control Agreement. | |
4. Priority and Validity of the Security Agreements. The Borrower and the Pledgors each represent and warrant to the Lender that the Security Agreements grant to the Lender valid and first priority security interests in the collateral described therein, and such security interests secure, among other things, all of the Borrower’s obligations under the Note and will continue in full force and effect until the Note is satisfied in full.
5. Reaffirmation of the Loan Documents. The Borrower and the Pledgors hereby repeat and reaffirm each and all of their obligations under the Loan Documents, and agrees that the Loan Documents are in full force and effect as of the date hereof, not subject to any offset, defense or counterclaim.
6. Original Terms. Except as expressly amended herein, the Loan Documents shall be and remain in full force and effect in accordance with their original terms.
7. Legal Representation. The Borrower and the Pledgors hereby represent, warrant and agree that they have fully considered the terms of this Amendment and the documents related hereto and have had the opportunity to discuss this Amendment and the documents related hereto with their legal counsel, and that they are executing the same without any coercion or duress on the part of the Lender.
8. Authority. The Borrower and the Pledgors hereby represent and warrant to the Lender that the Borrower and the Pledgors have full power and authority to execute and deliver this Amendment and to incur and perform their respective obligations hereunder; the execution, delivery and performance by the Borrower and the Pledgors of this Amendment will not violate any provision of the organizational documents of the Borrower or the Pledgors or any law, rule, regulation or court order or result in the breach of, constitute a default under, or create or give rise to any lien under, any indenture or other agreement or instrument to which Borrower or the Pledgors are a party or by which the Borrower or the Pledgors or its respective properties may be bound or affected.
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9. No Waiver. The Borrower and the Pledgors hereby acknowledge and agree that, by executing and delivering this Amendment, the Lender is not waiving any existing Event of Default, whether known or unknown, or any event, condition or circumstance, whether known or unknown, which with the giving of notice or the passage of time or both would constitute an Event of Default, nor is the Lender waiving any of its rights or remedies under the Loan Documents.
10. No Setoff. The Borrower and the Pledgors acknowledge and agree with the Lender that no events, conditions or circumstances have arisen or exist as of the date hereof which would give the Borrower or the Pledgors the right to assert a defense, counterclaim and/or setoff any claim by the Lender for payment of amounts owing under the Note. Any defense, right of setoff or counterclaim which might otherwise be available to the Borrower or the Pledgors is hereby fully and finally waived and released in all respects.
11. Merger. All prior oral and written communications, commitments, alleged commitments, promises, alleged promises, agreements, and alleged agreements by or among the Lender and/or the Borrower and/or either Pledgor in connection with the Loan are hereby merged into the Loan Documents, as amended by this Amendment; shall be of no further force or effect; and shall not be enforceable unless expressly set forth in the Loan Documents, as amended by this Amendment. All commitments, promises, and agreements of the parties hereto are set forth in this Amendment and the Loan Documents and no other commitments, promises, or agreements, oral or written, of any of the parties hereto shall be enforceable against any such party.
12. Release. The Borrower and the Pledgors hereby release and forever discharge the Lender and its past, present and future officers, directors, attorneys, insurers, servants, representatives, employees, shareholders, subsidiaries, affiliates, participants, partners, predecessors, principals, agents, successors and assigns of and from any and all existing or future claims, demands, obligations, interests, suits, actions or causes of action, at law or in equity, whether arising by contract, statute, common law or otherwise, both direct and indirect, of whatsoever kind or nature, arising out of or by reason of or in connection with the Loan, the Loan Documents, this Amendment, any prior amendments or agreements or the documents related hereto or thereto or any acts, omissions, or conduct occurring on or before the date hereof.
13. Costs and Expenses. The Borrower and the Pledgors shall pay all costs and expenses, including attorneys’ fees, paid or incurred by the Lender in connection with the preparation of this Amendment and the documents related hereto and the closing and consummation of the transaction contemplated hereby.
14. Further Assurances. Each of the undersigned hereby agrees to execute and deliver such other further agreements, documents and instruments as is deemed necessary or advisable by the Lender in order to effectuate the purposes of this Amendment and the documents related hereto.
15. No Default. The Borrower and the Pledgors hereby represent and warrant to the Lender that no Event of Default, or event which with the giving of notice or the passage of time or both would constitute an Event of Default, has occurred and is continuing.
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16. Counterparts. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Amendment by signing any such counterpart.
17. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Minnesota without giving effect to the choice of law provisions thereof.
18. Headings. The descriptive headings for the several sections of this Amendment are inserted for convenience only and not to define or limit any of the terms or provisions hereof.
19. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their heirs, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have made and entered into this Amendment as of the day and year first above written.
[REMAINDER OF PAGE IS INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO SECOND AMENDMENT AGREEMENT]
| BORROWER: | |||
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| SPORTSHUB GAMES NETWORK, INC, a Delaware corporation |
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| By: | /s/ Christian Peterson | ||
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| Christian Peterson | |
| Its: President | |||
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EXHIBIT 10.14
CONSENT, ASSUMPTION AND THIRD AMENDMENT AGREEMENT
THIS CONSENT, ASSUMPTION AND THIRD AMENDMENT AGREEMENT (this “Agreement”) is made and entered into as of February 13, 2023, by and between SHGN ACQUISITION CORP., a Delaware corporation (the “New Borrower”) as successor by merger to SportsHub Games Network, Inc. (the “Existing Borrower”), LEAGUESAFE MANAGEMENT, LLC, a Minnesota limited liability company (“LeagueSafe”), and VIRTUAL FANTASY GAMES ACQUISITION, LLC, a Minnesota limited liability company (“Virtual Fantasy,” and together with LeagueSafe, collectively, the “Pledgors”) and PLATINUM BANK, a Minnesota banking corporation (the “Lender”).
RECITALS:
WHEREAS, the Existing Borrower and the Lender are parties to that certain Revolving Credit Agreement dated March 27, 2020, as amended by that certain Amendment Agreement dated as of June __, 2021, and as further amended by that certain Second Amendment Agreement dated as of November __, 2021, (collectively the “Credit Agreement”), which sets forth the terms and conditions of a revolving line of credit to the Existing Borrower in the principal amount of up to $5,000,000 (the “Loan”); and
WHEREAS, the obligation of the Existing Borrower to repay the Loan is evidenced by that certain Revolving Promissory Note dated as of March 27, 2020 (the “Existing Note”), executed by the Existing Borrower and payable to the Lender in the original principal amount of $5,000,000.00; and
WHEREAS, the Note is secured by, among other things, (i) that certain Security Agreement dated as of March 27, 2020 (the “Borrower Security Agreement”), executed by the Existing Borrower, as debtor, in favor of the Lender, as secured party, and (ii) those certain Third Party Security Agreements each dated as of March 27, 2020 (the “Pledgor Security Agreements” and together with the Borrower Security Agreement, collectively, the “Security Agreements”), executed by each of the Pledgors, as debtors, in favor of the Lender, as secured party; and
WHEREAS, the Existing Note is further secured by, among other things, that certain Deposit Account Pledge and Control Agreement dated March 27, 2020 executed by the Existing Borrower, as pledgor, in favor of the Lender, as amended (the “Existing Deposit Account Pledge Agreement”), executed by the Existing Borrower, as pledgor, in favor of the Lender; and
WHEREAS, as of the date hereof, the outstanding principal balance of the Existing Note is $____________; and
WHEREAS, the Credit Agreement, Existing Note, the Security Agreements, the Existing Deposit Account Pledge Agreement, and all other documents evidencing the loan are collectively referred to as the “Loan Documents”; and
WHEREAS, the New Borrower has requested that the Lender consent to the merger of the Existing Borrower with and into the New Borrower and as a result, the assumption of the Loan and the Loan Documents by the New Borrower as successor by merger; and
WHEREAS, the Lender is willing to agree to the foregoing in accordance with the terms and subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned thereto in the Credit Agreement.
2. Assumption by New Borrower. The New Borrower hereby acknowledges receipt of the Loan Documents. The New Borrower hereby assumes the Loan and agrees to pay when due all amounts due and payable under the Amended and Restated Note (as defined below) and the other Loan Documents and assumes and agrees to be bound by and perform each and all of the terms, obligations, covenants, representations, warranties and agreements of the Existing Borrower under and pursuant to the Loan Documents in all respects as provided therein, as though such documents had been originally made, executed and delivered by the New Borrower.
3. Amendments to Credit Agreement. The Credit Agreement is hereby amended as follows:
A. Each and every reference in the Credit Agreement to “Agreement” shall now mean and refer to the Credit Agreement, as amended by this Agreement.
B. Any and all references in the Credit Agreement to “Borrower” shall now mean and refer to the New Borrower. The New Borrower agrees that each of the obligations of the “Borrower” under the Credit Agreement shall now be obligations of the New Borrower.
C. The definition of “Deposit Account Pledge and Control Agreement” located in Section 1(j) of the Credit Agreement is hereby modified by deleting the definition in its entirety and replacing it with “the Amended and Restated Deposit Account Pledge and Control Agreement dated February 13, 2023 executed by the Borrower, as debtor, in favor of the Lender, pursuant to which the Borrower has granted to the Lender a security interest in the Pledged Account to secure, among other things, payment of the Note.”
D. The definition of “Note” located in Section 1(q) of the Credit Agreement is hereby modified by deleting the definition in its entirety and replacing it with “the Amended and Restated Revolving Promissory Note dated February 13, 2023, in the original principal amount of Five Million and 00/100ths Dollars ($5,000,000.00) and payable to the order of the Lender.”
4. Amended and Restated Note. Contemporaneously with and as a condition precedent to the Lender entering into this Agreement, to evidence the New Borrower’s obligation to repay the Loan, the New Borrower has executed and delivered to the Lender an Amended and Restated Revolving Promissory Note dated as of even date herewith (the “Amended and Restated Note”) in the original principal amount of $5,000,000. The Amended and Restated Note is an amendment and restatement of the Existing Note, and is given in substitution and not as repayment thereof. Each and every reference in the Loan Documents to the “Note” shall now mean and refer to the Amended and Restated Note.
