Exhibit 10.1


 


 





WAIVER
AND AGREEMENT FOR ISSUANCE OF WARRANT


This Waiver and
Agreement for Issuance of Warrant ("Waiver Agreement") dated as of 31st day of March, 2020 is entered into
by and among Antara Capital Master Fund LP ("Lender") as Required Lenders under the Existing Financing Agreement and
as a Second Incremental Term Lender (in each case as defined in the Second Incremental Amendment) and EVO Transportation &
Energy Services, Inc. (the "Company") and Cortland Capital Market Services LLC, as administrative agent and collateral
agent (“Agent”).


 


WHEREAS,
Lender has multiple investments in the Company including warrants and notes;


WHEREAS,
Lender is a party to an Amendment to Forbearance Agreement and Second Incremental Amendment to Financing Agreement, dated as of
March 24, 2020 (the “Second Incremental Amendment”), by and among the Company, all subsidiaries of the Company,
Lender, and Agent;


WHEREAS,
in Section 2 of the Second Incremental Amendment, the Company has agreed to make a mandatory prepayment (“Prepayment”)
to Agent of fifty percent (50%) of the amount of claimed reimbursements for certain previously provided services in the aggregate
amount of not less than $3,000,000 received by the Company (the “USPS Reimbursements”) and


 


WHEREAS,
Lender and the Company have determined it is in the best interests of the Company to seek a waiver of the Prepayment on such terms
as it may agree with Lender;


NOW
THEREFORE, in consideration of the foregoing mutual premises, the terms contained herein and other good and valuable consideration
the sufficiency of which is hereby acknowledged. Lender and the Company agree as follows:


1.            Waiver and Amendment.


a.                 
Conditioned specifically upon (i) the prior issuance on May 29, 2020 (or on such earlier date as Second Incremental Term
Lender may request on five Business Day prior written notice to Company) by the Company to Second Incremental Term Lender of the
warrant provided for in Section 2 hereinbelow and (ii) the prior issuance on or before April 3, 2020 by the Company to Danny Cuzick
of a warrant for the purchase of 3,250,000 of the Company's shares of common stock at $2.50 per share with such warrant substantially
in the form of the warrant issued to Antara Capital Master Fund LP on February 27, 2020, Lender, in its capacity as the sole Second
Incremental Term Lender and Required Lenders, without need for further action by Lender in any capacity, hereby fully waives and
rescinds the mandatory prepayment obligation provided for in Section 2 of the Second Incremental Agreement; and


 






    


     


    

 b.                 
Required Lenders and Company agree that Section 4.03 of the Second Incremental Amendment is amended by deleting each reference
to “March 31, 2020” set forth in such Section 4.03 and inserting in place thereof a reference to “April 10,
2020.”


2.              Warrants. As compensation to Second Incremental Term Lender for waiving the mandatory prepayment set forth in Section
2 of the Second Incremental Agreement, and with the consent of Required Lenders, the Company hereby agrees to issue to Second Incremental
Term Lender on May 29, 2020 (or on such earlier date as Second Incremental Term Lender may request on five Business Day prior written
notice to Company) a warrant for the purchase of 3,250,000 of the Company's shares of common stock at $2.50 per share with such
warrant substantially in the form of the warrant issued to Lender on February 27, 2020.


3.              Governing Law. This Waiver Agreement shall be governed by, and construed in accordance with, the laws of the State
of New York, without reference to conflict of law principles, including all matters of construction, validity and performance.


4.             
Submission to Jurisdiction. Any state or federal court sitting in New York, New York will retain exclusive jurisdiction
to enforce the terms of this Waiver Agreement and to decide any claims or disputes which may arise or result from, or be connected
with, this Waiver Agreement. Any and all judicial, administrative or arbitral actions, suits, proceedings (public or private),
investigations, claims or demands (collectively, “Legal Proceedings”) related to the foregoing will be filed and maintained
only in New York state or federal court, and the parties hereby consent to and submit to the jurisdiction and venue of such New
York state or federal court for such purposes. The parties hereby irrevocably waive, to the fullest extent permitted by applicable
law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any
defense of inconvenient forum for the maintenance of such dispute. Each of the parties agrees that a judgment in any such Legal
Proceeding may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by any federal, state,
local or foreign law, statute, directive, code, ordinance, rule or regulation, binding interpretations or common law requirement.


5.              Further Assurances. Each of the parties agrees that it will take such actions and execute such additional documents
as may be reasonably requested by the other party in order to effectuate more fully the purposes and intent of this Waiver Agreement.
This agreement may be executed in counterparts. Electronically transmitted signatures are enforceable as originals. This Waiver
Agreement modifies the Second Incremental and is a Loan Document under the Financing Agreement defined therein.


6.              Specific
Performance. In the event of any actual or threatened default in, or breach of, any of the terms, conditions and
provisions of this Waiver Agreement, the party who is or is to be thereby aggrieved will have the right of specific
performance and injunctive relief giving effect to its or their rights under this Waiver Agreement, in addition to any and
all other rights and remedies at law or in equity, and all such rights and remedies will be cumulative. The parties agree
that any such breach or threatened breach would cause irreparable injury, that the remedies at law for any such breach or
threatened breach, including monetary damages, are inadequate compensation for any loss and that any defense in any action
for specific performance that a remedy at law would be adequate is waived.


 


[Signature Pages
Follow] 






    


     


    

 


IN
WITNESS WHEREOF, the parties have executed this Waiver Agreement.


EVO TRANSPORTATION
& ENERGY SERVICES, INC.


 


 


	By:	/s/ Thomas
J. Abood	 
	 	Name: Thomas
J. Abood	 
	 	Title: Chief
Executive Officer	 









 


 






    


     


    

 


 


ANTARA CAPITAL
MASTER FUND LP


  


	 	By:	
    Antara Capital LP, not in its individual corporate

capacity, but solely as Investment Advisor and agent

	 	 	






 





	 	By:	Antara
Capital GP LLC,
	 	 	its general
partner



 





	 	By:	/s/ Himanshu Gulati	 
	 	 	Name: Himanshu
Gulati
	 	 	Title: Managing
Member



 


 





 



    


     


    




ADMINISTRATIVE
AGENT AND COLLATERAL AGENT:


CORTLAND CAPITAL
MARKET SERVICES LLC,


as Administrative
Agent and Collateral Agent


 


 


	By:	/s/ Matthew Trybula	 
	Name: Matthew Trybula	 
	Title: Associate Counsel