Contract
Exhibit 99.2
This
AMENDMENT No. 9 (this “Amendment”), dated as of September
6, 2019, is entered into by and among Fusion Connect, Inc., a
Delaware corporation and a debtor and debtor-in-possession under
Chapter 11 of the Bankruptcy Code (the “Borrower”), certain subsidiaries
of the Borrower party hereto, each a debtor and
debtor-in-possession under Chapter 11 of the Bankruptcy Code, as
Guarantor Subsidiaries and the Lenders party hereto, which
collectively constitute the Requisite Lenders, and acknowledged by
the Administrative Agent (each, a “Party” and collectively, the
“Parties”).
RECITALS
WHEREAS, reference is made to that
certain Superpriority Secured Debtor-in-Possession Credit and
Guaranty Agreement, dated as of June 7, 2019, among the Borrower,
the Guarantor Subsidiaries, the lenders from time to time party
thereto (the “Lenders”) and Wilmington Trust,
National Association, as Administrative Agent and Collateral Agent
(as amended, restated, supplemented or otherwise modified prior to
the date hereof, the “Credit
Agreement” and, as amended by this Amendment, the
“Amended Credit
Agreement”);
WHEREAS, the Parties wish to amend the
Credit Agreement on the terms set forth herein.
NOW, THEREFORE, in consideration of the
premises contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound hereby,
agree as follows:
Section
1. Definitions.
Each capitalized term used and not otherwise defined in this
Amendment shall have the meaning assigned to such term in the
Amended Credit Agreement.
Section
2. Amendments to
Credit Agreement. With effect as of the Amendment Effective
Date, the Credit Agreement is hereby amended by replacing the words
“(as defined in the Restructuring Support Agreement as in
effect after giving effect to that certain First Amendment thereto,
dated as of June 17, 2019, that certain Second Amendment thereto,
dated as of June 24, 2019, that certain Third Amendment thereto,
dated as of June 28, 2019, that certain Fourth Amendment thereto,
dated as of July 19, 2019, that certain Fifth Amendment thereto,
dated as of July 26, 2019, and that certain Sixth Amendment
thereto, dated on or about August 9, 2019)” in clause (n)(iv)
of Section 8.1 thereof with “(as defined in the Restructuring
Support Agreement as in effect after giving effect to that certain
First Amendment thereto, dated as of June 17, 2019, that certain
Second Amendment thereto, dated as of June 24, 2019, that certain
Third Amendment thereto, dated as of June 28, 2019, that certain
Fourth Amendment thereto, dated as of July 19, 2019, that certain
Fifth Amendment thereto, dated as of July 26, 2019, that certain
Sixth Amendment thereto, dated as of August 12, 2019 and that
certain Seventh Amendment thereto, dated on or about September 6,
2019)”.
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Section
3. Representations and
Warranties.
(a) Each of the Credit
Parties, subject to the entry of the Orders and the terms thereof,
has all requisite power and authority to execute and deliver this
Amendment and to perform the transactions contemplated
hereby.
(b) Subject to the
entry of the Orders and the terms thereof, this Amendment and the
transactions contemplated hereby have been duly authorized by all
necessary corporate or other organizational action and, if
required, stockholder, shareholder or other equityholder action on
the part of each Credit Party.
(c) This Amendment and
the transactions contemplated hereby do not and will not (i) other
than violations arising as a result of the commencement of the
Cases, subject to the entry of the Orders and the terms thereof and
except as otherwise excused by the Bankruptcy Code, violate any
applicable law, including any order of any Governmental Authority,
except to the extent any such violation, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect, (ii) violate the Organizational Documents of
the Borrower or any Restricted Subsidiary, (iii) other than
violations arising as a result of the commencement of the Cases and
except as otherwise excused by the Bankruptcy Code, violate or
result (alone or with notice or lapse of time, or both) in a
default under any other Contractual Obligation of the Borrower or
any Restricted Subsidiary, or give rise to a right thereunder to
require any payment, repurchase or redemption to be made by the
Borrower or any Restricted Subsidiary, or give rise to a right of,
or result in, any termination, cancelation or acceleration or right
of renegotiation of any obligation thereunder, except to the extent
any such violation, default, right or result, individually or in
the aggregate, would not reasonably be expected to have a Material
Adverse Effect, or (iv) except for Liens created under the
Credit Documents, result in or require the creation or imposition
of any Lien on any asset of the Borrower or any Restricted
Subsidiary.
(d) Subject to the
Orders and the terms thereof, this Amendment and the transactions
contemplated hereby do not and will not require any registration
with, consent or approval of, notice to, or other action by any
Governmental Authority (other than the entry of the Orders), except
(i) such as have been obtained or made and are in full force and
effect, (ii) filings and recordings with respect to the Collateral
necessary to perfect Liens created under the Credit Documents,
(iii) filings and registrations under applicable securities laws
relating to the Disposition by the Collateral Agent pursuant to the
Pledge and Security Agreement of Collateral that constitute
Securities and (iv) Post-Petition filings with the SEC and
applicable State PUCs relating to the Credit Parties’ status
as debtors and debtors-in-possession under Chapter 11 of the
Bankruptcy Code.