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5. Amended and Restated Deposit Account Pledge Agreement. Contemporaneously with and as a condition precedent to the Lender entering into this Agreement, to evidence the New Borrower’s agreement to assume the obligations of the Existing Borrower under the Existing Deposit Account Pledge Agreement, the New Borrower has executed and delivered to the Lender an Amended and Restated Deposit Account Pledge and Control Agreement dated as of even date herewith (the “Amended and Restated Deposit Account Pledge Agreement”). The Amended and Restated Deposit Account Pledge Agreement is an amendment and restatement of the Existing Deposit Account Pledge Agreement.
6. Amendment to Loan Documents. Any and all references in the other Loan Documents to “Borrower” shall now mean and refer to the New Borrower. The New Borrower agrees that each of the obligations of the “Borrower” under the Loan Documents shall now be obligations of the New Borrower.
7. Consent of the Lender. Provided the New Borrower has satisfied all conditions precedent to this Agreement, Lender hereby consents to the merger of the Existing Borrower with and into the New Borrower, it being expressly acknowledged and agreed by the New Borrower that the provisions of the Loan Documents shall continue to govern any further contemplated consents required from the Lender.
8. Priority and Validity of the Security Agreements. The New Borrower and the Pledgors each represent and warrant to the Lender that the Security Agreements grant to the Lender valid and first priority security interests in the collateral described therein, and such security interests secure, among other things, all of the New Borrower’s obligations under the Existing Note, as amended and restated by the Amended and Restated Note, and will continue in full force and effect until the Amended and Restated Note is satisfied in full.
9. Reaffirmation of Loan Documents. The New Borrower and the Pledgors each acknowledge and agree that the Loan Documents, as modified by this Agreement, the Amended and Restated Note, the Amended and Restated Deposit Account Pledge Agreement and the other documents referred to herein, remain in full force and effect in accordance with their respective terms, not subject to any defense, counterclaim or right of offset. The New Borrower further acknowledges and agrees that the representations and warranties set forth in Article 4 of the Credit Agreement, as amended pursuant to this Agreement, are true and correct with respect to the New Borrower as if such representations and warranties were made on the date of this Agreement.
10. Required Due Diligence. As a condition precedent to the Lender entering into this Agreement, the Lender shall have received and approved the following documents: (a) copies of the documents evidencing the merger of the Existing Borrower with and into the New Borrower, including but not limited to, an agreement and plan of merger; (b) certified certificate of formation, bylaws, and a current certificate of good standing from the State of Delaware for the New Borrower, together with resolutions of the board of directors of the New Borrower, authorizing the transaction contemplated hereby; (c) UCC-3 Financing Statement Amendments to the existing UCC-1 Financing Statements to amend the name of the debtor from the Existing Borrower to the New Borrower, and other filings, duly executed and/or delivered by the New Borrower as required by the Lender to perfect the security interests granted pursuant to the Borrower Security Agreement and the Amended Deposit Account Pledge Agreement, (d) current searches of appropriate filing offices showing that (i) no state or federal tax liens have been filed and remain in effect against the New Borrower together with bankruptcy and judgment searches, and (ii) the security interests granted pursuant to the Borrower Security Agreement and the Amended Deposit Account Pledge Agreement constitute valid and perfected first priority liens on all property subject thereto, and (e) such other documents evidencing the transaction contemplated hereby as requested by the Lender.
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11. Further Assurances. The New Borrower hereby agrees to execute such other agreements, documents and instruments as are deemed necessary or advisable by the Lender in order to effectuate the purpose of this Agreement.
12. Costs and Expenses. The New Borrower shall pay all costs and expenses, including recording fees, attorneys’ fees and title fees, paid or incurred by the Lender in connection with the preparation of this Agreement and the closing and consummation of the transaction contemplated hereby.
13. Legal Representation. The New Borrower hereby warrants, represents, and agrees that it has fully considered the terms of this Agreement and has had the opportunity to discuss this Agreement with their respective legal counsel, and is executing the same without any coercion or duress on the part of the Lender.
14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota.
15. Headings. The descriptive headings for the several sections of this Agreement are inserted for convenience only and shall not define or limit any of the terms or provisions hereof.
16. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.
17. Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart.
18. Original Terms. Except as expressly amended herein or in an amendment or modification to any of the Loan Documents dated ever herewith, the Loan Documents shall be and remain in full force and effect in accordance with their original terms.
19. Merger. All prior oral and written communications, commitments, alleged commitments, promises, alleged promises, agreements, and alleged agreements by or among the Lender, the New Borrower and the Pledgors in connection with the Loan are hereby merged into the Loan Documents, as amended by this Agreement, the Amended and Restated Note, the Amended and Restated Deposit Account Pledge Agreement and the documents related hereto; shall be of no further force or effect; and shall not be enforceable unless expressly set forth in the Loan Documents, as amended by this Agreement and the documents related hereto. All commitments, promises, and agreements of the parties hereto are set forth in the Loan Documents, as amended by this Agreement and the documents related hereto, and no other commitments, promises, or agreements, oral or written, of any of the parties hereto shall be enforceable against any such party.
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20. Release of Claims. The New Borrower hereby releases and forever discharges the Lender and its past, present and future officers, directors, attorneys, insurers, servants, representatives, employees, shareholders, subsidiaries, affiliates, participants, partners, predecessors, principals, agents, successors and assigns of and from any and all any and all claims, defenses, demands, obligations, interests, suits, actions or causes of action, at law or in equity, whether arising by contract, statute, common law or otherwise, both direct and indirect, of whatsoever kind or nature, including without limitation those arising out of or by reason of or in connection with the Loan, the Loan Documents, this Agreement or any acts, omissions, or conduct occurring in connection therewith on or before the date hereof.
21. No Default; No Waiver. The New Borrower hereby represents and warrants to the Lender that no Default, or event which with the giving of notice or the passage of time or both would constitute a Default, has occurred and is continuing. Further, the execution of this Agreement by the Lender shall not be construed as a waiver of any existing Event of Default, or a waiver of Lender’s ability to declare and Event of Default based on a condition that may exist and that the Lender may have knowledge of as of the date of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the day and year first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO CONSENT, ASSUMPTION AND THIRD AMENDMENT AGREEMENT]
| NEW BORROWER: | |||
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| SHGN ACQUISITION CORP., a Delaware corporation |
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| By: | /s/ Rob Phythian | ||
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| Name: | Rob Phythian | |
| Its: | Chief Executive Officer | ||
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| VIRTUAL FANTASY GAMES ACQUISITION, LLC, a Minnesota limited liability company |
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| By: | /s/ Rob Phythian |
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| Name: | Rob Phythian |
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| Its: | President |
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| LEAGUESAFE MANAGEMENT, LLC, a Minnesota limited liability company |
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| By: | /s/ Rob Phythian |
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| Name: | Rob Phythian |
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| Its: | Chief Executive Officer |
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[SIGNATURE PAGE TO CONSENT, ASSUMPTION AND THIRD AMENDMENT AGREEMENT]
| LENDER: | |||
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| PLATINUM BANK, a Minnesota banking corporation |
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| By: | /s/ Pete Odell | ||
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| Pete Odell | |
| Its Senior Vice President | |||
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EXHIBIT 10.15
AMENDED AND RESTATED REVOLVING PROMISSORY NOTE
| $5,000,000.00 |
| February 13, 2023 |
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| Plymouth, Minnesota |
FOR VALUE RECEIVED, the undersigned, SHGN ACQUISITION CORP., a Delaware corporation (successor by merger to SportsHub Games Network, Inc.) (the “Borrower”), hereby promises to pay to the order of PLATINUM BANK, a Minnesota banking corporation (“Lender”), or its assigns, the principal sum of FIVE MILLION AND NO/100THS DOLLARS ($5,000,000.00), or so much thereof as has been advanced, or paid and re-advanced, to or for the benefit of the Borrower, pursuant to that certain Revolving Credit Agreement dated March 27, 2020 by and between the Borrower and Lender (the “Credit Agreement”), in lawful money of the United States and immediately available funds, together with interest thereon as hereinafter provided. This Note represents a revolving line of credit. Disbursement of the principal of this Note will be made pursuant to the terms of the Credit Agreement.
1. INTEREST; PAYMENTS:
The Credit Agreement sets forth the interest rate, default rate, late payment charge, payment and prepayment provisions, the maturity date and other provisions applicable to this Note, all of which are incorporated herein.
2. SECURITY:
This Note is the Note, as defined in the Credit Agreement, and is secured by, amongst other things, the Security Agreement, the Third Party Security Agreements and the Deposit Account Pledge and Control Agreement. The terms of the Security Agreements are incorporated herein.
3. DEFAULT:
If an Event of Default, as defined in the Credit Agreement, occurs, Lender is entitled to all of the rights and remedies provided for in the Credit Agreement, the Security Agreement, the Third Party Security Agreements, the Deposit Account Pledge and Control Agreement, and the other Loan Documents, including without limitation the right to terminate the Borrower’s ability to obtain additional advances of principal hereunder and to declare the principal balance hereof to be immediately due and payable and any other rights and remedies of Lender at law or in equity, and Lender may enforce the covenants, agreements and undertakings of the Borrower contained in this Note, in the Credit Agreement, and in the Security Agreement, the Third Party Security Agreements, the Deposit Account Pledge and Control Agreement and may exercise the remedies provided for thereby or otherwise available in respect to this Note, the Security Agreement, the Third Party Security Agreements, the Deposit Account Pledge and Control Agreement and the other Loan Documents, all in accordance with the terms thereof.
