SECOND AMENDMENT AND WAIVER
Exhibit 10.14
Draft
SECOND AMENDMENT AND WAIVER
This
Second 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 May 8, 2020 (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 $3,000,000.00 issued by the Company
to the Purchasers (as amended by that certain First Amendment to
the Note, dated as of November 3, 2020, 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 “Notes”);
WHEREAS, pursuant to a Registration
Rights Agreement, dated as of May 8, 2020 (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 Note to (i) provide that the Alternative
Conversion Price may only be utilized for any Event of Default that
occurs on or after the Maturity Date and (ii) remove the failure of
having the Registration Statement effective by the Effectiveness
Date as an Event of Default under the Notes; and
WHEREAS, the Company and the Purchasers
desire to confirm the Purchasers’ waiver of their respective
right to receive any penalties which shall be due and payable as a
result of the failure to have the Registration Statement declared
effective for the period beginning November 8, 2020 through
[January 8, 2021] (the
“Registration Penalty
Waiver”).
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, the Notes and the Registration Rights
Agreement. 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 Notes
and made a part thereof.
3. Confirmation of
Waiver. The
Company and the Purchasers agree to the Registration Penalty
Waiver.
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4. Amendment to
Section 4(b) of the Note. Section 4(b) of the Note is hereby
amended and restated as follows.
“Conversion Price. The
conversion price in effect on any Conversion Date shall be equal to
$0.25 after the Reverse Stock Split, subject to adjustment herein
(the “Conversion
Price”). Notwithstanding the foregoing, at any time
during the continuance of any Event of Default 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 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 after the Maturity Date, the
Holder may convert the Note at the Alternate Conversion Price 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.”
5. Amendment to
Section 1 of the Note. The definition of “Mandatory Default
Amount” in Sectio 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, plus all accrued
and unpaid interest hereon, converted at the Conversion Price, or
if after the Maturity Date, at the Alternate Conversion Price or
(ii) the payment of 120% 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 of all other amounts,
costs, expenses and liquidated damages due in respect of this
Note.”
6. Amendment to
Section 6 of the Note.
(a) Clause (a)(xix) of
Section 6 of the Note is hereby amended and restated as
follows:
“(xix) the
Initial Registration Statement (as defined in the Registration
Rights Agreement) shall not have been filed by the Filing Date (as
defined in the Registration Rights
Agreement);”
(b)
Clause (b) of
Section 6 of the Note is hereby amended and restated as
follows:
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“Remedies Upon Event of Default.
If any Event of Default occurs, 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, at the Holder’s election,
immediately due and payable in cash pursuant to clause (ii) of the
Mandatory Default Amount. 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 an interest rate equal to 20% per annum or the maximum
rate permitted under applicable law. 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 after the
Maturity Date shall be equal to 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
7. 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.
8. 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.
9. 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.
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10. 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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MT. WHITNEY SECURITIES, LLC
ARENA ORIGINATION CO., LLC
ARENA SPECIAL OPPORTUNITIES FUND, LP
ARENA SPECIAL OPPORTUNITIES PARTNERS I, LP
as
Purchasers
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By: /s/
Xxxxxxxx
Xxxxxx
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Name:
Xxxxxxxx Xxxxxx
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