goig_ex102
Exhibit 10.2
Original
Issue Date: December 17, 2021
Original Principal Amount: $________
Purchase
Price: $________
[FORM OF] ORIGINAL ISSUE DISCOUNT SENIOR SECURED
NON-CONVERTIBLE PROMISSORY NOTE
DUE NOVEMBER 19, 2023
THIS
ORIGINAL ISSUE DISCOUNT SENIOR SECURED NON-CONVERTIBLE PROMISSORY
NOTE is a duly authorized and validly issued debt obligation of
Charge Enterprises, Inc., a Delaware corporation (the
“Company” or the
“Borrower”), having its
principal place of business at 125 Park Avenue, 25th Floor, New York,
New York 10017, designated as its Original Issue Discount Senior
Secured Non-convertible Promissory Note due November 19, 2023 (the
“Note”).
FOR
VALUE RECEIVED, the Company promises to pay to _____________ or its
registered assigns (the “Holder”), or shall have
paid pursuant to the terms hereunder, 107.5% of the principal sum
(or $4,780,150.69 as of the Original Issue Date) and any other sums
due hereunder on November 19, 2023 (the “Maturity Date”), or such
earlier date as this Note is required or permitted to be repaid as
provided hereunder, and to pay interest to the Holder on the then
outstanding principal amount of this Note in accordance with the
provisions hereof. This Note is subject to the following additional
provisions:
Section
1. Definitions.
For the purposes hereof, in addition to the terms defined elsewhere
in this Note, (a) capitalized terms not otherwise defined herein
shall have the meanings set forth in the Purchase Agreement and (b)
the following terms shall have the following meanings:
“Bankruptcy Event”
means any of the following events: (a) the Company commences a case
or other proceeding under any bankruptcy, reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction
relating to the Company, (b) there is commenced against the Company
any such case or proceeding that is not dismissed within 60 days
after commencement, (c) the Company is adjudicated insolvent or
bankrupt or any order of relief or other order approving any such
case or proceeding is entered, (d) the Company suffers any
appointment of any custodian, trustee or the like for it or any
substantial part of its property that is not discharged or stayed
within 60 calendar days after such appointment, (e) the Company
makes a general assignment for the benefit of creditors, (f) the
Company calls a meeting of its creditors with a view to arranging a
composition, adjustment, workout or restructuring of its debts or
(g) the Company, by any act or failure to act, expressly indicates
its consent to, approval of or acquiescence in any of the foregoing
or takes any corporate or other action for the purpose of effecting
any of the foregoing.
“Business Day” means any
day except any Saturday, any Sunday, any day which is a federal
legal holiday in the United States or any day on which the New York
Federal Reserve Bank is closed.
“Change of Control
Transaction” means the occurrence after the date
hereof of any of the following: (a) an acquisition after the date
hereof by an individual or legal entity or “group” (as
described in Rule 13d-5(b)(1) promulgated under the Exchange Act)
of effective control (whether through legal or beneficial ownership
of capital stock of the Company, by contract or otherwise) of in
excess of fifty percent (50%) of the voting securities of the
Company, (b) the Company merges into or consolidates with any other
Person, or any Person merges into or consolidates with the Company
and, after giving effect to such transaction, the stockholders of
the Company immediately prior to such transaction own less than
fifty-one percent (51%) of the aggregate voting power of the
Company or the successor entity of such transaction, (c) the
Company sells or transfers all or substantially all of its assets
to another Person and the stockholders of the Company immediately
prior to such transaction own less than fifty-one percent (51%) of
the aggregate voting power of the acquiring entity immediately
after the transaction, (d) a replacement at one time or within a
three year period of more than one-half of the members of the Board
of Directors which is not approved by a majority of those
individuals who are members of the Board of Directors on the
Original Issue Date (or by those individuals who are serving as
members of the Board of Directors on any date whose nomination to
the Board of Directors was approved by a majority of the members of
the Board of Directors who are members on the date hereof), or (e)
the execution by the Company of an agreement to which the Company
is a party or by which it is bound, providing for any of the events
set forth in clauses (a) through (d) above.
“Distribution”
shall have the meaning set forth in Section 5(c).
“Event of
Default” shall have the
meaning set forth in Section 6(a).
“Late Fees” shall have the
meaning set forth in Section 2(d).
