SUPER LEAGUE GAMING, INC. INTERCREDITOR AND COLLATERAL AGENT AGREEMENT
Exhibit
10.18
THIS INTERCREDITOR
AND COLLATERAL AGENT AGREEMENT (this“Agreement”),
is entered into as of by and among each of the parties whose
names appear on the signature pages to this Agreement
(individually, a “Secured
Party”, and collectively, the “Secured
Parties”), ▇▇▇▇▇▇▇ ▇▇▇▇ (the “Collateral
Agent”), and Super League Gaming, Inc., a Delaware
corporation ( the “Borrower”).
RECITALS
WHEREAS, each of
the Secured Parties has loaned monies to Borrower, as evidenced by
9% Secured Convertible Promissory Notes (collectively, the
“Notes”)
more particularly described in the Note Purchase Agreement entered
into by and between Borrower and each Secured Party;
and
WHEREAS, it is the
intention of each of the Secured Parties that his, her or its
security interests and liens against the collateral referred to in
Exhibit 1 of the Notes be of equal priority position with regard to
the respective security interests, notwithstanding the different
dates of investment.
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are mutually acknowledged, each of the Secured
Parties hereby agree as follows:
1. Definitions. All capitalized
terms not otherwise defined herein shall the meanings ascribed to
them in the Note Purchase Agreement.
2. Pari Passu Ranking.
Notwithstanding the dates and times of perfection of the security
interest issued in favor of each Secured Party pursuant to the
Security Agreement, each Secured Party’s security interest in
and lien against the collateral referred to in Exhibit 1 of the
Notes (the “Collateral”) shall rank pari passu, and, accordingly, have the
same and equal priority position.
3. Collateral Agent. Subject to
the terms of this Agreement, the Secured Parties hereby agrees to
the appointment of ▇▇▇▇▇▇▇ ▇▇▇▇ to serve as the collateral agent
with respect to enforcement of the collective rights and remedies
available to the Secured Parties in the event of a default by
Borrower (the “Collateral Agent”).
(a) Actions. The Secured Parties
hereby authorize and appoints the Collateral Agent to act on behalf
of each such Secured Party as collateral agent for and
representative of such Secured Party under this Agreement and each
of the Notes, to enforce the rights provided under this Agreement
and each of the Notes and the obligations of the Company hereunder
and thereunder and, to exercise such powers hereunder and
thereunder as are specifically delegated to or required of the
Collateral Agent by the terms hereof and thereof, together with
such powers as may be reasonably incidental thereto. The Secured
Parties agree (which agreement shall survive any termination of
this Agreement) to indemnify the Collateral Agent, from and against
any and
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all
liabilities, obligations, losses, damages, claims, penalties,
actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may at any time be imposed on,
incurred by, or asserted against the Collateral Agent in any way
relating to or arising out of this Agreement, the Notes and any
other agreement relating thereto, including the reimbursement of
the Collateral Agent for all reasonable out-of-pocket expenses
(including attorneys' fees and expenses) incurred by the Collateral
Agent hereunder or in connection herewith or in enforcing the
obligations of the Company under this Agreement and the Notes, in
all cases as to which the Collateral Agent is not reimbursed by the
Company; provided, that
none of the Secured Parties, expressly excluding the Collateral
Agent, shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements determined by a
court of competent jurisdiction in a final proceeding to have
resulted solely from the Collateral Agent's gross negligence or
willful misconduct. The Collateral Agent shall not be required to
take or omit to take any action hereunder or under the Notes, or to
prosecute or defend any suit in respect of this Agreement or any of
the Notes, or any other agreement relating thereto, unless
indemnified to its satisfaction by the Secured Parties against
loss, costs, liability, and expense. The Collateral Agent may
delegate its duties hereunder to affiliates, agents,
attorneys-in-fact and receivers (which term includes receivers as
managers) selected in good faith by the Collateral
Agent.
(b) Exculpation
(i) The Collateral
Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement, and the Collateral Agent
shall not by reason of this Agreement or any of the Notes (or
otherwise) be a trustee for any Secured Party or have any fiduciary
obligation to any Secured Party or any of their affiliates. Neither
the Collateral Agent nor any of its directors, partners, members,
managers, officers, employees or agents (collectively, the
“Related
Parties”) shall be liable to any Secured Party for any
action taken or omitted to be taken by it under this Agreement and
the Notes, or in any agreements delivered in connection therewith,
or in connection herewith or therewith, except for its own willful
misconduct or gross negligence, nor shall the Collateral Agent or
any Related Parties be responsible for any recitals or
representations or warranties herein or therein or in any other
agreement delivered in connection therewith, or for the
effectiveness, enforceability, validity or due execution of any of
this Agreement, the Notes or in any other agreement delivered in
connection therewith, nor for the creation, perfection or priority
of any security interests purported to be created under any of the
Notes or the validity, genuineness, enforceability, existence,
value or sufficiency of any Collateral, nor shall the Collateral
Agent or any Related Parties be obligated to make any inquiry
respecting the performance by the Company of its obligations
hereunder or thereunder or in any other agreement delivered in
connection therewith. Any such inquiry by the Collateral Agent
shall not obligate it to make any further inquiry or to take any
action. The Collateral Agent shall be entitled to rely upon advice
of counsel concerning legal matters and upon any notice, consent,
certificate, statement, or writing which they believe to be genuine
and to have been presented by a proper Person. The Collateral Agent
shall not be responsible for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable
care.
