SECOND AMENDMENT
Exhibit 10.26
SECOND AMENDMENT
This
Second Amendment (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 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 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 $3,888,889 (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 “Notes”);
WHEREAS, the Company and the Purchaser
desire to amend the Notes to extend the Maturity Date of the Notes
for an additional one (1) year period such that the Notes will
become due and payable on November 3, 2024.
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 Notes. The reference in the
introductory paragraph of the Note to November 3, 2023 as the
“Maturity Date” is hereby amended such that the
Maturity Date of the Note shall be November 3, 2024.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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 STRUCTURED PRIVATE INVESTMENTS (CAYMAN), LLC
as
Purchasers
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By:
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Name:
Xxxxxxxx Xxxxxx
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Signature
Page to
Amendment
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