“Mandatory Default Amount”
means the payment of 100% of the outstanding principal amount of
this Note and accrued and unpaid interest hereon, in addition to
the payment in cash of all other amounts, including but not limited
to, legal fees, expenses and other costs of Holder due in respect
of this Note.
“New York Courts” shall
have the meaning set forth in Section 8(d).
“Note Register” shall have
the meaning set forth in Section 2(c).
“Optional Redemption”
shall have the meaning set forth in Section 2(d).
“Optional Redemption
Amount” means the sum of (a) 107.5% of the then
outstanding principal amount of the Note, (b) accrued but unpaid
interest and (c) all liquidated damages and other amounts due in
respect of the Note.
“Optional Redemption Date”
shall have the meaning set forth in Section 2(d).
“Optional Redemption
Notice” shall have the meaning set forth
in Section
2(d).
“Optional Redemption Notice
Date” shall have the meaning set forth
in Section
2(d).
“Optional Redemption
Period” shall have the meaning set forth
in Section
2(d).
“Original Issue Date”
means the date of the first issuance of the Note, as set forth on
the first page hereof, regardless of any transfers of any Note and
regardless of the number of instruments which may be issued to
evidence such Note.
“Purchase Agreement” means
the Securities Purchase Agreement, dated as of December 17, 2021
among the Company and the original Holder, as amended, modified or
supplemented from time to time in accordance with its
terms.
“Purchase
Rights” shall have the
meaning set forth in Section 5(c).
Section
2.
Interest and
Redemption.
a) Payment of Interest in Cash.
The Company shall pay interest to the Holder on the aggregate
outstanding principal amount of this Note, without setoff,
counterclaim or any other deduction whatsoever, at the rate of
seven and a half percent (7.5%) per annum, payable monthly,
beginning on the first day of the first month after the Original
Issue Date, on each Optional Redemption Date (as to that principal
amount then being redeemed) and on the Maturity Date (each such
date, an “Interest
Payment Date”) (if any Interest Payment Date is not a
Business Day, then the applicable payment shall be due on the next
succeeding Business Day), in cash. Upon the occurrence of an Event
of Default, the Company shall pay interest to the Holder on the
aggregate outstanding principal amount of this Note at the rate of
twenty percent (20%) per annum.
b) Interest Calculations. Interest
shall be calculated on the basis of a 360-day year, consisting of
twelve 30 calendar day periods, and shall accrue daily commencing
on the Original Issue Date until payment in full of the outstanding
principal, together with all accrued and unpaid interest,
liquidated damages and other amounts which may become due
hereunder, has been made. Interest hereunder will be paid to the
Person in whose name this Note is registered on the records of the
Company regarding registration and transfers of this Note (the
“Note
Register”).
c) All
overdue accrued and unpaid interest to be paid hereunder shall
incur a late fee equal to 20% per annum (the “Late Fees”) which shall
accrue daily from the date such interest is due hereunder through
and including the date of actual payment in full.
d) Optional
Redemption. At any time after
the Original Issue Date and before the Maturity Date, the
Company may, deliver a written notice to the Holder (an
“Optional Redemption
Notice” and the date such
notice is deemed delivered hereunder, the
“Optional
Redemption Notice Date”)
of its irrevocable election to redeem all of the then outstanding
principal amount of this Note for cash in an amount equal to the
Optional Redemption Amount on the 15th calendar day following
the Optional Redemption Notice Date (such date, the
“Optional Redemption
Date”, such 15 day
period, the “Optional Redemption
Period” and such
redemption, the “Optional
Redemption”). The
Optional Redemption Amount is payable in full on the Optional
Redemption Date. The Company may only effect an Optional Redemption
if an Event of Default has not occurred through and including the
date payment of the Optional Redemption Amount. The Company
covenants and agrees that it will honor all Notices of Conversion
tendered from the time of delivery of the Optional Redemption
Notice through the date all amounts owing thereon are due and paid
in full. If any portion of the payment pursuant to an Optional
Redemption shall not be paid by the Company by the applicable due
date, Late Fees shall accrue until such amount is paid in
full.
Section
3.
Registration of Transfers
and Exchanges.
a) Different Denominations. This
Note is exchangeable for an equal aggregate principal amount of
Notes of different authorized denominations, as requested by the
Holder surrendering the same. No service charge will be payable for
such registration of transfer or exchange.
b) Investment Representations.