4. WAIVERS:
Except as herein provided, the Borrower and all others who may become liable for all or part of the principal balance hereof or for any obligations of the Borrower to Lender or the holder hereof (a) jointly and severally, forever waive presentment, protest and demand, notice of protest, demand and dishonor and non-payment of this Note, and all other notices in connection with the delivery, acceptance, performance, default or enforcement of the payment of this Note, (b) agree that the time of payment of the debt or any part thereof may be extended from time to time without modifying or releasing the lien of the Security Agreement, the Third Party Security Agreements, the Deposit Account Pledge and Control Agreement, or the other Loan Documents or the liability of the Borrower or any other such parties, the right of recourse against the Borrower and such parties being hereby reserved by Lender; and (c) agree that time is of the essence. The Borrower agrees to pay all costs of collection when incurred, whether suit be brought or not, including attorneys’ fees and costs of suit and preparation therefor, and to perform and comply with each of the covenants, conditions, provisions and agreements of the Borrower contained in this Note, the Credit Agreement, the Security Agreement, the Third Party Security Agreements, the Deposit Account Pledge and Control Agreement and the other Loan Documents. It is expressly agreed by the Borrower that no extensions of time for the payment of this Note, nor the failure on the part of Lender to exercise any of its rights hereunder, under the Security Agreement or under the Loan Documents, shall operate to release, discharge, modify, change or affect the original liability under this Note, the Credit Agreement, the Security Agreement, the Third Party Security Agreements, the Deposit Account Pledge and Control Agreement or the other Loan Documents, either in whole or in part.
5. SEVERABILITY:
If any provision of this Note shall be illegal or unenforceable, such provision shall be deemed canceled to the same extent as though it never had appeared herein, but the remaining provisions shall not be affected thereby.
6. NOTICES:
All notices, requests, demands and other communications required or permitted to be given hereunder will be given in the manner provided in the Credit Agreement.
7. INCORPORATION OF CREDIT AGREEMENT PROVISIONS:
The provisions of the Credit Agreement waiving any right to a jury trial, providing the governing law and agreeing to jurisdiction and venue are incorporated herein and are applicable to this Note. Unless the context otherwise indicates, any capitalized term used herein, but not defined herein, shall have the meaning given such term in the Credit Agreement.
8. SUCCESSORS:
All rights, powers, privileges and immunities herein granted to Lender shall extend to its successors and assigns and any other legal holder of this Note, with full right by Lender to assign and/or sell same.
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9. AMENDMENT AND RESTATEMENT
This Note constitutes an amendment and restatement of that certain Revolving Promissory Note dated March 17, 2020 (the “Existing Note”), executed by the Borrower and payable to the Lender in the original principal amount of $5,000,000.00 and is given in replacement of, but not in payment for, the Existing Note. This Note is not a novation of an indebtedness of the Borrower to the Lender.
Signed on the day and year first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING PROMISSORY NOTE]
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| SHGN ACQUISITION CORP., a Delaware corporation |
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| By: | /s/ Rob Phythian |
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| Name: | Rob Phythian |
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| Its: | Chief Executive Officer |
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EXHIBIT 10.16
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this “Agreement”), is made as of this 27th day of March, 2020, by SPORTSHUB GAMES NETWORK, INC., a Delaware corporation (the “Debtor”), in favor of PLATINUM BANK, a Minnesota banking corporation (the “Secured Party”).
In order to secure the obligations of the Debtor to the Secured Party under and pursuant to that certain Revolving Credit Agreement of even date herewith (as the same may hereafter be amended, supplemented or restated from time to time, the “Credit Agreement”) by and between the Debtor and Secured Party and as evidenced by, among other things, the Note (as defined from time to time in the Credit Agreement) and each and every other debt, liability and obligation of every type and description which the Debtor may now or at any time hereafter owe to the Secured Party, including, without limitation, the “Obligations” (as defined from time to time in the Credit Agreement) (whether such debt, liability or obligation now exists or is hereafter created or incurred, whether it arises under or is evidenced by this Agreement or any other present or future instrument or agreement or by operation of law, and whether it is direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sole, joint or joint and several) (all such debts, liabilities and obligations of the Debtor to the Secured Party are herein collectively referred to as the “Secured Obligations”), the Debtor hereby agrees as follows:
1. SECURITY INTEREST AND COLLATERAL. In order to secure the payment and performance of the Secured Obligations, the Debtor hereby grants to the Secured Party a security interest (herein called the “Security Interest”) in and to the following property (hereinafter collectively referred to as the “Collateral”):
any and all of the Debtor’s furniture, fixtures, machinery, equipment, inventory, accounts (including, but not limited to, all health-care-insurance receivables), deposit accounts, vehicles, prepaid insurance, letter-of-credit rights, supplies, patents, patent rights, copyrights, trademarks, trade names, goodwill, royalty rights, franchise rights, chattel paper (including, but not limited to, electronic chattel paper and tangible chattel paper), license rights, documents, instruments, investment property, software, payment intangibles, general intangibles and any and all other goods, now owned or hereafter acquired by the Debtor and wherever located and, without limitation, all of the Debtor’s other assets,
together with all supporting obligations, substitutions and replacements for and products and proceeds of any of the foregoing property and, in the case of all tangible Collateral, together with (i) all accessories, attachments, parts, equipment, accessions and repairs now or hereafter attached or affixed to or used in connection with any such goods, and (ii) all warehouse receipts, bills of lading and other documents now or hereafter covering such goods.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The Debtor hereby represents and warrants to, and covenants and agrees with, the Secured Party as follows:
(a) The Collateral will be used primarily for business purposes. The tangible Collateral shall be located on the real property located at 323 Washington Avenue North, Suite 320, Minneapolis, Minnesota 55401.
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(b) The Debtor is a Delaware corporation and the address of the Debtor’s chief executive office is 323 Washington Avenue North, Suite 320, Minneapolis, Minnesota 55401, and it keeps and will keep all of its books and records with respect to all of its accounts at such address. The Debtor shall not change its state of organization or chief executive office without the Secured Party’s prior written consent.
(c) If any part or all of the Collateral will become so related to particular real estate as to become a fixture, the Debtor will promptly advise the Secured Party as to real estate concerned and the record owner thereof and execute and deliver any and all instruments necessary to perfect the Security Interest therein and to assure that such Security Interest will be prior to the interest therein of the owner of the real estate.
(d) During the preceding one (1) year, the Debtor has not changed its name or operated or conducted business under any trade name or “d/b/a” which is different from its corporate name. The Debtor shall promptly notify the Secured Party of any change in such name or if it operates or conducts business under any trade name or “d/b/a” which is different from such name.
(e) The Debtor has (or will have at the time the Debtor acquires rights in Collateral hereafter acquired or arising) and will maintain absolute title to each item of Collateral free and clear of all security interests, liens and encumbrances, except the Security Interest, and such other security interests as are permitted under the Credit Agreement (the Security Interest and the security interests permitted under the Credit Agreement are hereinafter collectively referred to as the “Permitted Interests”), and will defend the Collateral against all claims or demands of all persons other than the Secured Party and those holding Permitted Interests. Except as permitted in the Credit Agreement, the Debtor will not sell or otherwise dispose of the Collateral or any interest therein except that until an Event of Default (as defined in the Credit Agreement) has occurred the Debtor may sell inventory in the ordinary course of its business.
(f) The Debtor will not permit any Collateral to be located in any state (and, if a county filing is required, in any county) in which a financing statement covering such Collateral is required to be, but has not in fact been, filed.
(g) The Debtor authorizes the Secured Party to file all of the Secured Party’s financing statements and amendments to financing statements, and all terminations of the filings of other secured parties, all with respect to the Collateral, in such form and substance as the Secured Party, in its sole discretion, may determine (including, without limitation, describing such property as “all assets”).
(h) All rights to payment and all instruments, documents, chattel paper and other agreements constituting or evidencing Collateral are (or will be when arising or issued) the valid, genuine and legally enforceable obligation, subject to no defense, set-off or counterclaim (other than those arising in the ordinary course of business) of each account debtor or other obligor named therein or in the Debtor’s records pertaining thereto as being obligated to pay such obligation. The Debtor will not agree to any modification, amendment or cancellation of any such obligation without the Secured Party’s prior written consent, and will not subordinate any such right to payment to claims of other creditors of such account debtor or other obligor.
