RESTRUCTURING SUPPORT AGREEMENT
Exhibit 10.1
EXECUTION VERSION
This
RESTRUCTURING SUPPORT AGREEMENT (this “Agreement”),
dated as of June 3, 2019, is 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)
each undersigned
First Lien Lender (as defined herein, and, together with their
respective successors and permitted assigns and any subsequent
First Lien Lender that becomes a party hereto in accordance with
the terms hereof, the “Consenting First Lien
Lenders”).
Each
Company Party, each Consenting First Lien Lender, and any
subsequent Person that becomes a party hereto in accordance with
the terms hereof are referred to herein as the “Parties” and
individually as a “Party.”
WHEREAS, the Parties have agreed to the
Restructuring Transactions (as defined herein) consistent with the
terms and subject to the conditions set forth herein, including in
the Term Sheet (as defined herein), which are the product of
arms’-length, good faith discussions between the Parties and
their respective professionals;
WHEREAS, as of the date hereof, the
Consenting First Lien Lenders in the aggregate hold, or act as the
nominee, investment adviser, sub-adviser, or investment manager to
entities that (x) hold, as of the date hereof, in excess of
66 2/3% of the aggregate
outstanding principal amount of the First Lien Loans (as defined
herein) and (y) constitute the Requisite Lenders (as defined in the
Credit Agreement);
WHEREAS, the Parties desire to express
to each other their mutual support and commitment in respect of the
matters discussed in this Agreement and in the Term
Sheet.
NOW, THEREFORE, in consideration of the
premises and the mutual covenants and agreements set forth herein,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties,
intending to be legally bound, agree as follows:
1.
Certain
Definitions.
Capitalized terms
used but not defined in this Agreement shall have the meaning
ascribed to them in the restructuring term sheet attached hereto as
Exhibit A
(together with all schedules, exhibits, and annexes attached
thereto, and as may be modified in accordance with Section 9 hereof,
the “Term
Sheet”).
As used
in this Agreement, the following terms have the following
meanings:
(a) “Administrative
Agent” means Wilmington Trust, National Association,
in its capacity as administrative agent under the Credit Agreement,
and its successors and assigns.
(b) “Alternative
Transaction” means any plan, dissolution, winding up,
liquidation, sale or disposition, reorganization, merger or
restructuring of the Company Parties or their assets other than the
Restructuring Transactions, as set forth in the Term
Sheet.
(c) “Bankruptcy
Code” means title 11 of the United States Code, 11
U.S.C. §§ 101, et
seq., as amended from time to time.
(d) “Bankruptcy
Court” means the United States Bankruptcy Court for
the Southern District of New York having jurisdiction over the
Chapter 11 Cases.
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(e) “Bidding
Procedures” means the procedures governing the auction
and Sale Process in the form attached to the Term Sheet as
Schedule
3.
(f) “Bidding Procedures
Motion” means a motion filed by the Debtors with the
Bankruptcy Court for entry of the Bidding Procedures
Order.
(g) “Bidding Procedures
Order” means an order (i) approving the Bidding
Procedures, (ii) setting dates for the submission of bids and
the auction (if any) in accordance with the Bidding Procedures, and
(iii) granting related relief.
(h) “Claim” has the
meaning set forth in the Bankruptcy Code.
(i) “Commencement
Date” means the date that the Debtors commence the
Chapter 11 Cases.
(j) “Confirmation
Order” means an order of the Bankruptcy Court
confirming the Plan.
(k) “Credit
Agreement” means that certain First Lien Credit and
Guaranty Agreement, dated as of May 4, 2018 (as amended, restated,
amended and restated, supplemented, or otherwise modified from time
to time in accordance with the terms thereof), by and among Fusion,
as the borrower, certain subsidiaries of Fusion, as guarantors, the
Administrative Agent, and the lenders party thereto.
(l) “Definitive
Documents” means the documents (including any related
orders, agreements, instruments, schedules or exhibits) that are
contemplated by the Term Sheet and that are otherwise necessary or
desirable to implement, or otherwise relate to the Restructuring
Transactions, including, without limitation: (i) the Plan;
(ii) the Bidding Procedures; (iii) the Bidding Procedures
Motion; (iv) the Bidding Procedures Order; (v) the
Disclosure Statement; (vi) the Disclosure Statement Motion;
(vii) the Disclosure Statement Order; (viii) the Plan Solicitation
Materials; (ix) the Confirmation Order; (x) the motion seeking
approval by the Bankruptcy Court of the DIP Facility and the DIP
Orders (including any declarations or affidavits submitted in
support thereof) (the “DIP Motion”);
(xi) the interim and final orders of the Bankruptcy Court
approving the DIP Motion (the “Interim DIP
Order” and the “Final DIP
Order,” respectively), (xii) those motions and
proposed orders that the Company Parties file on or after the
Commencement Date and seek to have heard on an expedited basis at
the “First Day Hearing”, including for the avoidance of
doubt, the first day declaration (the “First Day
Pleadings”); (xiii) those motions and proposed court
orders that the Company Parties file and seek to have heard at the
“Second
Day Hearing”, including final orders in respect of
those First Day Pleadings where only interim relief is provided at
the “First Day Hearing” (the “Second Day
Pleadings”); (xiv) all documents or agreements
relating to the Sale Transaction,; (xv) the New Exit Credit
Agreement and material documents related thereto; (xvi) the New
First Lien Term Loan Credit Agreement and material documents
related thereto; (xvii) the Plan Supplement; (xviii) the
organizational documents and all other governing documents and
agreements of the reorganized Company Parties, as applicable,
including any stockholders’ agreement and/or a registration
rights agreement, in each case, with respect to the equity
interests in Reorganized FCI; and (xix) any other material (with
materiality determined in the reasonable discretion of the
Requisite First Lien Lenders’ advisors, in consultation with
the Debtors’ advisors) agreements, motions, pleadings,
briefs, applications, orders, and other filings with the Bankruptcy
Court related to the Restructuring Transactions. Each of the
Definitive Documents shall contain terms and conditions consistent
with this Agreement and the Term Sheet, and shall otherwise be
reasonably acceptable to the Required Parties, including with
respect to any modifications, amendments, or supplements to such
Definitive Documents at any time during the RSA Support Period;
provided, that the
terms of the Plan, the Plan Supplement, the Plan Solicitation
Materials, the Disclosure Statement, the Disclosure Statement
Motion, the Disclosure Statement Order, the Confirmation Order, the
Bidding Procedures, the Bidding Procedures Order, the DIP Credit
Agreement, the DIP Motion, and the DIP Orders shall be acceptable
to the Requisite First Lien Lenders.
(m) “DIP Backstop
Commitment” has the meaning set forth in Section 4(e) of this
Agreement.
(n) “DIP Backstop
Party” has the meaning set forth in Section 4(e) of this
Agreement.
(o) “DIP
Commitment” has the meaning set forth in Section 4(e) of this
Agreement.
(p) “DIP Commitment
Party” has the meaning set forth in Section 4(e) of this
Agreement.
(q) “DIP Credit
Agreement” means the credit agreement evidencing the
DIP Facility.
(r) “DIP Facility”
means the debtor-in-possession term loan facility to be provided to
the Company Parties consistent with the terms set forth in the DIP
Term Sheet and in accordance with the terms, and subject in all
respects to the conditions, as set forth in the DIP Credit
Agreement and pursuant to the terms and conditions of the DIP
Orders.
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(s) “DIP Orders”
means, collectively, the Interim DIP Order and the Final DIP
Order.
(t) “DIP Term
Sheet” means the term sheet setting forth the material
terms of the DIP Facility attached to the Term Sheet as
Schedule
1.
(u) “Disclosure
Statement”
means the disclosure statement in respect of the Plan, including
all exhibits and schedules thereto.
(v) “Disclosure Statement
Motion” means the motion seeking approval of the
Disclosure Statement.
(w) “Disclosure Statement
Order” means
an order of the Bankruptcy Court approving the Disclosure
Statement, the Plan Solicitation Materials, and the solicitation of
the Plan.
(x) “FCC”
means the Federal Communications Commission, including any official
bureau or division thereof acting on delegated authority, and any
successor governmental agency performing functions similar to those
performed by the Federal Communications Commission.
(y) “FCC
Applications” means collectively, each application,
petition, or other request filed with the FCC in connection with
the Restructuring Transactions.
(z) “FCC
Approval” means the FCC’s grant of the FCC
Applications, which grant shall have become a FCC Final Order,
subject to the right of the Requisite First Lien Lenders to waive
the requirement that such grant shall have become a FCC Final
Order.
(aa) “FCC
Final Order” means an FCC action or decision as soon
as (i) the time has passed within which any related petition for
reconsideration or application for review (including any related
requests for stay) must be filed and no such petition or
application has been filed, (ii) if any related initial petition
for reconsideration or application for review has been filed
(including any related requests for stay), the FCC (including
through delegated authority) has made a disposition of such
filing(s) that does not overturn or nullify the original action or
decision, and (iii) the deadline for filing any appeal that may be
designated by statute or rule has passed, and no appeal is pending
or in effect.
(bb) “FCC
Pro Forma Applications” means, collectively, each
application, petition or other request required to be filed with
the FCC as a result of the Company Parties’ commencement of
the Chapter 11 Cases.
(cc) “First
Lien Lender” means any Lender under the Credit
Agreement, each in its capacity as such.
(dd) “First
Lien Loan” means any outstanding loan issued and other
credit extended under the Credit Agreement.
(ee) “Forbearance
Agreement” means that certain forbearance agreement,
dated as of April 15, 2019 (as amended, modified, or otherwise
supplemented from time to time) among Fusion, as borrower, the
other Company Parties as guarantors, and the Forbearing Lenders (as
defined in the Forbearance Agreement).
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(ff) “Governmental
Authority” means any federal, state, local or other
governmental regulatory authority having jurisdiction over the
Company Parties, including, without limitation, state public
service and public utility commissions.
(gg) “Governmental
Approval” means the approval of any Governmental
Authority having jurisdiction over the Company Parties required in
connection with the Restructuring Transactions.
(hh) “Individual
Support Period” means, as to a Consenting First Lien
Lender, the period commencing on the later of (x) Support Effective
Date and (y) the date upon which such Consenting First Lien Lender
became a Party to this Agreement, and ending on the earlier of (i)
the date on which this Agreement is terminated in accordance with
Section 5, (ii) the
date on which this Agreement is terminated with respect to such
Consenting First Lien Lender in accordance with Section 5, (iii) the date on
which such Consenting First Lien Lender becomes a Non-Consenting
First Lien Lender (as defined herein) in accordance with Section 9,
and (iv) the Plan Effective Date.
(ii) “New
First Lien Term Loan Term Sheet” means the term sheet
setting forth the material terms of the New First Lien Term Loan
attached to the Term Sheet as Schedule
2.
(jj) “Outside
Commencement Date” means June 3,
2019.
(kk) “Person”
means any “person” as defined in section 101(41) of the
Bankruptcy Code, including, without limitation, any individual,
corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof or other entity.
(ll) “Plan”
means a chapter 11 plan of reorganization implementing the
Restructuring Transactions.
(mm) “Plan
Effective Date” means the date upon which all
conditions precedent to the effectiveness of the Plan have been
satisfied or are expressly waived in accordance with the terms
thereof, as the case may be.
(nn) “Plan
Solicitation Materials” means the ballots and other
related materials to be distributed in connection with the
solicitation of acceptances of the Plan.
(oo) “Plan
Supplement” means the supplement to the Plan comprised
of documents, forms of documents, schedules, and/or exhibits to be
filed by the Company Parties with the Bankruptcy
Court.
(pp) “Required
Parties” means each of (i) Fusion and
(ii) the Requisite First Lien Lenders.
(qq) “Requisite
DIP Commitment Parties” means, as of the date of
determination, DIP Commitment Parties holding at least a majority
in aggregate principal amount of the DIP Commitments held by the
DIP Commitment Parties as of such date.
(rr) “Requisite
First Lien Lenders” means, as of the date of
determination, Consenting First Lien Lenders holding at least a
majority in aggregate principal amount outstanding of the First
Lien Loans held by the Consenting First Lien Lenders as of such
date.
(ss) “Restructuring
Transactions” means all acts, events, and transactions
contemplated by, required for, and taken to implement the
Restructuring pursuant to the Definitive Documents, and this
Agreement, each in the singular and collectively, as
applicable.
(tt) “RSA
Support Period” means the period commencing on the
Support Effective Date and ending on the earlier of (i) the date on
which this Agreement is terminated in accordance with Section 5 and (ii) the Plan
Effective Date.
(uu) “SEC”
means the Securities and Exchange Commission.