This Note has been issued subject to certain investment
representations of the original Holder set forth in the Purchase
Agreement and may be transferred or exchanged only in compliance
with the Purchase Agreement and applicable federal and state
securities laws and regulations.
c) Reliance on Note Register.
Prior to due presentment for transfer to the Company of this Note,
the Company and any agent of the Company may treat the Person in
whose name this Note is duly registered on the Note Register as the
owner hereof for the purpose of receiving payment as herein
provided and for all other purposes, whether or not this Note is
overdue, and neither the Company nor any such agent shall be
affected by notice to the contrary. The Company shall update the
Note Register to reflect permitted transferees and assignees of the
Note.
Section
4.
Intentionally
Omitted.
Section
5.
Intentionally
Omitted.
Section
6.
Events of
Default.
a) “Event of Default” means,
wherever used herein, any of the following events (whatever the
reason for such event and whether such event shall be voluntary or
involuntary or effected by operation of law or pursuant to any
judgment, decree or order of any court, or any order, rule or
regulation of any administrative or governmental
body):
i. any
default in the payment of (A) the principal amount of the Note or
(B) interest, liquidated damages and other amounts,
including but not limited to, legal fees, expenses and other costs
of Holder owing to the Holder on the
Note, as and when the same shall become due and payable (whether on
a Maturity Date or by acceleration or otherwise) which default,
solely in the case of an interest payment or other default under
clause (B) above, is not cured within five (5) Trading
days;
ii. the
Company shall fail to observe or perform any other covenant or
agreement contained in the Note
;
iii. a
breach, default, event of default or the failure observe or perform
any covenant or agreement (subject to any grace or cure period
provided in the applicable agreement, document or instrument) shall
occur under (A) any of the Transaction Documents or (B) any other
material agreement, lease, document or instrument to which the
Company or any Subsidiary is obligated (and not covered by clause
(v) below);
iv. the
Company experiences a Material Adverse Effect;
v. any
Person shall breach any agreement delivered to the initial Holder
pursuant to Section 2.2 of the Purchase Agreement;
vi. any representation or warranty made in this Note, any other
Transaction Documents, any written statement pursuant hereto or
thereto or any other report, financial statement or certificate
made or delivered to the Holder or any other Holder shall be untrue
or incorrect in any material respect (or, to the extent such
representation or warranty is qualified by materiality or Material
Adverse Effect, in any respect) as of
the date when made or deemed made;
vii. the
Company or any Subsidiary shall default on any of its obligations
under any mortgage, credit agreement or other facility, indenture
agreement, factoring agreement or other instrument under which
there may be issued, or by which there may be secured or evidenced,
any indebtedness for borrowed money or money due under any long
term leasing or factoring arrangement that (a) involves an
obligation greater than $100,000, whether such indebtedness now
exists or shall hereafter be created, and (b) results in such
indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise become due and
payable;
viii. the
Company or any Significant Subsidiary (as such term is defined in
Rule 1-02(w) of Regulation S-X) shall be subject to a Bankruptcy
Event;
ix. (A) the Common
Stock shall not be eligible for listing or quotation for trading,
or has been suspended from listing or quotation, on its Principal
Market and shall not resume listing or quotation for trading
thereon or on any other Trading Market (other than OTC Pink) within
three (3) Trading Days, (B) the transfer of shares of Common Stock
through the Depository Trust Company System is no longer available
or “chilled”, or (C) the Company’s failure to
comply with any rules or regulations of its Principal
Market;
x. the Company shall
be a party to any Change of Control Transaction or shall agree to
sell or dispose of all or in excess of fifty percent (50%) of its
assets in one transaction or a series of related transactions
(whether or not such sale would constitute a Change of Control
Transaction);
xi. intentionally
omitted;
xii. the
Company fails to be in compliance with Rule 144(c)(1) (or
Rule 144(i)(2), if applicable);
xiii. the
occurrence of any levy upon or seizure or attachment of, or any
uninsured loss of or damage to, any property of the Borrower or any
Subsidiary having an aggregate fair value or repair cost (as the
case may be) in excess of $100,000 individually or in the
aggregate, and any such levy, seizure or attachment shall not be
set aside, bonded or discharged within forty-five (45) days after
the date thereof;
xiv. any
monetary judgment, writ or similar final process shall be entered
or filed against the Company, any Subsidiary or any of their
respective property or other assets for more than $100,000, and