(e) Subject to the
Orders and the terms thereof, this Amendment has been duly executed
and delivered by each Credit Party that is a Party and is, subject
to the Orders and the terms thereof, the legally valid and binding
obligation of such Credit Party, enforceable against such Credit
Party in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors’ rights
generally or by equitable principles relating to enforceability
(other than with respect to the Debtors).
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(f) The representations
and warranties of each Credit Party set forth in the Credit
Documents are true and correct (i) in the case of the
representations and warranties qualified or modified as to
materiality in the text thereof, in all respects and (ii)
otherwise, in all material respects, in each case on and as of the
Amendment Effective Date, except in the case of any such
representation and warranty that expressly relates to an earlier
date, in which case such representation and warranty shall be so
true and correct on and as of such earlier date.
(g) No Default or Event
of Default has occurred and is continuing or would result from this
Amendment, other than Defaults and Events of Default that have been
disclosed to the Administrative Agent on or prior to the date
hereof.
Section
4. Effectiveness.
This Amendment shall become effective on the date (such date, the
“Amendment Effective
Date”) that the Administrative Agent shall have
received fully executed counterparts of this Amendment from the
Borrower and each other Credit Party, Lenders constituting the
Requisite Lenders and the Administrative Agent.
Section
5. Entire
Agreement. THIS AMENDMENT
CONSTITUTES THE ENTIRE AGREEMENT AMONG THE PARTIES RELATING TO THE
SUBJECT MATTER HEREOF AND SUPERSEDES ANY AND ALL PREVIOUS
AGREEMENTS AND UNDERSTANDINGS, ORAL OR WRITTEN, RELATING TO THE
SUBJECT MATTER HEREOF (BUT DOES NOT SUPERSEDE ANY PROVISIONS OF ANY
SEPARATE CONFIDENTIALITY AGREEMENT OR SIMILAR AGREEMENT OR FEE
LETTER BETWEEN OR AMONG ANY CREDIT PARTIES AND ANY AGENT OR LENDER
OR ANY AFFILIATE OF ANY OF THE FOREGOING, ALL OF WHICH PROVISIONS
SHALL REMAIN IN FULL FORCE AND EFFECT).
Section
6. Credit
Document. Each Party acknowledges and agrees that this
Amendment constitutes a “Credit Document” for all
purposes of the Amended Credit Agreement and the other Credit
Documents.
Section
7. Governing Law;
Jurisdiction; Consent to Service of Process.
(a) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT
LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY
DETERMINATIONS WITH RESPECT TO POST-JUDGMENT INTEREST) SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF
ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK AND TO THE
EXTENT APPLICABLE, THE BANKRUPTCY CODE.
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(b) SUBJECT TO CLAUSE (V) BELOW, ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING
HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS,
SHALL BE BROUGHT EXCLUSIVELY IN THE BANKRUPTCY COURT AND, IF THE
BANKRUPTCY COURT DOES NOT HAVE, OR ABSTAINS FROM JURISDICTION, IN
ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE
BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER
JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF
NEW YORK. BY EXECUTING AND DELIVERING THIS AMENDMENT, EACH PARTY,
FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (I)
ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION
AND VENUE OF SUCH COURTS (SUBJECT TO CLAUSE (V) BELOW); (II) WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS; (III) AGREES THAT SERVICE OF
ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE
APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION
10.1 OF THE AMENDED CREDIT AGREEMENT; (IV) AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL
JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT; AND (V) AGREES THAT THE
AGENTS AND THE LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY
CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION
WITH THE EXERCISE OF ANY RIGHTS UNDER ANY CREDIT DOCUMENT OR ANY
EXERCISE OF REMEDIES IN RESPECT OF COLLATERAL OR THE ENFORCEMENT OF
ANY JUDGMENT, AND HEREBY SUBMITS TO THE JURISDICTION OF, AND
CONSENTS TO VENUE IN, ANY SUCH COURT.
Section
8. WAIVER OF JURY
TRIAL. EACH OF THE PARTIES
HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE
OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER
RELATIONSHIP ESTABLISHED UNDER THE AMENDED CREDIT AGREEMENT. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE
SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO THIS AMENDMENT, THAT EACH PARTY
HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AMENDMENT,
AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED
FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS AND REPRESENTS THAT IT
HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO
THIS SECTION 8 AND EXECUTED BY EACH OF THE PARTIES), AND THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE
LOANS MADE UNDER THE AMENDED CREDIT AGREEMENT. IN THE EVENT OF
LITIGATION, THIS AMENDMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
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Section
9. Severability.
In case any provision in or obligation hereunder shall be invalid,
illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired
thereby.
Section
10. Counterparts.
This Amendment may be executed in counterparts, each of which when
so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument. Delivery of an executed counterpart of a signature page
of this Amendment by facsimile or in electronic format (i.e.,
“pdf” or “tif”) shall be effective as
delivery of a manually executed counterpart of this
Amendment.