(vv) “Securities
Act” means the Securities Act of 1933, as
amended.
(ww) “Support
Effective Date” means the date on which the
counterpart signature pages to this Agreement have been executed
and delivered by the Company Parties and Consenting First Lien
Lenders (i) holding at least 66 2/3% in aggregate
principal amount outstanding of the First Lien Loans and
(ii) representing the Requisite First Lien
Lenders.
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2.
Term
Sheet.
The
Term Sheet is expressly incorporated herein by reference and made
part of this Agreement as if fully set forth herein. The Term
Sheet, including the schedules, annexes and exhibits thereto, sets
forth certain material terms and conditions of the Restructuring
Transactions. Notwithstanding anything else in this Agreement to
the contrary, in the event of any inconsistency between this
Agreement and the Term Sheet (including the attachments thereto, as
applicable), the Term Sheet (including the attachments thereto, as
applicable) shall control.
3.
Agreements
of the Consenting First Lien Lenders.
(a) Agreement to Support. During
the Individual Support Period with respect to such Consenting First
Lien Lender, subject to the terms and conditions hereof, each of
the Consenting First Lien Lenders agrees, severally and not
jointly, that it shall:
(i) use its
commercially reasonable efforts to support the Restructuring and
the Restructuring Transactions, to act in good faith and to take
any and all reasonable actions necessary to consummate the
Restructuring and the Restructuring Transactions, in a manner
consistent with this Agreement;
(ii) not
direct the Administrative Agent to take any action inconsistent
with the Consenting First Lien Lenders’ obligations under
this Agreement, and, if the Administrative Agent takes any action
inconsistent with the Consenting First Lien Lenders’
obligations under this Agreement, the Consenting First Lien Lenders
shall direct and use their commercially reasonable efforts to cause
the Administrative Agent to cease, withdraw, and refrain from
taking any such action;
(iii) timely
vote (pursuant to the Plan) or cause to be voted all of its Claims
(including on account of any claims other than those relating to
the Credit Agreement, owned or controlled by such Consenting First
Lien Lender) to accept the Plan by delivering its duly executed and
completed ballot or ballots, as applicable, accepting the Plan on a
timely basis following commencement of the solicitation of
acceptances of the Plan in accordance with sections 1125 and 1126
of the Bankruptcy Code;
(iv) negotiate
in good faith with the Company Parties the forms of the Definitive
Documents and, subject to the consent thresholds specified herein,
execute the Definitive Documents (to the extent such Consenting
First Lien Lender is a party thereto);
(v) not change or
withdraw its votes to accept the Plan (or cause or direct such vote
to be changed or withdrawn); provided, however, that such vote shall,
without any further action by the applicable Consenting First Lien
Lender, be deemed automatically revoked (and, upon such revocation,
deemed void ab initio) by
the applicable Consenting First Lien Lender at any time following
the expiration of the Individual Support Period with respect to
such Consenting First Lien Lender;
(vi) other
than in respect of any such rights preserved under Section 3(d) below, not
directly or indirectly, through any Person, take any action,
including initiating (or encouraging any other Person to initiate)
any legal proceeding, that is inconsistent with or that would
reasonably be expected to prevent, interfere with, delay, or impede
the consummation of the Restructuring or Restructuring
Transactions, including the approval of the DIP Motion, the entry
of the DIP Orders, the approval of the Bidding Procedures Motion,
the entry of the Bidding Procedures Order, the approval of the
Disclosure Statement, or the solicitation of votes on, and
confirmation of, the Plan;
(vii) to
the extent any legal or structural impediment arises that would
prevent, hinder, or delay the consummation of the Restructuring
Transactions, negotiate in good faith appropriate additional or
alternative provisions to address any such impediment;
(viii) use
its commercially reasonable efforts to obtain any and all required
regulatory and third-party approvals for such Consenting First Lien
Lender to consummate the Restructuring Transactions and to support
the Company Parties in connection with the same;
(ix) support
and take all reasonable actions necessary or reasonably requested
by the Company Parties to confirm such Consenting First Lien
Lender’s support for the Bankruptcy Court’s approval of
the Plan and Disclosure Statement, the solicitation of votes on the
Plan by the Company Parties, and the confirmation and consummation
of the Plan and the Restructuring Transactions; and
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(x) prior to the
Commencement Date, (A) agree not, and not request or direct the
Administrative Agent to, (x) accelerate all of the First Lien Loans
and the Obligations (as defined in the Credit Agreement) related
thereto or (y) exercise any other rights or remedies available to
the Administrative Agent or to such Consenting First Lien Lender
pursuant to Section 8.1 of the Credit Agreement or Section 5.01 of
the Pledge and Security Agreement (as defined in the Credit
Agreement) forbear and (B) direct the Administrative Agent to
abstain from taking any of the actions described in clause
(A) above.
(b) Transfers.
(i) Each Consenting
First Lien Lender agrees that, for the duration of the Individual
Support Period, with respect to such Consenting First Lien Lender,
it shall not sell, transfer, loan, issue, participate, pledge,
hypothecate, assign or otherwise dispose of (other than ordinary
course pledges or swaps) (each, a “Transfer”),
directly or indirectly, in whole or in part, any of its Claims,
including any beneficial ownership in any such Claims,1 or any option
thereon or any right or interest therein, unless the transferee
thereof either (A) is a Consenting First Lien Lender (with
respect to a Transfer by a Consenting First Lien Lender) or
(B) prior to such Transfer, agrees in writing for the benefit
of the Parties to become a Consenting First Lien Lender and to be
bound by all of the terms of this Agreement applicable to
Consenting First Lien Lenders (including with respect to any and
all Claims it already may hold against or in the Company Parties
prior to such Transfer) by executing a joinder agreement, a form of
which is attached hereto as Exhibit B
(a “Joinder
Agreement”), which shall include making the
representations and warranties of the Consenting First Lien Lenders
set forth in Section
7 of this Agreement to each other Party to this Agreement,
and delivering an executed copy thereof within two (2) business
days of such execution, to (1) Weil, Gotshal and Xxxxxx LLP
(“Weil”), as
counsel to the Company Parties and (2) Xxxxx Xxxx &
Xxxxxxxx LLP (“Xxxxx Xxxx”),
as counsel to the Ad Hoc First Lien Lender Group, in which event
(x) the transferee shall be deemed to be a Consenting First
Lien Lender hereunder to the extent of such Transferred Claims and
(y) the transferor shall be deemed to relinquish its rights
(and be released from its obligations) under this Agreement to the
extent of and solely with respect to such transferred Claims (but
not with respect to any other Claims or equity interests acquired
or held by such transferor) (such Transfer,
a “Permitted
Transfer” and such party to such Permitted Transfer,
a “Permitted
Transferee”). Each Consenting First Lien Lender agrees
that any Transfer of any Claim that does not comply with the terms
and procedures set forth herein shall be deemed void ab initio, and the Company Parties and
each other Consenting First Lien Lender shall have the right to
enforce the voiding of such Transfer.
(ii) Notwithstanding
anything to the contrary herein, (A) a Qualified
Marketmaker2 that acquires any Claims subject to this
Agreement held by a Consenting First Lien Lender with the purpose
and intent of acting as a Qualified Marketmaker for such Claims,
shall not be required to become a party to this Agreement as a
Consenting First Lien Lender, if such Qualified Marketmaker
Transfers such Claims (by purchase, sale, assignment, or other
similar means) within the earlier of ten (10) business days of its
acquisition and the plan voting deadline to a Permitted Transferee
and the Transfer otherwise is a Permitted Transfer; provided, that a Qualified
Marketmaker’s failure to comply with this Section 3(b) shall result in
the Transfer of such Claims to such Qualified Marketmaker being
deemed void ab initio, and (B) to the extent any Party is
acting solely in its capacity as a Qualified Marketmaker, it may
Transfer any ownership interests in the Claims that it acquires
from a holder of Claims that is not a Consenting First Lien Lender
to a transferee that is not a Consenting First Lien Lender at the
time of such Transfer without the requirement that the transferee
be or become a signatory to this Agreement or execute a Joinder
Agreement.
(iii) This
Section 3(b) shall
not impose any obligation on the Company Parties to issue any
“cleansing letter” or otherwise publicly disclose
information for the purpose of enabling a Consenting First Lien
Lender to Transfer any Claims. Notwithstanding anything to the
contrary herein, to the extent the Company Parties and another
Party have entered into a separate agreement with respect to the
issuance of a “cleansing letter” or other public
disclosure of information, the terms of such confidentiality
agreement shall continue to apply and remain in full force and
effect according to its terms.
(c) Additional Claims. This
Agreement shall in no way be construed to preclude a Consenting
First Lien Lenders from acquiring additional Claims; provided that, to the extent
any Consenting First Lien Lender (i) acquires additional
Claims, (ii) holds or acquires any other claims against the
Company Parties entitled to vote on the Plan or (iii) holds or
acquires any equity interests in the Company Parties entitled to
vote on the Plan, then, in each case, each such Consenting First
Lien Lender shall promptly notify Weil and Xxxxx Xxxx, and each
such Consenting First Lien Lender agrees that all such Claims
and/or equity interests shall be subject to this Agreement, and
agrees that, for the duration of the Individual Support Period with
respect to such Consenting First Lien Lender and subject to the
terms of this Agreement, it shall vote in favor of the Plan (or
cause to be voted) any such additional Claims and/or equity
interests entitled to vote on the Plan (to the extent still held by
it on or on its behalf at the time of such vote), in a manner
consistent with Section 3(a) hereof. For
the avoidance of doubt, any obligation to vote for the Plan or any
other plan of reorganization shall be subject to sections 1125
and 1126 of the Bankruptcy Code.
(d) Preservation of Rights.
Notwithstanding the foregoing, nothing in this Agreement, and
neither a vote to accept the Plan by any Consenting First Lien
Lender, nor the acceptance of the Plan by any Consenting First Lien
Lender, shall: (i) be construed to limit consent and approval
rights provided in this Agreement, the Term Sheet, and the
Definitive Documents; (ii) be construed to prohibit any
Consenting First Lien Lender from contesting whether any matter,
fact, or thing is a breach of, or is inconsistent with, this
Agreement; (iii) limit the rights of any Consenting First Lien
Lender under any applicable bankruptcy, insolvency, foreclosure or
similar proceeding, or be construed to prohibit any Consenting
First Lien Lender from appearing as a party-in-interest in any
matter to be adjudicated in or arising in connection with the
Chapter 11 Cases, so long as such appearance and the positions
advocated in connection therewith are not inconsistent with this
Agreement or such Consenting First Lien Lenders’ obligations
hereunder; (iv) limit the ability of any Consenting First Lien
Lender to purchase, sell, or enter into any transaction in
connection with its Claims, in compliance with the terms hereof and
applicable law; (v) constitute a waiver or amendment of any
provision of the Credit Agreement, the Collateral Documents (as
defined in the Credit Agreement) or any related documents or any
other documents or agreements that give rise to a Consenting First
Lien Lender’s Claims; (vi) bar any Consenting First Lien
Lender or the Administrative Agent on behalf of the Consenting
First Lien Lenders from filing a proof of claim with the Bankruptcy
Court, or taking action to establish the amount of such claim; or
(vii) limit the ability of any Consenting First Lien Lender to
assert any rights, claims, or defenses under the Credit Agreement,
the Collateral Documents (as defined in the Credit Agreement), and
any related documents or any other documents or agreements that
give rise to a Consenting First Lien Lender’s Claims, to the
extent the assertion of such rights, claims, or defenses are not
inconsistent with this Agreement or such Consenting First Lien
Lenders’ obligations hereunder.
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(e) Subject to
Section 5 of this
Agreement, each Consenting First Lien Lender party hereto as of the
date of this Agreement that is set forth on Schedule 1 hereto (such
Consenting First Lien Lender, a “DIP Backstop
Party”) commits, severally and not jointly, to provide
its share of the DIP Facility as set forth on Schedule 1 hereto on the
terms and conditions substantially as set forth in the DIP Term
Sheet and otherwise subject to relevant Definitive Documents (such
commitment, the “DIP Backstop
Commitment”), provided, that any Consenting
First Lien Lender that executes a Joinder to this Agreement by June
10, 2019 (the “DIP Election
Date”) may, by making the appropriate election on such
Joinder, commit, severally and not jointly, to provide a share of
the DIP Facility in an amount not greater than the pro rata
percentage of First Lien Loans held by such Consenting First Lien
Lender as of June 3, 2019 (such date, the “DIP Commitment Record
Date” and such commitment, a “DIP
Commitment”), and otherwise on the terms and
conditions agreed to by the DIP Backstop Parties in the DIP Term
Sheet and the DIP Credit Agreement, as applicable (any Consenting
First Lien Lender that elects to make such commitment, together
with any DIP Backstop Party, a “DIP Commitment
Party”). Not less than one (1) calendar day after the
DIP Election Date, each DIP Backstop Party’s DIP Backstop
Commitment shall be automatically reduced, pro rata, by the amount
of such additional commitments of the Consenting First Lien
Lenders, to reflect the share of the DIP Facility to be provided by
all DIP Commitment Parties and this Agreement and Schedule 1 hereto shall
automatically be deemed amended to reflect such reduction;
provided, further, that upon a termination
of this Agreement in accordance with the provisions hereof prior to
the funding of the DIP Facility, all DIP Backstop Commitments and
DIP Commitments shall terminate. The amount of a DIP Commitment
Party Party’s share of the DIP Facility shall be reduced, on
a dollar-for-dollar basis, by the amount of Super Senior Loans held
by such DIP Commitment Party on the DIP Commitment Record
Date.
