Waiver dated January 26, 2018 to Credit Agreement, dated as of November 14, 2016, as amended, by and among Fusion NBS Acquisition Corp., Fusion Telecommunications International, Inc., Network Billing Systems, L.L.C., Fusion BVX LLC, Pingtone Communications, Inc., Fidelity Telecom, LLC, Fidelity Access Networks, Inc., Fidelity Access Networks, LLC, Fidelity Connect LLC, Fidelity Voice Services, LLC, Apptix, Inc., Fusion BCHI Acquisition LLC, 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

 

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.

 

 

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”).

 

 

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.

 

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.

 

 

 

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.