FIRST AMENDMENT AND WAIVER
Exhibit 10.15
This
First Amendment and Waiver (this “Amendment”) is made and
entered into as of December 8, 2020 by and among Transworld
Holdings, Inc., a Delaware
corporation (which was formerly known as GoIP Global, Inc.,
a Colorado corporation) (the “Company”)
and the purchasers signatory to the Purchase Agreement (as defined
below) (each a, “Purchaser” and
collectively, the “Purchasers”).
WHEREAS, pursuant to a Securities
Purchase Agreement, dated as of November 3, 2020 (as amended and in
effect from time to time, including any replacement agreement
therefor, the “Purchase Agreement”),
among the Company and the Purchaser, the Purchaser has extended
credit to the Company as evidenced by certain Original Issue
Discount Senior Secured Convertible Promissory Note in the
aggregate principal amount of $3,888,889.00 issued by the Company
to the Purchaser (together with any notes issued in exchange
therefor or replacement thereof, as the same may be amended,
supplemented, restated or otherwise modified from time to time, the
“Note”); and
WHEREAS, the Company and the Purchasers
desire to amend the Note to provide that the Alternative Conversion
Price may only be utilized for any Event of Default that occurs on
or after the Maturity Date.
NOW, THEREFORE, in consideration of the
mutual agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions;
Transaction Documents. Capitalized terms used herein without
definition shall have the meanings assigned to such terms in the
Purchase Agreement and the Note. This Amendment shall constitute a
Transaction Document for all purposes of the Purchase Agreement,
the Notes and the other Transaction Documents.
2. Not a
Novation. This Agreement is a modification only and not a
novation. This Agreement is to be considered attached to the Note
and made a part thereof.
3. Amendment to
Section 4(b) of the Note. Section 4(b) of the Note is hereby
amended and restated as follows.
“Conversion Price. Except as
expressly set forth herein, the conversion price in effect on any
Conversion Date shall be equal to $0.25, subject to adjustment
herein (the “Conversion Price”).
Notwithstanding the foregoing, at any time during the continuance
of any Event of Default which occurs after the Maturity Date, the
Conversion Price in effect shall be equal to the Alternate
Conversion Price. If at any time the Conversion Price as determined
hereunder for any conversion would be less than the par value of
the Common Stock, then at the sole discretion of the Holder, the
Conversion Price hereunder may equal such par value for such
conversion and the Conversion Amount for such conversion may be
increased to include Additional Principal, where “Additional
Principal” means such additional amount to be added to the
principal amount of this Note to the extent necessary to cause the
number of conversion shares issuable upon such conversion to equal
the same number of conversion shares as would have been issued had
the Conversion Price not been adjusted by the Holder to the par
value price. In the event the Borrower has a DTC
“Chill” on its shares, the Holder may convert the Note
at the Alternate Conversion Price after the Maturity Date while
that “Chill” is in effect. All such determinations to
be appropriately adjusted for any stock dividend, stock split,
stock combination, reclassification or similar transaction that
proportionately decreases or increases the Common Stock during such
measuring period.”
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4. Amendment to
Section 1 of the Note. The definition of “Mandatory
Default Amount” in Section 1 of the Note is hereby amended
and restated in its entirety as follows:
“Mandatory Default Amount”
means either, at the Holder’s discretion (i) the conversion
of the outstanding principal amount of this Note, and, at the
Holder’s election, all accrued and unpaid interest hereon,
converted at the Conversion Price, or after the Maturity Date, at
the Alternate Conversion Price, or (ii) the payment of 100% of the
outstanding principal amount of this Note and accrued and unpaid
interest hereon, in addition to, for both (i) and (ii) above, the
payment in cash of all other amounts, costs, expenses and
liquidated damages due in respect of this Note. In the event the
Holder makes the election described in (i) above but does not elect
to receive Conversion Shares in respect of all accrued and unpaid
interest on the Note, all accrued and unpaid interest shall be paid
to the Holder in cash no later than the date the Conversion Shares
are required to be delivered to the Holder.”
5. Amendment to
Section 6 of the Note. Clause (b) of Section 6 of the Note
is hereby amended and restated as follows:
“Remedies Upon Event of Default.