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(i) The Debtor will (i) keep all Collateral in good repair, working order and condition, normal depreciation excepted, and will, from time to time, replace any worn, broken or defective parts thereof; (ii) other than taxes and other governmental charges contested in good faith and by appropriate proceedings, promptly pay all taxes and other governmental charges levied or assessed upon or against any Collateral or upon or against the creation, perfection or continuance of the Security Interest; (iii) keep all Collateral free and clear of all security interests, liens and encumbrances except the Permitted Interests; (iv) at all reasonable times, permit the Secured Party or its representatives to examine or inspect any Collateral, wherever located, and to examine, inspect and copy the Debtor’s books and records pertaining to the Collateral and its business and financial condition and to discuss with account debtors and other obligors requests for verifications of amounts owed to the Debtor; (v) keep accurate and complete records pertaining to the Collateral and pertaining to the Debtor’s business and financial condition and will submit to the Secured Party such periodic reports concerning the Collateral and the Debtor’s business and financial condition as the Secured Party may from time to time reasonably request; (vi) promptly notify the Secured Party of any loss or material damage to any Collateral or of any material adverse change, known to the Debtor, in the prospect of payment of any sums due on or under any instrument, chattel paper or account constituting Collateral; (vii) if the Secured Party at any time so requests promptly deliver to the Secured Party any instrument, document or chattel paper constituting Collateral, duly endorsed or assigned by the Debtor to the Secured Party; (viii) at all times keep all Collateral insured against risks of fire (including so called extended coverage), theft, collision (in case of collateral consisting of motor vehicles) and such other risks and in such amounts as the Secured Party may reasonably request, with any loss payable to the Secured Party to the extent of its interest and notify the Secured Party in writing of any loss or damage to the Collateral or any part; (ix) from time to time execute such financing statements or other forms, including, without limitation, patent and trademark recordation forms, as the Secured Party may reasonably deem required to be filed in order to perfect the Security Interest and, if any Collateral is covered by a certificate of title, execute such documents as may be required to have the Security Interest properly noted on a certificate of title; (x) pay when due or reimburse the Secured Party on demand for all costs of collection of any of the Secured Obligations and all other out-of-pocket expenses (including in each case all attorneys’ fees) incurred by the Secured Party in connection with the creation, perfection, satisfaction or enforcement of the Security Interest or the execution or creation, continuance or enforcement of this Agreement or any or all of the Secured Obligations including expenses incurred in any litigation or bankruptcy or insolvency proceedings; (xi) execute, deliver or endorse any and all instruments, documents, assignments, security agreements and other agreements and writings which the Secured Party may at any time reasonably request in order to secure, protect, perfect or enforce the Security Interest and the Secured Party’s rights under this Agreement, including, without limitation, an assignment of claim with respect to any account which is a government receivable; (xii) not use or keep any Collateral, or permit it to be used or kept, for any unlawful purpose or in violation of any federal, state or local law, statute or ordinance; (xiii) permit the Secured Party at any time and from time to time to send requests (both before and after the occurrence of an Event of Default under the Credit Agreement) to account debtors or other obligors for verification of amounts owed to Debtor; and (xiv) not permit any Collateral to become part of or to be affixed to any real property, without first assuring to the reasonable satisfaction of the Secured Party that the Security Interest will be prior and senior to any interest or lien then held or thereafter acquired by any mortgagee of such real property or the owner or purchaser of any interest therein. If the Debtor at any time fails to perform or observe any agreement contained in this Section 2(i), and if such failure shall continue for a period of ten (10) calendar days after the Secured Party gives the Debtor written notice thereof (or, in the case of the agreements contained in clauses (viii) and (ix) of this Section 2(i), immediately upon the occurrence of such failure, without notice or lapse of time) the Secured Party may (but need not) perform or observe such agreement on behalf and in the name, place and stead of the Debtor (or, at the Secured Party’s option, in the Secured Party’s own name) and may (but need not) take any and all other actions which the Secured Party may reasonably deem necessary to cure or correct such failure (including, without limitation, the payment of taxes, the satisfaction of security interests, liens or encumbrances (other than Permitted Interests), the performance of obligations under contracts or agreements with account debtors or other obligors, the procurement and maintenance of insurance, the execution of financing statements, the endorsement of instruments, and the procurement of repairs, transportation or insurance); and, except to the extent that the effect of such payment would be to render any loan or forbearance of money usurious or otherwise illegal under any applicable law, the Debtor shall thereupon pay the Secured Party on demand the amount of all moneys expended and all costs and expenses (including attorneys’ fees) incurred by the Secured Party in connection with or as a result of the Secured Party’s performing or observing such agreements or taking such actions, together with interest thereon from the date expended or incurred by the Secured Party at the rate provided for in the Note. To facilitate the performance or observance by the Secured Party of such agreements of the Debtor, the Debtor hereby irrevocably appoints (which appointment is coupled with an interest) the Secured Party, or its delegate, as the attorney-in-fact of the Debtor with the right (but not the duty) from time to time to create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of the Debtor, any and all instruments, documents, financing statements, forms, applications for insurance and other agreements and writings required to be obtained, executed, delivered or endorsed by the Debtor under this Section 2.
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3. ASSIGNMENT OF INSURANCE. The Debtor hereby assigns to the Secured Party, as additional security for the payment of the Secured Obligations, any and all moneys (including but not limited to proceeds of insurance and refunds of unearned premiums) due or to become due under, and all other rights of the Debtor under or with respect to, any and all policies of insurance covering the Collateral, and the Debtor hereby directs the issuer of any such policy to pay any such moneys to the Secured Party. Before and upon the occurrence of an Event of Default, and at any time thereafter, the Secured Party may (but need not) in its own name or in the Debtor’s name, execute and deliver proofs of claim, receive all such moneys (subject to the Debtor’s rights), endorse checks and other instruments representing payment of such monies, and adjust, litigate, compromise or release any claim against the issuer of any such policy. The Debtor shall cause the Secured Party to be named as lender loss payee with respect to all of the Debtor’s property insurance and shall cause the Secured Party to be named as additional insured with respect to all liability insurance.
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4. COLLECTION OF ACCOUNTS. The Secured Party may, or at the Secured Party’s request, the Debtor shall, either prior to or after the occurrence of an Event of Default, and at any time thereafter, notify any account debtor or any obligor on an instrument to make payment directly to a post office box specified by and under the sole control of the Secured Party, whether or not the Secured Party was theretofore making collections with respect thereto, and the Secured Party shall be entitled to take control of any proceeds thereof. If so requested by the Secured Party, the Debtor shall insert appropriate language on each invoice directing its customers to make payment to such post office box. The Debtor hereby authorizes and directs the Secured Party to deposit into a special collateral account to be established and maintained with the Secured Party all checks, drafts and cash payments, received in said lock box. All deposits in said collateral account shall constitute proceeds of Collateral and shall not constitute payment of any of the Secured Obligations. At its option, the Secured Party may, at any time, apply finally collected funds on deposit in said collateral account to the payment of the Secured Obligations in such order of application as the Secured Party may determine, or permit the Debtor to withdraw all or any part of the balance on deposit in said collateral account. If a collateral account is so established the Debtor agrees that it will promptly deliver to the Secured Party for deposit into said collateral account, all payments on accounts and chattel paper received by it. All such payments shall be delivered to the Secured Party in the form received (except for the Debtor’s endorsement where necessary). Until so deposited, all payments on accounts and chattel paper received by the Debtor shall be held in trust by the Debtor for and as the property of the Secured Party and shall not be commingled with any funds or property of the Debtor.
5. DEBTOR’S PREMISES. The Debtor hereby grants the Secured Party the right, at any time following the occurrence of an Event of Default and without notice or consent, to take exclusive possession of all Premises and any other location where the Debtor conducts its business or has any rights or possession until the earlier of the payment in full and discharge of all Secured Obligations and termination of the Revolving Line of Credit or final sale or disposition of all items constituting Collateral and delivery of those items to purchasers. Secured Party may use the Premises to store, process, manufacture, sell, use and liquidate or otherwise dispose of items that are Collateral and for any other incidental purposes deemed appropriate by the Secured Party in good faith. The Secured Party shall not be obligated to pay rent or other compensation for the possession or use of any Premises, but if the Secured Party elects to pay rent or other compensation to the owner of any Premises or any sublandlord of any Premises in order to have access to the Premises, then the Debtor shall promptly reimburse the Secured Party for all such amounts, as well as all taxes, fees, charges and other expenses at any time payable by the Secured Party with respect to the Premises by reason of the execution, delivery, recordation, performance or enforcement of any terms of this Agreement or any other Loan Document.
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6. REMEDIES. Upon the occurrence of an Event of Default, and at any time thereafter, the Secured Party may exercise any one or more of the following rights or remedies if any or all of the Secured Obligations are not paid when due: (i) exercise and enforce any or all rights and remedies available after default to a secured party under the Uniform Commercial Code, including but not limited to the right to take possession of any Collateral, proceeding without judicial process or by judicial process (without a prior hearing or notice thereof, which the Debtor hereby expressly waives), and the right to sell, lease or otherwise dispose of or use any or all of the Collateral; (ii) the Secured Party may require the Debtor to assemble the Collateral and make it available to the Secured Party at a place to be designated by the Secured Party which is reasonably convenient to both parties; (iii) exercise its rights under any lessors’ agreements regardless of whether or not the Debtor is in default under such leases; and (iv) exercise or enforce any or all other rights or remedies available to the Secured Party by law or agreement against the Collateral, against the Debtor or against any other person or property. The Secured Party is hereby granted a non-exclusive, worldwide and royalty-free license to use or otherwise exploit all trademarks, franchises, copyrights and patents of the Debtor that the Secured Party deems necessary or appropriate to the disposition of any Collateral. If notice to the Debtor of any intended disposition of Collateral or any other intended action is required by law in a particular instance, such notice shall be deemed commercially reasonable if given (in the manner specified in Section 7 below) at least ten (10) calendar days prior to the date of intended disposition or other action.
7. MISCELLANEOUS. This Agreement does not contemplate a sale of accounts or chattel paper, and, as provided by law, the Debtor is entitled to any surplus and shall remain liable for any deficiency. This Agreement can be waived, modified, amended, terminated or discharged, and the Security Interest can be released, only explicitly in a writing signed by the Secured Party. A waiver signed by the Secured Party shall be effective only in the specific instance and for the purpose given. Mere delay or failure to act shall not preclude the exercise or enforcement of any of the Secured Party’s rights or remedies. All rights and remedies of the Secured Party shall be cumulative and may be exercised singularly or concurrently, at the Secured Party’s option, and the exercise or enforcement of any one such right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other. All notices to be given to the Debtor shall be deemed sufficiently given if deposited in the United States mails, registered or certified, postage prepaid, or personally delivered to the Debtor at its address set forth herein. The Secured Party’s duty of care with respect to Collateral in its possession (as imposed by law) shall be deemed fulfilled if the Secured Party exercises reasonable care in physically safe keeping such Collateral or, in the case of Collateral in the custody or possession of a bailee or other third person, exercises reasonable care in the selection of the bailee or other third person, and the Secured Party need not otherwise preserve, protect, insure or care for any Collateral. The Secured Party shall not be obligated to preserve any rights the Debtor may have against any other party, to realize on the Collateral at all or in any particular manner or order, or to apply any cash proceeds of Collateral in any particular order of application. This Agreement shall be binding upon and inure to the benefit of the Debtor and the Secured Party and their respective heirs, representatives, successors and assigns and shall take effect when signed by the Debtor and delivered to the Secured Party, and the Debtor waives notice of the Secured Party’s acceptance hereof. The Secured Party may execute this Agreement if appropriate for the purpose of filing, but the failure of the Secured Party to execute this Agreement shall not affect or impair the validity or effectiveness of this Agreement. Except to the extent otherwise required by law, this Agreement shall be governed by the laws of the State of Minnesota and, unless the context otherwise requires, all terms used herein which are defined in Articles 1 and 9 of the Uniform Commercial Code, as in effect in said state, shall have the meanings therein stated and all capitalized terms used herein which are defined in the Credit Agreement shall have the meanings therein stated. If any provision or application of this Agreement is held unlawful or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or applications which can be given effect, and this Agreement shall be construed as if the unlawful or unenforceable provision or application had never been contained herein or prescribed hereby. All representations and warranties contained in this Agreement shall survive the execution, delivery and performance of this Agreement and the creation and payment of the Secured Obligations.
