(c) Section 8.1 of the Credit Agreement is hereby amended by (i) deleting “; and” appearing at the end of clause (n) thereof and replacing it with “;”, (ii) deleting “.” at the end of clause (o) thereof and replacing it with “; and”, and (iii) adding a new clause (p) thereof to read as follows:
(p) Indebtedness of the Borrower created or incurred pursuant to the May 2020 Convertible Note Purchase Documents; provided, that, a Lender or an Affiliate of a Lender continues to be the sole holder of the May 2020 Convertible Note.
(d) Section 8.10 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
8.10 Minimum Cash Covenant. The Credit Parties shall not permit unrestricted cash and cash equivalents of the Credit Parties held in one or more Controlled Accounts at any time (a) during the period commencing on the Closing Date and continuing through March 30, 2020 to be less than $5,000,000, (b) during the period commencing on March 31, 2020 and continuing through April 14, 2020 to be less than zero, (c) during the period commencing on April 15, 2020 and continuing through May 5, 2020 to be less than $5,000,000, (d) during the period commencing on May 6, 2020 and continuing through July 31, 2020 to be less than zero, and (e) thereafter to be less than $5,000,000.
2. Conditions Precedent. This Agreement shall be effective upon satisfaction of the following conditions precedent:
(a) receipt by the Collateral Agent of counterparts of this Agreement duly executed by the Credit Parties, the Lenders and the Collateral Agent; and
(b) to the extent requested by the Collateral Agent or the Lenders, receipt by the Collateral Agent and the Lenders of reimbursement for all reasonable and documented out of pocket expenses incurred by the Collateral Agent, any Lender, or any of their respective Affiliates, in each case, in connection with the preparation, execution and delivery of this Agreement, the May 2020 Convertible Note Purchase Documents, and any certificates or other documents prepared in connection herewith or therewith, including the reasonable and documented fees, charges and disbursements of Moore & Van Allen PLLC (it being understood and agreed that the Credit Parties may pay such amounts by wire transfer directly to Moore & Van Allen PLLC).
3. Miscellaneous.
(a) The Credit Agreement and the obligations of the Credit Parties thereunder and under the other Investment Documents, subject to the amendments and agreements set forth in this Agreement, are hereby ratified and confirmed and shall remain in full force and effect according to their terms.
(b) The Credit Parties hereby represent and warrant as follows:
(i) Each Credit Party has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement has been duly executed and delivered by such Credit Party and constitutes such Credit Party’s legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
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