UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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Item 1.01. Entry into a Material Definitive Agreement.
On September 27, 2023, Landcadia Holdings IV, Inc. (the “Company” or “we”) amended and restated the previously issued unsecured second amended and restated convertible promissory notes (the “Convertible Promissory Notes”) to each of TJF, LLC (“TJF”) and Jefferies US Holdings LLC (“JUSH” and, together with TJF, the “Sponsors”), to extend the Maturity Date (as defined below) thereunder from the earlier of (i) September 29, 2023 and (ii) the effective date of a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving the Company and one or more businesses (the “Business Combination”) (such earlier date, the “Maturity Date”) to the earlier of (i) March 24, 2024 and (ii) the effective date of a Business Combination. The Company may borrow under the Convertible Promissory Notes for ongoing expenses reasonably related to the business of the Company and the consummation of the Business Combination. The Sponsors will have the option, at any time on or prior to the Maturity Date, to convert up to $1,500,000 outstanding under the Convertible Promissory Notes into warrants to purchase shares of the Company’s Class A common stock, par value $0.0001 per share (“Class A common stock” or “public shares”), at a conversion price of $1.50 per warrant, with each warrant entitling the holder to purchase one share of Class A common stock at a price of $11.50 per share, subject to the same adjustments applicable to the private placement warrants sold concurrently with the Company’s initial public offering.
The foregoing descriptions of the amended and restated Convertible Promissory Notes do not purport to be complete and are qualified in their entirety by the provisions of the amended and restated Convertible Promissory Notes, which are attached hereto as Exhibit 10.1 and Exhibit 10.2 and are incorporated by reference herein.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein.
Item 3.02 Unregistered Sales of Equity Securities.
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein.
The issuance of the amended and restated Convertible Promissory Notes were made pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act of 1933, as amended.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On September 27, 2023, the Company filed the Charter Amendment (as defined below) with the Secretary of State of the State of Delaware. The disclosure set forth in Item 5.07 of this Current Report on Form 8-K is incorporated by reference herein.
Item 5.07. Submission of Matters to a Vote of Security Holders.
On September 22, 2022, the Company held a special meeting of public warrantholders (the “Warrantholder Special Meeting”). At the Warrantholder Special Meeting, the Company’s public warrantholders approved (the “Warrant Amendment Proposal”) an amendment (the “Warrant Amendment”) to the Company’s Warrant Agreement, dated as of March 24, 2021 (the “Warrant Agreement”), by and between the Company and Continental Stock Transfer & Trust Company, to provide for the conversion, upon the consummation of a Business Combination, of all of the 12,500,000 outstanding warrants (the “public warrants”) issued as part of the units in the Company’s initial public offering (the “IPO”) into the right to receive $0.40 per public warrant, payable in cash or shares of Class A common stock (valued at $10.00 per share), at the discretion of the Company, which the Company believes will increase the Company’s strategic opportunities and attractiveness to potential target businesses and future investors by eliminating the dilutive impact of the warrants. The foregoing description is qualified in its entirety by reference to the Warrant Amendment, a copy of which is attached as Exhibit 4.1 hereto and is incorporated by reference herein.
The final voting results for the Warrant Amendment Proposal were as follows:
| For | Against | Abstain | ||
| 6,630,110 | 1,007,686 | 221,118 |
On September 27, 2023, the Company held a special meeting of stockholders (the “Stockholder Special Meeting”). At the Stockholder Special Meeting, the Company’s stockholders approved an amendment (the “Charter Amendment”) to the Company’s second amended and restated certificate of incorporation (the “Charter”) by approving (i) a proposal to extend the date by which the Company must consummate a Business Combination from September 29, 2023 to March 24, 2024 (the “Extension Amendment Proposal”), (ii) a proposal to delete (A) the limitation that the Company shall not consummate a business combination if it would cause the Company’s net tangible assets to be less than $5,000,001 and (B) the limitation that the Company shall not redeem public shares in an amount that would cause the Company’s net tangible assets to be less than $5,000,001 following such redemptions (the “Redemption Limitation Amendment Proposal”) and (iii) a proposal to amend the Charter to provide for the right of a holder of Class B common stock of the Company, par value $0.0001 per share (the “founder shares” or “Class B common stock”), to convert their shares of Class B common stock into shares of Class A common stock on a one-to-one basis at any time and from time to time at the election of the holder (the “Founder Share Amendment Proposal”). The foregoing description is qualified in its entirety by reference to the Charter Amendment, a copy of which is attached as Exhibit 3.1 hereto and is incorporated by reference herein.
The final voting results for the Extension Amendment Proposal were as follows:
| For | Against | Abstain | ||
| 13,383,182 | 1,246 | 0 |
The final voting results for the Redemption Limitation Amendment Proposal were as follows:
| For | Against | Abstain | ||
| 13,382,582 | 1,846 | 0 |
The final voting results for the Founder Share Amendment Proposal were as follows:
| For | Against | Abstain | ||
| 13,383,181 | 1,247 | 0 |
In connection with the Stockholder Special Meeting, stockholders holding 299,014 shares of Class A common stock exercised their right to redeem such shares for a pro rata portion of the funds held in the Company’s trust account (the “Trust Account”), including any interest earned on the funds held in the Trust Account (which interest shall be net of taxes payable). As a result, approximately $3.1 million (approximately $10.42 per share) will be removed from the Trust Account to pay such holders and approximately $11.0 million will remain in the Trust Account. Following the aforementioned redemptions, the Company will have 13,558,523 shares of common stock outstanding, which includes 1,058,523 shares of Class A common stock and 12,500,000 shares of Class B common stock.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| LANDCADIA HOLDINGS IV, INC. | ||
| Date: September 28, 2023 | By: | /s/ Tilman J. Fertitta |
| Name: | Tilman J. Fertitta | |
| Title: | Chief Executive Officer | |
Exhibit 3.1
CERTIFICATE OF AMENDMENT TO THE
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
LANDCADIA HOLDINGS IV, INC.