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IN WITNESS WHEREOF, the Debtor has executed and delivered to the Secured Party this Agreement as of the day and year first above written.
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[SIGNATURE PAGE TO SECURITY AGREEMENT]
| SPORTSHUB GAMES NETWORK, INC., | |||
| a Delaware corporation | |||
| By: | /s/Rob Phythian | ||
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| Rob Phythian | |
| Its: | President | ||
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| Debtor’s Address: |
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| 323 Washington Avenue North, Suite 320 Minneapolis, Minnesota 55401 |
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EXHIBIT 10.17
SECURITY AGREEMENT
March 20, 2020
| DEBTOR: |
| SECURED PARTY: |
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| SportsHub Games Network, Inc. 323 Washington Ave N, Suite 320 Minneapolis, MN 55401 |
| LeagueSafe Management, LLC 323Washington Ave N, Suite 320 Minneapolis, MN 55401 |
1. Security Interest and Collateral. To secure the payment and performance of each and every debt, liability and obligation of every type and description that Debtor may now or at any time hereafter owe to Secured Party (whether such debt, liability or obligation now exists or is hereafter created or incurred, and whether it is or may be direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or joint, several or joint and several; all such debts, liabilities and obligations collectively referred to as the “Obligations”), including but not limited to the credit facilities documented by the Revolving Promissory Note of even date herewith in the amount of Five Million Dollars ($5,000,000), Debtor hereby grants Secured Party a security interest (the “Security Interest”) in the following property (the “Collateral”):
a. Inventory: All inventory of Debtor, whether now owned or hereafter acquired and wherever located;
b. Equipment and Other Goods: All equipment and other goods of Debtor, whether now owned or hereafter acquired, including but not limited to all present and future machinery, vehicles, furniture, fixtures, manufacturing equipment, shop equipment, office and recordkeeping equipment, parts and tools;
c. Accounts and Other Rights to Payment: Each and every right of Debtor to the payment of money, whether such right to payment now exists or hereafter arises, whether such right to payment arises out of a sale, lease or other disposition of goods or other property by Debtor, out of a rendering of services by Debtor, out of a loan by Debtor, out of the overpayment of taxes or other liabilities of Debtor, or otherwise arises under any contract or agreement, whether such right to payment is or is not already earned by performance, and howsoever such right to payment may be evidenced, together with all other rights and interests (including all liens and security interests) that Debtor may at any time have by law or agreement against any account debtor or other obligor obligated to make any such payment or against any of the property of such account debtor or other obligor; all including but not limited to all present and future payment intangibles, debt instruments, chattel paper, accounts, deposit accounts, loans and obligations receivable, letters of credit and letter of credit rights and tax refunds;
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d. Intangibles: All intangibles of Debtor, whether now owned or hereafter acquired, including but not limited to, general intangibles, investment property, software, applications for patents, patents, copyrights, trademarks, trade secrets, goodwill, trade names, customers lists, permits and franchises, internet domain names, uniform resource locators (URL’s), website contracts and registration rights and the right to use Debtor’s name;
together with all substitutions and replacements for and products of any of the foregoing property and together with proceeds of any and all of the foregoing property and, in the case of all tangible Collateral, together with all accessions and together with (i) all accessories, attachments, parts, equipment and repairs now or hereafter attached or affixed to or used in connection with any such goods, and (ii) all warehouse receipts, bills of lading and other documents of title now or hereafter covering such goods.
2. Representations, Warranties and Agreements. Debtor represents, warrants and agrees that:
a. Debtor is a company, duly organized and validly existing under the laws of the State of Minnesota; and
b. The Collateral will be used primarily for business purposes.
3. Additional Representations, Warranties and Agreements. Debtor represents, warrants and agrees that:
a. Debtor has (or will have at the time Debtor acquires rights in Collateral hereafter arising) absolute title to each item of Collateral free and clear of all security interests, liens and encumbrances, except the Security Interest, and will defend the Collateral against all claims or demands of all persons other than Secured Party. Any such security interests, liens or encumbrances not permitted under this Agreement shall be void. Debtor will not sell or otherwise dispose of the Collateral or any interest therein without the prior written consent of Secured Party, except that, until the occurrence of an Event of Default and the revocation by Secured Party of Debtor’s right to do so, Debtor may sell any inventory constituting Collateral to buyers in the ordinary course of business. This Agreement has been duly and validly authorized by all necessary corporate action.
b. Debtor will not permit any tangible Collateral to be located in any state (and, if county filing is required, in any county) in which a financing statement covering such Collateral is required to be, but has not in fact been, filed in order to perfect the Security Interest.
c. Each right to payment and each instrument, document, chattel paper and other agreement constituting or evidencing Collateral is (or will be when arising or issued) the valid, genuine and legally enforceable obligation, subject to no defense, set-off or counterclaim (other than those arising in the ordinary course of business) of the account debtor or other obligor named therein or in Debtor’s records pertaining thereto as being obligated to pay such obligation. Debtor will neither agree to any material modification or amendment nor agree to any cancellation of any such obligation without Secured Party’s prior written consent, and will not subordinate any such right to claims of other creditors of such account debtor or other obligor.
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d. Debtor will:
(i) keep all tangible Collateral in good repair, working order and condition, normal depreciation excepted, and will, from time to time, replace any worn, broken or defective parts thereof;
(ii) promptly pay all taxes and other governmental charges levied or assessed upon or against any Collateral or upon or against the creation, perfection or continuance of the Security Interest except as Debtor shall contest in good faith and by appropriate proceedings providing such reserves as are required by generally accepted accounting principles;
(iii) keep all Collateral free and clear of all security interests, liens and encumbrances except the Security Interest;
(iv) at all reasonable times, permit Secured Party or its representatives to examine or inspect any Collateral, wherever located, and to examine, inspect and copy Debtor’s books and records pertaining to the Collateral and its business and financial condition and to send and discuss with account debtors and other obligors requests for verifications of amounts owed to Debtor;
(v) keep accurate and complete records pertaining to the Collateral and pertaining to Debtor’s business and financial condition and submit to Secured Party such periodic reports concerning the Collateral and Debtor’s business and financial condition as Secured Party may from time to time reasonably request;
(vi) promptly notify Secured Party of any loss of or material damage to any Collateral or of any adverse change, known to Debtor, in the prospect of payment of any sums due on or under any instrument, chattel paper, or account constituting Collateral;
(vii) if Secured Party at any time so requests (whether the request is made before or after the occurrence of an Event of Default), promptly deliver to Secured Party any instrument, document or chattel paper constituting Collateral, duly endorsed or assigned by Debtor;
(viii) at all times keep all tangible Collateral insured against risks of fire (including so-called extended coverage), theft, collision (in case of Collateral consisting of motor vehicles) and such other risks and in such amounts as Secured Party may reasonably request with any loss payable to Secured Party to the extent of its interest;
(ix) from time to time authorize such financing statements and amendments thereto as Secured Party may reasonably require in order to perfect the Security Interest and, if any Collateral consists of an asset subject to a certificate of title, execute such documents as may be required to have the Security Interest properly noted on a certificate of title;
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(x) pay when due or reimburse Secured Party on demand for all costs of collection of any of the Obligations and all other out-of-pocket expenses (including in each case all reasonable attorneys’ fees) incurred by Secured Party in connection with the creation, perfection, satisfaction, protection, defense or enforcement of the Security Interest or the creation, continuance, protection, defense or enforcement of this Agreement or any or all of the Obligations, including expenses incurred in any litigation or bankruptcy or insolvency proceedings;
(xi) execute, deliver or endorse any and all instruments, documents, assignments, security agreements and other agreements and writings that Secured Party may at any time reasonably request in order to secure, protect, perfect or enforce the Security Interest and Secured Party’s rights under this Agreement;
(xii) not use or keep any Collateral, or permit it to be used or kept, for any unlawful purpose or in violation of any federal, state or local law, statute or ordinance;
(xiii) not permit any tangible Collateral to become part of or to be affixed to any real property without first assuring to the reasonable satisfaction of Secured Party that the Security Interest will be prior and senior to any interest, or lien then held or thereafter acquired by any mortgagee of such real property or the owner or purchaser of any interest therein; and
(xiv) inform Secured Party of any change to Debtor’s name, address or state of formation prior to the effective date of such change and authorize and deliver to Secured Party any financing statement that is necessary as a result of that change to maintain the perfected status of the Security Interest.
If Debtor at any time fails to perform or observe any agreement contained in this Section, and if such failure shall continue for a period of ten calendar days after Secured Party gives Debtor written notice thereof (or, in the case of the agreements contained in clauses (viii) and (ix) of this Section, immediately upon the occurrence of such failure, without notice or lapse of time), Secured Party may (but need not) perform or observe such agreement on behalf and in the name, place and stead of Debtor (or, at Secured Party’s option, in Secured Party’s own name) and may (but need not) take any and all other actions that Secured Party may reasonably deem necessary to cure or correct such failure (including, without limitation, the payment of taxes, the satisfaction of security interests, liens, or encumbrances, the performance of obligations under contracts or agreements with account debtors or other obligors, the procurement and maintenance of insurance, the filing of financing statements, the endorsement of instruments, and the procurement of repairs, transportation or insurance); and, except to the extent that the effect of such payment would be to render any loan or forbearance of money usurious or otherwise illegal under any applicable law, Debtor shall thereupon pay Secured Party on demand the amount of all moneys expended and all costs and expenses (including reasonable attorneys’ fees) incurred by Secured Party in connection with or as a result of Secured Party’s performing or observing such agreements or taking such actions, together with interest thereon from the date expended or incurred by Secured Party at the highest rate then applicable to any of the Obligations. To facilitate the performance or observance by Secured Party of such agreements of Debtor, Debtor hereby irrevocably appoints (which appointment is coupled with an interest) Secured Party, or its delegate, as the attorney-in-fact of Debtor with the right (but not the duty) from time to time to create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of Debtor, any and all instruments, documents, financing statements, termination statements for filings not permitted under this Agreement held by other secured parties, applications for insurance and other agreements and writings required to be obtained, executed, delivered or endorsed by Debtor under this Section and Section 4.