such judgment, writ or similar final process shall remain
unvacated, unbonded or unstayed for a period of forty-five (45)
calendar days;
xv. prior to the
payment in full and satisfaction of the owed under this Note, any
security interest and Lien purported to be created by any
Transaction Document shall cease to be in full force and effect, or
shall cease to give the Holders, the Liens, rights, powers and
privileges purported to be created and granted under such
Transaction Documents (including a perfected first priority
security interest in and Lien on all of the Collateral thereunder
(except as otherwise expressly provided in such Transaction
Document)) in favor of the Holders, or shall be asserted by the
Company or any Affiliate(s) not to be a valid, perfected, first
priority (except as otherwise expressly provided in this Note or
any such Transaction Document) security interest in or Lien on the
Collateral covered thereby;
xvi. the
Company shall enter into any transaction or arrangement structured
in accordance with, based upon, or related or pursuant to, in whole
or in part, Section 3(a)(l0) of the Securities Act;
xvii. the
Company shall enter into a Variable Rate Transaction;
xviii. any
attempt by the Borrower or its officers, directors, and/or
affiliates to transmit, convey, disclose, or any actual
transmittal, conveyance, or disclosure by the Borrower or its
officers, directors, and/or affiliates of, material non-public
information concerning the Borrower, to the Holder or its
successors and assigns, which is not immediately cured by
Borrower’s public disclosure of such information on that same
date;
xix. if,
during the Effectiveness Period (as defined in the Registration
Rights Agreement), either (a) the effectiveness of the Registration
Statement lapses for any reason or (b) the Holder shall not be
permitted to resell Registrable Securities (as defined in the
Registration Rights Agreement) under the Registration Statement for
a period of more than 30 consecutive Trading Days or 60
non-consecutive Trading Days during any 12 month period;
provided,
however, that if
the Company is negotiating a merger, consolidation, acquisition or
sale of all or substantially all of its assets or a similar
transaction and, in the written opinion of counsel to the Company,
the Registration Statement would be required to be amended to
include information concerning such pending transaction(s) or the
parties thereto which information is not available or may not be
publicly disclosed at the time, the Company shall be permitted an
additional 10 consecutive Trading Days during any 12 month period
pursuant to this Section.
b) 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, including but not limited to, legal fees,
expenses and other costs of Holder, 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 paid to the Holder in cash. 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. The Borrower shall
pay the Holder hereof costs of collection, including reasonable
attorneys’ fees.
Section
7. Negative
Covenants. As long as any portion of this Note remains
outstanding, unless the Holder shall have otherwise given prior
written consent, the Company shall not, and shall not permit any of
its subsidiaries (whether or not a Subsidiary on the Original Issue
Date) to, directly or indirectly:
a) except for
Permitted Indebtedness, enter into, create, incur, assume,
guarantee or suffer to exist any indebtedness for borrowed money of
any kind, including, but not limited to, a guarantee, on or with
respect to any of its property or assets now owned or hereafter
acquired or any interest therein or any income or profits
therefrom;
b) except for
Permitted Liens, enter into, create, incur, assume or suffer to
exist any Liens of any kind, on or with respect to any of its
property or assets now owned or hereafter acquired or any interest
therein or any income or profits therefrom;
c) amend its charter
documents, including, without limitation, its certificate of
incorporation and bylaws, in any manner that materially and
adversely affects any rights of the Holder, as determined by the
Holder in its sole discretion;
d) except for
Permitted Indebtedness, repay, repurchase or offer to repay,
repurchase or otherwise acquire more than a de minimis number of
shares of its Common Stock or Common Stock Equivalents other than
as to (i) the Conversion Shares as permitted or required under the
Transaction Documents and (ii) repurchases of Common Stock or
Common Stock Equivalents of departing officers and directors of the
Company, provided that such repurchases shall not exceed an
aggregate of $100,000 for all officers and directors during the
term of this Note;
e) repay, repurchase
or offer to repay, repurchase or otherwise acquire any
Indebtedness, other than the Liabilities, and other than regularly
scheduled principal and interest payments of Permitted Indebtedness
as such terms are in effect as of the Original Issue Date, provided
that such payments shall not be permitted if, at such time, or
after giving effect to such payment, any Event of Default exist or
occur; provided that neither the Company nor any of its
