Document

Exhibit 10.1


CONVERSION AGREEMENT


This CONVERSION AGREEMENT (this “Agreement”) is made as of May 13, 2022 by and among WAITR HOLDINGS INC., a Delaware corporation (the “Borrower”), the LENDERS (as defined herein) and LUXOR CAPITAL GROUP, LP (“Luxor LP”).
WHEREAS, the Borrower, Luxor LP, as administrative agent and lead arranger (in such capacities, the “Administrative Agent”), and the lenders party thereto (the “Lenders”) are parties that certain Credit Agreement, dated as of November 15, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof (the “Credit Agreement”);
WHEREAS, in order to induce the Lenders to convert a portion of the convertible promissory notes issued pursuant to the Credit Agreement (the “Convertible Notes”), the Borrower has agreed that the Lenders will be permitted to convert on such date or dates provided below a portion of the outstanding principal amount of the Convertible Notes in the amount of $750,000 into shares of Common Stock at a Conversion Rate of 5,882 shares of Common Stock per $1,000 principal amount of the Convertible Notes (the “Waiver Conversion Rate”), calculated based on a per share price equal to $0.17, notwithstanding the Conversion Rate currently in effect pursuant to the terms of the Convertible Notes in accordance with Section 3 of the Convertible Notes; and
WHEREAS, the conversion of the Convertible Notes into Conversion Shares provided for hereunder is being made in reliance upon the exemption from registration provided by section 3(a)(9) of the Securities Act of 1933, as amended.
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Administrative Agent, and the Lenders hereby agree as follows:
SECTION 1.  Defined Terms.  Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Credit Agreement, as applicable.
SECTION 2.   Term Loan Maturity Date; Conversion of Convertible Notes.  
(a)  Notwithstanding the Conversion Rate in effect pursuant to the terms of the Convertible Notes, the Borrower hereby agrees to permit the Lenders to, and the Lenders hereby agree to, convert the Convertible Notes in a principal amount equal to $750,000 (the “Conversion Amount”) at the Waiver Conversion Rate in accordance with Section 3 of the Convertible Notes (such Common Stock to be issued thereby, the “Conversion Shares”) on the Effective Date. It is understood and agreed by the parties that the conversion of the Convertible Notes provided for hereunder shall have the effect of lowering the principal amount of the Convertible Notes in an amount equal to the principal of the Convertible Notes so converted into Conversion Shares. 
SECTION 3.  Representations and Warranties of the Borrower.  By its execution and delivery of this Agreement, Borrower hereby represents and warrants that each of the representations and warranties contained in Section 4 of the Credit Agreement (which are incorporated herein by this reference, mutatis mutandis) are true and correct in all material respects on and as of the Effective Date (except for those 








representations and warranties that are conditioned by materiality, which are true and correct in all respects) to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which were true and correct in all respects) on and as of such earlier date.
SECTION 4.   Conditions of Effectiveness.  The Conversion Shares shall be delivered, and the principal amount of the Convertible Notes outstanding shall be lowered, on and as of the date (such date, the “Effective Date”) upon which all of the following conditions set forth in this Section 4 shall have been satisfied: 
(a)  Receipt by Administrative Agent of counterparts of this Agreement duly executed by each Credit Party, Borrower, and the Lenders constituting the Required Lenders and the Administrative Agent.
(b)  Receipt by the Borrower of an executed notice of conversion form attached hereto as Exhibit A and the form of undertaking attached hereto as Exhibit B.
(c)  On the Effective Date after giving effect to this Agreement, (i)  each of the representations and warranties contained in Section 4 of the Credit Agreement are true and correct in all material respects on and as of the Effective Date (except for those representations and warranties that are conditioned by materiality, which are true and correct in all respects) to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which were true and correct in all respects) on and as of such earlier date, and (ii) no event shall have occurred and be continuing or would result from the consummation of this Agreement that would constitute an Event of Default under the Credit Agreement.
SECTION 5.  Credit Document.  The parties hereto acknowledge and agree that, on and after the Effective Date, this Agreement shall constitute a Credit Document for all purposes of the Credit Agreement. 
SECTION 6.  Reference to and Effect on the Credit Agreement.  The Credit Agreement and the Credit Documents shall remain in full force and effect and are hereby ratified and confirmed.  Other than as expressly set forth herein, nothing in this Agreement shall be deemed to constitute a waiver by the Administrative Agent or any Lender of any Default or Event of Default, nor constitute a waiver of any provision of this Agreement, the Credit Agreement, any Credit Document or any other documents, instruments or agreements executed and/or delivered in connection herewith or therewith, whether now existing or hereafter arising, or of any right, power or remedy that Administrative Agent or Lenders may have under any of the Credit Agreement, Credit Documents or applicable law.  Upon the Effective Date, this Agreement, the Credit Agreement and the other Credit Documents constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties hereto with respect to the subject matter hereof.
SECTION 7. Governing Law.  This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, but giving effect to federal laws applicable to national banks.