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4. Account Verification and Collection Rights of Secured Party. Secured Party shall have the right to verify any accounts in the name of Debtor or in its own name; and Debtor, whenever requested, shall furnish Secured Party with duplicate statements of the accounts, which statements may be mailed or delivered by Secured Party for that purpose. Notwithstanding Secured Party’s rights under Section 4 with respect to any and all debt instruments, chattel papers, accounts, and other rights to payment constituting Collateral (including proceeds), Secured Party may at any time (both before and after the occurrence of an Event of Default) notify any account debtor, or any other person obligated to pay any amount due, that such chattel paper, account, or other right to payment has been assigned or transferred to Secured Party for security and shall be paid directly to Secured Party. If Secured Party so requests at any time, Debtor will so notify such account debtors and other obligors in writing and will indicate on all invoices to such account debtors or other obligors that the amount due is payable directly to Secured Party. At any time after Secured Party or Debtor gives such notice to an account debtor or other obligor, Secured Party may (but need not), in its own name or in Debtor’s name, demand, sue for, collect or receive any money or property at any time payable or receivable on account of, or securing, any such chattel paper, account, or other right to payment, or grant any extension to, make any compromise or settlement with or otherwise agree to waive, modify, amend or change the obligations (including collateral obligations) of any such account debtor or other obligor.
5. Assignment of Insurance. Debtor hereby assigns to Secured Party, as additional security for the payment of the Obligations, any and all moneys (including but not limited to proceeds of insurance and refunds of unearned premiums) due or to become due under and all other rights of Debtor under or with respect to, any and all policies of insurance covering the Collateral, and Debtor hereby directs the issuer of any such policy to pay any such moneys directly to Secured Party. Both before and after the occurrence of an Event of Default, Secured Party may (but need not), in its own name or in Debtor’s name, execute and deliver proofs of claim, receive all such moneys, endorse checks and other instruments representing payment of such moneys, and adjust, litigate, compromise or release any claim against the issuer of such policy.
6. Events of Default. An Event of Default under the Revolving Credit Agreement and any related document or other agreement between Debtor and Secured Party dated as of the date hereof shall be an Event of Default hereunder.
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7. Remedies upon Event of Default. Upon the occurrence of an Event of Default under Section 7 and at any time thereafter, Secured Party may exercise any one or more of the following rights and remedies: (i) declare all unmatured Obligations to be immediately due and payable, and the same shall thereupon be immediately due and payable, without presentment of other notice or demand; (ii) exercise and enforce any or all rights and remedies available upon default to a secured party under the Uniform Commercial Code, including but not limited to the right to take possession of any Collateral, proceeding without judicial process or by judicial process (without a prior hearing or notice thereof, which Debtor hereby expressly waives), and the right to sell, lease or otherwise dispose of any or all of the Collateral, and in connection therewith, Secured Party may require Debtor to make the Collateral available to Secured Party at a place to be designated by Secured Party that is reasonably convenient to both parties, and if notice to Debtor of any intended disposition of Collateral or any other intended action is required by law in a particular instance, such notice shall be deemed commercially reasonable if given (in the manner specified in Section 10) at least 10 calendar days prior to the date of intended disposition or other action; (iii) exercise or enforce any or all other rights or remedies available to Secured Party by law or agreement against the Collateral, against Debtor or against any other person or property. Secured Party is hereby granted a nonexclusive, worldwide and royalty-free license to use or otherwise exploit all trademarks, trade secrets, franchises, copyrights and patents of Debtor that Secured Party deems necessary or appropriate to the disposition of any Collateral.
8. Financing. Lender agrees to subordinate its debt to traditional bank financing throughout the duration of the revolving line of credit offered to the Debtor.
9. Waiver of Jury Trial. Each party to this Agreement irrevocably waives its rights to trial by jury in any action or proceeding arising out of or relating to this agreement or the transactions relating to its subject matter.
10. Other Personal Property. Unless at the time Secured Party takes possession of any tangible Collateral, or within seven days thereafter, Debtor gives written notice to Secured Party of the existence of any goods, papers or other property of Debtor, not affixed to or constituting a part of such Collateral, but that are located or found upon or within such Collateral, describing such property, Secured Party shall not be responsible or liable to Debtor for any action taken or omitted by or on behalf of Secured Party with respect to such property without actual knowledge of the existence of any such property or without actual knowledge that it was located or to be found upon or within such Collateral.
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11. Miscellaneous. This Agreement can be waived, modified, amended, terminated or discharged and the Security Interest can be released, only explicitly in a writing signed by Secured Party. A waiver signed by Secured Party shall be effective only in a specific instance and for the specific purpose given. Mere delay or failure to act shall not preclude the exercise or enforcement of any of Secured Party’s rights or remedies. All rights and remedies of Secured Party shall be cumulative and may be exercised singularly or concurrently, at Secured Party’s option, and the exercise or enforcement of any one such right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other. All notices to be given to Debtor shall be deemed sufficiently given if delivered or mailed by registered or certified mail, postage prepaid, to Debtor at its address set forth above or at the most recent address shown on Secured Party’s records. Secured Party’s duty of care with respect to Collateral in its possession (as imposed by law) shall be deemed fulfilled if Secured Party exercises reasonable care in physically safekeeping such Collateral or, in the case of Collateral in the custody or possession of a bailee or other third person, exercises reasonable care in the selection of the bailee or other third person, and Secured Party need not otherwise preserve, protect, insure or care for any Collateral. Secured Party shall not be obligated to preserve any rights Debtor may have against prior parties, to realize on the Collateral at all or in any particular manner or order, or to apply any cash proceeds of Collateral in any particular order of application and Secured Party may disclaim any and all implied warranties (as imposed by law) in connection with the disposition of Collateral. This Agreement shall be binding upon and inure to the benefit of Debtor and Secured Party and their respective heirs, representatives, successors and assigns and shall take effect when signed by Debtor and delivered to Secured Party, and Debtor waives notice of Secured Party’s acceptance hereof. Secured Party may execute this Agreement if appropriate for the purpose of filing, but the failure of Secured Party to execute this Agreement shall not affect or impair the validity or effectiveness of this Agreement. This Agreement shall be governed by the internal laws of the State of Minnesota. If any provision or application of this Agreement is held unlawful or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or applications that can be given effect and this Agreement shall be construed as if the unlawful or unenforceable provision or application had never been contained herein or prescribed hereby. All representations and warranties contained in this Agreement shall survive the execution, delivery and performance of this Agreement and the creation and payment of the Obligations. Debtor hereby irrevocably submits to the jurisdiction of the Minnesota District Court, Fourth District, and the Federal District Court, District of Minnesota, Fourth Division, over any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of such action or proceeding may be heard and determined in any such court.
12. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
13. Electronic Signatures. The parties agree that the Electronic Signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and have the same force and effect as manual signatures. “Electronic Signature” means any electronic symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including, without limitation, Adobe e- signature, DocuSign, E-sign, facsimile, or e-mail electronic signatures. No party hereto will raise the use of electronic mail to deliver a manual signature or the fact that any signature or agreement or instrument was executed through the use of an Electronic Signature as a defense to the formation or enforceability of this Agreement and each such party forever waives any such defense.
[Blank Space Prior to Signature Page]
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SIGNATURE PAGE
SECURITY AGREEMENT
March 20, 2020
IN WITNESS WHEREOF, the undersigned have executed this Security Agreement effective as of the date first written above.
| DEBTOR: | |||
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| SPORTSHUB GAMES NETWORK, LLC |
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| Dated: March 20, 2020 |
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| /s/Robert Phythian | |||
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| By: | Robert Phythian | |
| Its: | CEO | ||
| SECURED PARTY: | |||
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| LeagueSafe Management, LLC |
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| Dated: March 20, 2020 |
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| /s/Christian Peterson | |||
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| By: | Christian Peterson | |
| Its: | Secretary and Vice President | ||
***
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EXHIBIT 10.18
THIRD PARTY SECURITY AGREEMENT
THIS THIRD PARTY SECURITY AGREEMENT (this “Agreement”), is made as of this 27th day of March, 2020, by VIRTUAL FANTASY GAMES ACQUISITION, LLC, a Minnesota limited liability company (the “Debtor”), in favor of PLATINUM BANK, a Minnesota banking corporation (the “Secured Party”).
In order to secure the obligations of SportsHub Games Network, Inc., a Delaware corporation (the “Borrower”) to the Secured Party under and pursuant to that certain Revolving Credit Agreement of even date herewith (as the same may hereafter be amended, supplemented or restated from time to time, the “Credit Agreement”) by and between the Borrower and the Secured Party and as evidenced by, among other things, the Note (as defined from time to time in the Credit Agreement) and each and every other debt, liability and obligation of every type and description which the Borrower may now or at any time hereafter owe to the Secured Party, including, without limitation, the “Obligations” (as defined from time to time in the Credit Agreement) (whether such debt, liability or obligation now exists or is hereafter created or incurred, whether it arises under or is evidenced by this Agreement or any other present or future instrument or agreement or by operation of law, and whether it is direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sole, joint or joint and several) (all such debts, liabilities and obligations of the Borrower to the Secured Party are herein collectively referred to as the “Secured Obligations”), the Debtor hereby agrees as follows:
1. SECURITY INTEREST AND COLLATERAL. In order to secure the payment and performance of the Secured Obligations, the Debtor hereby grants to the Secured Party a security interest (herein called the “Security Interest”) in and to the following property (hereinafter collectively referred to as the “Collateral”):
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together with all supporting obligations, substitutions and replacements for and products and proceeds of any of the foregoing property and, in the case of all tangible Collateral, together with (i) all accessories, attachments, parts, equipment, accessions and repairs now or hereafter attached or affixed to or used in connection with any such goods, and (ii) all warehouse receipts, bills of lading and other documents now or hereafter covering such goods.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The Debtor hereby represents and warrants to, and covenants and agrees with, the Secured Party as follows:
(a) The Collateral will be used primarily for business purposes. The tangible Collateral shall be located on the real property located at 323 Washington Avenue North, Suite 320, Minneapolis, Minnesota 55401.