Subsidiaries shall make any cash payment in respect of the
Indebtedness issued pursuant to the Additional Note Financing or
the Subsequent Financing, until the full and final payment in cash
of the Liabilities;
f) pay cash dividends
or distributions on any equity securities of the
Company;
g) enter into any
transaction with any Affiliate of the Company which would be
required to be disclosed in any public filing with the Commission,
unless such transaction is made on an arm’s-length basis and
expressly approved by a majority of the disinterested directors of
the Company (even if less than a quorum otherwise required for
board approval);
h) sell, lease or
otherwise dispose of any significant portion of its assets or
acquire any assets or business on or after the Original Issue Date
other than as contemplated by the BW Acquisition or EV-Depot
Acquisition;
i) make or suffer to
exist any Investments using any proceeds from the Holder or any of
its Affiliates (including without limitation, loans and advances
to, and other Investments in, Subsidiaries), or commitments
therefor, or to become or remain a partner in any partnership or
joint venture, except for: (i) Investments in cash and cash
equivalents; and (ii) Investments in Subsidiaries that have
guaranteed the Liabilities and joined the Security Agreement as a
debtor pursuant to Section 4.24(b) of the Purchase
Agreement;
j) Intentionally
Omitted;
k) use any proceeds
from the Holder or any of its Affiliates to pay any liquidated
damages, penalties, fees or other amounts that may be due and
payable under the Note;
l) file any
registration statement with respect to any securities other than
Registrable Securities (as defined in the Registration Rights
Agreement) or any other securities which the Company has granted
registration rights on or prior to the date hereof and disclosed in
the Purchase Agreement after the date hereof, or otherwise cause
such securities to become registered with the SEC or under any
state securities laws; and
m) enter into any
agreement with respect to any of the foregoing.
Section
8.
Miscellaneous.
a) Notices. Any and all notices or
other communications or deliveries to be provided by the Holder
hereunder shall be in writing and delivered personally, by
facsimile, electronic mail or sent by a nationally recognized
overnight courier service, addressed to the Company, at the
facsimile number, email address or mailing address set forth on its
signature page hereto, or such other facsimile number, electronic
mail or address as the Company may specify for such purposes by
notice to the Holder delivered in accordance with this Section 8(a). Any and all
notices or other communications or deliveries to be provided by the
Company hereunder shall be in writing and delivered personally, by
electronic mail, by facsimile, or sent by a nationally recognized
overnight courier service addressed to the Holder at the email
address, facsimile number or address of the Holder appearing on the
books of the Company, or if no such email address or facsimile
number or address appears on the books of the Company, at the
principal place of business of such Holder, as set forth in the
Purchase Agreement, or such other facsimile number, electronic mail
or address as the Holder may specify for such purposes by notice to
the Company delivered in accordance with this Section 8(a). Any notice
or other communication or deliveries hereunder shall be deemed
given and effective on the earliest of (i) the date of
transmission, if such notice or communication is delivered via
electronic mail or facsimile prior to 5:30 p.m. (New York City
time) on any Trading Day, (ii) the next Trading Day after the date
of transmission, if such notice or communication is delivered via
electronic mail or facsimile on a day that is not a Trading Day or
later than 5:30 p.m. (New York City time) on any Trading Day, (iii)
the second Trading Day following the date of mailing, if sent by
U.S. nationally recognized overnight courier service or (iv) upon
actual receipt by the party to whom such notice is required to be
given.
b) Absolute Obligation. Except as
expressly provided herein, no provision of this Note shall alter or
impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of, accrued interest,
liquidated damages and other amounts, including but not limited to, Late Fees,
legal fees, expenses and other costs of Holder, as applicable, on
this Note at the time, place, and rate, and in the coin or
currency, herein prescribed. This Note is a direct debt obligation
of the Company. This Note ranks pari passu with all other Notes now
or hereafter issued under the terms set forth herein.
c) Lost or Mutilated Note. If this
Note shall be mutilated, lost, stolen or destroyed, the Company
shall execute and deliver, in exchange and substitution for and
upon cancellation of a mutilated Note, or in lieu of or in
substitution for a lost, stolen or destroyed Note, a new Note for
the principal amount of this Note so mutilated, lost, stolen or
destroyed, but only upon receipt of evidence of such loss, theft or
destruction of such Note, and of the ownership hereof, reasonably
satisfactory to the Company.
