FIRST AMENDMENT TO Secured Debenture
Exhibit 10.1
FIRST AMENDMENT TO Secured Debenture
This First Amendment to Secured Debenture, dated as of April [3], 2023 but effective as of March 30, 2023 (this “Amendment”), is by and among IDEANOMICS, INC., a company incorporated under the laws of the State of Nevada (the “Company”), each of the guarantors listed on Annex I attached hereto, (collectively, the “Guarantors”; the Guarantors, together with the Company, the “Credit Parties”), and YA II PN, LTD., a Cayman Islands exempt corporation (the “Buyer”).
RECITALS
A. The Company and the Buyer entered into a Secured Debenture Purchase Agreement, dated as of October 25, 2022 (as amended, restated, amended and restated, supplemented or modified from time to time, including pursuant to a First Amendment to Secured Debenture Purchase Agreement dated as of March 30, 2023 (the “Purchase Agreement Amendment”) the “Purchase Agreement”).
B. Pursuant to the Purchase Agreement, the Buyer purchased a Secured Convertible Debenture from the Company dated as of March 30, 2023 (the “Original Debenture”).
C. The Company and the Buyer inadvertently included provisions in the Original Debenture by which the Original Debenture may be converted into shares of the Company’s Common Stock.
D. The Company and the Buyer desire to amend the Original Debenture strictly in accordance with the terms hereof.
TERMS
In consideration of the premises and of the mutual agreements herein contained, the parties agree as follows:
ARTICLE 1.
AMENDMENTS
Upon the First Amendment Effective Date, the parties hereto agree that the Original Debenture is hereby amended in its entirety to the form attached as Exhibit A hereto.
ARTICLE 2.
REPRESENTATIONS
Each Credit Party represents and warrants to the Buyer that:
2.1 The execution, delivery and performance of this Amendment are within such Credit Party’s powers and have been duly authorized by all necessary limited liability company action. This Amendment has been duly executed and delivered by such Credit Party and constitutes a legal, valid and binding obligation of such Credit Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
2.2 The representations and warranties contained in Section 3 of the Purchase Agreement and the representations and warranties contained in the other Transaction Documents, which are qualified by materiality, are true in all respects and the representations and warranties therein that are not qualified by materiality are true in all material respects, on and as of the date hereof (other than such representations and warranties that refer to an earlier date, in which case such representations and warranties are true in all respects, or true in all material respects, as applicable, on and as of such earlier date).
2.3 No Default or Event of Default has occurred and is continuing on the date hereof.
ARTICLE 3.
CONDITIONS PRECEDENT
This Amendment shall become effective as of the date specified in the first paragraph hereof when each of the following conditions is satisfied or waived (the “First Amendment Effective Date”):
3.1 This Amendment shall be executed by each of the Company and the Buyer.
3.2 The Consent and Agreement attached hereto shall be executed by each of the Guarantors.
ARTICLE 4.
MISCELLANEOUS.
4.1 References in the Purchase Agreement or in any other Transaction Document to the Convertible Debentures shall be deemed to include the Original Debenture as amended hereby and as further amended from time to time.
4.2 Except as expressly amended hereby, the Company acknowledges and agrees that (a) the Purchase Agreement and all other Transaction Documents to which it is a party are ratified and confirmed and shall remain in full force and effect, (b) it has no setoff, counterclaim, defense or other claim or dispute with respect to any Transaction Document, (c) the security interests and other Liens created by the Credit Parties under the Security Documents continue in full force and effect after giving effect to this Amendment (for clarity, excluding the security interests granted by Solectrac, Inc.), and secure, in addition to other obligations described as secured thereby, all Obligations (as defined in the Secured Convertible Debenture issued by the Company in favor of the Buyer on the First Amendment Effective Date, and as hereinafter used), and (d) the guaranties granted by the Credit Parties under the Guaranty continue in full force and effect after giving effect to this Amendment, and guaranty, in addition to other obligations described as being guarantied thereby, all Obligations.
4.3 This Amendment shall be governed by and construed in accordance with the laws of the State of New York. This Amendment shall not be deemed to have otherwise prejudiced any present or future right or rights which the Buyer now has or may have under the Purchase Agreement or in any other Transaction Document and, in addition, shall not entitle the Company to a waiver, amendment, modification or other change to, of or in respect of any provision of the Purchase Agreement or in any other Transaction Document in the future in similar or dissimilar circumstances. This Amendment may be signed upon any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument. Terms used but not defined herein shall have the respective meanings ascribed thereto in the Purchase Agreement, as amended hereby. This Amendment is a Transaction Document.
