Exhibit 10.1


 





THE EXCHANGE CONTEMPLATED
HEREIN IS INTENDED TO COMPORT WITH THE REQUIREMENTS OF SECTION 3(a)(9) OF THE SECURITIES ACT OF 1933, AS AMENDED.


 


EXCHANGE
AGREEMENT


 


This
Exchange Agreement (this “Agreement”) is entered into as of December 16, 2019 by and between Iliad Research
and Trading, L.P., a Utah limited partnership (“Lender”), and China Recycling Energy Corporation, a Nevada corporation
(“Borrower”). Capitalized terms used in this Agreement without definition shall have the meanings given to them
in the Exchange Note (defined below).


 


A. 
Borrower previously sold and issued to Lender that certain Convertible Promissory Note dated January 31, 2019 in the original
principal amount of $1,050,000.00 (the “Original Note”) pursuant to that certain Securities Purchase Agreement
dated January 31, 2019 by and between Lender and Borrower (the “Purchase Agreement”).


 


B. 
Pursuant to an Exchange Agreement dated April 14, 2019 (the “Exchange Agreement”), Borrower and Lender
exchanged the Original Note for a new Promissory Note in the original principal amount of $1,173,480.00 (the “Exchange
Note,” and together with the Exchange Agreement and all other documents entered into in conjunction therewith, the “Exchange
Documents”).


 


C. 
Subject to the terms of this Agreement, Borrower and Lender desire to partition a new Promissory Note in the original principal
amount of $120,000.00 (the “Partitioned Note”) from the Exchange Note and then cause the outstanding balance
of the Exchange Note to be reduced by an amount equal to the initial outstanding balance of the Partitioned Note.


 


D. 
Borrower and Lender further desire to exchange (such exchange is referred to as the “Note Exchange”)
the Partitioned Note for the delivery of 400,000 shares of the Company’s Common Stock, par value $0.001 (the “Common
Stock,” and such 400,000 shares of Common Stock, the “Exchange Shares”), according to the terms and
conditions of this Agreement.


 


E. 
The Note Exchange will consist of Lender surrendering the Partitioned Note in exchange for the Exchange Shares, which will
be issued free of any restrictive securities legend pursuant to Rule 144. Other than the surrender of the Partitioned Note, no
consideration of any kind whatsoever shall be given by Lender to Borrower in connection with this Agreement.


 


F. 
Lender and Borrower now desire to exchange the Partitioned Note for the Exchange Shares on the terms and conditions set
forth herein.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:


 


1. 
Recitals and Definitions. Each of the parties hereto acknowledges and agrees that the recitals set forth above in
this Agreement are true and accurate, are contractual in nature, and are hereby incorporated into and made a part of this Agreement.


 


2. 
Partition. Effective as of the date hereof, Borrower and Lender agree that the Partitioned Note is hereby partitioned
from the Exchange Note. Following such partition of the Exchange Note, Borrower and Lender agree that the Exchange Note shall remain
in full force and effect, provided that the outstanding balance of the Exchange Note shall be reduced by an amount equal to the
initial outstanding balance of the Partitioned Note.


 






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3. 
Issuance of Shares. Pursuant to the terms and conditions of this Agreement, the Exchange Shares shall be delivered
to Lender on or before December 19, 2019 and the Note Exchange shall occur with Lender surrendering the Partitioned Note to Borrower
on the Free Trading Date (as defined below). On the Free Trading Date, the Partitioned Note shall be cancelled and all obligations
of Borrower under the Partitioned Note shall be deemed fulfilled. All Exchange Shares delivered hereunder shall be delivered via
DWAC to Lender’s designated brokerage account. Subject to the securities laws and regulations, Borrower agrees to provide
all necessary cooperation or assistance that may be required to cause all Exchange Shares delivered hereunder to become Free Trading
(the first date such occurs, the “Free Trading Date”). For purposes hereof, the term “Free Trading”
means that (a) the Exchange Shares have been cleared and approved for public resale by the compliance departments of Lender’s
brokerage firm and the clearing firm servicing such brokerage, and (b) such shares are held in the name of the clearing firm servicing
Lender’s brokerage firm and have been deposited into such clearing firm’s account for the benefit of Lender.