d)
Governing Law. All questions
concerning the construction, validity, enforcement and
interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of
the State of New York, without regard to the principles of
conflicts of law thereof. Each party agrees that all legal
Proceedings concerning the interpretations, enforcement and defense
of the transactions contemplated by this Note and any other
Transaction Documents (whether brought against a party hereto or
its respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of
New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of
New York, Borough of Manhattan for the adjudication of any dispute
hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to
the enforcement of any of the Transaction Documents), and hereby
irrevocably waives, and agrees not to assert in any Action or
Proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such Action or Proceeding is
improper or is an inconvenient venue for such Proceeding. Each
party hereby irrevocably waives personal service of process and
consents to process being served in any such Action or Proceeding
by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Note and agrees that
such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any other
manner permitted by law. If any party shall commence an Action or
Proceeding to enforce any provisions of the Transaction Documents,
then, in addition to the obligations of the Company elsewhere in
this Note, the prevailing party in such Action or Proceeding shall
be reimbursed by the non-prevailing party for its reasonable
attorneys’ fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such Action or
Proceeding.
e) Waiver. Any waiver by the
Company or the Holder of a breach of any provision of this Note
shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of
this Note. The failure of the Company or the Holder to insist upon
strict adherence to any term of this Note on one or more occasions
shall not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any
other term of this Note on any other occasion. Any waiver by the
Company or the Holder must be in writing.
f) Severability. If any provision
of this Note is invalid, illegal or unenforceable, the balance of
this Note shall remain in effect, and if any provision is
inapplicable to any Person or circumstance, it shall nevertheless
remain applicable to all other Persons and circumstances. If it
shall be found that any interest or other amount deemed interest
due hereunder violates the applicable law governing usury, the
applicable rate of interest due hereunder shall automatically be
lowered to equal the maximum rate of interest permitted under
applicable law. The Company covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law or other law which would
prohibit or forgive the Company from paying all or any portion of
the principal of or interest on this Note as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which
may affect the covenants or the performance of this Note, and the
Company (to the extent it may lawfully do so) hereby expressly
waives all benefits or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Holder, but
will suffer and permit the execution of every such as though no
such law has been enacted.
g) Remedies, Characterizations, Other
Obligations, Breaches and Injunctive Relief. The
remedies provided in this Note shall be cumulative and in addition
to all other remedies available under this Note and any of the
other Transaction Documents at law or in equity (including a decree
of specific performance and/or other injunctive relief), and
nothing herein shall limit the Holder’s right to pursue
actual and consequential damages for any failure by the Company to
comply with the terms of this Note. The Company covenants to
the Holder that there shall be no characterization concerning this
instrument other than as expressly provided herein. Amounts set
forth or provided for herein with respect to payments, and the like
(and the computation thereof) shall be the amounts to be received
by the Holder and shall not, except as expressly provided herein,
be subject to any other obligation of the Company (or the
performance thereof). The Company acknowledges that a breach by it
of its obligations hereunder will cause irreparable harm to the
Holder and that the remedy at law for any such breach may be
inadequate. The Company therefore agrees that, in the event of any
such breach or threatened breach, the Holder shall be entitled, in
addition to all other available remedies, to an injunction
restraining any such breach or any such threatened breach, without
the necessity of showing economic loss and without any bond or
other security being required. The Company shall provide all
information and documentation to the Holder that is requested by
the Holder to enable the Holder to confirm the Company’s
compliance with the terms and conditions of this Note.
h) Next Business Day. Whenever any
payment or other obligation hereunder shall be due on a day other
than a Business Day, such payment shall be made on the next
succeeding Business Day.
i) Headings. The headings
contained herein are for convenience only, do not constitute a part
of this Note and shall not be deemed to limit or affect any of the
provisions hereof.
j) Secured Obligation. The
obligations of the Company under this Note are secured by all
assets of the Company and each Subsidiary pursuant to the Second
Amended and Restated Security Agreement, dated as of December 17,
2021 between the Company, the Subsidiaries of the Company and the
Secured Parties (as defined therein).
(Signature Pages Follow)
IN
WITNESS WHEREOF, the Company has caused this Note to be duly
executed by a duly authorized officer as of the date first above
indicated.
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CHARGE ENTERPRISES, INC.
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By:__________________________________________
Name:
Andrew Fox
Title:
CEO
Mailing
Address for Notices:
125
Park Avenue, 25th Floor
New
York, NY 10017
Email
Address for delivery of Notices: a@charge.us
Facsimile
No. for delivery of Notices:
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