Landcadia Holdings IV, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify:
1. The name of the Corporation is Landcadia Holdings IV, Inc.
2. The Corporation was initially formed as JFG Holding I LLC (the “LLC”), a Delaware limited liability company, on August 13, 2020.
3. On January 28, 2021, the LLC filed a Certificate of Conversion with the Delaware Secretary of State for purposes of converting the LLC to a corporation.
4. A certificate of incorporation of the Corporation was simultaneously filed with the Secretary of State of the State of Delaware on January 28, 2021 (the “Original Certificate”).
5. An amended and restated certificate of incorporation, which amended the Original Certificate, was filed with the Secretary of State of the State of Delaware on February 3, 2021 (the “Amended and Restated Certificate”).
6. A second amended and restated certificate of incorporation, which amended the Amended and Restated Certificate was filed with the Secretary of State of the State of Delaware on March 25, 2021.
7. The second amended and restated certificate of incorporation was corrected by a certificate of correction filed with the Secretary of State of the State of Delaware on April 13, 2022.
8. The second amended and restated certificate, as corrected, was amended on December 27, 2022 (the second amended and restated certificate of incorporation, as corrected and amended, the “Second Amended and Restated Certificate”).
9. This amendment (this “Amendment”) to the Second Amended and Restated Certificate amends the Second Amended and Restated Certificate.
10. This Amendment to the Second Amended and Restated Certificate was duly adopted by the affirmative vote of the holders of at least 65% of the outstanding shares of common stock in regards to the amendments to ARTICLE IX of the Second Amended and Restated Certificate and duly adopted by the affirmative vote of both (x) a majority of the holders of outstanding common stock voting together as a single class and (y) a majority of the outstanding Class B common stock voting as a separate class vote in regards to the amendment to Section 4.3(b)(i) at a meeting of stockholders in accordance with the Second Amended and Restated Certificate of Incorporation and the provisions of Section 242 the DGCL.
11. The text of Section 4.3(b)(i) of the Amended and Restated Certificate is hereby amended and restated to read in full as follows:
“Shares of Class B Common Stock shall be convertible into shares of Class A Common Stock on a one-for-one basis (the “Initial Conversion Ratio”) (A) at any time at the election of holder of such shares of Class B Common Stock and (B) automatically on the closing of the Business Combination.”
12. The text of Section 9.1(b) of Article IX of the Second Amended and Restated Certificate is hereby amended and restated to read in its entirety as follows:
“(b) Immediately after the Offering, a certain amount of the net offering proceeds received by the Corporation in the Offering (including the proceeds of any exercise of the underwriters’ over-allotment option) and certain other amounts specified in the Corporation’s registration statement on Form S-1, initially filed with the U.S. Securities and Exchange Commission (the “SEC”) on February 12, 2021, as amended (the “Registration Statement”), shall be deposited in a trust account (the “Trust Account”), established for the benefit of the Public Stockholders (as defined below) pursuant to a trust agreement described in the Registration Statement. Except for the withdrawal of interest to pay taxes, none of the funds held in the Trust Account (including the interest earned on the funds held in the Trust Account) will be released from the Trust Account until the earliest to occur of (i) the completion of the initial Business Combination, (ii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is unable to complete its initial Business Combination within 36 months from the effective date of the Registration Statement and (iii) the redemption of shares in connection with a vote seeking to amend such provisions of this Second Amended and Restated Certificate as described in Section 9.7. Holders of shares of Common Stock included as part of the units sold in the Offering (the “Offering Shares”) (whether such Offering Shares were purchased in the Offering or in the secondary market following the Offering and whether or not such holder is a Sponsor or officer or director of the Corporation, or affiliate of any of the foregoing) are referred to herein as “Public Stockholders.”
13. The Redemption Limitation shall be removed from the Second Amended and Restated Certificate as follows:
a. The text of Section 9.2(a) of the Second Amended and Restated Certificate is hereby amended and restated to read in full as follows:
“(a) Prior to the consummation of the initial Business Combination, the Corporation shall provide all holders of Offering Shares with the opportunity to have their Offering Shares redeemed upon the consummation of the initial Business Combination pursuant to, and subject to the limitations of, Sections 9.2(b) and 9.2(c) (such rights of such holders to have their Offering Shares redeemed pursuant to such Sections, the “Redemption Rights”) hereof for cash equal to the applicable redemption price per share determined in accordance with Section 9.2(b) hereof (the “Redemption Price”). Notwithstanding anything to the contrary contained in this Second Amended and Restated Certificate, there shall be no Redemption Rights or liquidating distributions with respect to any warrant issued pursuant to the Offering.”
b. The text of Section 9.2(e) of the Second Amended and Restated Certificate is hereby amended and restated to read in full as follows:
“(e) If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on an initial Business Combination, the Corporation shall consummate the proposed initial Business Combination only if such initial Business Combination is approved by the affirmative vote of the holders of a majority of the shares of the Common Stock that are voted at a stockholder meeting held to consider such initial Business Combination.”
c. Section 9.2(f) of the Second Amended and Restated Certificate shall be deleted in its entirety.
14. The text of Section 9.2(d) of Article IX of the Second Amended and Restated Certificate is hereby amended and restated to read in its entirety as follows:
“(d) In the event that the Corporation has not consummated an initial Business Combination within 36 months from the effective date of the Registration Statement, the Corporation shall (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter subject to lawfully available funds therefor, redeem 100% of the Offering Shares in consideration of a per-share price, payable in cash, equal to the quotient obtained by dividing (A) the aggregate amount then on deposit in the Trust Account (which interest shall be net of taxes payable and up to $100,000 of interest to pay dissolution expenses), by (B) the total number of then outstanding Offering Shares, which redemption will completely extinguish rights of the Public Stockholders (including the right to receive further liquidating distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the remaining stockholders and the Board in accordance with applicable law, dissolve and liquidate, subject in each case to the Corporation’s obligations under the DGCL to provide for claims of creditors and other requirements of applicable law.”