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(ii) The
Collateral Agent shall be entitled to rely upon any certification,
notice or other communication (including any thereof by email,
telex, telecopy, telegram or cable) reasonably believed by it to be
genuine and correct and to have been signed or sent by or on behalf
of the proper person or persons, and upon advice and statements of
legal counsel (including counsel to the Company), independent
accountants and other experts selected by the Collateral Agent with
reasonable care. As to any matters not expressly provided for by
this Agreement, the Collateral Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder in
accordance with instructions signed by all Secured Parties, in its
capacity as agent of the Secured Parties, and any action taken or
failure to act pursuant thereto, shall be binding on all of the
Secured Parties.
(iii) The
Collateral Agent shall not be required to take any action that is
in its opinion contrary to law or to the terms of this Agreement
and the Notes, or which would in its opinion subject it or any of
its Related Parties to liability. The Collateral Agent shall, in
all cases, be fully justified in failing or refusing to act
hereunder and under the Notes unless it shall be fully indemnified
to its satisfaction against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any
such action.
(iv) The
Collateral Agent may deem and treat the payee of any promissory
note or other evidence of indebtedness relating to the Notes as the
owner thereof for all purposes hereof unless and until a written
notice of the assignment or transfer thereof, signed by such payee
and in form reasonably satisfactory to the Collateral Agent, shall
have been filed with the Collateral Agent. Any request, authority
or consent of any Person who at the time of making such request or
giving such authority or consent is the holder of any such note or
other evidence of indebtedness shall be conclusive and binding on
any subsequent holder, transferee or assignee of such note or other
evidence of indebtedness and of any note or notes or other
evidences of indebtedness issued in exchange therefor.
(c) Successor. The Collateral Agent
may resign at any time upon at least 30 days' notice to the Secured
Parties. If the Collateral Agent at any time shall resign, the
Secured Parties, by majority consent, may appoint another mutually
agreed Secured Party as a successor to Collateral Agent. If the
Secured Parties do not make such appointment within ten (10)
business days prior to the scheduled resignation date of the
Collateral Agent, the retiring Collateral Agent shall appoint a new
Collateral Agent from the Secured Parties or, if no Secured Party
accepts such appointment, from among commercial banking
institutions or trust institutions generally. In furtherance of the
foregoing, upon the announcement that the Collateral Agent will
resign in its capacity as the Collateral Agent, each of the Secured
Parties agrees to use its best efforts to promptly appoint another
Collateral Agent. Upon the acceptance of any appointment as the
Collateral Agent hereunder, such successor Collateral Agent shall
be entitled to receive from the retiring Collateral Agent such
documents of transfer and assignment as such successor Collateral
Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the
retiring Collateral Agent, and the retiring Collateral Agent shall
be discharged from its duties and obligations under this Agreement
and the Notes. After the retiring Collateral Agent's resignation
hereunder as the Collateral Agent, the provisions of this Section 3
shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Collateral Agent under this Agreement
and the Notes, and any other agreement relating
thereto.
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4.
Application of Proceeds
(a) Any and all amounts
actually received by the Collateral Agent in connection with the
enforcement of the Notes, shall, promptly upon receipt by the
Collateral Agent, be applied:
(i) first, to the payment in full of all
amounts owing to the Collateral Agent in respect of any fees and
expenses (including attorneys' fees and expenses and fees and
expenses of its agents) incurred by or on behalf of the Collateral
Agent as a result of administering this Agreement or the Collateral
or exercising any rights (including foreclosure of the Collateral)
in its capacity as Collateral Agent;
(ii) second,
following payment of all obligations under clause (i), between and
among each of the Secured Parties on a pro rata basis, computed
using the then outstanding indebtedness, of both principal and
accrued interest, of Borrower to each of the Secured Parties, as of
the date of such distribution. Until the proceeds are so
distributed, the Collateral Agent shall hold the proceeds in trust
for the benefit of each of the Secured Parties; and
(iii) third,
to the Company unless otherwise directed by a court of competent
jurisdiction.
(b) The priorities of
allocation set forth in Section 3(a) shall apply in all
circumstances, including with respect to any distribution made in
any case or proceeding under any bankruptcy law or insolvency law
involving creditors' rights generally.
