FIFTH AMENDMENT TO RESTRUCTURING SUPPORT AGREEMENT
Exhibit 99.1
FIFTH AMENDMENT TO RESTRUCTURING SUPPORT AGREEMENT
This
FIFTH AMENDMENT TO RESTRUCTURING
SUPPORT AGREEMENT, dated as of July 26, 2019
(this “Amendment”),
is made and entered into by and among: (i) Fusion Connect, Inc.
(“Fusion”) and
its direct and indirect U.S. subsidiaries (each, a
“Company
Party” and collectively, including Fusion, the
“Company
Parties”); and (ii) the undersigned holders of claims
(and together with their respective successors and permitted
assigns, the “Consenting First Lien
Lenders”) under that certain First Lien Credit and
Guaranty Agreement, dated as of May 4, 2018 (the
“Credit
Agreement”), and amends that certain Restructuring
Support Agreement, dated as of June 3, 2019, by and among the
Company Parties and the Consenting First Lien Lenders (as amended,
restated, supplemented or otherwise modified from time to time,
the “Restructuring Support
Agreement”). Capitalized terms used but not otherwise
defined herein have the meanings ascribed to such terms in the
Restructuring Support Agreement.
RECITALS
WHEREAS, Section 9 of the
Restructuring Support Agreement permits certain modifications and
amendments of the Restructuring Support Agreement by written
agreement executed by the Company Parties and the Requisite
First Lien Lenders;
WHEREAS, the parties amended the
Restructuring Support Agreement pursuant to that certain First
Amendment to Restructuring Support Agreement, dated June 17, 2019
(the “First
Amendment”), that certain Second Amendment to
Restructuring Support Agreement, dated June 24, 2019 (the
“Second
Amendment”), that certain Third Amendment to
Restructuring Support Agreement, dated June 28, 2019 (the
“Third
Amendment”), and that certain Fourth Amendment to
Restructuring Support Agreement, dated July 19, 2019 (together with
the First Amendment the Second Amendment, and the Third Amendment
the “Previous
Amendments”); and
WHEREAS, pursuant to Section 9 of the
Restructuring Support Agreement, the parties hereto desire to amend
the Restructuring Support Agreement as set forth in this
Amendment.
NOW, THEREFORE, in consideration of the
covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each party hereto, intending to be legally
bound hereby, agrees as follows:
AGREEMENT
Section
1.
Amendment
to the Restructuring Support Agreement
Subject
to the satisfaction of the conditions precedent specified in
Section 3 hereof, but effective as of the date hereof, Section 5(b)
of the Restructuring Support Agreement shall be amended by adding
the following words immediately after “;” at the end of
clause (xii): “provided, however, that the deadline for
the Company Parties to have completed the filing of any material
applications, petitions or other requests to be filed with any
state Governmental Authority, other than any state Governmental
Authority for the states of California, New York, New Jersey,
Pennsylvania or West Virginia, that are required to obtain the
Governmental Approvals for such state Governmental Authority shall
be 11:59 p.m. prevailing Eastern Time on August 9,
2019;”.
Section
2.
Ratification
Except
as specifically provided for in (a) the Previous Amendments and (b)
this Amendment, no waivers, releases, changes, amendments, or other
modifications have been made on or prior to the date hereof or are
being made to the terms of the Restructuring Support Agreement or
the rights and obligations of the parties thereunder, all of which
such terms are hereby ratified and confirmed and remain in full
force and effect.
Section
3.
Effectiveness
This
Amendment shall become effective and binding on the Parties on the
date counterpart signatures to this Amendment shall have been
executed by (a) the Company Parties, and (b) the Requisite
First Lien Lenders.
Section
4.
Headings
Titles
and headings in this Amendment are inserted solely for the
convenience of reference and are not a part of and are not intended
to govern, limit, or aid in the construction or interpretation of
any term or provision hereof.
Section
5.
Execution
of Amendment
This
Amendment may be executed and delivered (by facsimile, electronic
mail, or otherwise) in any number of counterparts, each of which,
when executed and delivered, shall be deemed an original, and all
of which together shall constitute the same agreement.
Section
6.
Governing
Law; Jurisdiction; Selection of Forum; Waiver of Trial By
Jury
THIS
AMENDMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO
BE PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE CONFLICT
OF LAWS PRINCIPLES THEREOF. Each party hereto agrees that it
shall bring any action or proceeding in respect of any claim
arising out of or related to this Amendment in the Bankruptcy
Court, and solely in connection with claims arising under this
Amendment (a) irrevocably submits to the exclusive jurisdiction of
the Bankruptcy Court, (b) waives any objection to laying venue
in any such action or proceeding in the Bankruptcy Court, and
(c) waives any objection that the Bankruptcy Court are an
inconvenient forum or do not have jurisdiction over any party
hereto. Each party hereto irrevocably waives any and all right to
trial by jury in any legal proceeding arising out of or relating to
this Amendment or the transactions contemplated
hereby.
[Signature pages
follow]
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IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be executed and delivered by their
respective duly authorized officers or other agents, solely in
their respective capacity as officers or other agents of the
undersigned and not in any other capacity, as of the date first set
forth above.
On its
own behalf and on behalf of its direct and indirect domestic
subsidiaries
By: /s/ Xxxxx X.
Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
Chief Financial Officer
[Signature
Page to Amendment to Restructuring Support
Agreement]
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CONSENTING FIRST LIEN LENDER
[LENDER]
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By:
[●]
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Name:
[●]
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Title:
[●]
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Principal Amount of
First Lien Loans: $
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Notice
Address:
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[●]
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Fax:
[●]
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Attention:
[●]
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Email:
[●]
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[Signature
Page to Amendment to Restructuring Support
Agreement]
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