15. The text of Section 9.7 of Article IX of the Second Amended and Restated Certificate is hereby amended and restated to read in its entirety as follows:
“Section 9.7 Additional Redemption Rights. If, in accordance with Section 9.1(a), any amendment is made to this Second Amended and Restated Certificate (a) to modify the substance or timing of the Corporation’s obligation to redeem 100% of the Offering Shares if the Corporation has not consummated an initial Business Combination within 36 months from the effective date of the Registration Statement or (b) with respect to any other material provisions of this Second Amended and Restated Certificate relating to stockholders’ rights or pre-initial Business Combination activity, the Public Stockholders shall be provided with the opportunity to redeem their Offering Shares upon the approval of any such amendment, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest not previously released to the Corporation to pay its taxes, divided by the number of then outstanding Offering Shares.”
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IN WITNESS WHEREOF, the Corporation has caused this Amendment to the Second Amended and Restated Certificate to be duly executed in its name and on its behalf by an authorized officer as of this 27th day of September, 2023.
| /s/ Steven L. Scheinthal | |
| Steven L. Scheinthal |
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Exhibit 4.1
AMENDMENT NO. 1 TO WARRANT AGREEMENT
THIS AMENDMENT NO. 1 TO THE WARRANT AGREEMENT (this “Amendment”) is made as of September 22, 2023, by and between Landcadia Holdings IV, Inc., a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”). Capitalized terms used herein and not otherwise defined shall have the meanings assigned thereto in the Warrant Agreement (as defined below).
WHEREAS, on March 29, 2021, the Company consummated an initial public offering (the “Offering”) of units of the Company’s equity securities, each such unit comprised of one share of the Company’s Class A common stock, par value $0.0001 per share (“Common Stock”), and one-fourth of one Public Warrant (as defined below) and, in connection therewith, issued and delivered up to 12,500,000 warrants to public investors in the Offering (the “Public Warrants”);
WHEREAS, on March 24, 2021, the Company entered into that certain Private Placement Warrants Purchase Agreement with Jefferies Financial Group Inc., a New York corporation and TJF, LLC, a Delaware limited liability company (collectively, the “Sponsors”), pursuant to which the Sponsors purchased an aggregate of 8,333,333 warrants simultaneously with the closing of the Offering (the “Private Placement Warrants”);
WHEREAS, the Company and the Warrant Agent are parties to that certain Warrant Agreement, dated as of March 24, 2021 (the “Warrant Agreement”), which governs the Warrants;
WHEREAS, the Company and the Warrant Agent seek to amend the Warrant Agreement to provide that the Warrants, upon the consummation of an initial Business Combination, automatically convert into $0.40 per Warrant, payable in cash or shares of Common Stock (valued at $10.00 per share), at the discretion of the Company; and
WHEREAS, pursuant to Section 9.8 of the Warrant Agreement, the Company has obtained the consent to this Amendment from at least 50% of the Registered Holders of the outstanding Public Warrants and, solely with respect to any amendment to the terms of the Private Placement Warrants, 50% of Registered Holders of the outstanding Private Placement Warrants.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Amendment of Warrant Agreement.
(a) A new Section 6.6 is added to the Warrant Agreement as follows:
“6.6 Mandatory Exchange of Warrants upon Consummation of a Business Combination. Notwithstanding anything to the contrary in this Agreement, not less than all of the outstanding Warrants shall be automatically converted upon the consummation of a Business Combination (the “Warrant Conversion Date”), into the right to receive $0.40 per Warrant (the “Business Combination Redemption Price”), payable in cash or shares of Common Stock (valued at $10.00 per share), at the option of the Company. On and after the Warrant Conversion Date, the record holders of the Warrants shall have no further rights except to receive, upon surrender of the Warrants to the Warrant Agent, the Business Combination Redemption Price.”
2. Miscellaneous Provisions.
(a) Successors. All the covenants and provisions of this Amendment by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their permitted respective successors and assigns.
(b) Severability. This Amendment shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Amendment or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Amendment a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
(c) Applicable Law. The validity, interpretation and performance of this Amendment shall be governed in all respects by the laws of the State of New York, without giving effect to conflict of laws.
(d) Counterparts. This Amendment may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
(e) Effect of Headings. The section headings herein are for convenience only and are not part of this Amendment and shall not affect the interpretation thereof.
(f) Entire Agreement. The Warrant Agreement, as modified by this Amendment, constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof, and all such prior agreements, understandings, arrangements, promises and commitments are hereby canceled and terminated.
[Remainder of page intentionally left blank; signature page to follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
| LANDCADIA HOLDINGS IV, INC. | |||
| By: | /s/ Steven L. Scheinthal | ||
| Name: | Steven L. Scheinthal | ||
| Title: | Vice President, General Counsel and Secretary | ||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY | |||
| By: | /s/ Erika Young | ||
| Name: | Erika Young | ||
| Title: | Vice President | ||
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Exhibit 10.1
THIS THIRD AMENDED AND RESTATED CONVERTIBLE PROMISSORY NOTE (THIS “AMENDED AND RESTATED NOTE”) AND THE SECURITIES INTO WHICH IT MAY BE CONVERTED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE. THIS AMENDED AND RESTATED NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE MAKER AND THE SECURITIES INTO WHICH IT MAY BE CONVERTED MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE MAKER TO THE EFFECT THAT ANY SALE OR OTHER DISPOSITION IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
LANDCADIA HOLDINGS IV, INC.