(b) The Debtor is a Minnesota limited liability company and the address of the Debtor’s chief executive office is 323 Washington Avenue North, Suite 320, Minneapolis, Minnesota 55401, and it keeps and will keep all of its books and records with respect to all of its accounts at such address. The Debtor shall not change its state of organization or chief executive office without the Secured Party’s prior written consent.
(c) If any part or all of the Collateral will become so related to particular real estate as to become a fixture, the Debtor will promptly advise the Secured Party as to real estate concerned and the record owner thereof and execute and deliver any and all instruments necessary to perfect the Security Interest therein and to assure that such Security Interest will be prior to the interest therein of the owner of the real estate.
(d) During the preceding one (1) year, the Debtor has not changed its name or operated or conducted business under any trade name or “d/b/a” which is different from its corporate name. The Debtor shall promptly notify the Secured Party of any change in such name or if it operates or conducts business under any trade name or “d/b/a” which is different from such name.
(e) The Debtor has (or will have at the time the Debtor acquires rights in Collateral hereafter acquired or arising) and will maintain absolute title to each item of Collateral free and clear of all security interests, liens and encumbrances, except the Security Interest, and such other security interests as are permitted under the Credit Agreement (the Security Interest and the security interests permitted under the Credit Agreement are hereinafter collectively referred to as the “Permitted Interests”), and will defend the Collateral against all claims or demands of all persons other than the Secured Party and those holding Permitted Interests. Except as permitted in the Credit Agreement, the Debtor will not sell or otherwise dispose of the Collateral or any interest therein except that until an Event of Default (as defined in the Credit Agreement) has occurred the Debtor may sell inventory in the ordinary course of its business.
(f) The Debtor will not permit any Collateral to be located in any state (and, if a county filing is required, in any county) in which a financing statement covering such Collateral is required to be, but has not in fact been, filed.
(g) The Debtor authorizes the Secured Party to file all of the Secured Party’s financing statements and amendments to financing statements, and all terminations of the filings of other secured parties, all with respect to the Collateral, in such form and substance as the Secured Party, in its sole discretion, may determine (including, without limitation, describing such property as “all assets”).
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(h) All rights to payment and all instruments, documents, chattel paper and other agreements constituting or evidencing Collateral are (or will be when arising or issued) the valid, genuine and legally enforceable obligation, subject to no defense, set-off or counterclaim (other than those arising in the ordinary course of business) of each account debtor or other obligor named therein or in the Debtor’s records pertaining thereto as being obligated to pay such obligation. The Debtor will not agree to any modification, amendment or cancellation of any such obligation without the Secured Party’s prior written consent, and will not subordinate any such right to payment to claims of other creditors of such account debtor or other obligor.
(i) The Debtor will (i) keep all Collateral in good repair, working order and condition, normal depreciation excepted, and will, from time to time, replace any worn, broken or defective parts thereof; (ii) other than taxes and other governmental charges contested in good faith and by appropriate proceedings, promptly pay all taxes and other governmental charges levied or assessed upon or against any Collateral or upon or against the creation, perfection or continuance of the Security Interest; (iii) keep all Collateral free and clear of all security interests, liens and encumbrances except the Permitted Interests; (iv) at all reasonable times, permit the Secured Party or its representatives to examine or inspect any Collateral, wherever located, and to examine, inspect and copy the Debtor’s books and records pertaining to the Collateral and its business and financial condition and to discuss with account debtors and other obligors requests for verifications of amounts owed to the Debtor; (v) keep accurate and complete records pertaining to the Collateral and pertaining to the Debtor’s business and financial condition and will submit to the Secured Party such periodic reports concerning the Collateral and the Debtor’s business and financial condition as the Secured Party may from time to time reasonably request; (vi) promptly notify the Secured Party of any loss or material damage to any Collateral or of any material adverse change, known to the Debtor, in the prospect of payment of any sums due on or under any instrument, chattel paper or account constituting Collateral; (vii) if the Secured Party at any time so requests promptly deliver to the Secured Party any instrument, document or chattel paper constituting Collateral, duly endorsed or assigned by the Debtor to the Secured Party; (viii) at all times keep all Collateral insured against risks of fire (including so called extended coverage), theft, collision (in case of collateral consisting of motor vehicles) and such other risks and in such amounts as the Secured Party may reasonably request, with any loss payable to the Secured Party to the extent of its interest and notify the Secured Party in writing of any loss or damage to the Collateral or any part; (ix) from time to time execute such financing statements or other forms, including, without limitation, patent and trademark recordation forms, as the Secured Party may reasonably deem required to be filed in order to perfect the Security Interest and, if any Collateral is covered by a certificate of title, execute such documents as may be required to have the Security Interest properly noted on a certificate of title; (x) pay when due or reimburse the Secured Party on demand for all costs of collection of any of the Secured Obligations and all other out-of-pocket expenses (including in each case all attorneys’ fees) incurred by the Secured Party in connection with the creation, perfection, satisfaction or enforcement of the Security Interest or the execution or creation, continuance or enforcement of this Agreement or any or all of the Secured Obligations including expenses incurred in any litigation or bankruptcy or insolvency proceedings; (xi) execute, deliver or endorse any and all instruments, documents, assignments, security agreements and other agreements and writings which the Secured Party may at any time reasonably request in order to secure, protect, perfect or enforce the Security Interest and the Secured Party’s rights under this Agreement, including, without limitation, an assignment of claim with respect to any account which is a government receivable; (xii) not use or keep any Collateral, or permit it to be used or kept, for any unlawful purpose or in violation of any federal, state or local law, statute or ordinance; (xiii) permit the Secured Party at any time and from time to time to send requests (both before and after the occurrence of an Event of Default under the Credit Agreement) to account debtors or other obligors for verification of amounts owed to Debtor; and (xiv) not permit any Collateral to become part of or to be affixed to any real property, without first assuring to the reasonable satisfaction of the Secured Party that the Security Interest will be prior and senior to any interest or lien then held or thereafter acquired by any mortgagee of such real property or the owner or purchaser of any interest therein. If the Debtor at any time fails to perform or observe any agreement contained in this Section 2(i), and if such failure shall continue for a period of ten (10) calendar days after the Secured Party gives the Debtor written notice thereof (or, in the case of the agreements contained in clauses (viii) and (ix) of this Section 2(i), immediately upon the occurrence of such failure, without notice or lapse of time) the Secured Party may (but need not) perform or observe such agreement on behalf and in the name, place and stead of the Debtor (or, at the Secured Party’s option, in the Secured Party’s own name) and may (but need not) take any and all other actions which the Secured Party may reasonably deem necessary to cure or correct such failure (including, without limitation, the payment of taxes, the satisfaction of security interests, liens or encumbrances (other than Permitted Interests), the performance of obligations under contracts or agreements with account debtors or other obligors, the procurement and maintenance of insurance, the execution of financing statements, the endorsement of instruments, and the procurement of repairs, transportation or insurance); and, except to the extent that the effect of such payment would be to render any loan or forbearance of money usurious or otherwise illegal under any applicable law, the Debtor shall thereupon pay the Secured Party on demand the amount of all moneys expended and all costs and expenses (including attorneys’ fees) incurred by the Secured Party in connection with or as a result of the Secured Party’s performing or observing such agreements or taking such actions, together with interest thereon from the date expended or incurred by the Secured Party at the rate provided for in the Note. To facilitate the performance or observance by the Secured Party of such agreements of the Debtor, the Debtor hereby irrevocably appoints (which appointment is coupled with an interest) the Secured Party, or its delegate, as the attorney-in-fact of the Debtor with the right (but not the duty) from time to time to create, prepare, complete, execute, deliver, endorse or file, in the name and on behalf of the Debtor, any and all instruments, documents, financing statements, forms, applications for insurance and other agreements and writings required to be obtained, executed, delivered or endorsed by the Debtor under this Section 2.
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3. ASSIGNMENT OF INSURANCE. The Debtor hereby assigns to the Secured Party, as additional security for the payment of the Secured Obligations, any and all moneys (including but not limited to proceeds of insurance and refunds of unearned premiums) due or to become due under, and all other rights of the Debtor under or with respect to, any and all policies of insurance covering the Collateral, and the Debtor hereby directs the issuer of any such policy to pay any such moneys to the Secured Party. Before and upon the occurrence of an Event of Default, and at any time thereafter, the Secured Party may (but need not) in its own name or in the Debtor’s name, execute and deliver proofs of claim, receive all such moneys (subject to the Debtor’s rights), endorse checks and other instruments representing payment of such monies, and adjust, litigate, compromise or release any claim against the issuer of any such policy. The Debtor shall cause the Secured Party to be named as lender loss payee with respect to all of the Debtor’s property insurance and shall cause the Secured Party to be named as additional insured with respect to all liability insurance.