SECTION 8.  Headings.  Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
SECTION 9. Counterparts.  This Agreement may be executed by one or more of the parties hereto on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile, e-mailed .pdf or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 10.  Reaffirmation.  Borrower hereby ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under the Credit Agreement (after giving effect hereto).  The Borrower hereby consents to this Agreement and each of the transactions contemplated hereby and acknowledges that the Credit Agreement (as amended through and including the date hereof) remains in full force and effect and is hereby ratified and reaffirmed.  
 [Signature Pages Follow]












IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first above written.


WAITR HOLDINGS INC.  


By: /s/  Carl Grimstad               
Name: Carl Grimstad
Title:   Chief Executive Officer  


















LUXOR CAPITAL GROUP, LP  as Administrative Agent and Lead Arranger   


By: /s/  Norris Nissim               
Name: Norris Nissim
Title:   General Counsel






Signature Page to Conversion Agreement














LUXOR CAPITAL PARTNERS, LP, as Lender   
By:  Luxor Capital Group, LP,
        its Manager


By: /s/  Norris Nissim               
Name: Norris Nissim
Title:   General Counsel




LUXOR CAPITAL PARTNERS OFFSHORE MASTER FUND, LP as Lender   
By:  Luxor Capital Group, LP,
        its Manager


By: /s/  Norris Nissim               
Name: Norris Nissim
Title:   General Counsel






Signature Page to Conversion Agreement


















LUXOR WAVEFRONT, LP as Lender   
By:  Luxor Capital Group, LP,
        its Manager


By: /s/  Norris Nissim               
Name: Norris Nissim
Title:   General Counsel




LUGARD ROAD CAPITAL MASTER FUND, LP
as Lender   
By:  Luxor Capital Group, LP,
        its Manager


By: /s/  Norris Nissim               
Name: Norris Nissim
Title:   General Counsel






Signature Page to Conversion Agreement














Exhibit A
WAITR HOLDINGS INC.
NOTICE OF CONVERSION FORM




To Waitr General Counsel:


The undersigned hereby irrevocably elects to exercise the right of conversion represented by the within Note (“Note”) pursuant to this Notice of Conversion form (“Conversion Notice”) for $__________ of the principal amount of the Note (“Conversion Amount”) to be converted into shares of Common Stock (“Conversion Shares”) as provided for therein, and requests that certificates for the Conversion Shares be issued as follows:  
			
	Name


	
	
	Address

	Federal Tax ID or Social Security No.




and delivered by: (certified mail to the above address, or electronically (provide DWAC instructions:
______________),or
other
(specify).


and, if the Conversion Amount shall not be all of the principal outstanding amount of the Note, that a new Note for the balance of the principal amount be registered in the name of the undersigned Holder or the undersigned’s assignee as below indicated and delivered to the address stated below.
Notwithstanding anything to the contrary contained herein, this Conversion Notice shall constitute a representation by the Holder of the Note submitting this Conversion Notice that, after giving effect to the conversion provided for in this Conversion Notice, such Holder (together with its Affiliates) will not have beneficial ownership (together with the beneficial ownership of such person’s Affiliates) of a number of shares of Common Stock which exceeds 9.99% of the total outstanding shares of Common Stock as determined pursuant to the provisions of this Note.  In determining whether the Holder (together with its Affiliates) will not have beneficial ownership (together with the beneficial ownership of the Holder’s Affiliates) of a number of shares of Common Stock which exceeds 9.99%, the Company may rely on the above representation and warranty of the Holder.












Dated:________________, ________


						
	Note: The signature must correspond with	Signature:________________________________
	the name of the Holder as written	
	on the first page of this Note in every	Name (please print)
	particular, without alteration or enlargement	
	or any change whatever, unless this Note	
	has been assigned.	Address
		
		Federal Identification or
		Social Security No.
		
		Assignee:
		
		
		


















Exhibit B
FORM OF UNDERTAKING


The undersigned (the “Shareholder”) is delivering this certificate to Waitr Holdings Inc., a Delaware company (the “Company”), in connection with the Shareholder’s request to remove the transfer restriction legends under the Securities Act of 1933, as amended (the “Securities Act”), from certificates or book-entry notations with respect to _____________ shares of common stock, par value $.0001 per share (the “Shares”), of the Company, issued in in the name of the Shareholder.
The Shareholder hereby covenants to the Company that the Shareholder will transfer the Shares only (a) pursuant to Rule 144 promulgated under the Securities Act, (b) in a transaction otherwise exempt from the registration requirements of the Securities Act if the transferee executes and delivers to the Company a certificate in the form of this certificate prior to or concurrently with such transfer or (c) an effective registration statement.
Any notice to the Shareholder pursuant to paragraph 1 above shall be delivered orally, by email, fax or overnight or standard postal delivery to:
[Address]
[Telephone]
[Facsimile]
[Email]
The Shareholder further covenants to provide the Company with any update to the Shareholder’s contact information set forth above to the extent necessary for purposes of any notification to be delivered to the Shareholder hereunder. Any such notice shall be delivered via email to [ ] and [ ].
The Company’s legal counsel is authorized to rely on this certificate for purposes of preparing and delivering any legal opinion(s) required in connection with the removal of the transfer restriction legends from the Shares.									
		Very truly yours,
		
		Name of Shareholder:	
		Signature:	
		Name of Signatory:	
		Title of Signatory: