Monaker Group, Inc. 8-K


 


Exhibit 10.1


 


THE EXCHANGE CONTEMPLATED HEREIN
IS INTENDED TO COMPORT WITH THE REQUIREMENTS OF SECTION 3(a)(9) OF THE SECURITIES ACT OF 1933, AS AMENDED.


 


EXCHANGE AGREEMENT


 


This Exchange
Agreement (this “Agreement”) is entered into as of June 22, 2021 (the “Effective Date”) by and between
Streeterville Capital, LLC, a Utah limited liability company (“Lender”), and Monaker Group, Inc., a Nevada corporation
(“Borrower”). Capitalized terms used in this Agreement without definition
shall have the meanings given to them in the Transaction Documents (as defined below).


 


A. Borrower previously sold and issued to Lender that certain Secured Promissory Note dated November 23, 2020 in the original
principal amount of $5,520,000.00 (the “Original Note”) pursuant to that certain Note Purchase Agreement dated November
23, 2020 by and between Lender and Borrower (the “Purchase Agreement,” and together with the Original Note and all
other documents entered into in conjunction therewith, the “Transaction Documents”).


 


B.
Lender submitted a redemption notice to the Borrower on June [ ], 2021, requesting a redemption payment of $1,250,000 under the
terms of the Original Note (the “Redemption Payment”);


 


C. Subject to the terms of this Agreement, Borrower and Lender desire to partition a new Secured Promissory Note in the original
principal amount of $600,000.00 (the “Partitioned Amount”) from the Original Note and then cause the outstanding balance
of the Original Note to be reduced by an amount equal to the Partitioned Amount.


 


D.
Borrower and Lender further desire to exchange (such exchange is referred to ast he “Note Exchange”) the
Partitioned Amount for 300,000 shares of the Borrower’s Common Stock, par value $0.00001 (the “Common
Stock”, and such 300,000 shares of Common Stock, the “Exchange Shares”), according to the terms and
conditions of this Agreement.


 


E. The Note Exchange will consist of Lender surrendering the Partitioned Amount in exchange for the Exchange Shares, which
will be issued free of any restrictive securities legend.


 


F. Other than the surrender of the Partitioned Amount, no consideration of any kind whatsoever shall be given by Lender to
Borrower in connection with this Agreement.


 


G. Lender and Borrower now desire to exchange the Partitioned Amount for the Exchange Shares on the terms and conditions set
forth herein.


 


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


 


1.         Recitals and Definitions. Each of the parties hereto acknowledges and agrees that the recitals set forth above in this Agreement
are true and accurate, are contractual in nature, and are hereby incorporated into and made a part of this Agreement.


 




     


     


    

 


2.         Partition. Effective as of the date hereof, Borrower and Lender agree that the Partitioned Amount is hereby partitioned
from the Original Note. Following such partition of the Original Note, Borrower and Lender agree that the Original Note shall remain in
full force and effect, provided that the outstanding balance of the Original Note shall be reduced by an amount equal to the Partitioned
Amount. For avoidance of doubt, the rights, duties, obligations, remedies of Borrower and Lender, and other terms and conditions of the
Original Note shall remain unchanged upon the entering into of this Agreement, except with respect to the reduction in the outstanding
balance by the amount of the Partitioned Amount.


 


3.         Issuance of Shares. Pursuant to the terms and conditions of this Agreement, the Note Exchange shall occur with Borrower
delivering the Exchange Shares to Lender against Lender surrendering the Partitioned Note to Borrower on the Closing Date (as defined
below). Upon delivery of the Exchange Shares, the Partitioned Note shall be cancelled and all obligations of Borrower under the Partitioned
Note shall be deemed fulfilled. All Exchange Shares delivered hereunder shall be delivered via DWAC to Lender’s designated brokerage
account. Borrower agrees to provide all necessary cooperation or assistance that may be required to cause all Exchange
Shares delivered hereunder to become Free Trading (the first date on which all Exchange Shares become Free Trading, the “Free
Trading Date”). For purposes hereof, the term “Free Trading” means that (a) the Exchange Shares have been
cleared and approved for public resale by the compliance departments of Lender’s brokerage firm and the clearing firm servicing
such brokerage, and (b) such shares are held in the name of the clearing firm servicing Lender’s brokerage
firm and have been deposited into such clearing firm’s account for the benefit of Lender.