THIRD AMENDED AND RESTATED
CONVERTIBLE PROMISSORY NOTE
|
Principal Amount: Not to Exceed $1,250,000 (See Schedule A) |
Dated as of September 27, 2023 |
WHEREAS, on May 10, 2021, the undersigned Landcadia Holdings IV, Inc., a Delaware corporation (the “Maker”), issued that certain Promissory Note (the “Original Promissory Note”) to Jefferies Financial Group Inc., a New York corporation, or its registered assigns or successors in interest (“JFG”);
WHEREAS, on December 1, 2021, JFG assigned all of its rights and obligations under the Original Promissory Note to Jefferies Group LLC, or its registered assigns or successors in interest, and Jefferies Group LLC immediately transferred all of its rights and obligations under the Original Promissory Note to Jefferies US Holdings LLC, or its registered assigns or successors in interest (the “Payee”);
WHEREAS, on July 22, 2022, the Maker and Payee amended and restated the Original Promissory Note (the “1st A&R Note”) to increase the maximum amount the Maker may borrow under the Original Promissory Note from $750,000 to $1,000,000;
WHEREAS, on March 28, 2023, the Maker and Payee amended and restated the 1st A&R Note (the “2nd A&R Note”) to extend the Maturity Date (as defined below) thereunder from the earlier of (i) March 29, 2023 and (ii) the effective date of a Business Combination (as defined below) to the earlier of (i) September 29, 2023 and (ii) the effective date of a Business Combination; and
WHEREAS, the Maker and Payee desire to amend and restate in its entirety the 2nd A&R Note on the terms and conditions provided in this note (the “Amended and Restated Note”).
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the existence and sufficiency of which is expressly recognized by each of the parties hereto, the parties agree as follows:
FOR VALUE RECEIVED and subject to the terms and conditions set forth herein, the Maker, promises to pay to the order of the Payee, or order, the principal balance as set forth on Schedule A hereto in lawful money of the United States of America; which schedule shall be updated from time to time by the parties hereto to reflect all advances and readvances outstanding under this Amended and Restated Note; provided that at no time shall the aggregate of all advances and readvances outstanding under this Amended and Restated Note exceed ONE MILLION TWO HUNDRED FIFTY THOUSAND Dollars ($1,250,000). Any advance hereunder shall be made by the Payee upon receipt of a written request of the Maker, related to ongoing expenses reasonably related to the business of the Maker and the consummation of the Business Combination (as defined below), and shall be set forth on Schedule A. Any advance hereunder shall only be made by the Payee as, and to the extent, expenses are incurred or are reasonably expected to be incurred and the amounts of such advance shall be used to pay or repay such expenses. All payments on this Amended and Restated Note shall be made by check or wire transfer of immediately available funds or as otherwise determined by the Maker to such account as the Payee may from time to time designate by written notice in accordance with the provisions of this Amended and Restated Note.
1. Principal. All unpaid principal under this Amended and Restated Note shall be due and payable in full on the earlier of (i) March 24, 2024 and (ii) the effective date of a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving the Maker and one or more businesses (the “Business Combination”) (such earlier date, the “Maturity Date”), unless accelerated upon the occurrence of an Event of Default (as defined below). Any outstanding principal amount to date under this Amended and Restated Note may be prepaid at any time by the Maker, at its election and without penalty; provided, however, that Payee shall have a right to first convert such principal balance pursuant to Section 5 below upon notice of such prepayment.
2. Interest. No interest shall accrue on the unpaid balance of this Amended and Restated Note.
3. Application of Payments. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Amended and Restated Note, including (without limitation) reasonable attorney’s fees, then to the payment in full of any late charges and finally to the reduction of the unpaid principal balance of this Amended and Restated Note.
4. Events of Default. The occurrence of any of the following shall constitute an event of default (“Event of Default”):
(a) Failure to Make Required Payments. Failure by the Maker to pay the principal amount due pursuant to this Amended and Restated Note within five (5) business days after the date specified above or issue warrants pursuant to Section 5 hereof, if so elected by the Payee.
(b) Voluntary Bankruptcy, Failure to Consummate a Business Combination; Liquidation of Trust Account, Etc. The commencement by the Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of the Maker generally to pay its debts as such debts become due, or the taking of corporate action by the Maker in furtherance of any of the foregoing, or in the event the Company does not consummate a business combination within the timeframe required by its charter (as may be amended by a shareholder vote) or the Company’s trust account is liquidated.
(c) Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of the Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive days.
5. Conversion
(a) Optional Conversion. At the option of the Payee, at any time on or prior to the Maturity Date, any amounts outstanding under this Amended and Restated Note (or any portion thereof), up to $1,250,000 in the aggregate, may be converted into warrants to purchase shares of Class A common stock of the Maker (“Common Stock”) at a conversion price (the “Conversion Price”) equal to $1.50 per warrant (“Warrants”); provided, that the optional conversion pursuant to this Section 5 shall be reduced (the “Reduction”) so that the aggregate amount to be converted by (i) Payee and (ii) TJF, LLC (“TJF”) under that certain Third Amended and Restated Note Convertible Promissory Note, dated as of September 27, 2023, between TJF and the Maker, shall not exceed $1,500,000. If the Reduction occurs, such reduction shall be applied to TJF and Payee on an equal basis. If the Payee elects such conversion, the terms of such Warrants issued in connection with such conversion shall be identical to the warrants issued to the Payee in the private placement that closed on March 29, 2021 (the “Private Placement Warrants”) in connection with the Maker’s initial public offering that closed on March 29, 2021 (the “IPO”); provided, however, that the Warrants shall not be subject to forfeiture in connection with the Business Combination and that each Warrant shall entitle the holder thereof to purchase one share of Common Stock at a price of $11.50 per share, subject to the same adjustments applicable to the Private Placement Warrants made after the date of issuance of the Private Placement Warrants. Before this Amended and Restated Note may be converted under this Section 5(a), the Payee shall surrender this Amended and Restated Note, duly endorsed, at the office of the Maker and shall state therein the amount of the unpaid principal of this Amended and Restated Note to be converted and the name or names in which the certificates for Warrants are to be issued (or the book-entries to be made to reflect ownership of such Warrants with the Maker’s transfer agent). The conversion shall be deemed to have been made immediately prior to the close of business on the date of the surrender of this Amended and Restated Note and the person or persons entitled to receive the Warrants upon such conversion shall be treated for all purposes as the record holder or holders of such Warrants as of such date. Each such newly issued Warrant shall include a restricted legend that contemplates the same restrictions as the Private Placement Warrants. The Warrants and shares of Common Stock issuable upon exercise of the Warrants shall constitute “Registrable Securities” pursuant to that certain Registration Rights Agreement, dated March 23, 2021, among the Maker, the Payee and certain other security holders named therein.