4.
Agreements
of the Company Parties.
(a) Covenants. Each Company Party
agrees that, for the duration of the RSA Support Period, such
Company Party shall:
(i) (A) support
and use commercially reasonable efforts to consummate and complete
the Restructuring Transactions, and all transactions contemplated
under this Agreement (including, without limitation, those
described in the Term Sheet, and, once filed, the Plan) including,
without limitation, (1) take any and all reasonably necessary
actions in furtherance of the Restructuring Transactions, and the
transactions contemplated under this Agreement, including, without
limitation, as set forth in the Term Sheet (including with respect
to an exit facility), and, once filed, the Plan, (2) commence
the Chapter 11 Cases on or before the Outside Commencement Date and
complete and file, within the timeframes contemplated herein, the
Plan, the Disclosure Statement, and the other Definitive Documents,
(3) use commercially reasonable efforts to obtain orders of
the Bankruptcy Court approving the DIP Credit Agreement, the
Bidding Procedures Motion, and the Disclosure Statement and
confirming the Plan within the timeframes contemplated by this
Agreement; and (4) prosecute and defend any objections or
appeals relating to the DIP Orders, the Disclosure Statement Order,
the Confirmation Order, and/or the Restructuring Transactions; and
(B) not take any action that is inconsistent with, or to
alter, delay, impede, or interfere with, approval of the DIP
Orders, the Bidding Procedures Order, or the Disclosure Statement,
confirmation of the Plan, or consummation of the Plan and the
Restructuring Transactions, in the case of each of clauses (A) and
(B) to the extent consistent with, upon the advice of counsel, the
fiduciary duties of the boards of directors of the
Company;
(ii) if
the Company Parties receive an unsolicited bona fide proposal or
expression of interest in undertaking an Alternative Transaction
that the boards of directors, members, or managers (as applicable)
of the Company Parties, determine in their good-faith judgment
provides a higher or better economic recovery to the Company
Parties’ stakeholders than that set forth in this Agreement
and such Alternative Transaction is from a proponent that the
boards of directors, members, or managers (as applicable) of the
Company Parties have reasonably determined is capable of timely
consummating such Alternative Transaction, the Company Parties
will, within 24 hours of the receipt of such proposal or expression
of interest, notify Xxxxx Xxxx and Xxxxxxxxx (as defined herein) of
the receipt thereof, with such notice to include the material terms
thereof, including the identity of the Person or group of Persons
involved;
(iii) provide
draft copies of all material motions or applications and other
documents (including the Plan, the Disclosure Statement, the
ballots and other solicitation materials in respect of the Plan,
and the Confirmation Order) the Debtors intend to file with the
Bankruptcy Court to Xxxxx Xxxx, if reasonably practical, at least
three (3) business days prior to the date when the Company Parties
intend to file any such pleading or other document (provided that
if delivery of such motions, orders or materials (other than the
Plan, the Disclosure Statement, the Confirmation Order or the DIP
Orders) at least three (3) business days in advance is not
reasonably practicable, such motion, order or material shall be
delivered as soon as reasonably practicable prior to filing) and
shall consult in good faith with such counsel regarding the form
and substance of any such proposed filing with the Bankruptcy
Court;
(iv) file
the First Day Pleadings reasonably determined by the Debtors, in
form and substance reasonably acceptable to the Requisite First
Lien Lenders, to be necessary, and to seek interim and final (to
the extent necessary) orders, in form and substance reasonably
acceptable to the Debtors and the Requisite First Lien Lenders,
from the Bankruptcy Court approving the relief requested in the
First Day Pleadings;
(v) not seek to amend
or modify, or file a pleading seeking authority to amend or modify,
the Definitive Documents in a manner that is inconsistent with this
Agreement;
(vi) not
file or seek authority to file any pleading inconsistent with the
Restructuring Transactions or the terms of this Agreement;
provided, that if a
Company Party receives written notice from any Consenting First
Lender regarding a breach of this Section 4(a)(vi), the Company
Parties shall have two (2) business days after the receipt of such
written notice to cure such breach;
7
(vii) not,
nor encourage any other person or entity to, take any action which
would, or would reasonably be expected to, breach or be
inconsistent with this Agreement or delay, impede, appeal, or take
any other negative action, directly or indirectly, to interfere
with the acceptance, confirmation, or consummation of the Plan or
implementation of the Restructuring Transactions;
(viii) (x)
not file or support any motion, application, or adversary
proceeding and (y) timely object to any motion, application, or
adversary proceeding filed with the Bankruptcy Court or any other
court of competent jurisdiction by any Person seeking the entry of
an order (i) directing the appointment of a trustee with authority
to operate the Company’s business in the Chapter 11 Cases,
(ii) converting the Chapter 11 Cases to cases under chapter 7 of
the Bankruptcy Code, (iii) dismissing the Chapter 11 Cases or (iv)
for relief that (x) is inconsistent with this Agreement in any
material respect or (y) would, or would reasonably be expected to,
frustrate the purposes of this Agreement, including by preventing
the consummation of the Restructuring Transactions.
(ix) seek
entry of the DIP Orders and, if necessary, timely file a formal
written response in opposition to any objection filed with the
Bankruptcy Court by any person or entity with respect to entry of
the DIP Orders or with respect to any adequate protection proposed
to be granted or granted to the Consenting First Lien Lenders
pursuant to the DIP Orders;
(x) timely (A) file a
motion to extend the period for the Debtors’ exclusive right
to file and/or solicit acceptances of a plan of reorganization, and
(B) file a formal written objection to any motion filed with
the Bankruptcy Court by any Person seeking the entry of an order
modifying or terminating the Debtors’ exclusive right to file
and/or solicit acceptances of a plan of
reorganization;
(xi) subject
to appropriate confidentiality arrangements, provide to the
Consenting First Lien Lenders’ professionals, upon reasonable
advance notice to the Company Parties: (A) reasonable access
(without any material disruption to the conduct of the Company
Parties; business) during normal business hours to the Company
Parties’ books, records, and facilities; (B) reasonable
access to the respective management and advisors of the Company
Parties for the purposes of evaluating the Company Parties’
finances and operations and participating in the planning process
with respect to the Restructuring Transactions; (C) prompt
access to any information provided to any existing or prospective
financing sources (including lenders under any debtor-in-possession
and/or exit financing); and (D) prompt and reasonable
responses to all reasonable diligence requests;
(xii) promptly
pay all prepetition and postpetition reasonable and documented fees
and expenses of (A) Xxxxx Xxxx, (B) Xxxxxxxxx & Co., LLC
(“Xxxxxxxxx”),
(C) Xxxxxx Vilandrie & Company and its sub-agents
(“Xxxxxx
Vilandrie”), (D) one firm acting as local counsel for
the Ad Hoc First Lien Lender Group, if any, (E) Xxxxx Xxxx LLP, and
(F) any other advisors retained by the Ad Hoc First Lien Lender
Group, in each case of clauses (A)-(F), in accordance with the
terms of their respective engagement letters with the Company, if
any (collectively, the “Restructuring
Expenses”); and unless otherwise agreed by the Company
Parties and the applicable firm, the Company Parties shall (i) on
the date that is at least one (1) business day prior to the
Commencement Date, pay (x) all Restructuring Expenses accrued but
unpaid as of such date (to the extent invoiced), whether or not
such Restructuring Expenses are then due, outstanding, or otherwise
payable in connection with this matter and (y) fund or
replenish, as the case may be, any retainers reasonably requested
by any of the foregoing professionals, in each case in accordance
with the terms of their respective engagement letters with the
Company Parties; (ii) after the Commencement Date, pay all accrued
but unpaid Restructuring Expenses on a regular and continuing basis
and (iii) on the Plan Effective Date, so long as this Agreement has
not been terminated as to all Parties, pay all accrued and unpaid
Restructuring Expenses incurred up to (and including) the Plan
Effective Date by Parties still subject to this Agreement
(provided, for the avoidance of doubt, that such Restructuring
Expenses have not been satisfied during the Chapter 11 Cases
pursuant to the DIP Orders), without any requirement for Bankruptcy
Court review or further Bankruptcy Court order; provided that, notwithstanding
the foregoing, nothing herein shall affect or limit any obligations
of the Company Parties to pay the Restructuring Expenses as
provided in the DIP Orders;
(xiii) to
the extent any legal or structural impediment arises that would
prevent, hinder, or delay the consummation of the Restructuring
Transactions, negotiate in good faith appropriate additional or
alternative provisions to address any such impediment;
(xiv) subject
to applicable laws, use commercially reasonable efforts to,
consistent with the pursuit and consummation of the Restructuring
Transactions, preserve intact in all material respects the current
business operations of the Company Parties (other than as
consistent with applicable fiduciary duties), keep available the
services of its current officers and material employees (in each
case, other than as contemplated by the Company Parties’
current business plan provided to the Consenting First Lien
Lenders, voluntary resignations, terminations for cause, or
terminations consistent with applicable fiduciary duties) and
preserve in all material respects its relationships with customers,
sales representatives, suppliers, distributors, and others, in each
case, having material business dealings with the Company Parties
(other than terminations for cause or consistent with applicable
fiduciary duties); and
8
(xv) provide
prompt written notice (in accordance with Section 19 hereof) to the
Consenting First Lien Lenders and Xxxxx Xxxx between the date
hereof and the Plan Effective Date of (A) the occurrence, or
failure to occur, of any event of which any of the Company Parties
has actual knowledge which occurrence or failure would be likely to
cause any covenant of the Company Parties contained in this
Agreement not to be satisfied in any material respect; (B) receipt
of any written notice from any third party alleging that the
consent of such party is or may be required in connection with the
Restructuring Transactions; (C) receipt of any notice or
correspondence (whether written or oral) from any counterparty to a
contract or license that is material to the operation of the
business of the Company Parties; (D) receipt of any written notice
from any governmental body in connection with this Agreement or the
Restructuring Transactions; (E) receipt of any written notice
of any proceeding commenced, or, to the actual knowledge of the
Company Parties, threatened against the Company Parties, relating
to or involving or otherwise affecting in any material respect the
Restructuring Transactions; and (F) any failure of any Company
Party to comply, in any material respect, with or satisfy any
covenant, condition, or agreement to be complied with or satisfied
by it hereunder; and
(xvi) use
its commercially reasonable efforts to promptly obtain the FCC
Approval, any and all required Governmental Approvals, any and all
approvals of any foreign regulatory bodies, and any and all
third-party approvals for the Restructuring Transactions embodied
in the Definitive Documents, including the Plan, within the
timeframes contemplated by this Agreement, as
applicable.
(b) Automatic Stay. Each Company
Party acknowledges, agrees, and shall not dispute that after the
commencement of the Chapter 11 Cases, the giving of notice of
termination by any Party pursuant to this Agreement shall not be a
violation of the automatic stay of section 362 of the Bankruptcy
Code (and the Company hereby waives, to the extent legally
possible, the applicability of the automatic stay to the giving of
such notice); provided that nothing herein
shall prejudice any Party’s rights to argue that the giving
of notice of default or termination was not proper under the terms
of this Agreement.
5.
Termination
of Agreement.
(a) This Agreement
shall terminate upon the receipt of written notice to the other
Parties, delivered in accordance with Section 19 hereof, from, as
applicable, (x) the Requisite First Lien Lenders at any time after
and during the continuance of any Lender Termination Event or (y)
Company Parties at any time after and during the continuance of any
Company Termination Event, as applicable. Notwithstanding any
provision to the contrary in this Section 5, no Party may
exercise any of its respective termination rights as set forth
herein if such Party has failed to perform or comply in all
material respects with the terms and conditions of this Agreement
(unless such failure to perform or comply arises as a result of
another Party’s actions or inactions), with such failure to
perform or comply causing, or resulting in, the occurrence of a
Lender Termination Event (as defined below) or Company Termination
Event specified herein. This Agreement shall terminate on the Plan
Effective Date without any further required action or
notice.