 


4. 
Closing. The closing of the transaction contemplated hereby (the “Closing”) along with the delivery
of the Exchange Shares to Lender shall occur on the date that is mutually agreed to by Borrower and Lender by means of the exchange
by email of .pdf documents, but shall be deemed to have occurred at the offices of Hansen Black Anderson Ashcraft PLLC in Lehi,
Utah.


 


5. 
Holding Period, Tacking and Legal Opinion. Lender and Borrower agree that for the purposes of Rule 144 (“Rule
144”) of the Securities Act of 1933, as amended (the “Securities Act”), the holding period of the
Partitioned Note and the Exchange Shares will include Lender’s holding period of the Exchange Note from January 31, 2019,
which date is the date that the Original Note was originally issued. Borrower agrees not to take a position contrary to this Section
5 in any document, statement, setting, or situation. Borrower agrees to take all action necessary to issue the Exchange Shares
without restriction, and not containing any restrictive legend without the need for any action by Lender; provided that the applicable
holding period has been met. In furtherance thereof, prior to the Closing, counsel to Lender may, in its sole discretion, provide
an opinion that: (a) the Exchange Shares may be resold pursuant to Rule 144 without volume or manner-of-sale restrictions or current
public information requirements; and (b) the transactions contemplated hereby and all other documents associated with this transaction
comport with the requirements of Section 3(a)(9) of the Securities Act. Borrower represents that it is in full compliance with
the tests and standards set forth in Rule 144(i)(2) as of the date of this Agreement. The Exchange Shares are being issued in substitution
of and exchange for and not in satisfaction of the Partitioned Note. The Exchange Shares shall not constitute a novation or satisfaction
and accord of the Partitioned Note. Borrower acknowledges and understands that the representations and agreements of Borrower in
this Section 5 are a material inducement to Lender’s decision to consummate the transactions contemplated herein.


 






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6.  Representations,
Warranties and Agreements of Borrower. In order to induce Lender to enter into this Agreement, Borrower, for itself, and
for its affiliates, successors and assigns, hereby acknowledges, represents, warrants and agrees as follows: (a) Borrower has
full power and authority to enter into this Agreement and to incur and perform all obligations and covenants contained
herein, all of which have been duly authorized by all proper and necessary action, (b) no consent, approval, filing or
registration with or notice to any governmental authority is required as a condition to the validity of this Agreement or
the performance of any of the obligations of Borrower hereunder, (c) except as specifically set forth herein, nothing herein
shall in any manner release, lessen, modify or otherwise affect Borrower’s obligations under the Exchange Note, (d) the
issuance of the Exchange Shares is duly authorized by all necessary corporate action and the Exchange Shares are validly
issued, fully paid and non-assessable, free and clear of all taxes, liens, claims, pledges, mortgages, restrictions,
obligations, security interests and encumbrances of any kind, nature and description, (e) Borrower has not received any
consideration in any form whatsoever for entering into this Agreement, other than the surrender of the Partitioned Note, and
(f) Borrower has taken no action which would give rise to any claim by any person for a brokerage commission, placement agent
or finder’s fee or other similar payment by Borrower related to this Agreement.


 


7. 
Representations, Warranties and Agreements of Lender. In order to induce Borrower to enter into this Agreement, Lender,
for itself, and for its affiliates, successors and assigns, hereby acknowledges, represents, warrants and agrees as follows: (a)
Lender has full power and authority to enter into this Agreement and to incur and perform all obligations and covenants contained
herein, all of which have been duly authorized by all proper and necessary action, and (b) no consent, approval, filing or registration
with or notice to any governmental authority is required as a condition to the validity of this Agreement or the performance of
any of the obligations of Lender hereunder.


 


8. 
Arbitration. By its execution of this Agreement, each party agrees to be bound by the Arbitration Provisions (as
defined in the Purchase Agreement) set forth as an exhibit to the Purchase Agreement and the parties agree to submit all Claims
(as defined in the Purchase Agreement) arising under this Agreement or any Transaction Document or other agreement between the
parties and their affiliates to binding arbitration pursuant to the Arbitration Provisions.


 


9. 
Governing Law; Venue. This Agreement shall be construed and enforced in accordance with, and all questions concerning
the construction, validity, interpretation and performance of this Agreement shall be governed by, the internal laws of the State
of Utah, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Utah or any other
jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Utah. The provisions set
forth in the Purchase Agreement to determine the proper venue for any disputes are incorporated herein by this reference. BORROWER
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.