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(b) Remaining Principal. All accrued and unpaid principal of this Amended and Restated Note that is not then converted into Warrants, shall continue to remain outstanding and to be subject to the conditions of this Amended and Restated Note.
(c) Fractional Warrants; Effect of Conversion. No fractional Warrants shall be issued upon conversion of this Amended and Restated Note. In lieu of any fractional Warrants to the Payee upon conversion of this Amended and Restated Note, the Maker shall pay to the Payee an amount equal to the product obtained by multiplying the Conversion Price by the fraction of a Warrant not issued pursuant to the previous sentence. Upon conversion of this Amended and Restated Note in full and the payment of any amounts specified in this Section 5(c), this Amended and Restated Note shall be cancelled and void without further action of the Maker or the Payee, and the Maker shall be forever released from all its obligations and liabilities under this Amended and Restated Note.
6. Remedies.
(a) Upon the occurrence of an Event of Default specified in Section 4(a) hereof, the Payee may, by written notice to the Maker, declare this Amended and Restated Note to be due immediately and payable, whereupon the unpaid principal amount of this Amended and Restated Note, and all other amounts payable thereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default specified in Sections 4(b) or 4(c), the unpaid principal balance of this Amended and Restated Note, and all other sums payable with regard to this Amended and Restated Note, shall automatically and immediately become due and payable, in all cases without any action on the part of the Payee.
7. Waivers. The Maker and all endorsers and guarantors of, and sureties for, this Amended and Restated Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to the Amended and Restated Note, all errors, defects and imperfections in any proceedings instituted by the Payee under the terms of this Amended and Restated Note, and all benefits that might accrue to the Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and the Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by the Payee.
8. Unconditional Liability. The Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Amended and Restated Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by the Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by the Payee with respect to the payment or other provisions of this Amended and Restated Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to the Maker or affecting the Maker’s liability hereunder.
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9. Notices. All notices, statements or other documents that are required or contemplated by this Amended and Restated Note shall be in writing and delivered (i) personally or sent by first class registered or certified mail, overnight courier service to the address designated to Jefferies US Holdings LLC, 520 Madison Avenue, New York, NY 10022, Attention: General Counsel. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally; one (1) business day after delivery to an overnight courier service; or five (5) days after mailing if sent by first class registered or certified mail.
10. Construction. THIS AMENDED AND RESTATED NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK.
11. Severability. Any provision contained in this Amended and Restated Note that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
12. Trust Waiver. Notwithstanding anything herein to the contrary, the Payee hereby waives any and all right, title, interest or claim of any kind (“Claim”) in or to any distribution of or from the trust account established in which the proceeds of the IPO conducted by the Maker (including the deferred underwriters discounts and commissions) and certain proceeds of the sale of the Private Placement Warrants were deposited, as described in greater detail in the registration statement and prospectus filed with the U.S. Securities and Exchange Commission in connection with the IPO on March 29, 2021, as amended, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the trust account for any reason whatsoever.
13. Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of the Maker and the Payee.
14. Successors and Assigns. Subject to the restrictions on transfer in Sections 15 and 16 below, the rights and obligations of the Maker and the Payee hereunder shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of any party hereto (by operation of law or otherwise) with the prior written consent of the other party hereto and any attempted assignment without the required consent shall be void.
15. Transfer of this Amended and Restated Note or Securities Issuable on Conversion. With respect to any sale or other disposition of this Amended and Restated Note or securities into which this Amended and Restated Note may be converted, the Payee shall give written notice to the Maker prior thereto, describing briefly the manner thereof, together with (i) except for a Permitted Transfer, in which case the requirements in this clause (i) shall not apply, a written opinion reasonably satisfactory to the Maker in form and substance from counsel reasonably satisfactory to the Maker to the effect that such sale or other distribution may be effected without registration or qualification under any federal or state law then in effect and (ii) a written undertaking executed by the desired transferee reasonably satisfactory to the Maker in form and substance agreeing to be bound by the restrictions on transfer contained herein. Upon receiving such written notice, reasonably satisfactory opinion, or other evidence, and such written acknowledgement, the Maker, as promptly as practicable, shall notify the Payee that the Payee may sell or otherwise dispose of this Amended and Restated Note or such securities, all in accordance with the terms of the Amended and Restated Note delivered to the Maker. If a determination has been made pursuant to this Section 15 that the opinion of counsel for the Payee, or other evidence, or the written acknowledgment from the desired transferee, is not reasonably satisfactory to the Maker, the Maker shall so notify the Payee promptly after such determination has been made. Each Amended and Restated Note thus transferred shall bear a legend as to the applicable restrictions on transferability in order to ensure compliance with the Securities Act, unless in the opinion of counsel for the Maker such legend is not required in order to ensure compliance with the Securities Act. The Maker may issue stop transfer instructions to its transfer agent in connection with such restrictions. Subject to the foregoing, transfers of this Amended and Restated Note shall be registered upon registration on the books maintained for such purpose by or on behalf of the Maker. Prior to presentation of this Amended and Restated Note for registration of transfer, the Maker shall treat the registered holder hereof as the owner and holder of this Amended and Restated Note for the purpose of receiving all payments of principal hereon and for all other purposes whatsoever, whether or not this Amended and Restated Note shall be overdue and the Maker shall not be affected by notice to the contrary. For purposes hereof “Permitted Transfer” shall have the same meaning as any transfer that would be permitted for the Private Placement Warrants under the Letter Agreement, dated March 24, 2021, among the Maker, the Payee and the other parties thereto.