(b) A
“Lender
Termination Event” shall mean any of the
following:
(i) the breach by any
Company Party of (a) any covenant contained in this Agreement
or (b) any other obligations of the Company Parties set forth in
this Agreement, and, in each case, such breach remains uncured for
a period of five (5) business days after receipt of written notice
thereof pursuant to Section 19 hereof (as
applicable);
(ii) any
representation or warranty in this Agreement made by a Company
Party shall have been untrue in any material respect when made or
shall have become untrue in any material respect;
(iii) the
Definitive Documents and any amendments, modifications, or
supplements thereto filed by the Company include terms that are
inconsistent with the Term Sheet and are not otherwise reasonably
acceptable to the Requisite First Lien Lenders, and such event
remains unremedied for a period of three (3) business days
following the Company Parties’ receipt of notice pursuant to
Section 19
hereto (as applicable);
(iv) a
Definitive Document alters the treatment of the First Lien Lenders
specified in the Term Sheet without complying with Section 9 hereof and the
Requisite First Lien Lenders have not otherwise consented to such
Definitive Document;
(v) the issuance by any
governmental authority, including any regulatory authority or court
of competent jurisdiction, of any ruling, judgment or order
declaring this Agreement to be unenforceable, enjoining the
consummation of a material portion of the Restructuring
Transactions or rendering illegal this Agreement, the Plan or the
Restructuring Transactions, and either (A) such ruling,
judgment or order has been issued at the request of or with the
acquiescence of a Company Party, or (B) in all other
circumstances, such ruling, judgment or order has not been not
stayed, reversed or vacated within fifteen (15) calendar days after
such issuance;
9
(vi) the
Support Effective Date shall not have occurred on or before the
Commencement Date;
(vii) the
Commencement Date shall not have occurred on or before the Outside
Commencement Date;
(viii) if
the Debtors fail to meet any milestone or deadline set forth in the
Bidding Procedures;
(ix) if,
as of 11:59 p.m. prevailing Eastern Time on the date that is one
(1) calendar day from the Commencement Date, the Debtors have not
filed the Bidding Procedures Motion;
(x) if, as of 11:59
p.m. prevailing Eastern Time on the date that is five (5) calendar
days from the Commencement Date, the Interim DIP Order has not been
entered by the Bankruptcy Court;
(xi) if,
as of 11:59 p.m. prevailing Eastern Time on the date that is five
(5) business days after the Commencement Date, the Company Parties
have not completed the filing of the FCC Pro Forma Applications,
and any material applications, petitions or other requests to be
filed with any other Governmental Authority as a result of the
commencement of the Chapter 11 Cases;
(xii) if,
as of 11:59 p.m. prevailing Eastern Time on the date that is
fourteen (14) calendar days from the Commencement Date, the Company
Parties have not completed the filing of (x) the FCC Applications,
(y) any material applications, petitions or other requests to be
filed with any other Governmental Authority that are required to
obtain the Governmental Approvals and (z) any other material
applications, petitions or other requests to be filed with any
foreign regulatory agencies in order to obtain their approvals or
otherwise that are necessary to effectuate the Restructuring
Transactions;
(xiii) if,
as of 11:59 p.m. prevailing Eastern Time on the date that is
twenty-one (21) calendar days from the Commencement Date, the
Debtors have not filed the Disclosure Statement Motion, the
Disclosure Statement, and the Plan;
(xiv) if,
as of 11:59 p.m. prevailing Eastern Time on the date that is
twenty-one (21) calendar days following the filing of the Bidding
Procedures Motion, the Bidding Procedures Order has not been
entered by the Bankruptcy Court;
(xv) if,
as of 11:59 p.m. prevailing Eastern Time on the date that is thirty
(30) calendar days from the Commencement Date, the Debtors have not
commenced solicitation of non-binding indications of interest
(“Exit
Financing IOIs”) to provide the New Exit Loans in a
manner reasonably satisfactory to Xxxxxxxxx;
(xvi) if,
as of 11:59 p.m. prevailing Eastern Time on the date that is
thirty-five (35) calendar days from the Commencement Date, the
Final DIP Order has not been entered by the Bankruptcy
Court;
(xvii) if,
as of 11:59 p.m. prevailing Eastern Time on the date that is sixty
(60) calendar days from the Commencement Date, the Bankruptcy Court
has not entered the Disclosure Statement Order;
(xviii) if,
as of 11:59 p.m. prevailing Eastern Time on the date that is fifty
(50) calendar days from the Commencement Date, the deadline set by
the Debtors to receive Exit Financing IOIs shall not have
passed;
(xix) if,
as of 11:59 p.m. prevailing Eastern Time on the date that is ninety
five (95) calendar days from the Commencement Date, the Debtors
have not received at least one, irrevocable and binding commitment
letter for the New Exit Credit Agreement acceptable to the
Requisite First Lien Lenders;
10
(xx) if,
as of 11:59 p.m. prevailing Eastern Time on the date that is
one-hundred and twenty (120) calendar days from the Commencement
Date, the Bankruptcy Court has not entered the Confirmation
Order;
(xxi) if,
as of the earlier of 11:59 p.m. prevailing Eastern Time on the date
that is twenty (20) calendar days following entry of the
Confirmation Order, the Plan Effective Date has not occurred;
provided, that this
date shall be extended to thirty-five (35) calendar days following
entry of the Confirmation Order if all other conditions to the Plan
have been satisfied or waived in accordance with the terms thereof
other than a condition that the Debtors shall have obtained FCC
Approval, any and all other required Governmental Approvals, any
and all approvals of any foreign regulatory bodies;
(xxii) the
Bankruptcy Court enters an order that is not stayed
(A) directing the appointment of a trustee with authority to
operate the Company’s business in the Chapter 11 Cases,
(B) converting the Chapter 11 Cases to cases under
chapter 7 of the Bankruptcy Code, (C) dismissing the
Chapter 11 Cases, (D) denying confirmation of the Plan, the
effect of which would render the Plan incapable of consummation on
the terms set forth herein or (E) granting relief that is
inconsistent with, or denies relief sought that is contemplated by
this Agreement or the Plan in any materially adverse respect to the
Consenting First Lien Lenders, in each case;
(xxiii) the
Confirmation Order is reversed or vacated;
(xxiv) if
either (A) any Company Party (or any person or entity on
behalf of any Company Party or its bankruptcy estate with proper
standing) files a motion, application or adversary proceeding (or
supports or fails to timely object to such a filing) (1)
challenging the validity, enforceability, perfection or priority
of, or seeking invalidation, avoidance, disallowance,
recharacterization or subordination of any of the obligations or
Claims under the Credit Agreement or (2) asserting any other cause
of action against and/or with respect or relating to all or any
portion of the First Lien Loans or the liens securing the First
Lien Loans or (B) the Bankruptcy Court (or any court with
jurisdiction over the Chapter 11 Cases) enters an order providing
relief against the interests of the First Lien Lenders with respect
to any of the foregoing causes of action or proceedings, including,
but not limited to, invalidating, avoiding, disallowing,
recharacterizing, subordinating, or limiting the enforceability of
any of the obligations or Claims arising under or related to the
Credit Agreement;
(xxv) any
Company Party files or seeks approval of, or supports (or fails to
timely object to) another party in filing or seeking approval of an
Alternative Transaction;
(xxvi) the
commencement of an involuntary bankruptcy case against any Company
Party under the Bankruptcy Code, if such involuntary case is not
dismissed within forty-five (45) calendar days after the filing
thereof, or if a court order grants the relief sought in such
involuntary case;
(xxvii) if
any Company Party (A) withdraws the Plan, (B) publicly
announces its intention not to support the Restructuring
Transactions or the Plan, (C) files a motion with the
Bankruptcy Court seeking the approval of an Alternative Transaction
or (D) agrees to pursue (including, for the avoidance of
doubt, as may be evidenced by a term sheet, letter of intent, or
similar document) or publicly announces its intent to pursue an
Alternative Transaction;
(xxviii) the
Bankruptcy Court enters an order modifying or terminating the
Company Parties’ exclusive right to file and solicit
acceptances of a plan of reorganization (including the
Plan);
(xxix) a
Default or Event of Default (as each us defined in the DIP Credit
Agreement) under the DIP Credit Agreement has occurred and is
continuing; or
(xxx) the
occurrence of a Company Termination Event described in Section 5(c)(ii) of this
Agreement.
(c) A
“Company
Termination Event” shall mean any of the
following:
(i) the breach in any
material respect by one or more of the Consenting First Lien
Lenders, of any of the undertakings, representations, warranties,
or covenants of the Consenting First Lien Lenders set forth herein
in any material respect that remains uncured for a period of five
(5) business days after the receipt of written notice of such
breach pursuant to Section
19 hereof (as applicable); but only if the non-breaching
Consenting First Lien Lenders hold less than 66⅔% of the
aggregate principal amount of all First Lien Loans;
11
(ii) the
board of directors, members, or managers (as applicable) of any
Company Party reasonably determines in good faith based upon the
advice of outside counsel that continued performance under this
Agreement or pursuit of the Restructuring Transactions would be
inconsistent with the exercise of its fiduciary duties under
applicable law; provided, that the Company
Parties shall provide notice of such determination to Xxxxx Xxxx
via email within one (1) business day after the date thereof;
or
(iii) the
issuance by any governmental authority, including any regulatory
authority or court of competent jurisdiction, of any ruling,
judgment or order declaring this Agreement unenforceable, enjoining
the consummation of a material portion of the Restructuring
Transactions or rendering illegal this Agreement, the Plan or the
Restructuring Transactions, and such ruling, judgment or order has
not been not stayed, reversed or vacated within fifteen (15)
calendar days after such issuance.
(d) Mutual Termination. This
Agreement may be terminated by mutual agreement of the Company and
the Requisite First Lien Lenders upon the receipt of written notice
delivered in accordance with Section 19
hereof.
(e) Automatic Termination. This
Agreement shall terminate automatically, without any further action
required by any Party, upon the occurrence of the Plan Effective
Date.
(f) Effect of Termination. Upon the
termination of this Agreement in accordance with this Section 5 (other than
pursuant to Section
5(e)) if the Restructuring Transactions have not been
consummated, and except as provided in Section 13 hereof, this
Agreement shall forthwith become void and of no further force or
effect and each Party shall, except as provided otherwise in this
Agreement, be immediately released from its liabilities,
obligations, commitments, undertakings and agreements under or
related to this Agreement and shall have all the rights and
remedies that it would have had and shall be entitled to take all
actions, whether with respect to the Restructuring Transactions or
otherwise, that it would have been entitled to take had it not
entered into this Agreement, including all rights and remedies
available to it under applicable law, the Credit Agreement and any
ancillary documents or agreements thereto; provided, however, that in no event shall
any such termination relieve a Party from liability for its breach
or non-performance of its obligations hereunder prior to the date
of such termination; provided, further, however, that in no
event shall any such termination affect the obligation of any
Company Party to pay within five (5) business days of such
termination date all fees and expenses contemplated by Section 4(a)(xii) of this
Agreement actually incurred prior to such termination. Upon any
such termination of this Agreement as to a Consenting First Lien
Lender, each vote or any consents given by such Consenting First
Lien Lender prior to such termination shall be deemed, for all
purposes, to be null and void ab
initio and shall not be considered or otherwise used in any
manner by the Parties in connection with the Restructuring
Transactions and this Agreement, in each case, without further
confirmation or other action by such Consenting First Lien Lender.
If this Agreement has been terminated as to any Consenting First
Lien Lender in accordance with this Section 5 (other than
pursuant to Section
5(e) at a time when permission of the Bankruptcy Court shall
be required for a Consenting First Lien Lender to change or
withdraw (or cause to change or withdraw) its vote to accept the
Plan, the Company Parties shall support and not oppose any attempt
by such Consenting First Lien Lender to change or withdraw (or
cause to change or withdraw) such vote at such time. Such
Consenting First Lien Lender shall have no liability to the Company
Parties or to any other Consenting First Lien Lender in respect of
any termination of this Agreement in accordance with the terms of
this Section 5
and Section 19
hereof.
(g) If the
Restructuring Transactions has not been consummated prior to the
date of termination of this Agreement, nothing herein shall be
construed as a waiver by any Party of any or all of such
Party’s rights and the Parties expressly reserve any and all
of their respective rights. Pursuant to Federal Rule of Evidence
408 and any other applicable rules of evidence, this Agreement and
all negotiations relating hereto shall not be admissible into
evidence in any proceeding other than a proceeding to enforce its
terms.
