FIRST AMENDMENT AND WAIVER
Exhibit 10.27
FIRST AMENDMENT AND WAIVER
This
First Amendment and Waiver (this “Amendment”) is made and
entered into as of November 26, 2021 by and among Charge
Enterprises, Inc., a Delaware
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 May 19, 2021 (as amended and in
effect from time to time, including any replacement agreement
therefor, the “Purchase Agreement”),
among the Company and the Purchasers, the Purchasers have extended
credit to the Company as evidenced by certain Original Issue
Discount Senior Secured Convertible Promissory Notes in the
aggregate principal amount of $5,610,000 (together with any
convertible notes issued in exchange therefor or replacement
thereof, as the same may be amended, supplemented, restated or
otherwise modified from time to time, the “Convertible Notes”) and
certain Original Issue Discount Senior Secured Non-convertible
Promissory Notes in the aggregate principal amount of and
$11,032,609 (together with any non-convertible notes issued in
exchange therefor or replacement thereof, as the same may be
amended, supplemented, restated or otherwise modified from time to
time, the “Non-Convertible Notes,”
and together with the Convertible Notes, the “Notes”);
WHEREAS, pursuant to a Registration
Rights Agreement, dated as of May 19, 2021 (as amended and in
effect from time to time, including any replacement agreement
therefor, the “Registration Rights
Agreement”), among the Company and the Purchasers, the
Company agreed to register the securities issued to the Purchasers
pursuant to the Purchase Agreement;
WHEREAS, the Company and the Purchasers
desire to amend the (i) Non-Convertible Notes to extend the
Maturity Date of the Non-Convertible Notes for an additional one
(1) year period such that the Non-Convertible Notes will become due
and payable on November 19, 2023 and (ii) amend the Non-Convertible
Notes and the Convertible Notes to remove the failure of having the
Initial Registration Statement (as defined in the Registration
Rights Agreement) declared effective on or prior to the six month
anniversary of the date of the Notes as an Event of Default under
the Notes.
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 Notes. This Amendment shall constitute a
Transaction Document for all purposes of the Purchase Agreement,
the Notes and the other Transaction Documents.
2. Extension of
Maturity Date of the Non-Convertible Notes. The reference in
the introductory paragraph of the Note to November 19, 2022 as the
“Maturity Date” is hereby amended such that the
Maturity Date of the Note shall be November 19, 2023.
3. Amendment to
Section 6 of the Notes. Clause (a)(xix) of Section 6 of the
Convertible Notes and the Non-Convertible Notes is hereby removed
in its entirety.
4. Not a
Novation. This Agreement is a modification only and not a
novation. This Agreement is to be considered attached to the Notes
and made a part thereof.
5. 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.
6. 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 Notes 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 Notes 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 Notes or
the other Transaction Documents.
7. 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.
8. 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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By:
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Name:
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Title:
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ARENA SPECIAL OPPORTUNITIES FUND, LP
ARENA SPECIAL OPPORTUNITIES PARTNERS I, LP
as
Purchasers
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By:
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Name:
Xxxxxxxx Xxxxxx
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Signature
Page to
Third
Amendment
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