INTERCREDITOR AGREEMENT
Exhibit 10.11
THIS INTERCREDITOR AGREEMENT, dated as of November 30, 2021, (this “Agreement”), is by and among Xxx Xxxxxxxxx (“Xxxxxxxxx”), the parties identified on Schedule A hereto (each a “New Lender” and collectively the “New Lenders” and together with Xxxxxxxxx each a “Lender’” and collectively the “Lenders”), and Pish Posh Baby LLC, a Delaware limited liability company (the “Company” and together with the Lenders each a “Party” and collectively the “Parties”).
WHEREAS, the Company issued notes to the New Lenders as set forth on Schedule A (the “New Notes”);
2.3 Governing Law; Jurisdiction; Waiver of Jury Trial. (a) This Agreement shall be governed by and construed under the laws of the State of New York applicable to contracts made and to be performed entirely within the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State and County of New York for the adjudication of any dispute hereunder or in connection herewith or therewith or with any transaction contemplated hereby or thereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
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(b) EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY DISPUTE OR CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS AGREEMENT AND HAS HAD AN OPPORTUNITY TO SEEK SEPARATE COUNSEL OF ITS OWN CHOICE TO REVIEW THIS AGREEMENT, (III) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
To the Company: | ||
Pish Posh Baby LLC | ||
0000 Xxxxxxxxxx Xxx | ||
Xxxxxxxx XX 00000 | ||
Attn: Xxx Xxxxxxxxx | ||
email: xxx@xxxxxxxxxxxx.xxx | ||
To Xxxxxxxxx: | ||
Xxx Xxxxxxxxx | ||
0000 Xxxxxxxxxx Xxx | ||
Xxxxxxxx XX 00000 | ||
email: xxx@xxxxxxxxxxxx.xxx |
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To Lenders: To the addresses listed on Schedule A.
Any Party may change the address(es) to which all notices, requests and other communications are to be sent by giving written notice of such address change to the other Parties in conformity with this Section, but such change shall not be effective until notice of such change has been received by the other Party.
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IN WITNESS WHEREOF, the parties have caused this Intercreditor Agreement to be duly executed as of the day and year first above written.
COMPANY
Pish Posh Baby LLC | |
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By: | |
Its: |
XXXXXXXXX
Xxx Xxxxxxxxx | |
/s/ Xxx Xxxxxxxxx |
[NEW LENDER SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Intercreditor Agreement to be duly executed as of the day and year first above written.
NEW LENDER
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By: | ||
Its: |
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IN WITNESS WHEREOF, the parties have caused this Intercreditor Agreement to be duly executed as of the day and year first above written.
NEW LENDER
Alpha Capital Anstalt | ||
/s/ Xxxxxx Xxxxxxxxxx | ||
By: | Xxxxxx Xxxxxxxxxx | |
Its: | Director |
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IN WITNESS WHEREOF, the parties have caused this Intercreditor Agreement to be duly executed as of the day and year first above written.
NEW LENDER
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By: | ||
Its: |
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IN WITNESS WHEREOF, the parties have caused this Intercreditor Agreement to be duly executed as of the day and year first above written.
NEW LENDER
For Kids Investment Fund LLC | ||
/s/ Xxxxxxxx Xxxxx | ||
By: | Xxxxxxxx Xxxxx | |
Its: | Manager |
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IN WITNESS WHEREOF, the parties have caused this Intercreditor Agreement to be duly executed as of the day and year first above written.
NEW LENDER
The Hewlett Fund LP | ||
/s/ Xxxxxx Xxxxx | ||
By: | Xxxxxx Xxxxx | |
Its: | General Partner |
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IN WITNESS WHEREOF, the parties have caused this Intercreditor Agreement to be duly executed as of the day and year first above written.
NEW LENDER
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By: | ||
Its: |
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IN WITNESS WHEREOF, the parties have caused this Intercreditor Agreement to be duly executed as of the day and year first above written.
NEW LENDER
L1 Capital Global Opportunities Master Fund | ||
/s/ Xxxxx Xxxxxxx | ||
By: | Xxxxx Xxxxxxx | |
Its: | Portfolio Manager |
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NEW LENDER
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By: | ||
Its: |
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NEW LENDER
/s/ Xxxxxxx Xxxxxx | ||
By: | Xxxxxxx Xxxxxx | |
Its: |
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NEW LENDER
/s/ Xxxxx Xxxxxx | ||
By: | XXXXX XXXXXX | |
Its: |
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