6.
Definitive
Documents; Good Faith Cooperation; Further Assurances
Subject
to the terms and conditions described herein, during the Individual
Support Period as to each Consenting First Lien Lender and during
the RSA Support Period as to the Company Parties, each Consenting
First Lien Lender, severally and not jointly, and each Company
Party, severally and jointly, hereby covenant and agree to
reasonably cooperate with each other in good faith in connection
with, and shall exercise commercially reasonable efforts with
respect to the pursuit, approval, implementation, and consummation
of the Plan and the Restructuring Transactions, as well as the
negotiation, drafting, execution (to the extent such Party is a
party thereto), and delivery of the Definitive Documents.
Furthermore, subject to the terms and conditions hereof, each
Consenting First Lien Lender, severally and not jointly, and each
Company Party, severally and jointly, shall take such action as may
be reasonably necessary or reasonably requested by the other
Parties to carry out the purposes and intent of this Agreement,
including making and filing of any required regulatory filings and
voting any claims against or securities of the Company Parties in
favor of the Restructuring Transactions, and shall refrain from
taking any action that would frustrate the purposes and intent of
this Agreement; provided that no Consenting
First Lien Lender shall be required to incur any material cost,
expense, or liability in connection therewith.
12
7.
Representations
and Warranties.
(a) Each Consenting
First Lien Lender, severally and not jointly and each Company
Party, severally and jointly, represent and warrant to the other
Parties that the following statements are true, correct and
complete as of the date hereof (or, with respect to a Consenting
First Lien Lender that becomes a party hereto after the date
hereof, as of the date such Consenting First Lien Lender becomes a
party hereto):
(i) such Party is
validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization, and has all
requisite corporate, partnership, limited liability company or
similar authority to enter into this Agreement and carry out the
transactions contemplated hereby and perform its obligations
contemplated hereunder, and the execution and delivery of this
Agreement and the performance of such Party’s obligations
hereunder have been duly authorized by all necessary corporate,
limited liability company, partnership or other similar action on
its part;
(ii) the
execution, delivery and performance by such Party of this Agreement
does not and will not (A) violate any material provision of
law, rule or regulation applicable to it or any of its subsidiaries
or its charter or bylaws (or other similar governing documents) or
those of any of its subsidiaries or (B) conflict with, result
in a breach of or constitute (with due notice or lapse of time or
both) a default under any material contractual obligation to which
it or any of its subsidiaries is a party other than any default
caused by the commencement of the Chapter 11 Cases or as
contemplated by the Restructuring Transactions;
(iii) the
execution, delivery and performance by such Party of this Agreement
does not and will not require any registration or filing with,
consent or approval of, or notice to, or other action, with or by,
any federal, state or governmental authority or regulatory body,
except such filings as may be necessary or required by the SEC,
FCC, and/or state public utility commissions; and
(iv) this
Agreement is the legally valid and binding obligation of such
Party, enforceable against it in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
limiting creditors’ rights generally or by equitable
principles relating to enforceability or a ruling of the Bankruptcy
Court.
(b) Each Consenting
First Lien Lender severally (and not jointly), represents and
warrants to the Company Parties that, as of the date hereof (or as
of the date such Consenting First Lien Lender becomes a party
hereto), such Consenting First Lien Lender (i) is the
beneficial owner of, or investment advisor or manager of funds that
are beneficial owners of, the aggregate principal amount of First
Lien Loans set forth below its name on the signature page hereof
(or below its name on the signature page of a Joinder Agreement for
any Consenting First Lien Lender that becomes a party hereto after
the date hereof) and does not beneficially own, or manager or
advisor funds that own, any other First Lien Loans and
(ii) has, with respect to the beneficial owners of such First
Lien Loans, (A) sole investment or voting discretion with
respect to such First Lien Loans, (B) full power and authority
to vote on and consent to matters concerning such First Lien Loans
or to exchange, assign and transfer such First Lien Loans, and
(C) full power and authority to bind or act on the behalf of,
such beneficial owners.
(c) Each Consenting
First Lien Lender severally and not jointly makes the
representations and warranties set forth in this Section 7, in each case,
to the other Parties.
8.
Disclosure;
Publicity.
(a) Subject to the
provisions set forth in Section 8(b), Fusion shall
disseminate publication on Form 8-K or a press release disclosing
the existence of this Agreement and the terms hereof with such
redactions as may be reasonably requested by Xxxxx Xxxx to maintain
the confidentiality of the items identified in Section 8(b). In the event
that Fusion fails to make the foregoing disclosures in compliance
with the terms specified herein, any such Consenting First Lien
Lender may publicly disclose the foregoing, including, without
limitation, this Agreement and all of its exhibits and schedules
(subject to the redactions called for by Section 8 hereof), and
each of the Company Parties hereby waives any claims against the
Consenting First Lien Lenders arising as a result of such
disclosure by a Consenting First Lien Lender in compliance with
this Agreement.
13
(b) The Company Parties
shall submit drafts to Xxxxx Xxxx of any press releases, public
documents and any and all filings with the SEC that constitute
disclosure of the existence or terms of this Agreement or any
amendment to the terms of this Agreement, or any other matter
relating to the First Lien Loans, at least one (1) business day
prior to making any such disclosure, and any such press releases,
public documents, and other SEC filings shall be reasonably
acceptable in all material respects to Xxxxx Xxxx. Except as
required by applicable law or otherwise permitted under the terms
of any other agreement between the Company Parties and any
Consenting First Lien Lender, no Party or its advisors shall
disclose to any person (including, for the avoidance of doubt, any
other Consenting First Lien Lender), other than advisors to the
Company Parties, the principal amount of the First Lien Loans held
by the Consenting First Lien Lender or the Consenting First Lien
Lender’s DIP Backstop Commitment or DIP Commitment, without
such Consenting First Lien Lender’s prior written consent;
provided,
however, that
(i) if such disclosure is required by law, subpoena, or other
legal process or regulation, the disclosing Party shall, to the
extent permitted by law, afford the relevant Consenting First Lien
Lender a reasonable opportunity to review and comment in advance of
such disclosure and shall take all reasonable measures to limit
such disclosure (the expense of which, if any, shall be borne by
the relevant Consenting First Lien Lender) and (ii) the
foregoing shall not prohibit the disclosure of the aggregate
percentage or aggregate outstanding principal amount of the First
Lien Loans held by all the Consenting First Lien Lenders
collectively.
9.
Amendments
and Waivers.
This
Agreement, including any exhibits or schedules hereto, may not be
waived, modified, amended or supplemented except with the written
consent of the Company Parties and the Requisite First Lien
Lenders; provided,
however, that any
waiver, modification, amendment or supplement to this Section 9 shall require
the written consent of all of the Parties; provided, further, that any modification,
amendment or change to the definition of Requisite First Lien
Lenders shall require the written consent of each Consenting First
Lien Lender; provided, further, that any change,
waiver, modification or amendment to this Agreement or the Term
Sheet that treats or affects any Consenting First Lien Lender in a
manner that is disproportionately and materially adverse, on an
economic or non-economic basis, to the manner in which any of the
other Consenting First Lien Lenders are treated (after taking into
account each of the Consenting First Lien Lender’s respective
Claims and the recoveries contemplated by the Term Sheet (as in
effect on the date hereof)) shall require the written consent of
such Consenting First Lien Lender. In the event that an adversely
affected Consenting First Lien Lender does not consent to a waiver,
change, modification or amendment to this Agreement requiring the
consent of each Consenting First Lien Lender (such lender, a
“Non-Consenting First Lien
Lender”), but such waiver, change, modification or
amendment receives the consent of Consenting First Lien Lenders
owning at least 66 2/3% of the aggregate
outstanding principal amount of the First Lien Loans, this
Agreement shall be deemed to have been terminated only as to such
Non-Consenting First Lien Lender, but this Agreement shall continue
in full force and effect in respect to all other Consenting First
Lien Lenders who have so consented, in a way consistent with this
Agreement and the Term Sheet as waived, changed, modified, or
amended, as applicable. Any waiver, change, modification or
amendment to this Agreement and the Term Sheet that adversely
affects the right of the DIP Backstop Parties or the DIP Commitment
Parties as a class in their capacity as such shall require the
consent of the Requisite DIP Commitment Parties, as
applicable.
10.
Effectiveness.
This
Agreement shall become effective and binding upon each Party upon
the execution and delivery by such Party of an executed signature
page hereto and shall become effective and binding on all Parties
on the Support Effective Date; provided that signature pages
executed by Consenting First Lien Lenders shall be delivered to
(a) the other Consenting First Lien Lenders in a redacted form
that removes such Consenting First Lien Lenders’ holdings of
the First Lien Loans or any other Claims against or interests in
the Company Parties and any schedules to such Consenting First Lien
Lenders’ holdings (if applicable) and (b) the Company
Parties, Weil, and Xxxxx Xxxx in an unredacted form (and to be kept
confidential by the Company, Weil, and Xxxxx Xxxx).
11.
Governing
Law; Jurisdiction; Waiver of Jury Trial.
(a) This Agreement
shall be construed and enforced in accordance with, and the rights
of the parties shall be governed by, the law of the State of New
York, without giving effect to the conflict of laws principles
thereof.
(b) Each of the Parties
irrevocably agrees that any legal action, suit or proceeding
arising out of or relating to this Agreement brought by any Party
or its successors or assigns shall be brought and determined in any
federal or state court in the Borough of Manhattan in the State of
New York, and each of the Parties hereby irrevocably submits to the
exclusive jurisdiction of the aforesaid courts for itself and with
respect to its property, generally and unconditionally, with regard
to any such proceeding arising out of or relating to this Agreement
or the Restructuring Transactions. Each of the Parties agrees not
to commence any proceeding relating hereto or thereto except in the
courts described above in the Borough of Manhattan in the State of
New York, other than proceedings in any court of competent
jurisdiction to enforce any judgment, decree or award rendered by
any such court in New York as described herein. Each of the Parties
further agrees that notice as provided herein shall constitute
sufficient service of process and the Parties further waive any
argument that such service is insufficient. Each of the Parties
hereby irrevocably and unconditionally waives, and agrees not to
assert, by way of motion or as a defense, counterclaim or
otherwise, in any proceeding arising out of or relating to this
Agreement or the Restructuring Transactions, (i) any claim
that it is not personally subject to the jurisdiction of the courts
in New York as described herein for any reason, (ii) that it
or its property is exempt or immune from jurisdiction of any such
court or from any legal process commenced in such courts (whether
through service of notice, attachment prior to judgment, attachment
in aid of execution of judgment, execution of judgment or
otherwise) and (iii) that (A) the proceeding in any such
court is brought in an inconvenient forum, (B) the venue of
such proceeding is improper or (C) this Agreement, or the
subject matter hereof, may not be enforced in or by such courts.
Notwithstanding the foregoing, during the pendency of the Chapter
11 Cases, all proceedings contemplated by this Section 11(b) shall be
brought in the Bankruptcy Court to the extent the Bankruptcy Court
has jurisdiction over such proceedings.
14
(c) EACH PARTY HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY (I) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
12.
Specific
Performance/Remedies.
It is
understood and agreed by the Parties that money damages would not
be a sufficient remedy for any breach of this Agreement by any
Party and each non-breaching Party shall be entitled to specific
performance and injunctive or other equitable relief (including
attorneys’ fees and costs) as a remedy of any such breach,
without the necessity of proving the inadequacy of money damages as
a remedy, including an order of the Bankruptcy Court requiring any
Party to comply promptly with any of its obligations hereunder.
Each Party also agrees that it will not seek, and will waive any
requirement for, the securing or posting of a bond in connection
with any Party seeking or obtaining such relief.
13.
Survival.
Notwithstanding the
termination of this Agreement pursuant to Section 5 hereof, the
agreements and obligations of the Parties in this Section 13, and
Sections 4(b),
5(f), 7, 8, 10 (with respect to the
redacted information), 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20 (and any defined terms used
in any such Sections) shall survive such termination and shall
continue in full force and effect in accordance with the terms
hereof; provided,
however, that any
liability of a Party for failure to comply with the terms of this
Agreement shall survive such termination.
14.
Headings.
The
headings of the sections, paragraphs and subsections of this
Agreement are inserted for convenience only and shall not affect
the interpretation hereof or, for any purpose, be deemed a part of
this Agreement.
15.
Successors
and Assigns; Severability; Several Obligations.