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2
IN WITNESS WHEREOF, the parties signing this Amendment have caused this Amendment to be executed and delivered as of the day and year first above written.
| COMPANY | ||
| IDEANOMICS, INC. | ||
| By: _________________________________ | ||
| Name: | ||
| Title: | ||
| BUYER | ||
| YA II PN, LTD. | ||
| By: | Yorkville Advisors Global, LP | |
| Its: | Investment Manager | |
| By: Yorkville Advisors Global II, LLC | ||
| Its: General Partner | ||
| By: ______________________________ | ||
| Name: | ||
| Title: | ||
Signature Page to
First Amendment to Secured Debenture
CONSENT AND AGREEMENT
As of the date and year first above written:
(a) Each of the undersigned hereby fully consents to the terms and provisions of the above Amendment and the consummation of the transactions contemplated hereby and acknowledges and agrees to all of the representations, covenants, terms and provisions of the above Amendment applicable to it.
(b) Each of the undersigned hereby represents and warrants to the Buyer that (i) the execution, delivery and performance of this Consent and Agreement are within its powers and have been duly authorized by all necessary action, and (ii) this Consent and Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of it, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(c) Except as expressly amended hereby, each of the undersigned hereby acknowledges and agrees that (i) the Purchase Agreement and all Transaction Documents to which it is a party are ratified and confirmed and shall remain in full force and effect, (ii) it has no set off, counterclaim, defense or other claim or dispute with respect to any Transaction Document; and (iii) notwithstanding anything to the contrary in any Transaction Document, the term “Obligations” as used and defined in the Guaranty and any Security Document executed by each of the undersigned shall include all Obligations of the Company under the Purchase Agreement and the other Transaction Documents.
(d) Each of the undersigned hereby acknowledges that its consent and agreement hereto is a condition to the Buyer’s agreement pursuant to the above Amendment and it is in its interest and to its financial benefit to execute this consent and agreement. Terms used but not defined herein shall have the respective meanings ascribed thereto in the Purchase Agreement described in the above First Amendment to Secured Debenture.
| HYBRID CORPORATION | |
| By: ______________________________ | |
| Name: | |
| Title: |
| SOLECTRAC, INC. | ||
| By: ______________________________ | ||
| Name: | ||
| Title: | ||
JUSTLY HOLDINGS INC. JUSTLY MARKETS LLC |
||
| By: ______________________________ | ||
| Name: | ||
| Title: | ||
FIDUCIA REAL ESTATE SOLUTIONS, INC. TIMIOS HOLDINGS CORP. TIMIOS, INC. TIMIOS AGENCY OF ALABAMA INC. TIMIOS AGENCY OF ARKANSAS, INC. TIMIOS AGENCY OF NEVADA INC. TIMIOS AGENCY OF UTAH INC. TIMIOS HAWAII, INC. TIMIOS APPRAISAL MANAGEMENT, INC. TIMIOS TITLE, A CALIFORNIA CORPORATION CRESTVIEW ASSET MANAGEMENT SERVICES LLC CELER SETTLEMENTS, LLC CELER ESCROW COMPANY |
||
| By: ______________________________ | ||
| Name: | ||
| Title: | ||
WIRELESS ADVANCED VEHICLE ELECTRIFICATION, LLC
BY: IDEANOMICS, INC. ITS: SOLE MEMBER |
||
| By: ______________________________ | ||
| Name: | ||
| Title: | ||
Annex I
(Guarantors)
| Pledgor | Type of Entity | Jurisdiction of Organization |
| US Hybrid Corporation | Corporation | Delaware |
| Solectrac, Inc. | Corporation | California |
| Justly Holdings Inc. | Corporation | Delaware |
| Justly Markets LLC | Limited liability company | Delaware |
| Timios Holdings Corp. | Corporation | Delaware |
| Fiducia Real Estate Solutions, Inc. | Corporation | Delaware |
| Timios, Inc. | Corporation | Delaware |
| Timios Appraisal Management, Inc. | Corporation | Delaware |
| Crestview Asset Management Services LLC | Limited liability company | Utah |
| Timios Title, a California Corporation | Corporation | California |
| Timios Agency of Alabama Inc. | Corporation | Alabama |
| Timios Agency of Nevada Inc. | Corporation | Nevada |
| Timios Agency of Utah Inc. | Corporation | Utah |
| Timios Agency of Arkansas, Inc. | Corporation | Arkansas |
| Timios Hawaii, Inc. | Corporation | Hawaii |
| Celer Escrow Company | Corporation | California |
| Celer Settlements, LLC | Limited liability company | Delaware |
|
Wireless Advanced Vehicle Electrification, LLC |
Limited liability company | Delaware |
Annex I
Exhibit A
Exhibit A