4. COLLECTION OF ACCOUNTS. The Secured Party may, or at the Secured Party’s request, the Debtor shall, either prior to or after the occurrence of an Event of Default, and at any time thereafter, notify any account debtor or any obligor on an instrument to make payment directly to a post office box specified by and under the sole control of the Secured Party, whether or not the Secured Party was theretofore making collections with respect thereto, and the Secured Party shall be entitled to take control of any proceeds thereof. If so requested by the Secured Party, the Debtor shall insert appropriate language on each invoice directing its customers to make payment to such post office box. The Debtor hereby authorizes and directs the Secured Party to deposit into a special collateral account to be established and maintained with the Secured Party all checks, drafts and cash payments, received in said lock box. All deposits in said collateral account shall constitute proceeds of Collateral and shall not constitute payment of any of the Secured Obligations. At its option, the Secured Party may, at any time, apply finally collected funds on deposit in said collateral account to the payment of the Secured Obligations in such order of application as the Secured Party may determine, or permit the Debtor to withdraw all or any part of the balance on deposit in said collateral account. If a collateral account is so established the Debtor agrees that it will promptly deliver to the Secured Party for deposit into said collateral account, all payments on accounts and chattel paper received by it. All such payments shall be delivered to the Secured Party in the form received (except for the Debtor’s endorsement where necessary). Until so deposited, all payments on accounts and chattel paper received by the Debtor shall be held in trust by the Debtor for and as the property of the Secured Party and shall not be commingled with any funds or property of the Debtor.
5. DEBTOR’S PREMISES. The Debtor hereby grants the Secured Party the right, at any time following the occurrence of an Event of Default and without notice or consent, to take exclusive possession of all Premises and any other location where the Debtor conducts its business or has any rights or possession until the earlier of the payment in full and discharge of all Secured Obligations and termination of the Revolving Line of Credit or final sale or disposition of all items constituting Collateral and delivery of those items to purchasers. Secured Party may use the Premises to store, process, manufacture, sell, use and liquidate or otherwise dispose of items that are Collateral and for any other incidental purposes deemed appropriate by the Secured Party in good faith. The Secured Party shall not be obligated to pay rent or other compensation for the possession or use of any Premises, but if the Secured Party elects to pay rent or other compensation to the owner of any Premises or any sublandlord of any Premises in order to have access to the Premises, then the Debtor shall promptly reimburse the Secured Party for all such amounts, as well as all taxes, fees, charges and other expenses at any time payable by the Secured Party with respect to the Premises by reason of the execution, delivery, recordation, performance or enforcement of any terms of this Agreement or any other Loan Document.
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6. REMEDIES. Upon the occurrence of an Event of Default, and at any time thereafter, the Secured Party may exercise any one or more of the following rights or remedies if any or all of the Secured Obligations are not paid when due: (i) exercise and enforce any or all rights and remedies available after default to a secured party under the Uniform Commercial Code, including but not limited to the right to take possession of any Collateral, proceeding without judicial process or by judicial process (without a prior hearing or notice thereof, which the Debtor hereby expressly waives), and the right to sell, lease or otherwise dispose of or use any or all of the Collateral; (ii) the Secured Party may require the Debtor to assemble the Collateral and make it available to the Secured Party at a place to be designated by the Secured Party which is reasonably convenient to both parties; (iii) exercise its rights under any lessors’ agreements regardless of whether or not the Debtor is in default under such leases; and (iv) exercise or enforce any or all other rights or remedies available to the Secured Party by law or agreement against the Collateral, against the Debtor or against any other person or property. The Secured Party is hereby granted a non-exclusive, worldwide and royalty-free license to use or otherwise exploit all trademarks, franchises, copyrights and patents of the Debtor that the Secured Party deems necessary or appropriate to the disposition of any Collateral. If notice to the Debtor of any intended disposition of Collateral or any other intended action is required by law in a particular instance, such notice shall be deemed commercially reasonable if given (in the manner specified in Section 7 below) at least ten (10) calendar days prior to the date of intended disposition or other action.
7. SURETY PROVISIONS. The Debtor hereby:
(a) waives (i) presentment, demand, notice of nonpayment, protest and notice of protest on the Secured Obligations; and (ii) notice of the creation or incurrence of the Secured Obligations;
(b) agrees that the Secured Party may from time to time, without notice to the Debtor, which notice is hereby waived by the Debtor, extend, renew or compromise the Secured Obligations, in whole or in part, without releasing, extinguishing or affecting in any manner whatsoever the security interest granted hereunder, the foregoing acts being hereby consented to by the Debtor;
(c) agrees that the Secured Party shall not be required to first resort for payment to any other person, entity or corporation, their properties or estates, or any other right or remedy whatsoever, prior to enforcing this Agreement;
(d) agrees that this Agreement shall be construed as a continuing, absolute and unconditional agreement without regard to (i) the validity, regularity or enforceability of the Secured Obligations, or the disaffirmance thereof in any insolvency or bankruptcy proceeding relating to the Debtor, or (ii) any event or any conduct or action of the Secured Party or any other party, which might otherwise constitute a legal or equitable discharge of a surety or of the security interest granted hereunder but for this provision;
(e) agrees that this Agreement shall remain in full force and effect and be binding upon the Debtor until the credit expires and the Secured Obligations are paid in full;
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(f) agrees that the Secured Party is expressly authorized to renew, extend, compromise, exchange, release or surrender any or all collateral and security pledged by the Debtor or any other party to the Secured Party to secure all or any part of the Secured Obligations, with or without consideration and without notice to the Debtor and without in any manner affecting the security interest granted hereunder; and that the security interest granted hereunder shall not be affected or impaired by any failure, neglect or omission on the part of the Secured Party to realize upon the Secured Obligations, or upon any collateral or security therefor, nor by the taking by the Secured Party of any other security agreement or guaranty to secure the Secured Obligations or any other indebtedness of the Debtor to the Secured Party, nor by any act or failure to act whatsoever which but for this provision might or could in law or in equity act to release the security interest granted hereunder;
(g) agrees that the security interest granted hereunder shall not be affected or impaired by the existence or creation from time to time, with or without notice to the Debtor, which notice is hereby waived, of indebtedness from the Debtor to the Secured Party in addition to the Secured Obligations, the creation or existence of such additional indebtedness being hereby consented to by the Debtor;
(h) agrees that the possession of this security interest by the Secured Party shall be conclusive evidence of due execution and delivery hereof by the Debtor;
(i) agrees that the Debtor may be joined in any action or proceeding commenced in connection with or based upon the Secured Obligations and this Agreement may be enforced in any such action or proceeding or in any independent action or proceeding against the Debtor should the Debtor fail to duly and punctually pay any of the principal of or interest or prepayment premium, if any, on the Secured Obligations, without any requirement that the Secured Party first assert, prosecute or exhaust any remedy or claim against any other party;
(j) agrees that no waiver by the Secured Party of any Event of Default under the Loan Agreement shall be a waiver of any other Event of Default under the Loan Agreement or of the same Event of Default on a later occasion; no delay or failure by the Secured Party to exercise any right or remedy hereunder or under applicable law shall be a waiver of such right or remedy; and no single or partial exercise by the Secured Party of any such right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy at any other time; and
(k) agrees that each remedy of the Secured Party hereunder is distinct and cumulative to every other right or remedy under this Agreement, the documents related hereto, or afforded by law, and may be exercised concurrently or independently.
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8. MISCELLANEOUS. This Agreement does not contemplate a sale of accounts or chattel paper, and, as provided by law, the Debtor is entitled to any surplus and shall remain liable for any deficiency. This Agreement can be waived, modified, amended, terminated or discharged, and the Security Interest can be released, only explicitly in a writing signed by the Secured Party. A waiver signed by the Secured Party shall be effective only in the specific instance and for the purpose given. Mere delay or failure to act shall not preclude the exercise or enforcement of any of the Secured Party’s rights or remedies. All rights and remedies of the Secured Party shall be cumulative and may be exercised singularly or concurrently, at the Secured Party’s option, and the exercise or enforcement of any one such right or remedy shall neither be a condition to nor bar the exercise or enforcement of any other. All notices to be given to the Debtor shall be deemed sufficiently given if deposited in the United States mails, registered or certified, postage prepaid, or personally delivered to the Debtor at its address set forth herein. The Secured Party’s duty of care with respect to Collateral in its possession (as imposed by law) shall be deemed fulfilled if the Secured Party exercises reasonable care in physically safe keeping such Collateral or, in the case of Collateral in the custody or possession of a bailee or other third person, exercises reasonable care in the selection of the bailee or other third person, and the Secured Party need not otherwise preserve, protect, insure or care for any Collateral. The Secured Party shall not be obligated to preserve any rights the Debtor may have against any other party, to realize on the Collateral at all or in any particular manner or order, or to apply any cash proceeds of Collateral in any particular order of application. This Agreement shall be binding upon and inure to the benefit of the Debtor and the Secured Party and their respective heirs, representatives, successors and assigns and shall take effect when signed by the Debtor and delivered to the Secured Party, and the Debtor waives notice of the Secured Party’s acceptance hereof. The Secured Party may execute this Agreement if appropriate for the purpose of filing, but the failure of the Secured Party to execute this Agreement shall not affect or impair the validity or effectiveness of this Agreement. Except to the extent otherwise required by law, this Agreement shall be governed by the laws of the State of Minnesota and, unless the context otherwise requires, all terms used herein which are defined in Articles 1 and 9 of the Uniform Commercial Code, as in effect in said state, shall have the meanings therein stated and all capitalized terms used herein which are defined in the Credit Agreement shall have the meanings therein stated. If any provision or application of this Agreement is held unlawful or unenforceable in any respect, such illegality or unenforceability shall not affect other provisions or applications which can be given effect, and this Agreement shall be construed as if the unlawful or unenforceable provision or application had never been contained herein or prescribed hereby. All representations and warranties contained in this Agreement shall survive the execution, delivery and performance of this Agreement and the creation and payment of the Secured Obligations.
IN WITNESS WHEREOF, the Debtor has executed and delivered to the Secured Party this Agreement as of the day and year first above written.
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[SIGNATURE PAGE TO THIRD PARTY SECURITY AGREEMENT]
| VIRTUAL FANTASY GAMES ACQUISITION, LLC, a Minnesota limited liability company | |||
| By: | /s/ Rob Pythian | ||
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| Name: | Rob Pythian | |
| Its: | CEO | ||
| Debtor’s Address: |
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| 323 Washington Avenue North, Suite 320 Minneapolis, Minnesota 55401 |
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