16. Acknowledgment. The Payee is acquiring this Amended and Restated Note for investment for its own account, not as a nominee or agent, and not with a view to, or for resale in connection with, any distribution thereof. The Payee understands that the acquisition of this Amended and Restated Note involves substantial risk. The Payee has experience as an investor in securities of companies and acknowledges that it is able to fend for itself, can bear the economic risk of its investment in this Amended and Restated Note, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of this investment in this Amended and Restated Note and protecting its own interests in connection with this investment.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Maker, intending to be legally bound hereby, has caused this Amended and Restated Note to be duly executed by the undersigned as of the day and year first above written.
| LANDCADIA HOLDINGS IV, INC. | ||
| By: | /s/ Richard H. Liem | |
| Name: | Richard H. Liem | |
| Title: | Vice President | |
Acknowledged and agreed as of the date first above written.
| JEFFERIES US HOLDINGS LLC | ||
| By: | /s/ Michael Sharp | |
| Name: | Michael Sharp | |
| Title: | General Counsel | |
[Signature Page to Amended and Restated Note]
SCHEDULE A
Subject to the terms and conditions set forth in the Amended and Restated Note to which this schedule is attached to, the principal balance due under the Amended and Restated Note shall be set forth in the table below and shall be updated from time to time to reflect all advances and readvances outstanding under the Amended and Restated Note.
| Date | Drawing | Description | Principal Undrawn Balance | |||
Exhibit 10.2
THIS THIRD AMENDED AND RESTATED CONVERTIBLE PROMISSORY NOTE (THIS “AMENDED AND RESTATED NOTE”) AND THE SECURITIES INTO WHICH IT MAY BE CONVERTED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE. THIS AMENDED AND RESTATED NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE MAKER AND THE SECURITIES INTO WHICH IT MAY BE CONVERTED MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE MAKER TO THE EFFECT THAT ANY SALE OR OTHER DISPOSITION IS IN COMPLIANCE WITH THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
LANDCADIA HOLDINGS IV, INC.
THIRD AMENDED AND RESTATED
CONVERTIBLE PROMISSORY NOTE
|
Principal Amount: Not to Exceed $1,250,000 (See Schedule A) |
Dated as of September 27, 2023 |
WHEREAS, on May 10, 2021, the undersigned Landcadia Holdings IV, Inc., a Delaware corporation (the “Maker”), issued that certain Promissory Note (the “Original Promissory Note”) to TJF, LLC, a Delaware limited liability company, or its registered assigns or successors in interest (the “Payee”);
WHEREAS, on July 22, 2022, the Maker and Payee amended and restated the Original Promissory Note (the “1st A&R Note”) to increase the maximum amount the Maker may borrow under the Original Promissory Note from $750,000 to $1,000,000;
WHEREAS, on March 28, 2023, the Maker and Payee amended and restated the 1st A&R Note (the “2nd A&R Note”) to extend the Maturity Date (as defined below) thereunder from the earlier of (i) March 29, 2023 and (ii) the effective date of a Business Combination (as defined below) to the earlier of (i) September 29, 2023 and (ii) the effective date of a Business Combination; and
WHEREAS, the Maker and Payee desire to amend and restate in its entirety the 2nd A&R Note on the terms and conditions provided in this note (the “Amended and Restated Note”).
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the existence and sufficiency of which is expressly recognized by each of the parties hereto, the parties agree as follows:
FOR VALUE RECEIVED and subject to the terms and conditions set forth herein, the Maker, promises to pay to the order of the Payee, or order, the principal balance as set forth on Schedule A hereto in lawful money of the United States of America; which schedule shall be updated from time to time by the parties hereto to reflect all advances and readvances outstanding under this Amended and Restated Note; provided that at no time shall the aggregate of all advances and readvances outstanding under this Amended and Restated Note exceed ONE MILLION TWO HUNDRED FIFTY THOUSAND Dollars ($1,250,000). Any advance hereunder shall be made by the Payee upon receipt of a written request of the Maker, related to ongoing expenses reasonably related to the business of the Maker and the consummation of the Business Combination (as defined below), and shall be set forth on Schedule A. Any advance hereunder shall only be made by the Payee as, and to the extent, expenses are incurred or are reasonably expected to be incurred and the amounts of such advance shall be used to pay or repay such expenses. All payments on this Amended and Restated Note shall be made by check or wire transfer of immediately available funds or as otherwise determined by the Maker to such account as the Payee may from time to time designate by written notice in accordance with the provisions of this Amended and Restated Note.
1. Principal. All unpaid principal under this Amended and Restated Note shall be due and payable in full on the earlier of (i) March 24, 2024 and (ii) the effective date of a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving the Maker and one or more businesses (the “Business Combination”) (such earlier date, the “Maturity Date”), unless accelerated upon the occurrence of an Event of Default (as defined below). Any outstanding principal amount to date under this Amended and Restated Note may be prepaid at any time by the Maker, at its election and without penalty; provided, however, that Payee shall have a right to first convert such principal balance pursuant to Section 5 below upon notice of such prepayment.
