January 26, 2018 Fusion NBS Acquisition Corp. c/o Fusion Telecommunications International, Inc.
Exhibit 10.3
January
26, 2018
Fusion
NBS Acquisition Corp.
c/o
Fusion Telecommunications International, Inc.
000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxx X. Xxxxxxxx, Xx., Executive Vice President and General
Counsel
Re:
Consent
Ladies
and Gentlemen:
Reference is hereby
made to that certain Credit Agreement, dated as of November 14,
2016, as amended by that certain Consents and Amendments to Loan
Documents, dated as of July 20, 2017 (as so amended, and as the
same may be further amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the
“Credit
Agreement”), by and among Fusion NBS Acquisition
Corp., a Delaware corporation (“Borrower”), Fusion
Telecommunications International, Inc., a Delaware corporation
(“Fusion”),
Network Billing Systems, L.L.C., a New Jersey limited liability
company (“NBS”), Fusion BVX LLC, a Delaware
limited liability company (“BVX”), Pingtone Communications,
Inc., a Delaware corporation (“Pingtone”), Fidelity Telecom,
LLC, an Ohio limited liability company (“FTL”), Fidelity Access Networks,
Inc., an Ohio corporation (“FANI”), Fidelity Access Networks,
LLC, an Ohio limited liability company (“FANL”), Fidelity Connect LLC, an
Ohio limited liability company (“FCL”), Fidelity Voice Services,
LLC, an Ohio limited liability company (“FVS”), Apptix, Inc., a Florida
corporation (“Apptix”) and Fusion BCHI
Acquisition LLC, a Delaware limited liability company
(“BCHI”; each
of Fusion, NBS, BVX, Pingtone, FTL, FANI, FANL, FCL, FVS, Apptix
and BCHI are individually, a “Guarantor” and collectively, the
“Guarantors”),
East West Bank, as Administrative Agent, Swingline Lender, an
Issuing Bank and a Lender and each other Lender from time to time
party to the Credit Agreement. Capitalized terms used herein and
not otherwise defined shall have the meaning assigned such terms in
the Credit Agreement.
Background
Borrower has
informed Administrative Agent that Fusion intends to issue Equity
Securities on or about February 2, 2018 (the “Equity Issuance”), and in
connection with such Equity Issuance, the Loan Parties shall
receive approximately $30,000,000 in net proceeds therefrom (the
“Equity Issuance
Proceeds”).
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Pursuant to the
terms of Section
2.14(d) of the Credit Agreement, upon the receipt by any
Loan Party or any of its Subsidiaries of cash proceeds from the
issuance of any Equity Securities in excess of $4,000,000, Borrower
is required to prepay (or cash collateralize) the Obligations with
such cash proceeds. As a result of the Equity Issuance and the
receipt by the Loan Parties of the Equity Issuance Proceeds, the
Borrower is required to prepay the Obligations with such Equity
Issuance Proceeds in excess of $4,000,000. In connection with the
Equity Issuance, Borrower has requested that Administrative Agent
and the Requisite Lenders consent to the Loan Parties’
retention of all Equity Issuance Proceeds, for use by the Loan
Parties on Capital Expenditures and for other general corporate
purposes (the “Specified
Request”). In reliance on the representations,
warranties and covenants provided herein and made by Borrower to
Administrative Agent in connection with the request for such
consent, Administrative Agent and the Requisite Lenders hereby
consent to the Specified Request.