This
Agreement is intended to bind and inure to the benefit of the
Parties and their respective successors, permitted assigns, heirs,
executors, administrators and representatives; provided, however, that nothing contained
in this Section 15 shall be deemed
to permit Transfers of the First Lien Loans or claims arising under
the First Lien Loans other than in accordance with the express
terms of this Agreement. If any provision of this Agreement, or the
application of any such provision to any Person or circumstance,
shall be held invalid or unenforceable in whole or in part, such
invalidity or unenforceability shall attach only to such provision
or part thereof and the remaining part of such provision hereof and
this Agreement shall continue in full force and effect so long as
the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any
Party. Upon any such determination of invalidity, the Parties shall
negotiate in good faith to modify this Agreement so as to effect
the original intent of the Parties as closely as possible in a
reasonably acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to
the greatest extent possible. The agreements, representations and
obligations of the Parties are, in all respects, ratable and
several and neither joint nor joint and several.
15
16.
No
Third-Party Beneficiaries.
Unless
expressly stated herein, this Agreement shall be solely for the
benefit of the Parties (and their respective successors, permitted
assigns, heirs, executors, administrators and representatives) and
no other Person shall be a third-party beneficiary
hereof.
17.
Prior
Negotiations; Entire Agreement.
This
Agreement, including the exhibits and schedules hereto (including
the Term Sheet) constitutes the entire agreement of the Parties,
and supersedes all other prior negotiations, with respect to the
subject matter hereof and thereof, except that the Parties
acknowledge that any confidentiality agreements (if any) heretofore
executed between the Company Parties and each Consenting First Lien
Lender shall continue in full force and effect.
18.
Counterparts.
This
Agreement may be executed in counterparts, each of which shall be
deemed to be an original, and all of which together shall be deemed
to be one and the same agreement. Execution copies of this
Agreement may be delivered by electronic mail in portable document
format (pdf), which shall be deemed to be an original for the
purposes of this paragraph.
All
notices hereunder shall be deemed given if in writing and
delivered, if contemporaneously sent by electronic mail, by
overnight courier or by registered or certified mail (return
receipt requested) to the following addresses:
(1)
If to the Company
Parties or Debtors, to:
000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx, XX 00000
Attn:
Xxxxx Xxxxxxxx, Xx., Executive Vice President and General
Counsel
Email: xxxxxxxxx@xxxxxxxxxxxxx.xxx
With a
copy to (which shall not constitute notice):
Weil,
Gotshal & Xxxxxx LLP
000
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxx X. Xxxxxxx, Esq.
Email:
xxxx.xxxxxxx@xxxx.xxx
Attn:
Xxxxx Xxxxx, Esq.
Email:
xxxxx.xxxxx@xxxx.xxx
Attn:
Xxxx Xxxxx, Esq.
Email:
xxxx.xxxxx@xxxx.xxx
16
(2)
If to a Consenting
First Lien Lender, or a transferee thereof, to the addresses set
forth below following the Consenting First Lien Lender’s
signature (or as directed by any transferee thereof), as the case
may be, with copies to:
Xxxxx
Xxxx & Xxxxxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxx X. Xxxxxxxx
Email:
xxxxxx.xxxxxxxx@xxxxxxxxx.xxx
Attn:
Xxxx X. Xxxxxx
Email:
xxxx.xxxxxx@xxxxxxxxx.xxx
Any
notice given by delivery, mail or courier shall be effective when
received. Any notice given by electronic mail shall be effective
upon transmission.
20.
Reservation
of Rights; No Admission.
(a) Nothing contained
herein shall: limit (A) the ability of any Party to consult
with other Parties or (B) the rights of any Party under any
applicable bankruptcy, insolvency, foreclosure, or similar
proceeding, including the right to appear as a party in interest in
any matter to be adjudicated in order to be heard concerning any
matter arising in the Chapter 11 Cases, in each case, so long as
such consultation or appearance is consistent with such
Party’s obligations hereunder, or under the terms of the
Plan.
(b) Except as expressly
provided in this Agreement, nothing herein is intended to, or does,
in any manner waive, limit, impair, or restrict the ability of each
of the Parties to protect and preserve its rights, remedies, and
interests, including its claims against any of the other Parties
(or their respective affiliates or subsidiaries) or its full
participation in any bankruptcy case filed by the Company or any of
its affiliates and subsidiaries. This Agreement and the Term Sheet
are part of a proposed settlement of matters that could otherwise
be the subject of litigation among the Parties. Pursuant to Rule
408 of the Federal Rules of Evidence and any other applicable rules
of evidence, and any other applicable law, foreign or domestic,
this Agreement and all negotiations relating hereto shall not be
admissible into evidence in any proceeding other than a proceeding
to enforce its terms. This Agreement shall in no event be construed
as or be deemed to be evidence of an admission or concession on the
part of any Party of any claim or fault or liability or damages
whatsoever. Each of the Parties denies any and all wrongdoing or
liability of any kind and does not concede any infirmity in the
claims or defenses which it has asserted or could
assert.
21.
Relationship
Among Consenting First Lien Lenders.
It is
understood and agreed that no Consenting First Lien Lender has any
duty of trust or confidence of any kind or form with any other
Consenting First Lien Lender, and, except as expressly provided in
this Agreement, there are no commitments among or between them. No
prior history, pattern, or practice of sharing confidences among or
between the Consenting First Lien Lender shall in any way affect or
negate this understanding and agreement.
22.
No
Solicitation; Representation by Counsel; Adequate
Information.
(a) This Agreement is
not and shall not be deemed to be a solicitation for votes in favor
of the Plan in the Chapter 11 Cases by the Consenting First Lien
Lenders or a solicitation to tender or exchange any of the First
Lien Loans. The acceptances of the Consenting First Lien Lenders
with respect to the Plan will not be solicited until such
Consenting First Lien Lender has received the Disclosure Statement
and related ballots and solicitation materials, each as approved or
ratified by the Bankruptcy Court.
(b) Each Party
acknowledges that it has had an opportunity to receive information
from the Company Parties and that it has been, or is part of a
group that has been, represented by counsel in connection with this
Agreement and the transactions contemplated hereby. Accordingly,
any rule of law or any legal decision that would provide any Party
with a defense to the enforcement of the terms of this Agreement
against such Party based upon lack of legal counsel shall have no
application and is expressly waived.
(c) Although none of
the Parties intends that this Agreement should constitute, and they
each believe it does not constitute, a solicitation or acceptance
of a chapter 11 plan of reorganization or an offering of
securities, each Consenting First Lien Lender acknowledges, agrees
and represents to the other Parties that it (i) is an accredited
investor (as such term is defined in Rule 501(a) of Regulation D
promulgated under the Securities Act), (ii) understands that
the securities to be acquired by it (if any) pursuant to the
Restructuring have not been registered under the Securities Act and
that such securities are, to the extent not acquired pursuant to
section 1145 of the Bankruptcy Code, being offered and sold
pursuant to an exemption from registration contained in the
Securities Act, based in part upon such Consenting First Lien
Lender’s representations contained in this Agreement and
cannot be sold unless subsequently registered under the Securities
Act or an exemption from registration is available, and
(iii) has such knowledge and experience in financial and
business matters that such Consenting First Lien Lender is capable
of evaluating the merits and risks of the securities to be acquired
by it (if any) pursuant to Restructuring and understands and is
able to bear any economic risks with such investment.
[Remainder of Page Intentionally Left Blank]
1
As used herein, the
term “beneficial
ownership” means the direct or indirect economic
ownership of, and/or the power, whether by contract or otherwise,
to direct the exercise of the voting rights and the disposition of,
any Claims subject to this Agreement or the right to acquire such
Claims.
2
As used herein, the
term “Qualified
Marketmaker” means an entity that (a) holds
itself out to the public, the syndicated loan market, or the
applicable private markets as standing ready in the ordinary course
of business to purchase from customers and sell to customers claims
against, or equity interests in, the Company (including First Lien
Loans), or enter with customers into long and short positions in
claims against the Company, in its capacity as a dealer or market
maker in such claims and (b) is, in fact, regularly in the
business of making a market in claims against issuers or borrowers
(including term, loans, or debt or equity securities).
17
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be
executed and delivered by their respective duly authorized
officers, solely in their respective capacity as officers 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 U.S.
subsidiaries
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By:
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/s/
Xxxxx
X. Xxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxx,
Xx.
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Executive Vice
President and General
Counsel
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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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19
SCHEDULE 1
DIP Commitments and DIP Backstop Commitments
20
EXHIBIT A
Restructuring Term Sheet
RESTRUCTURING TERM SHEET
This
term sheet (this “Term
Sheet”)3 sets forth the
principal terms of a restructuring of the Company Parties to be
implemented pursuant to either a sale or investment transaction or
a standalone reorganization, consistent with the terms set forth
herein, pursuant to a Chapter 11 plan of reorganization (the
“Plan”) for the
Company Parties to be implemented in cases commenced by the Company
Parties under chapter 11 of the Bankruptcy Code (the
“Chapter
11 Cases”), or such other transaction acceptable to
the Company Parties and the Requisite First Lien Lenders, in their
sole discretion (the “Restructuring”).
As reflected in the Restructuring Support Agreement dated June 3,
2019, by and among the Company Parties and the Consenting First
Lien Lenders (the “RSA”), to
which this Term Sheet is attached as an exhibit, the Restructuring
is supported by the Company Parties and the Consenting First Lien
Lenders.
THIS
TERM SHEET DOES NOT CONSTITUTE (NOR SHALL IT BE CONSTRUED AS) AN
OFFER WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF
ACCEPTANCES OR REJECTIONS AS TO ANY PLAN OF REORGANIZATION OR
LIQUIDATION, IT BEING UNDERSTOOD THAT SUCH A SOLICITATION, IF ANY,
MAY ONLY BE MADE IN COMPLIANCE WITH APPLICABLE PROVISIONS OF
SECURITIES, BANKRUPTCY AND/OR OTHER APPLICABLE LAWS. THIS TERM
SHEET HAS BEEN PRODUCED FOR DISCUSSION AND SETTLEMENT PURPOSES ONLY
AND IS SUBJECT TO THE PROVISIONS OF RULE 408 OF THE FEDERAL RULES
OF EVIDENCE AND OTHER SIMILAR APPLICABLE STATE AND FEDERAL RULES.
THIS TERM SHEET AND THE INFORMATION CONTAINED HEREIN IS STRICTLY
CONFIDENTIAL AND SHALL NOT BE SHARED WITH ANY OTHER PARTY ABSENT
THE PRIOR WRITTEN CONSENT OF FCI AND THE REQUISITE FIRST LIEN
LENDERS, EXCEPT AS REQUIRED BY LAW AND AS CONTEMPLATED BY THE
RSA.
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Company Parties Overview
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Company Parties:
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Fusion
Connect, Inc. (f/k/a Fusion Telecommunications International, Inc.)
(“FCI”); Fusion
BCHI Acquisition LLC; Fusion Cloud Services, LLC (f/k/a Birch
Communications LLC); Fusion CB Holdings, Inc. (f/k/a Cbeyond,
Inc.); Fusion Communications, LLC (f/k/a Cbeyond Communications,
LLC); Fusion Telecom LLC (f/k/a Birch Telecom LLC); Fusion Texas
Holdings, Inc. (f/k/a Birch Texas Holdings, Inc.); Fusion Telecom
of Kansas, LLC (f/k/a Birch Telecom of Kansas, LLC); Fusion Telecom
of Oklahoma, LLC (f/k/a Birch Telecom of Oklahoma, LLC); Fusion PM
Holdings, Inc. (f/k/a Primus Holdings, Inc.); Fusion Telecom of
Missouri, LLC (f/k/a Birch Telecom of Missouri, LLC); Fusion
Telecom of Texas Ltd., L.L.P. (f/k/a Birch Telecom of Texas Ltd.,
L.L.P.); Bircan Holdings, LLC; Fusion Management Services LLC
(f/k/a Birch Management LLC); Fusion NBS Acquisition Corp.; Fusion
LLC (f/k/a Network Billing Systems, LLC); Fusion MPHC Holding
Corporation (f/k/a MegaPath Holding Corporation); Fusion MPHC
Group, Inc. (f/k/a MegaPath Group, Inc.); and Fusion Cloud Company
LLC (f/k/a Megapath Cloud Company LLC); each such entity a direct
or indirect subsidiary of FCI (such entities, together with FCI,
collectively referred to as the “Debtors” or
the “Company
Parties”).