2. Interest. No interest shall accrue on the unpaid balance of this Amended and Restated Note.
3. Application of Payments. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Amended and Restated Note, including (without limitation) reasonable attorney’s fees, then to the payment in full of any late charges and finally to the reduction of the unpaid principal balance of this Amended and Restated Note.
4. Events of Default. The occurrence of any of the following shall constitute an event of default (“Event of Default”):
(a) Failure to Make Required Payments. Failure by the Maker to pay the principal amount due pursuant to this Amended and Restated Note within five (5) business days after the date specified above or issue warrants pursuant to Section 5 hereof, if so elected by the Payee.
(b) Voluntary Bankruptcy, Failure to Consummate a Business Combination; Liquidation of Trust Account, Etc. The commencement by the Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of the Maker generally to pay its debts as such debts become due, or the taking of corporate action by the Maker in furtherance of any of the foregoing, or in the event the Company does not consummate a business combination within the timeframe required by its charter (as may be amended by a shareholder vote) or the Company’s trust account is liquidated.
(c) Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of the Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive days.
5. Conversion
(a) Optional Conversion. At the option of the Payee, at any time on or prior to the Maturity Date, any amounts outstanding under this Amended and Restated Note (or any portion thereof), up to $1,250,000 in the aggregate, may be converted into warrants to purchase shares of Class A common stock of the Maker (“Common Stock”) at a conversion price (the “Conversion Price”) equal to $1.50 per warrant (“Warrants”); provided, that the optional conversion pursuant to this Section 5 shall be reduced (the “Reduction”) so that the aggregate amount to be converted by (i) Payee and (ii) Jefferies US Holdings LLC (“JUSH”) under that certain Third Amended and Restated Note Convertible Promissory Note, dated as of September 27, 2023, between JUSH and the Maker, shall not exceed $1,500,000. If the Reduction occurs, such reduction shall be applied to JUSH and Payee on an equal basis. If the Payee elects such conversion, the terms of such Warrants issued in connection with such conversion shall be identical to the warrants issued to the Payee in the private placement that closed on March 29, 2021 (the “Private Placement Warrants”) in connection with the Maker’s initial public offering that closed on March 29, 2021 (the “IPO”); provided, however, that the Warrants shall not be subject to forfeiture in connection with the Business Combination and that each Warrant shall entitle the holder thereof to purchase one share of Common Stock at a price of $11.50 per share, subject to the same adjustments applicable to the Private Placement Warrants made after the date of issuance of the Private Placement Warrants. Before this Amended and Restated Note may be converted under this Section 5(a), the Payee shall surrender this Amended and Restated Note, duly endorsed, at the office of the Maker and shall state therein the amount of the unpaid principal of this Amended and Restated Note to be converted and the name or names in which the certificates for Warrants are to be issued (or the book-entries to be made to reflect ownership of such Warrants with the Maker’s transfer agent). The conversion shall be deemed to have been made immediately prior to the close of business on the date of the surrender of this Amended and Restated Note and the person or persons entitled to receive the Warrants upon such conversion shall be treated for all purposes as the record holder or holders of such Warrants as of such date. Each such newly issued Warrant shall include a restricted legend that contemplates the same restrictions as the Private Placement Warrants. The Warrants and shares of Common Stock issuable upon exercise of the Warrants shall constitute “Registrable Securities” pursuant to that certain Registration Rights Agreement, dated March 23, 2021, among the Maker, the Payee and certain other security holders named therein.
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(b) Remaining Principal. All accrued and unpaid principal of this Amended and Restated Note that is not then converted into Warrants, shall continue to remain outstanding and to be subject to the conditions of this Amended and Restated Note.
(c) Fractional Warrants; Effect of Conversion. No fractional Warrants shall be issued upon conversion of this Amended and Restated Note. In lieu of any fractional Warrants to the Payee upon conversion of this Amended and Restated Note, the Maker shall pay to the Payee an amount equal to the product obtained by multiplying the Conversion Price by the fraction of a Warrant not issued pursuant to the previous sentence. Upon conversion of this Amended and Restated Note in full and the payment of any amounts specified in this Section 5(c), this Amended and Restated Note shall be cancelled and void without further action of the Maker or the Payee, and the Maker shall be forever released from all its obligations and liabilities under this Amended and Restated Note.
6. Remedies.
(a) Upon the occurrence of an Event of Default specified in Section 4(a) hereof, the Payee may, by written notice to the Maker, declare this Amended and Restated Note to be due immediately and payable, whereupon the unpaid principal amount of this Amended and Restated Note, and all other amounts payable thereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default specified in Sections 4(b) or 4(c), the unpaid principal balance of this Amended and Restated Note, and all other sums payable with regard to this Amended and Restated Note, shall automatically and immediately become due and payable, in all cases without any action on the part of the Payee.
7. Waivers. The Maker and all endorsers and guarantors of, and sureties for, this Amended and Restated Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to the Amended and Restated Note, all errors, defects and imperfections in any proceedings instituted by the Payee under the terms of this Amended and Restated Note, and all benefits that might accrue to the Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and the Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by the Payee.
8. Unconditional Liability. The Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Amended and Restated Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by the Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by the Payee with respect to the payment or other provisions of this Amended and Restated Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to the Maker or affecting the Maker’s liability hereunder.
9. Notices. All notices, statements or other documents that are required or contemplated by this Amended and Restated Note shall be in writing and delivered (i) personally or sent by first class registered or certified mail, overnight courier service to the address designated to TJF, LLC, Attention: Managing Member, 1510 West Loop South, Houston, Texas 77027. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally; one (1) business day after delivery to an overnight courier service; or five (5) days after mailing if sent by first class registered or certified mail.