Section
11. Headings.
Section headings are included herein for convenience of reference
only and shall not constitute a part hereof for any other purpose
or be given any substantive effect.
Section
12. Effect of
Amendment. Except as expressly set forth herein, (i) this
Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of or otherwise affect the rights and remedies
of the Lenders, the Collateral Agent or the Administrative Agent,
in each case under the Credit Agreement or any other Credit
Document, and (ii) shall not alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Credit
Document. Each and every term, condition, obligation, covenant and
agreement contained in the Credit Agreement or any other Credit
Document is hereby ratified and re-affirmed in all respects and
shall continue in full force and effect as expressly amended
hereby. The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein or as provided in
the exhibits hereto, operate as a waiver of any right, power or
remedy of any Lender, the Collateral Agent or the Administrative
Agent under any of the Credit Documents, or constitute a waiver of
any provision of any of the Credit Documents. This Amendment shall
not extinguish the obligations for the payment of money outstanding
under the Credit Agreement. Nothing herein contained shall be
construed as a substitution or novation of the obligations
outstanding under the Credit Agreement, which shall remain in full
force and effect as expressly modified hereby or as provided in the
exhibits hereto. Nothing implied in this Amendment or in any other
document contemplated hereby shall be construed as a release or
other discharge of any of the Credit Parties from the Credit
Documents. From and after the Amendment Effective Date, all
references to the Credit Agreement in any Credit Document and all
references in the Credit Agreement to “this Agreement,”
“hereunder,” “hereof” or words of like
import referring to the Credit Agreement shall, unless expressly
provided otherwise, be deemed to refer to the Amended Credit
Agreement. Each of the Credit Parties hereby consents to this
Amendment and confirms that all obligations of such Credit Party
under the Credit Documents to which such Credit Party is a party
shall continue to apply to the Amended Credit Agreement. Each
Credit Party hereby ratifies and reaffirms (a) that each of the
Credit Documents to which it is a party has been duly executed and
delivered by such Credit Party to the Administrative Agent and to
the Lenders and is in full force and effect as of the date hereof,
(b) its grant of liens on or security interests in its properties
pursuant to the Credit Documents as security for the Obligations
under or with respect to the Amended Credit Agreement and confirms
and agrees that such liens and security interests secure all of the
Obligations; and (c) the Administrative Agent, the Collateral Agent
and the Lenders are and shall be entitled to all of the rights,
remedies and benefits provided for in the Credit
Documents.
Section
13. Direction to
Administrative Agent.
The Lenders party hereto, constituting the Requisite Lenders,
hereby (a) authorize and direct the Administrative Agent to
acknowledge this Amendment, and (b) acknowledge and agree that (i)
the direction in this Section 13 constitutes a direction from the
Lenders under the provisions of Section 9 of the Credit Agreement
and (ii) Sections 9.3 and 9.6 of the Credit Agreement (including as
amended hereby) shall apply to any and all actions taken by the
Administrative Agent and the Collateral Agent in accordance with
such directions.
[Remainder of page left intentionally blank]
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IN
WITNESS WHEREOF, the Parties have caused this Amendment to be duly
executed by their respective authorized officers as of the day and
year first above written.
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FUSION CONNECT, INC., as Borrower
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By:
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/s/ Xxxxx X. Xxxxxxxx,
Xx.
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Name:
Xxxxx X. Xxxxxxxx, Xx.
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Title: EVP and
General Counsel
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FUSION NBS ACQUISITION CORP.
FUSION LLC
FUSION BCHI ACQUISITION LLC
FUSION CLOUD SERVICES, LLC
FUSION CB HOLDINGS, INC.
FUSION COMMUNICATIONS, LLC
FUSION MANAGEMENT SERVICES LLC
FUSION TELECOM LLC
FUSION TEXAS HOLDINGS, INC.
FUSION TELECOM OF KANSAS, LLC
FUSION TELECOM OF OKLAHOMA, LLC
FUSION TELECOM OF MISSOURI, LLC
BIRCAN HOLDINGS, LLC
FUSION PM HOLDINGS, INC.
FUSION CLOUD COMPANY LLC
FUSION MPHC GROUP, INC.
FUSION MPHC HOLDING CORPORATIONas Guarantors
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By:
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/s/ Xxxxx X. Xxxxxxxx,
Xx.
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Name:
Xxxxx X. Xxxxxxxx, Xx.
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Title: EVP and
General Counsel
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FUSION TELECOM OF TEXAS LTD., L.L.P.,
as
Guarantor
By:
Fusion Texas Holdings, Inc., its general partner
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By:
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/s/ Xxxxx X.
Xxxxxxxx, Xx.
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Name:
Xxxxx X. Xxxxxxxx, Xx.
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Title: EVP and
General Counsel
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[ ], as
a Lender
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By:
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/s/
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Authorized
Signatory
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Acknowledged
by:
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WILMINGTON TRUST,
NATIONAL ASSOCIATION,
as
Administrative Agent
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By:
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/s/ Xxxxxxx Xxxx
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Name:
Xxxxxxx Xxxx
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Title: Vice
President
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