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Claims and Interests to be Restructured:
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Super
Senior Claims: Consisting of $20,000,000 in aggregate outstanding
principal amount of loans issued under that certain Super Senior
Secured Credit Agreement, dated as of May 9, 2019 (as amended,
restated, modified or supplemented from time to time, the
“Prepetition Super Senior
Credit Agreement,” and the loans outstanding thereunder,
the “Prepetition Super Senior
Term Loans”), by and among FCI, as borrower, certain
subsidiaries of FCI, as guarantor subsidiaries, Wilmington Trust,
National Association (“Wilmington
Trust”), as administrative agent and collateral agent,
and the lenders party thereto (the “Prepetition Super Senior
Lenders”), plus interest, fees, expenses and other
amounts arising under the Prepetition Super Senior Credit Agreement
(together with all other Claims arising under or in connection with
the Prepetition Super Senior Credit Agreement and related
documents, the “Super Senior
Claims”);
First
Lien Claims: Consisting of (i) $534,187,500 in aggregate
outstanding principal amount of term loans, (ii) $39,000,000 in
aggregate outstanding principal amount of revolving loans, and
(iii) $512,047 in aggregate outstanding face amount of letters of
credit, in each case issued under that certain First Lien Credit
and Guaranty Agreement, dated as of May 4, 2018, by and among FCI,
as borrower, certain subsidiaries of FCI, as guarantor
subsidiaries, Wilmington Trust, as administrative agent and
collateral agent, and the lenders party thereto (the
“Prepetition First Lien
Lenders”) (as amended, restated, modified or
supplemented from time to time, the “Prepetition First Lien
Credit Agreement”), plus interest, fees, expenses and
other amounts arising under the Prepetition First Lien Credit
Agreement (together with all other Claims arising under or in
connection with the Prepetition First Lien Credit Agreement and
related documents, the “First Lien
Claims”);
Second
Lien Claims: Consisting of $85,000,000 in aggregate outstanding
principal amount of term loans issued under that certain senior
secured second lien term loan facility pursuant to that certain
Second Lien Credit and Guaranty Agreement, dated as of May 4, 2018
(as may be amended, restated, modified or supplemented from time to
time, the “Prepetition Second Lien
Credit Agreement”), by and among FCI, as borrower,
certain subsidiaries of FCI, as guarantor subsidiaries, Wilmington
Trust or its successor, as administrative agent and collateral
agent and the lenders party thereto (the “Prepetition Second Lien
Term Lenders”), plus interest, fees, expenses and
other amounts arising under the Prepetition Second Lien Credit
Agreement (together with all other Claims arising under or in
connection with the Prepetition Second Lien Credit Agreement and
related documents, the “Second Lien
Claims”);
Subordinated
Notes Claims: Consisting of (a) $3,300,000 in aggregate outstanding
principal amount of subordinated notes in favor of Xxxxxxxx X.
Xxxxx, Xx., R. Xxxxx Xxxxxx and the Xxxxxxxx X. Xxxxx, Xx. 2013
Five-Year Annuity Trust, as evidenced by the Amended and Restated
Subordinated Notes, each dated as of May 4, 2018 (collectively, as
may be amended, restated, modified or supplemented from time to
time, the “Bircan
Notes”), plus interest, fees, expenses and other
amounts arising under the Bircan Notes, and (b) $10,000,000 in
aggregate outstanding principal amount of a subordinated note in
favor of Xxxxxxxx X. Xxxxx, Xx., as evidenced by a subordinated
promissory note dated as of May 4, 2018 (as may be amended,
restated, modified or supplemented from time to time, the
“Green
Subordinated Note”), plus interest, fees, expenses and
other amounts arising under the Green Subordinated Note (together
with all other Claims arising under or in connection with the
Bircan Notes and the Green Subordinated Note and related documents,
the “Subordinated Notes
Claims”);
General
Unsecured Claims: Consisting of any Claim against the Debtors
(other than any Intercompany Claims) as of the date of commencement
of the Chapter 11 Cases that is neither secured nor entitled to
priority under the Bankruptcy Code or any order of the Bankruptcy
Court (the “General Unsecured
Claims”). The General Unsecured Claims shall not
include the First Lien Claims or the Second Lien Claims (but shall
include any unsecured deficiency claims), but shall include the
Subordinated Notes Claims;
Interests:
Consisting of any equity security (as defined in section 101(16) of
the Bankruptcy Code) of a Debtor, including all ordinary shares,
common stock, preferred stock (including, without limitation,
FCI’s Series D Cumulative Preferred Stock), membership
interest, partnership interest or other instrument evidencing any
fixed or contingent ownership interest in any Debtor, whether or
not transferable, including any restricted share, option, warrant,
or other right, contractual or otherwise, to acquire any such
interest in a Debtor, that existed immediately before the Plan
Effective Date (the “Interests”).
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21
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Transaction Overview
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Implementation:
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The
Debtors will commence the Chapter 11 Cases and implement the
Restructuring pursuant to either the Plan as provided in the RSA,
or such other transaction acceptable to the Company and the ad hoc
group of Consenting First Lien Lenders represented by Xxxxx Xxxx
& Xxxxxxxx LLP (“Xxxxx Xxxx”)
and Xxxxxxxxx & Co. LLC (“Xxxxxxxxx”)
(the “Ad
Hoc First Lien Lender Group”) in their sole
discretion. Pursuant to the Plan, the Restructuring may be
effectuated either (a) as a sale of, or investment in, the
Company’s business to or by a third party (the
“Sale
Transaction”) or (b) a standalone reorganization on
the terms set forth herein (the “Reorganization
Transaction”).
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Sale
and Marketing Process:
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Following
the Commencement Date, the Debtors shall continue their sale and
marketing process (the “Sale Process”)
and solicit bids for a potential Sale Transaction in accordance
with the milestones, Bidding Procedures and other terms set forth
in the RSA and in a manner reasonably acceptable to the Requisite
First Lien Lenders. The Sale Process may be terminated at any time
by the Debtors with the prior written consent of the Requisite
First Lien Lenders.
Xxxxx
Xxxx and Xxxxxxxxx shall have the right to review all information,
diligence, and materials provided by the Debtors or their advisors
to any bidder or prospective bidder in connection with Sale Process
and to consult with the Debtors or their advisors with respect to
the Sale Process. As set forth in the Bidding Procedures, the
Debtors shall provide to Xxxxx Xxxx and Xxxxxxxxx all term sheets,
letters, proposals, offers, bids and other materials, whether
non-binding or not, that are received by the Debtors or their
advisors in connection with the Sale Process within one (1) day of
receipt by the Debtors or their advisors, as
applicable.
The
Debtors shall solicit bids for any form of sale, investment,
acquisition or similar transaction. The Sale Process shall provide
that the Debtors may solicit bids to sell certain assets,
including, without limitation, the equity interests in or assets of
the Company’s Canadian subsidiaries, independently of other
assets pursuant to a separate sales and marketing
process.
The
Debtors shall not consummate the Sale Transaction on the Plan
Effective Date unless either (a) in the judgment of the Debtors and
the Requisite First Lien Lenders, the successful bid or bids (i)
provides sufficient cash consideration (the “Cash Consideration
Amount”) to satisfy (1) DIP Claims (and any Super
Senior Claims that do not become DIP Claims), (2) Administrative,
Priority Tax and Other Priority Claims, (3) Other Secured Claims,
(4) the First Lien Claims, and (5) the expected costs associated
with the wind-down of the Debtors’ estates in accordance with
a wind-down budget acceptable to the Requisite First Lien Lenders,
and (ii) includes other terms and conditions that the Debtors and
the Requisite First Lien Lenders may reasonably require, or (b) the
successful bid or bids provides cash consideration that is less
than the Cash Consideration Amount (but greater than or equal to
the aggregate amount of the DIP Claims, Administrative, Priority
Tax and Other Priority Claims, and Other Secured Claims and the
expected costs associated with the wind-down of the Debtors’
estates as described above), but is otherwise acceptable to the
Requisite First Lien Lenders and the Debtors.
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Reorganization
Transaction:
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In the
event that the Reorganization Transaction is consummated, on the
Plan Effective Date, pursuant to and in accordance with the Plan,
the Reorganized Debtors shall (a) issue the New Equity Interests
(as defined below), (b) enter into the New Exit Facility Credit
Agreement (as defined below), (c) enter into the New First Lien
Credit Agreement (as defined below), (d) execute any new
organizational documents as necessary, (e) own and have vested in
it all of the Debtors’ assets, (f) distribute any cash or
other proceeds from the sale of the Debtors’ Canadian
business (the “Canadian Sale
Proceeds”), if any, and (g) consummate any other
transactions necessary or appropriate in connection with the
foregoing.
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Exit
Facility:
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In the
event that the Reorganization Transaction is consummated, on the
Plan Effective Date, the Reorganized Debtors shall enter into a new
credit agreement (the “New Exit Credit
Agreement”) in respect of new revolving and/or term
loans (collectively, the “New Exit
Loans”) in an aggregate principal amount of up to $125
million, on terms satisfactory to the Requisite First Lien Lenders.
The Debtors shall conduct a process to obtain the New Exit Loans
that is in accordance with the milestones set forth in the RSA and
otherwise satisfactory to the Requisite First Lien Lenders. The
Debtors shall consult with Xxxxxxxxx regarding the status of such
process upon request.
The
proceeds from the New Exit Loans will be used by the Debtors to (1)
provide liquidity for working capital and general corporate
purposes; (2) pay all reasonable and documented restructuring
expenses; (3) repay the DIP Claims in full in cash; and (4) pay all
other payments required to be made pursuant to the Plan. The liens
securing the New Exit Loans shall be senior in priority to the
liens securing the New First Lien Term Loan.
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New
First Lien Facility:
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In the
event that the Reorganization Transaction is consummated, on the
Plan Effective Date, the Reorganized Debtors shall enter into a new
credit agreement (the “New First Lien Credit
Agreement”) in respect of a new first lien term loan
(the “New
First Lien Term Loan”), on terms consistent with the
New First Lien Term Sheet attached as Schedule 2 to this Term Sheet and
otherwise satisfactory to the Requisite First Lien Lenders. The
aggregate initial principal amount of the New First Lien Term Loan
shall be equal to (i) the total outstanding debt of the Reorganized
Debtors upon the Plan Effective Date in the amount of $400 million
less (ii) the amount of the
New Exit Loans (the “New First Lien Term Loan
Amount”). The New First Lien Term Loan Amount shall be
subject to change, with the consent of the Debtors and the
Requisite First Lien Lenders, in the event that the Debtors’
Canadian business is sold.
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New
Equity Interests:
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In the
event that the Reorganization Transaction is consummated, on the
Plan Effective Date, FCI shall issue new equity interests (the
“New
Equity Interests”) to the holders of First Lien Claims
(in each case, subject to dilution from the Management Incentive
Plan).
The
issuance and distribution of New Equity Interests shall be exempt
from registration under the Securities Act of 1933 or applicable
securities laws pursuant to section 1145(a) of the Bankruptcy Code
and any other applicable exemptions.
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22
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Charter;
Bylaws:
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If
applicable, the charters, bylaws, limited liability company
agreements and other organizational documents of each Reorganized
Debtor’s corporate entity will be amended or amended and
restated by the Reorganized Debtors with the consent of the
Requisite First Lien Lenders consistent with section 1123(a)(6) of
the Bankruptcy Code.
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Reorganized
FCI Board:
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In the
event that the Reorganization Transaction is consummated, the Board
of Directors of Reorganized FCI (the “Reorganized FCI
Board”) will consist of seven directors: (i) the
Chief Executive Officer of Reorganized FCI and (ii) six
directors selected by the Ad Hoc First Lien Lender Group, at least
one of which shall be independent.
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Management
Incentive Plan:
|
In the
event that the Reorganization Transaction is consummated, the
Reorganized FCI Board will be authorized to implement a management
incentive plan (the “Management Incentive
Plan”) that provides for the issuance of options
and/or other equity-based compensation to the management and
directors of Reorganized FCI. Up to 10% of the equity interests of
Reorganized FCI, on a fully diluted basis, shall be reserved for
issuance in connection with the Management Incentive
Plan.
The
participants in the Management Incentive Plan, the allocations and
form of the options and other equity-based compensation to such
participants (including the amount of allocations and the timing of
the grant of the options and other equity-based compensation), and
the terms and conditions of such options and other equity-based
compensation (including time and performance based vesting,
exercise prices, base values, hurdles, forfeiture, repurchase
rights and transferability) shall be determined by the Reorganized
FCI Board.
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DIP
Facility and Use of Cash Collateral:
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Certain
of the Prepetition First Lien Lenders that execute the RSA prior to
the DIP Commitment Deadline (as defined in the RSA) (the
“DIP
Lenders”) shall provide the Debtors with a secured
debtor-in-possession financing, the proceeds of which shall be used
for, among other things, general corporate purposes during the
pendency of the Chapter 11 Cases on the terms and conditions set
forth in the DIP term sheet attached as Schedule 1 to this Term Sheet (the
“DIP
Facility”). The Super Senior Claims shall roll up into
loans under the DIP Facility upon entry of the Final DIP
Order.