 


4.         Closing. The closing of the transaction contemplated hereby (the “Closing”) along with the delivery of
the Exchange Shares to Lender shall occur on the date that is mutually agreed to by Borrower and Lender by means of the exchange by express
courier and email of .pdf documents, but shall be deemed to have occurred at the offices
of Hansen Black Anderson Ashcraft PLLC in Lehi, Utah.


 


5.         Holding Period, Tacking and Legal Opinion. Borrower represents, warrants and agrees that for the purposes of Rule 144 (“Rule
144”) of the Securities Act of 1933, as amended (the “Securities Act”), the holding period of the Partitioned
Amonut and the Exchange Shares will include Lender’s holding period of the Original Note from November 23, 2020. Borrower agrees
not to take a position contrary to this Section 5 in any document, statement, setting, or situation. Borrower agrees to take all action
necessary to issue the Exchange Shares without restriction, and not containing any restrictive legend without the need for any action
by Lender; provided that the applicable holding period has been met. In furtherance thereof, prior to the Closing, counsel to Lender may,
in its sole discretion, provide an opinion that: (a) the Exchange Shares may be resold pursuant to Rule 144 without volume or manner-of-sale
restrictions; and (b) the transactions contemplated hereby and all other documents associated with this transaction comport with the requirements
of Section 3(a)(9) of the Securities Act. Borrower represents that it is not subject to Rule 144(i). The Exchange Shares are being issued
in substitution of and exchange for and not in satisfaction of the Partitioned Amount. The Exchange Shares shall not constitute a novation
or satisfaction and accord of the Partitioned Amount. Borrower acknowledges and understands that the representations and agreements of
Borrower in this Section 5 are a material inducement to Lender’s decision to consummate the transactions contemplated herein.


 




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6.         Borrower’s Representations, Warranties and Agreements. In order to induce Lender to enter into this Agreement, Borrower,
for itself, and for its affiliates, successors and assigns, hereby acknowledges, represents, warrants and agrees as follows: (a) Borrower
has full power and authority to enter into this Agreement and to incur and perform all obligations and covenants contained herein, all
of which have been duly authorized by all proper and necessary action, (b) no consent, approval, filing or registration with or notice
to any governmental authority is required as a condition to the validity of this Agreement or the performance of any of the obligations
of Borrower hereunder, (c) no Event of Default has occurred under the Original Note and any Events of Default that may have occurred thereunder
have not been, and are not hereby, waived by Lender, (d) except as specifically set forth herein, nothing herein shall in any manner release,
lessen, modify or otherwise affect Borrower’s obligations under the Original Note, (e) the issuance of the Exchange Shares is duly
authorized by all necessary corporate action and the Exchange Shares are validly issued, fully paid and non-assessable, free and clear
of all taxes, liens, claims, pledges, mortgages, restrictions, obligations, security interests and encumbrances of any kind, nature and
description, (f) Borrower has not received any consideration in any form whatsoever for entering into this Agreement, other than the surrender
of the Partitioned Amount, and (g) Borrower has taken no action which would give rise to any claim by any person for a brokerage commission,
placement agent or finder’s fee or other similar payment by Borrower related to this Agreement.


 


7.         Lender’s Representations, Warranties and Agreements. In order to induce Borrower to enter into this Agreement, Lender,
for itself, and for its affiliates, successors and assigns, hereby acknowledges, represents, warrants and agrees as follows: (a) Lender
has full power and authority to enter into this Agreement and to incur and perform all obligations and covenants contained herein, all
of which have been duly authorized by all proper and necessary action, (b) no consent, approval, filing or registration with or notice
to any governmental authority is required as a condition to the validity of this Agreement or the performance of any of the obligations
of Lender hereunder, (c) Lender has taken no action which would give rise to any claim by any person for a brokerage commission,
placement agent or finder’s fee or other similar payment by Borrower related to this Agreement, (d) Lender is not currently an affiliate
of the Borrower and has not been an affiliate of the Borrower for the prior three months, and (f) Lender, together with its affiliates,
does not, and will not following the receipt of the Exchange Shares, beneficially own more than 4.99% of the number of shares of Common
Stock outstanding on the Effective Date. For purposes of Section 7(f), beneficial ownership of Common Stock will be determined pursuant
to Section 13(d) of the Securities Exchange Act of 1934, as amended. The Lender confirms that the delivery of the Exhange Shares shall
reduce the amount of the required Redemption Payment by $600,000.