(c) If any Secured
Party (an “Excess
Party”) shall obtain any payment or other recovery
(whether voluntary, involuntary, by application of setoff, or
otherwise) as a result of the realization, sale or other remedial
disposition of, or foreclosure on, any Collateral in excess of the
amount it is then entitled to receive under the terms of this
Agreement, such Excess Party shall hold such amount in trust for
the ratable benefit of the other Secured Parties in accordance with
the terms of this Agreement and shall pay an amount equal to such
excess to the Collateral Agent for distribution to the Secured
Parties in accordance with the terms of this
Agreement.
5. Further Assurances. Each party
agrees to execute such other documents, instruments, agreements and
consents, and take such other actions as may be reasonably
requested by the other parties hereto to effectuate the purposes of
this Agreement.
6. Notices. All notices required
or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed telex, e-mail or facsimile if
sent during normal business hours of the recipient, if not, then on
the next business day, (c) five (5) days after having been sent by
registered or certified mail, return receipt requested, postage
prepaid, or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent
as follows:
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If to the
Holder:
To Secured Party’s address listed in Exhibit A to the Note
Purchase Agreement
If to Collateral
Agent:
▇▇▇▇▇▇▇ ▇▇▇▇, CFO
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to
Borrower:
Super League Gaming, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
or to
such other address or telecopy number as the party to whom notice
is to be given may have furnished to the other party in writing in
accordance herewith.
7. Amendments and Waivers. No
modification, amendment or waiver of any provision of, or consent
required by, this Agreement, nor any consent to any departure
herefrom, shall be effective unless it is in writing and signed by
each of the parties hereto. Such modification, amendment, waiver or
consent shall be effective only in the specific instance and for
the purpose for which given.
8. Exclusivity and Waiver of
Rights. No failure to exercise and no delay in exercising on
the part of any party, any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege preclude any other right,
power or privilege. The rights and remedies herein provided are
cumulative and are not exclusive of any other rights or remedies
provided by law.
9. Invalidity. Any term or
provision of this Agreement shall be ineffective to the extent it
is declared invalid or unenforceable, without rendering invalid or
enforceable the remaining terms and provisions of this
Agreement.
10. Headings. Headings used in this
Agreement are inserted for convenience only and shall not affect
the meaning of any term or provision of this
Agreement.
11. Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall be
deemed an original instrument, but all of which collectively shall
constitute one and the same agreement.
12. Assignment. This Agreement and
the rights and obligations hereunder shall not be assignable or
transferable by the any of the parties without the prior written
consent of the other parties.
13. Survival. Unless otherwise
expressly provided herein, all representations warranties,
agreements and covenants contained in this Agreement shall survive
the execution hereof and shall remain in full force and effect
until the earliest to occur of (i) the payment in full
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of the
Notes, and (ii) the conversion of the principal and accrued and
unpaid interest and all other amounts owing under the Notes into
equity securities of the Company.
14. Miscellaneous. This Agreement
shall inure to the benefit of each of the parties hereto and all
their respective successors and permitted assigns. Nothing in this
Agreement is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein
contained.
15. GOVERNING LAW. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO ANY CHOICE OR
CONFLICT OF LAWS PROVISIONS).
16. CONSENT TO JURISDICTION. EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF CALIFORNIA. EACH OF THE PARTIES HERETO AGREES THAT ALL
ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY MUST BE LITIGATED
EXCLUSIVELY IN ANY SUCH STATE OR FEDERAL COURT, AND ACCORDINGLY,
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
LITIGATION IN ANY SUCH COURT.
17. WAIVER OF JURY TRIAL. EACH OF
THE PARTIES HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH OF THE PARTIES
HERETO (A) CERTIFIES THAT 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 AND (B) ACKNOWLEDGES THAT IT AND EACH OF THE
OTHER PARTIES HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 17.
18. Attorneys’ Fees. In
the event that any suit or action is instituted to enforce any
provision in this Agreement, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs
and expenses of enforcing any right of such prevailing party under
or with respect to this Agreement, including without limitation,
such reasonable fees and expenses of attorneys and accountants,
which shall include, without limitation, all fees, costs and
expenses of appeals.
19. Entire Agreement. This
Agreement contains the entire agreement among the parties with
respect to the transactions contemplated by this Agreement and
supersedes all prior agreements or understandings among the
parties.
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IN WITNESS WHEREOF, this Agreement has
been executed as of the date first set written above.
SECURED
PARTY
________________________________
By:
____________________________
Name:
___________________________
Title:
____________________________
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IN WITNESS WHEREOF, this Agreement has
been executed as of the date first set written above.
COLLATERAL
AGENT
By:
▇▇▇▇▇▇▇ ▇▇▇▇, an
individual
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IN WITNESS WHEREOF, this Agreement has
been executed as of the date first set written above.
By:
▇▇▇
▇▇▇▇
Chief
Executive Officer & President
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