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10. Construction. THIS AMENDED AND RESTATED NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK.
11. Severability. Any provision contained in this Amended and Restated Note that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
12. Trust Waiver. Notwithstanding anything herein to the contrary, the Payee hereby waives any and all right, title, interest or claim of any kind (“Claim”) in or to any distribution of or from the trust account established in which the proceeds of the IPO conducted by the Maker (including the deferred underwriters discounts and commissions) and certain proceeds of the sale of the Private Placement Warrants were deposited, as described in greater detail in the registration statement and prospectus filed with the U.S. Securities and Exchange Commission in connection with the IPO on March 29, 2021, as amended, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the trust account for any reason whatsoever.
13. Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of the Maker and the Payee.
14. Successors and Assigns. Subject to the restrictions on transfer in Sections 15 and 16 below, the rights and obligations of the Maker and the Payee hereunder shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of any party hereto (by operation of law or otherwise) with the prior written consent of the other party hereto and any attempted assignment without the required consent shall be void.
15. Transfer of this Amended and Restated Note or Securities Issuable on Conversion. With respect to any sale or other disposition of this Amended and Restated Note or securities into which this Amended and Restated Note may be converted, the Payee shall give written notice to the Maker prior thereto, describing briefly the manner thereof, together with (i) except for a Permitted Transfer, in which case the requirements in this clause (i) shall not apply, a written opinion reasonably satisfactory to the Maker in form and substance from counsel reasonably satisfactory to the Maker to the effect that such sale or other distribution may be effected without registration or qualification under any federal or state law then in effect and (ii) a written undertaking executed by the desired transferee reasonably satisfactory to the Maker in form and substance agreeing to be bound by the restrictions on transfer contained herein. Upon receiving such written notice, reasonably satisfactory opinion, or other evidence, and such written acknowledgement, the Maker, as promptly as practicable, shall notify the Payee that the Payee may sell or otherwise dispose of this Amended and Restated Note or such securities, all in accordance with the terms of the Amended and Restated Note delivered to the Maker. If a determination has been made pursuant to this Section 15 that the opinion of counsel for the Payee, or other evidence, or the written acknowledgment from the desired transferee, is not reasonably satisfactory to the Maker, the Maker shall so notify the Payee promptly after such determination has been made. Each Amended and Restated Note thus transferred shall bear a legend as to the applicable restrictions on transferability in order to ensure compliance with the Securities Act, unless in the opinion of counsel for the Maker such legend is not required in order to ensure compliance with the Securities Act. The Maker may issue stop transfer instructions to its transfer agent in connection with such restrictions. Subject to the foregoing, transfers of this Amended and Restated Note shall be registered upon registration on the books maintained for such purpose by or on behalf of the Maker. Prior to presentation of this Amended and Restated Note for registration of transfer, the Maker shall treat the registered holder hereof as the owner and holder of this Amended and Restated Note for the purpose of receiving all payments of principal hereon and for all other purposes whatsoever, whether or not this Amended and Restated Note shall be overdue and the Maker shall not be affected by notice to the contrary. For purposes hereof “Permitted Transfer” shall have the same meaning as any transfer that would be permitted for the Private Placement Warrants under the Letter Agreement, dated March 24, 2021, among the Maker, the Payee and the other parties thereto.
16. Acknowledgment. The Payee is acquiring this Amended and Restated Note for investment for its own account, not as a nominee or agent, and not with a view to, or for resale in connection with, any distribution thereof. The Payee understands that the acquisition of this Amended and Restated Note involves substantial risk. The Payee has experience as an investor in securities of companies and acknowledges that it is able to fend for itself, can bear the economic risk of its investment in this Amended and Restated Note, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of this investment in this Amended and Restated Note and protecting its own interests in connection with this investment.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Maker, intending to be legally bound hereby, has caused this Amended and Restated Note to be duly executed by the undersigned as of the day and year first above written.
| LANDCADIA HOLDINGS IV, INC. | ||
| By: | /s/ Richard H. Liem | |
| Name: | Richard H. Liem | |
| Title: | Vice President | |
Acknowledged and agreed as of the date first above written.
| TJF, LLC | ||
| By: | /s/ Tilman J. Fertitta | |
| Name: | Tilman J. Fertitta | |
| Title: | Sole Managing Member | |
[Signature Page to Amended and Restated Convertible Promissory Note]
SCHEDULE A
Subject to the terms and conditions set forth in the Amended and Restated Note to which this schedule is attached to, the principal balance due under the Amended and Restated Note shall be set forth in the table below and shall be updated from time to time to reflect all advances and readvances outstanding under the Amended and Restated Note.
| Date | Drawing | Description | Principal Undrawn Balance | |||
JQ"(6,P$ "(" / M " :T1 !X;"]W;W)K8F]O:RYX;6Q02P$"% ,4 " #LB3Q7)!Z;HJT M #X 0 &@ @ $-$P >&PO7W)E;',O=V]R:V)O;VLN>&UL M+G)E;'-02P$"% ,4 " #LB3Q799!YDAD! #/ P $P M@ 'R$P 6T-O;G1E;G1?5'EP97-=+GAM;%!+!08 "0 ) #X" \%0 " ! end
9V*>)C<:I5IC(YV)>+4 MUGXFPU\
M?F"E?Y4H?V7WYT=;NU[_7 #,M,2YH=&WM7&USVD@2_DX5_V'.=YNRJP!CG)==FW,5\4O"EM=.
M&=_N?1U) TPB--K1R-C[ZZ^[1Q(C)##D-G&RWE0Y@*29Z>G7I[L'^E,S"T^:
MC?Y4\ !>&?[K&VE"<=+?MZ]P=S^[W?=4\, 2\Q"*?^^,562.V$$W-NQ6SD3"
MKL2