The
Debtors will seek authority promptly upon commencement of the
Chapter 11 Cases to use cash collateral of the the Prepetition
Super Senior Lenders, the Prepetition First Lien Lenders and the
Prepetition Second Lien Lenders to fund the administration of the
Chapter 11 Cases. In connection with the Debtors’ use of cash
collateral and DIP Facility, subject to Bankruptcy Court approval,
the Company will agree to provide “adequate protection”
(as such term is defined in sections 361 and 363 of the Bankruptcy
Code) to the Prepetition Super Senior Lenders, the Prepetition
First Lien Lenders and the Prepetition Second Lien Lenders as set
forth in the debtor-in-possession financing agreement (the
“DIP
Credit Agreement”).
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Classification and Treatment of Claims and Interests Under the
Plan
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DIP Claims
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The
Claims arising under the DIP Credit Agreement (the
“DIP
Claims”) shall be allowed.
In full
satisfaction of each DIP Claim (including each DIP Claim arising
from the roll up of the Super Senior Term Claims), each holder
thereof shall receive payment in full in cash.
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Administrative, Priority Tax, and Other Priority
Claims
|
On or
as soon as practicable after the Plan Effective Date, each holder
of an administrative, priority tax or other priority claim will be
paid in full in Cash or otherwise receive treatment consistent with
the provisions of section 1129(a)(9) of the Bankruptcy
Code.
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23
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Other Secured Claims
Unimpaired;
Deemed to Accept
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On the
Plan Effective Date, to the extent any other secured claims exist
(exclusive of the First Lien Claims and the Second Lien Claims, the
“Other
Secured Claims”), all such Other Secured Claims
allowed as of the Plan Effective Date will be satisfied by either
(a) payment in full in Cash or (b) such other recovery necessary to
satisfy section 1129 of the Bankruptcy Code.
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First Lien Claims
Impaired;
Entitled to Vote
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The
First Lien Claims shall be allowed.
a. If the Debtors consummate the Sale
Transaction, on the Plan Effective Date, each holder of a
First Lien Claim will receive its pro rata share of the proceeds of the
Sale Transaction in an amount or of a value equal to the lesser of
(x) all First Lien Claims (including, without limitation,
post-petition interest thereon, fees, expenses and other amounts,
which in each case shall constitute First Lien Claims) and (y) the
proceeds of the Sale Transaction after the amount paid to satisfy all
DIP Claims, all Administrative, Priority Tax and Other Priority
Claims, and such other Claims and estate costs as determined by the
Requisite First Lien Lenders.
b. If the Debtors consummate the Reorganization
Transaction, on the Plan Effective Date, each holder of an
First Lien Claim will receive its pro rata share of:
i. 100% of the New
Equity Interests, subject to dilution by the Management Incentive
Plan, less any New Equity
Interests distributable to other classes of Claims in order for the
Bankruptcy Court to determine that the Plan satisfies the best
interests test;
ii. The New First Lien
Term Loans; and
iii. The
Canadian Sale Proceeds, if any.
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Second Lien Claims
Impaired;
Deemed to Reject
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The
Second Lien Claims shall be allowed.
a. If the Debtors consummate the Sale
Transaction, on the Plan Effective Date, each holder of a
Second Lien Claim will receive, if anything, its pro rata share of the proceeds of the
Sale Transaction in an amount or of a value equal to the lesser of
(x) all Second Lien Claims and (y) any positive amount remaining
from the proceeds of the Sale Transaction after the amount paid to satisfy all
First Lien Claims, all
DIP Claims, all Administrative, Priority Tax and Other Priority
Claims, and such other Claims and estate costs as determined by the
Requisite First Lien Lenders. If all First Lien Claims are not
satisfied in full, each holder of a Second Lien Claim will not
receive or retain any property or interest in property on account
of such Claim.
b. If the Debtors consummate the Reorganization
Transaction, on the Plan Effective Date, each holder of an
Second Lien Claim will either (i) not receive or retain any
property or interest in property on account of such Claim or (ii)
receive its pro rata share
of the percentage of the New Equity Interests determined by the
Bankruptcy Court to satisfy the best interests test.
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General Unsecured Claims
Impaired;
Deemed to Reject
|
On the
Plan Effective Date, each holder of an allowed General Unsecured
Claim will either (i) not receive or retain any property or
interest in property on account of such Claim or (ii) receive its
pro rata share of the
percentage of the New Equity Interests determined by the Bankruptcy
Court to satisfy the best interests test; provided, however, that
if the Debtors consummate the Sale Transaction, each holder of an
allowed General Unsecured Claim will receive, if anything, its
pro rata share of the
proceeds of the Sale Transaction in an amount or of a value equal
to the lesser of (x) all allowed General Unsecured Claims and (y)
any positive amount remaining from the proceeds of the Sale
Transaction after the
amount paid to satisfy all First Lien Claims, all Second Lien
Claims, all DIP
Claims, all Administrative, Priority Tax and Other Priority Claims,
and such other Claims and estate costs as determined by the
Requisite First Lien Lenders.
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24
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Intercompany Claims
Unimpaired;
Deemed to Accept
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On the
Plan Effective Date, in the case of either the Sale Transaction or
the Reorganization Transaction, all Intercompany Claims will be
adjusted, reinstated or discharged as determined by the Debtors and
the Requisite First Lien Lenders, but not paid in
cash.
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FCI’s Interests
Impaired;
Deemed to Reject
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On the
Plan Effective Date, Interests in FCI will be cancelled and
discharged and the holders thereof will not receive or retain any
property or interest in property on account of such
Interests.
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General Provisions
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Executory Contracts and Unexpired Leases:
|
The
Debtors reserve the right, with the consent of the Requisite First
Lien Lenders, to reject certain executory contracts and unexpired
leases. All executory contracts and unexpired leases not expressly
rejected will be deemed assumed pursuant to the Plan.
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Cancellation of Loans, Interests, Instruments, Certificates and
Other Documents:
|
Except
as provided herein, on the Plan Effective Date, pursuant to and in
accordance with the Plan, all notes, instruments, certificates
evidencing debt of, or equity interests in, the Company, including,
without limitation, the DIP Credit Agreement, the Prepetition Super
Senior Credit Agreement, the Prepetition First Lien Credit
Agreement, the Prepetition Second Lien Credit Agreement, the Bircan
Notes and the Green Subordinated Note and each of their related
debt documents, will be cancelled, and obligations of the Company
thereunder will be discharged. In addition, on the Plan Effective
Date, pursuant to and in accordance with the Plan, any registration
rights agreements, stockholder agreements, or similar agreements
with respect to Interests in FCI will also be cancelled and any
obligations of the Company thereunder will be
discharged.
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Vesting of Assets:
|
On the
Plan Effective Date, and if applicable, pursuant to sections
1141(b) and (c) of the Bankruptcy Code, all assets of the
Debtors’ Estates will vest in the Reorganized Debtors or
liquidating trust, as applicable, free and clear of all claims,
liens, encumbrances, charges and other interests, except as
otherwise provided in the Plan.
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Compromise and Settlement:
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The
Plan will contain customary provisions acceptable to the Requisite
First Lien Lenders for the compromise and settlement of claims
stating that, notwithstanding anything in the Plan to the
contrary, the allowance, classification and treatment of allowed
claims and equity interests and their respective distributions take
into account and conform to the relative priority and rights of
such claims and interests in connection with any contractual, legal
and equitable subordination rights relating thereto, whether
arising under general principles of equitable subordination,
section 510 of the Bankruptcy Code or otherwise.
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Releases, Exculpation, Discharge and Injunction:
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The
Plan will contain release, exculpation, discharge and injunction
provisions to be agreed to by the Company and the Ad Hoc First Lien
Lender Group.
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Definitive Documents:
|
This
Term Sheet is indicative, and any final agreement will be subject
to the Definitive Documents.
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Tax Structure:
|
To the
extent practicable, the Restructuring contemplated by this Term
Sheet will be structured so as to obtain the most beneficial
structure for the Reorganized Debtors or liquidating trust, as
applicable, which structure shall be acceptable to the Requisite
First Lien Lenders.
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Avoidance Actions:
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Except
as otherwise set forth in the Plan, the Reorganized Debtors or
liquidating trust, as applicable, will retain all rights to
commence and pursue any causes of action that are expressly
preserved and not released under the Plan, it being understood that
the Reorganized Debtors or liquidating trust, as applicable, will
not retain any claims or causes of action against the released
parties, subject to the carve-out for any act or omission of a
released party that is a criminal act or constitutes fraud, gross
negligence or willful misconduct.
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Retention of Jurisdiction:
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The
Plan will provide for a retention of jurisdiction by the Bankruptcy
Court for, among other things, (a) resolution of claims,
(b) allowance of compensation and expenses for pre-Plan
Effective Date services, (c) resolution of motions, adversary
proceedings or other contested matters, and (d) entering such
orders as necessary to implement or consummate the Plan and any
related documents or agreements.
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Resolution of Disputed Claims:
|
The
Plan will provide procedures for the resolution of disputed Claims,
including the ability (but not requirement) to establish a claims
bar date pursuant to an order of the Bankruptcy Court. Once
resolved, the claimants will receive distributions, if any, in
accordance with the provisions of the Plan and the classification
of their allowed Claim.
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3
Capitalized terms
used but not defined herein have the meanings assigned to them in
the RSA (as defined below). To the extent of any conflict between
this Term Sheet and the RSA, this Term Sheet will govern and
control.
WEIL:\97031536\3\47019.0003
25
ARTICLE
I
SCHEDULE
1
DIP TERM SHEET
WEIL:\97031536\3\47019.0003
26
ARTICLE
II
SCHEDULE
2
NEW FIRST LIEN TERM SHEET
WEIL:\97031536\3\47019.0003
27
ARTICLE
III
SCHEDULE
3
ARTICLE
IV
BIDDING
PROCEDURES
Signature Page to Joinder Agreement
28
EXHIBIT B
FORM OF JOINDER AGREEMENT FOR CONSENTING FIRST LIEN
LENDERS
This
Joinder Agreement to the Restructuring Support Agreement, dated as
of June 3, 2019, by and among Fusion Connect, Inc. and its direct
and indirect domestic subsidiaries (collectively,
the “Company”), and
certain holders of the Company’s First Lien Loans (together
with their respective successors and permitted assigns,
the “Consenting First Lien
Lenders” and each, a “Consenting First Lien
Lender”) (as amended, supplemented or otherwise
modified from time to time, the “Agreement”) is
executed and delivered by [●] (the “Joining
Party”) as of [●], 2019. Each capitalized term
used herein but not otherwise defined shall have the meaning set
forth in the Agreement.
1. Agreement to be Bound. The
Joining Party hereby agrees to be bound by all of the terms of the
Agreement, a copy of which is attached to this Joinder Agreement as
Annex
I. The Joining Party shall hereafter be deemed to be a
“Consenting First Lien Lender” and a
“Party” for all purposes under the Agreement and with
respect to any and all Claims held by such Joining
Party.
2. Representations and Warranties.
With respect to the aggregate principal amount of First Lien Loans
set forth below its name on the signature page hereto, the Joining
Party hereby makes the representations and warranties of the
Consenting First Lien Lenders set forth in Section 7 of the Agreement
to each other Party to the Agreement.
3. Governing Law. This Joinder
Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York, without regard to any
conflict of laws provisions which would require the application of
the law of any other jurisdiction.
DIP Commitment
Election:
□
By checking this box, the Joining Party hereby represents and
warrants that as of June 3, 2019 it held First Lien Loans in the
amount set forth below, and hereby commits to provide a share of
the DIP Facility equal in percentage to the DIP Commitment (as
defined below), and otherwise on the terms and conditions in the
DIP Facility Term Sheet and/or the DIP Credit Agreement, as
applicable.
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(A)
Principal Amount of First Lien Loans:
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$
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(B)
Principal Amount of First Lien Loans set forth in (A) above divided
by $[573,699,547], expressed as a percentage:
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(C)
Percentage of the DIP Facility the Joining Party hereby agrees to
commit to, which shall not be greater than the percentage set forth
in (B) above (“DIP
Commitment”):
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29
IN
WITNESS WHEREOF, the Joining Party has caused this Joinder to be
executed as of the date first written above.
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CONSENTING FIRST LIEN LENDER
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By:
Name:
Title:
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Notice
Address:
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Fax:
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Attention:
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Email:
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Acknowledged:
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FUSION CONNECT, INC.on its own behalf and on behalf of its
direct and indirect domestic subsidiaries
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By:
Name:
Xxxxx X. Xxxxxxxx, Xx.Title: Executive Vice President and General
Counsel
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30
