Fusion NBS Acquisition Corp. c/o Fusion Telecommunications International, Inc.
Exhibit 99.3
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 Fifth Amended and Restated Securities Purchase
Agreement and Security 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 “Securities Purchase 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”),
Praesidian Capital Opportunity Fund III, LP, a Delaware limited
partnership (“Fund
III”), Praesidian Capital Opportunity Fund III-A, LP,
a Delaware limited partnership (“Fund III-A”), United Insurance
Company of America, an Illinois corporation (“United” and together with Fund III, Fund
III-A and each of their respective successors and permitted
assigns, each a “Lender”, and collectively, the
“Lenders”), and
Fund III as agent for the Lenders (in such capacity, the
“Agent”).
Capitalized terms used herein and not otherwise defined shall have
the meaning assigned such terms in the Securities Purchase
Agreement.
Background
Borrower has
informed the Agent that NBS wishes to acquire all or substantially
all of the assets (the “Acquisition”) of IQMax, Inc., a
Delaware corporation (“IQMax”), pursuant to the terms of
an asset purchase agreement and associated documentation, dated on
or about the date hereof, by and among NBS and IQMax.
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Consent
Pursuant to the
terms of Section
7.01(a) of the Securities Purchase Agreement, no Loan Party
is permitted to acquire all or a substantial portion of the assets
of any Person, other than as permitted pursuant to Section 7.01(a)
of the Securities Purchase Agreement. As a result of the
Acquisition, NBS shall acquire all or substantially all of the
assets of IQMax. In connection with the Acquisition, Borrower has
requested that the Agent and the Requisite Lenders consent to the
Acquisition. Borrower represents, warrants, covenants and agrees to
and with the Agent and Lenders that the consideration to be paid
for the assets to be acquired from IQMax will not include the issue
of any Indebtedness by any of the Loan Parties and is currently
anticipated to consist solely of shares of common stock of Fusion,
$0,01 par value per share, except to the extent of any Royalty Fee
(as defined in the asset purchase agreement for the Acquisition).
In reliance on the representations, warranties, covenants and
agreements provided herein and made by Borrower to the Agent in
connection with the request for such consent, the Agent and the
Requisite Lenders hereby consent to the Acquisition.
General
Except
for the consent expressly provided by this letter agreement, the
terms and provisions of the Securities Purchase 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 the Agent of an
executed 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 the
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 the 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 Securities Purchase Agreement or
the other Loan Documents. Borrower agrees to pay to the Agent, on
demand, in immediately available funds, all out-of-pocket costs and
expenses incurred by the Agent, including, without limitation, the
reasonable fees and expenses of counsel retained by the 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 Securities Purchase 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.
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.]
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Please
evidence your acknowledgment and agreement to the foregoing by
executing this letter agreement in the place indicated
below.
LENDERS:
PRAESIDIAN
CAPITAL OPPORTUNITY
FUND III, LP
By: Praesidian
Capital Opportunity GP III, LLC,
its General
Partner
By: /s/
Xxxxx X.
Xxxxxxxx
Title:
Manager
PRAESIDIAN
CAPITAL OPPORTUNITY FUND III-A, LP
By:
Praesidian Capital Opportunity GP III-A, LLC,
its
General Partner
By: /s/ Xxxxx X.
Xxxxxxxx
Title:
Manager
AGENT:
PRAESIDIAN
CAPITAL OPPORTUNITY FUND
III, LP
By:
Praesidian Capital Opportunity GP III, LLC, its General
Partner
By: /s/ Xxxxx X.
Xxxxxxxx
Title:
Manager
[signature page – fusion nbs acquisition corp.
consent]
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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
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
[signature page – fusion nbs acquisition corp.
consent]
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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
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
[signature page – fusion nbs acquisition corp.
consent]
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