AMENDMENT TO INVESTMENT MANAGEMENT TRUST AGREEMENT
Exhibit 10.1
AMENDMENT TO INVESTMENT MANAGEMENT TRUST AGREEMENT
THIS AMENDMENT TO INVESTMENT MANAGEMENT TRUST AGREEMENT (this “Amendment Agreement”), dated as of February 8, 2023, is made by and between Integrated Rail and Resources Acquisition Corp., a Delaware corporation (the “Company”), and American Stock Transfer & Trust Company, LLC, a New York limited liability trust company (the “Trustee”), and
amends that certain Investment Management Trust Company, effective as of November 11, 2021 (the “Trust Agreement”), by and between the Company and the Trustee.
Capitalized terms used but not defined in this Amendment Agreement have the meanings assigned to such terms in the Trust Agreement.
WHEREAS, following the closing of the Company’s initial public offering of units (the “Offering”) and as of November 16, 2021, a total of $232,300,000.00 of the net proceeds from the Offering was placed in the Trust Account;
WHEREAS, Section 1(i) of the Trust Agreement provides that the Trustee is to liquidate the Trust Account and distribute the Property
in the Trust Account, including interest (less up to $100,000 of interest that may be released to the Company to pay dissolution expenses and which interest shall be net of any taxes payable) (x) upon receipt of, and only in accordance with, the
terms of a Termination Letter in a form substantially similar to that attached to the Trust Agreement as Exhibit A or Exhibit B, as applicable, or (y) upon the date which is the later of (i) 12 months after the closing of the Offering or, in the
event that the Company extended the time to complete the Business Combination to the 15-month or 18-month anniversary from the closing of the IPO by depositing $2,000,000 (or $2,300,000 if the underwriters’ over-allotment option was exercised in
full) for each 3-month extension, but has not completed the Business Combination within such 15-month or 18-month period, as applicable, the 15-month or 18-month anniversary of the Closing;
WHEREAS, Section 7 of the Trust Agreement provides that the Trust Agreement may only be amended by a writing signed by each of the
Company and the Trustee with the approval of the holders of at least 50% or more of the shares of the Common Stock present or represented at the meeting, par value $0.0001 per share, of the Company voting together as a single class;
WHEREAS, at a meeting of the stockholders of the Company held on or about the date hereof (the “Meeting”), at least fifty percent (50%) of the voting power of all then outstanding shares of the Common Stock have voted to approve this Amendment Agreement;
WHEREAS, at the Meeting, the stockholders of the Company also voted to approve an amendment to the Company’s amended and restated
certificate of incorporation (the amended and restated certificate of incorporation, as so amended, the “Restated Certificate”); and
WHEREAS, each of the Company and the Trustee desires to amend the Trust Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Amendment to the Trust Agreement. Effective as of the execution hereof, Section 1(i) of the Trust Agreement is hereby amended and restated in its entirety as
follows:
“Commence liquidation of the Trust Account only after and promptly after receipt of, and only in accordance with, the terms of a
letter (“Termination Letter”), in a form substantially similar to that attached hereto as either Exhibit A or Exhibit B, signed on behalf of the Company by its President, Chief Executive Officer or Chairman of the Board and Secretary or Assistant
Secretary and, in the case of a Termination Letter in a form substantially similar to that attached hereto as Exhibit A, acknowledged and agreed to by Stifel, and complete the liquidation of the Trust Account and distribute the Property in the Trust
Account only as directed in the Termination Letter and the other documents referred to therein; provided, however, that in the event that a Termination Letter has not been received by the Trustee by the Deadline Date (as such term is defined in the
Company’s amended and restated certificate of incorporation, as amended) and the Company has not completed the Business Combination, the Trust Account shall be liquidated in accordance with the procedures set forth in the Termination Letter attached
as Exhibit B hereto and distributed to the Public Stockholders as of the Deadline Date.”
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2. No Further Amendment. The parties hereto agree that except as provided in this Amendment Agreement, the Trust Agreement shall continue unmodified, in full force and effect and
constitute legal and binding obligations of all parties thereto in accordance with its terms. This Amendment Agreement forms an integral and inseparable part of the Trust Agreement.
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3.
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References.
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(a)
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All references to the “Trust Agreement” (including
“hereof,” “herein,” “hereunder,” “hereby” and “this Agreement”) in the Trust Agreement shall refer to the Trust Agreement as amended by this Amendment Agreement. Notwithstanding the foregoing, references to the date of the Trust Agreement
(as amended hereby) and references in the Trust Agreement to “the date hereof,” “the date of this Trust Agreement” and terms of similar import shall in all instances continue to refer to November 11, 2021.
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(b)
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All references to the “Amended and Restated Certificate of Incorporation” in the Trust Agreement (as amended by this Amendment Agreement) and
terms of similar import shall mean the Restated Certificate.
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4. Governing Law; Jurisdiction. This Amendment Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to
conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The parties hereto consent to the jurisdiction and venue of any state or federal court located in the City of New York, State of New
York, for purposes of resolving any disputes hereunder. AS TO ANY CLAIM, CROSS-CLAIM OR COUNTERCLAIM IN ANY WAY RELATING TO THIS AGREEMENT, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY.
5. Counterparts. This Amendment Agreement may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together shall constitute
but one instrument.
6. Other Miscellaneous Terms. The provisions of Sections 7(f), 7(h) and 7(j) of the Trust Agreement shall apply mutatis mutandis to this Amendment Agreement, as if set forth in full herein.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed by their duly authorized
representatives, all as of the day and year first above written.
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AMERICAN STOCK TRANSFER & TRUST COMPANY,
LLC, AS TRUSTEE
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By:
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/s/ Xxxxxx Xxxxx
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Name:
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Xxxxxx Xxxxx
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Title:
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Senior Vice President, Regional Manager
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed by their duly authorized
representatives, all as of the day and year first above written.
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INTEGRATED RAIL AND RESOURCES ACQUISITION
CORP.
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By :
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/s/ Xxxx X. Xxxxxx
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Name:
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Xxxx X. Xxxxxx
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Title:
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Chief Executive Officer and Chairman
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