 


10.  Counterparts.
This Agreement may be executed in any number of counterparts with the same effect as if all signing parties had signed the
same document. All counterparts shall be construed together and constitute the same instrument. The exchange of copies of
this Agreement and of signature pages by facsimile transmission or other electronic transmission (including email) shall
constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the
original Agreement for all purposes. Signatures of the parties transmitted by facsimile transmission or other electronic
transmission (including email) shall be deemed to be their original signatures for all purposes.


 






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11. 
 Attorneys’ Fees. In the event of any arbitration or action at law or in equity to enforce or interpret the
terms of this Agreement, the prevailing party shall therefore be entitled to an additional award of the full amount of the attorneys’
fees and expenses paid by such prevailing party in connection with the arbitration, litigation and/or dispute without reduction
or apportionment based upon the individual claims or defenses giving rise to the fees and expenses. Nothing herein shall restrict
or impair an arbitrator’s or a court’s power to award fees and expenses for frivolous or bad faith pleading.


 


12. 
No Reliance. Each party acknowledges and agrees that neither the other party nor any of such other party’s
officers, directors, members, managers, equity holders, representatives or agents has made any representations or warranties to
the party or any of its agents, representatives, officers, directors, or employees except as expressly set forth in this Agreement
and the Exchange Documents and, in making its decision to enter into the transactions contemplated by this Agreement, the party
is not relying on any representation, warranty, covenant or promise of the other party or such other party’s officers, directors,
members, managers, equity holders, agents or representatives other than as set forth in this Agreement.


 


13. 
Severability. If any part of this Agreement is construed to be in violation of any law, such part shall be modified
to achieve the objective of the parties to the fullest extent permitted and the balance of this Agreement shall remain in full
force and effect.


 


14. 
Entire Agreement. This Agreement, together with the Exchange Documents, and all other documents referred to herein,
supersedes all other prior oral or written agreements between Borrower, Lender, its affiliates and persons acting on its behalf
with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding
of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein,
neither Lender nor Borrower makes any representation, warranty, covenant or undertaking with respect to such matters.


 


15. 
Amendments. This Agreement may be amended, modified, or supplemented only by written agreement of the parties. No
provision of this Agreement may be waived except in writing signed by the party against whom such waiver is sought to be enforced.


 


16. 
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and assigns. This Agreement or any of the severable rights and obligations inuring to the benefit of or to be performed
by Lender hereunder may be assigned by Lender to a third party, including its financing sources, in whole or in part. Neither party
shall assign this Agreement or any of its obligations herein without the prior written consent of the other party.


 




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17. 
Continuing Enforceability; Conflict Between Documents. Except as otherwise modified by this Agreement, the Exchange
Note and each of the other Exchange Documents shall remain in full force and effect, enforceable in accordance with all of its
original terms and provisions. This Agreement shall not be effective or binding unless and until it is fully executed and delivered
by Lender and Borrower. If there is any conflict between the terms of this Agreement, on the one hand, and the Exchange Note or
any other Transaction Document, on the other hand, the terms of this Agreement shall prevail.


 


18. 
Time of Essence. Time is of the essence with respect to each and every provision of this Agreement.


 


19. 
Notices. Unless otherwise specifically provided for herein, all notices, demands or requests required or permitted
under this Agreement to be given to Borrower or Lender shall be given as set forth in the “Notices” section of the
Purchase Agreement.


 


20. 
Further Assurances. Each party shall do and perform or cause to be done and performed, all such further acts and
things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions
contemplated hereby.


 


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IN WITNESS WHEREOF, the undersigned
have executed this Agreement as of the date first set forth above.


 





	 	COMPANY:
	 	 	 
	 	CHINA RECYCLING ENERGY CORPORATION
	 	 	 
	 	By:	                 
	 	Title:	 
	 	Name:	 







 





	 	LENDER:
	 	 	 	 	 
	 	ILIAD RESEARCH AND TRADING, L.P.
	 	 	 	 	 
	 	By:	Iliad Management, LLC, its General Partner
	 	 	 	 	 
	 	 	By:	Fife Trading, Inc., its Manager
	 	 	 	 	 
	 	 	 	By:	 
	 	 	 	 	John M. Fife, President







 





[Signature Page to Exchange Agreement]