General
Except
for the consent expressly provided by this letter agreement, the
terms and provisions of the Credit Agreement and the other Loan
Documents are hereby ratified and confirmed and shall continue in
full force and effect. The consent provided and agreed to herein is
to be effective only upon receipt by Administrative Agent of an
execution counterpart of this letter agreement signed by Borrower
and each Guarantor. By agreeing to this letter agreement as
acknowledged below, Borrower hereby certifies and warrants to
Administrative Agent and the Requisite Lenders that each of its
representations and warranties contained in the Loan Documents to
which it is a party are true and correct in all material respects
(other than any representations or
warranties qualified pursuant to their terms by materiality
qualifiers, which representations and warranties shall be true and
correct in all respects as written) as of the effective date
of this letter agreement, including that no Default or Event of
Default exists, with the same effect as though made on such
effective date (after giving effect to the consent contained in
this letter agreement and except to the extent any such
representation or warranty is expressly stated to have been made as
of a specific date, in which case such representation or warranty
shall be true and correct as of such specified date). The
effectiveness of the consent provided herein is conditioned upon
the correctness in all material respects of all representations and
warranties made by Borrower herein. The consent contained herein
shall not constitute a course of dealing between Borrower and
Administrative Agent and, except as expressly provided herein,
shall not constitute a waiver, extension or forbearance of any
Default or Event of Default, now or hereafter arising, or an
amendment of any provision of the Credit Agreement or the other
Loan Documents. Borrower agrees to pay to Administrative Agent, on
demand, in immediately available funds, all out-of-pocket costs and
expenses incurred by Administrative Agent, including, without
limitation, the reasonable fees and expenses of counsel retained by
Administrative Agent, in connection with the negotiation,
preparation, execution and delivery of this letter agreement and
all other instruments and documents contemplated hereby. This
letter agreement shall be governed by, construed and enforced in
accordance with all provisions of the Credit Agreement and may be
executed in multiple counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same
instrument. Delivery of an executed counterpart signature of this
letter agreement by email transmission of a “pdf” or similar copy shall be
equally effective as delivery of an original counterpart of this
letter agreement. Any party delivering an executed counterpart
signature page to this letter agreement by e-mail transmission
shall also deliver an executed counterpart of this letter agreement
but the failure to deliver an original executed counterpart shall
not affect the validity, enforceability or binding effect of this
letter agreement.
-2-
Reaffirmation
By its
execution hereof, each Grantor hereby consents and agrees to the
terms and provisions of this letter agreement and consents and
agrees that each of the Security Documents remain in full force and
effect and continue to be the legal, valid and binding obligation
of each such Grantor, enforceable against each such Grantor in
accordance with the terms thereof.
[Signatures
follow on the next page.]
-3-
Please
evidence your acknowledgment and agreement to the foregoing by
executing this letter agreement in the place indicated
below.
EAST WEST BANK,
as
Administrative Agent
By: /s/ Xxxxxxx Xxxx
Name:
Xxxxxxx Xxxx
Title:
Senior Vice President
OPUS BANK,
as
Lender
By: /s/ Xxxxx
Xxxx
Name:
Xxxxx Xxxx
Title:
Vice President
Acknowledged
and agreed to:
FUSION NBS ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxxxx,
Xx.
Name:
Xxxxxx Xxxxxxxx, Xx.
Title:
President and Chief Operating Officer
FUSION TELECOMMUNICATIONS INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxxxx,
Xx.
Name:
Xxxxxx Xxxxxxxx, Xx.
Title:
President and Chief Operating Officer
NETWORK BILLING SYSTEMS, L.L.C.
By: /s/ Xxxxxx Xxxxxxxx,
Xx.
Name:
Xxxxxx Xxxxxxxx, Xx.
Title:
Executive Vice President
-4-
FUSION BVX LLC
By: /s/ Xxxxxx Xxxxxxxx,
Xx.
Name:
Xxxxxx Xxxxxxxx, Xx.
Title:
President
PINGTONE COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxxxxxxx,
Xx.
Name:
Xxxxxx Xxxxxxxx, Xx.
Title:
President and Chief Operating Officer
FIDELITY ACCESS NETWORKS, LLC
By: /s/ Xxxxxx Xxxxxxxx,
Xx.
Name:
Xxxxxx Xxxxxxxx, Xx.
Title:
President and Chief Operating Officer
FIDELITY CONNECT LLC
By: /s/ Xxxxxx Xxxxxxxx,
Xx.
Name:
Xxxxxx Xxxxxxxx, Xx.
Title:
President and Chief Operating Officer
FIDELITY VOICE SERVICES, LLC
By: /s/ Xxxxxx Xxxxxxxx,
Xx.
Name:
Xxxxxx Xxxxxxxx, Xx.
Title:
President and Chief Operating Officer
FIDELITY ACCESS NETWORKS, INC.
By: /s/ Xxxxxx Xxxxxxxx,
Xx.
Name:
Xxxxxx Xxxxxxxx, Xx.
Title:
President and Chief Operating Officer
-5-
FIDELITY TELECOM, LLC
By: /s/ Xxxxxx Xxxxxxxx,
Xx.
Name:
Xxxxxx Xxxxxxxx, Xx.
Title:
President and Chief Operating Officer
APPTIX, INC.
By: /s/ Xxxxxx Xxxxxxxx,
Xx.
Name:
Xxxxxx Xxxxxxxx, Xx.
Title:
President and Chief Operating Officer
FUSION BCHI ACQUISITION LLC
By: /s/ Xxxxxx Xxxxxxxx,
Xx.
Name:
Xxxxxx Xxxxxxxx, Xx.
Title:
Manager
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