If any Event of Default occurs, at the Holder’s election (i)
the outstanding principal amount of this Note, plus accrued but
unpaid interest, liquidated damages and other amounts owing in
respect thereof through the date of acceleration, shall become
immediately due and payable in cash pursuant to clause (ii) of the
definition of Mandatory Default Amount, or (ii) the outstanding
principal amount of this Note, and, if elected by the Holder, all
accrued and unpaid interest hereon, shall be converted into share
of Common Stock at the Conversion Price or if after the Maturity
Date, at the Alternate Conversion Price pursuant to clause (i) of
the definition of Mandatory Default Amount. In the event the Holder
makes the election described in clause (ii) of this Section above,
but does not elect to receive Conversion Shares in respect of all
accrued and unpaid interest on the Note, all accrued and unpaid
interest shall be paid to the Holder in cash no later than the date
the Conversion Shares are required to be delivered to the Holder.
Commencing on the occurrence of any Event of Default and for as
long an Event of Default is not cured, the interest rate on this
Note as set forth in Section 2 above shall accrue at
a rate equal to 20% per annum . Upon the payment in full of the
Mandatory Default Amount, the Holder shall promptly surrender this
Note to or as directed by the Company. In connection with such
acceleration described herein, the Holder need not provide, and the
Company hereby waives, any presentment, demand, protest or other
notice of any kind, and the Holder may immediately and without
expiration of any grace period enforce any and all of its rights
and remedies hereunder and all other remedies available to it under
applicable law. Such acceleration may be rescinded and annulled by
Holder at any time prior to payment hereunder and the Holder shall
have all rights as a holder of the Note until such time, if any, as
the Holder receives full payment pursuant to this Section 6(b). No such
rescission or annulment shall affect any subsequent Event of
Default or impair any right consequent thereon. No such rescission
or annulment shall affect any subsequent Event of Default or impair
any right consequent thereon; and in addition to any other rights
and remedies available to the Holder in an Event of Default, the
Conversion Price in effect on any Conversion Date shall be equal to
the Conversion Price, or if after the Maturity Date, at the
Alternate Conversion Price, subject to adjustment herein, without
any notice or any action taken by the Holder. The Borrower shall
pay the Holder hereof costs of collection, including reasonable
attorneys’ fees.”
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6. Conditions to
Effectiveness. This Amendment shall become effective upon
receipt by the Company and the Purchasers of counterpart signatures
to this Amendment duly executed and delivered by the Company and
the Purchasers.
7. No Implied
Amendment or Waiver. Except as expressly set forth in this
Amendment, this Amendment shall not, by implication or otherwise,
limit, impair, constitute a waiver of or otherwise affect any
rights or remedies of the Purchasers under the Purchase Agreement,
the Note or the other Transaction Documents, or alter, modify,
amend or in any way affect any of the terms, obligations or
covenants contained in the Purchase Agreement, the Note or the
other Transaction Documents, all of which shall continue in full
force and effect. Nothing in this Amendment shall be construed to
imply any willingness on the part of the Purchasers to agree to or
grant any similar or future amendment, consent or waiver of any of
the terms and conditions of the Purchase Agreement, the Note or the
other Transaction Documents.
8. Counterparts. This
Amendment may be executed by the parties hereto in several
counterparts, each of which shall be an original and all of which
shall constitute together but one and the same agreement. Delivery
of an executed counterpart of a signature page of this Amendment by
e-mail (e.g., “pdf” or “tiff”) or fax
transmission shall be effective as delivery of a manually executed
counterpart of this Amendment.
9. Governing
Law. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PREPARED ENTIRELY WITHIN SUCH STATE,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
[Remainder of Page Intentionally Left
Blank.]
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IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be executed by their respective
officers thereunto duly authorized as of the day and year first
above written.
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TRANSWORLD HOLDINGS, INC.
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By: /s/
Xxxxxx
Xxx
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Name:
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Title:
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ARENA STRUCTURED PRIVATE INVESTMENTS (CAYMAN), LLC
as
Purchaser
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By: /s/
Xxxxxxxx
Xxxxxx
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Name:
Xxxxxxxx Xxxxxx
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