 


8.         Governing Law; Venue. This Agreement shall be construed and enforced in accordance with, and all questions concerning the
construction, validity, interpretation and performance of this Agreement shall be governed by, the
internal laws of the State of Utah, without giving effect to any choice of law or conflict of law provision or rule (whether of
the State of Utah or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of
Utah. The provisions set forth in the Purchase Agreement to determine the proper venue for any disputes are incorporated herein by this
reference. The parties agree that the Arbitration Provisions shall apply to any dispute that may arise between Borrower and Lender under
this Agreement. BORROWER HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY


 




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HAVE TO, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.


 


9.         Arbitration of Claims. This Agreement shall be subject to the Arbitration Provisions.


 


10.       Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all signing parties
had signed the same document. All counterparts shall be construed together and constitute the same instrument. The exchange of copies
of this Agreement and of signature pages by facsimile transmission or other electronic transmission (including email) shall constitute
effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes.
Signatures of the parties transmitted by facsimile transmission or other electronic transmission (including email) shall be deemed to
be their original signatures for all purposes.


 


11.       Attorneys’ Fees. In the event of any arbitration or action at law or in equity to enforce or interpret the terms of
this Agreement, the parties agree that the party who is awarded the most money shall be deemed
the prevailing party for all purposes and shall therefore be entitled to an additional award of the full amount of the attorneys’
fees and expenses paid by such prevailing party in connection with the arbitration, litigation and/or dispute without reduction or apportionment
based upon the individual claims or defenses giving rise to the fees and expenses. Nothing herein shall restrict or impair an arbitrator’s
or a court’s power to award fees and expenses for frivolous or bad faith pleading.


 


12.       No Reliance. Borrower acknowledges and agrees that neither Lender nor any of its officers, directors, members, managers,
equity holders, representatives or agents has made any representations or warranties to Borrower or any of its agents, representatives,
officers, directors, or employees except as expressly set forth in this Agreement and the Transaction Documents and, in making its decision
to enter into the transactions contemplated by this Agreement, Borrower is not relying on any representation, warranty, covenant or promise
of Lender or its officers, directors, members, managers, equity holders, agents or representatives other than as set forth in this Agreement.


 


13.       Severability. If any part of this Agreement is construed to be in violation of any law,
such part shall be modified to achieve the objective of the parties to the fullest extent permitted and the balance of this Agreement
shall remain in full force and effect.


 


14.       Entire Agreement. This Agreement, together with the Transaction Documents, and all other documents referred to herein, supersedes
all other prior oral or written agreements between Borrower, Lender, its affiliates and persons
acting on its behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the
entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein
or therein, neither Lender nor Borrower makes any representation, warranty, covenant or undertaking with respect to such matters.


 




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15.       Amendments. This Agreement may be amended, modified, or supplemented only by written agreement of the parties. No provision
of this Agreement may be waived except in writing signed by the party against whom such waiver is sought to be enforced.


 


16.      Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and assigns. This Agreement or any of the severable rights and obligations inuring to the benefit of or to be performed by
Lender hereunder may be assigned by Lender to a third party, including its financing sources, in whole or in part. Borrower may not assign
this Agreement or any of its obligations herein without the prior written consent of Lender.


 


17.      Continuing Enforceability; Conflict Between Documents. Except as otherwise modified by this Agreement, the Original Note
and each of the other Transaction Documents shall remain in full force and effect, enforceable in accordance with all of its original
terms and provisions. This Agreement shall not be effective or binding unless and until it is fully executed and delivered by Lender and
Borrower. If there is any conflict between the terms of this Agreement, on the one hand, and the Original Note or any other Transaction
Document, on the other hand, the terms of this Agreement shall prevail.


 


18.       Time of Essence. Time is of the essence with respect to each and every provision of this Agreement.


 


19.       Notices. Unless otherwise specifically provided for herein, all notices, demands or requests required or permitted under
this Agreement to be given to Borrower or Lender shall be given as set forth in the “Notices” section of the Purchase Agreement.


 


20.       Further Assurances. Each party shall do and perform or cause to be done and performed,
all such further acts and things, and shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.


 


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IN WITNESS WHEREOF, the undersigned have
executed this Agreement as of the date first set forth above.


 


	 	BORROWER:
	 	 	 
	 	MONAKER GROUP,
    INC.
	 	 	 
	 	By:	/s/
    Bill Kerby
	 	Name:	Bill Kerby
	 	Title:	CEO
	 	 	 
	 	LENDER:	 
	 	 	 
	 	STREETERVILLE CAPITAL, LLC
	 	 	 
	 	By:	/s/
    John M. Fife
	 	 	John
    M. Fife, President



 


[Signature Page to Exchange Agreement]