Exhibit 99.1
EXECUTION VERSION
MGG INVESTMENT GROUP LP
One Penn Plaza, 53rd Floor
New York, New York 10119
October 20, 2023
Spark Networks, Inc.
3731 W South Jordan Pkwy
Ste 102-405
South Jordan, UT 84009
Attention: Colleen Brown
Email: birdnowbrown@gmail.com
Re: Amendment No. 1 to Amended and Restated
Forbearance Agreement and Collateral Agent Advance Agreement
Ladies and Gentlemen:
Reference is hereby made to (a) that certain Financing Agreement, dated as of March 11, 2022, as amended by
that certain Amended and Restated Amendment No. 1 to Financing Agreement, dated as of August 19, 2022, as further amended by that certain Amendment No. 2 to Financing Agreement and Forbearance Agreement, dated March 29, 2023, as further amended by that
certain Amendment No. 3 to Forbearance Agreement and Financing Agreement, dated as of June 15, 2023, as further amended by that certain Amendment No. 8 to Forbearance Agreement and Amendment No. 4 to Financing Agreement, dated as of August 11, 2023, as
further amended by that certain Amendment No. 9 to Forbearance Agreement and Amendment No. 5 to Financing Agreement, dated as of September 1, 2023 (as further amended, restated, amended and restated, supplemented, replaced or otherwise modified from
time to time, the “Financing Agreement”), by and among Spark Networks SE, a Societas Europaea (Europiiische Gesellschaft) with registered seat in Munich, Federal Republic of Germany, registered with the commercial register (Handelsregister) of
the local court (Amtsgericht) of Munich, Federal Republic of Germany under HRB 232591 (the “Parent”),
Spark Networks, Inc., a Delaware corporation (“Spark Networks”), Zoosk, Inc., a Delaware corporation (“Zoosk”,
and together with the Parent, Spark Networks, and each other Person that executes a joinder agreement and becomes a “Borrower” thereunder, each, a “Borrower” and,
collectively, the “Borrowers”), each subsidiary of the Parent listed as a “Guarantor” on the
signature pages thereto (together with each other Person that executes a joinder agreement and becomes a “Guarantor” thereunder, each, a “Guarantor” and, collectively, the “Guarantors”), the lenders from time to time party thereto (each, a “Lender” and, collectively, the “Lenders”), MGG Investment Group LP, a Delaware limited partnership (“MGG”), as collateral agent for the Lenders (in such capacity, together with its successors and permitted
assigns in such capacity, the “Collateral Agent”), and MGG, as administrative agent for the Lenders (in such capacity, together with its successors and permitted assigns in
such capacity, the “Administrative Agent” and, together with the Collateral Agent, each, an “Agent” and, collectively, the “Agents”) and (b) that certain Amended and Restated Forbearance
Agreement and Collateral Agent Advance
Agreement, dated October 6, 2023 (the “A&R Forbearance Agreement”). Any
and all capitalized terms used in this letter agreement (this “Amendment”) which are defined in the Financing Agreement or the A&R Forbearance Agreement and which are not
otherwise defined in this Amendment shall have the same meaning in the Financing Agreement and A&R Forbearance Agreement, as applicable.
1. The parties hereto hereby amend and restate Section 5 of the A&R Forbearance Agreement in its entirety to read as follows:
“5. Agreements. The Loan Parties hereby covenant and agree, in
consideration of the Forbearance granted hereunder, as follows:
(a) As soon as possible and by no later than October 25, 2023 (or such later date as agreed to in writing by the Agents in their sole discretion), the Loan Parties shall have completed the drafting
of the Restructuring Plan for the StaRUG Proceeding, which Restructuring Plan shall be in form and substance satisfactory to the Agents.
(b) As soon as possible and by no later than November 3, 2023 (or such later date as agreed to in writing by the Agents in their sole discretion), the Loan Parties shall have filed a motion to the
Restructuring Court to schedule a meeting to discuss and vote on the Restructuring Plan (Erliiuterungs- and Abstimmungstermin — “Discussion and Voting Meeting”) pursuant to section 45 StaRUG.
(c) As soon as possible and by no later than November 6, 2023 (or such later date as agreed to in writing by the Agents in their sole discretion), the Loan Parties shall have distributed the notice
for the Discussion and Voting Meeting to the parties affected by the Restructuring Plan (Planbetroffenen).
(d) As soon as possible and by no later than December 12, 2023 (or such later date as agreed to in writing by the Agents in their sole discretion), the parties affected by the Restructuring Plan (Planbetroffenen) shall have held the Discussion and Voting Meeting and shall have voted on the Restructuring Plan for the StaRUG Proceeding.
(e) As soon as possible and by no later than December 19, 2023 (or such later date as agreed to in writing by the Agents in their sole discretion), the Restructuring Court shall have approved the
Restructuring Plan and such Restructuring Plan shall be consummated pursuant to the StaRUG Proceeding.”
2. The parties hereto hereby amend clause (a) of Section 6 of the A&R Forbearance Agreement by deleting “December 8, 2023” and replacing it with “December 19, 2023”.
3. Conditions to Effectiveness. This Amendment shall become effective only upon satisfaction in full of the following
conditions precedent, unless waived in writing by the Agents (the first date upon which all such conditions have been satisfied or waived, as the case may be, by the Agents being herein called the “Amendment Effective Date”):
(a) The Agents and the Lenders shall have executed this Amendment and received counterparts to this Amendment which bear the signatures of each of the Loan Parties.
4. Forbearance Agreement. Except as otherwise expressly provided herein, (i) the A&R Forbearance Agreement is, and
shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the date hereof (A) all references in the A&R Forbearance Agreement to “this Forbearance Agreement “, “hereto”,
“hereof’, “hereunder” or words of like import referring to the A&R Forbearance Agreement shall mean the A&R Forbearance Agreement as amended and modified by this Amendment, and (B) all references in the Financing Agreement or any other Loan
Document to the “Forbearance Agreement “, “thereto”, “thereof’, “thereunder” or words of like import referring to the A&R Forbearance Agreement shall mean the A&R Forbearance Agreement as amended and modified by this amendment. This Amendment
shall be effective only in the specific instances and for the specific purposes set forth herein and does not allow for any other or further departure from the terms and conditions of the A&R Forbearance Agreement or the Financing Agreement which
terms and conditions shall remain in full force and effect.
5. Release. Each Loan Party hereby acknowledges and agrees that: (a) neither it nor any of its Affiliates has any claim
or cause of action against, the Agents or any Lender (or any of their respective Affiliates, officers, directors, employees, attorneys, consultants or agents) and (b) the Agents and each Lender has heretofore properly performed and satisfied in a
timely manner all of its obligations to the Loan Parties and their Affiliates under the Financing Agreement and the other Loan Documents. Notwithstanding the foregoing, the Agents and the Lenders desire (and the Loan Parties agree) to eliminate any
possibility that any past conditions, acts, omissions, events or circumstances would impair or otherwise adversely affect any of the Agents’ and the Lenders’ rights, interests, security and/or remedies under the Financing Agreement and the other Loan
Documents. Accordingly, for and in consideration of the agreements contained in this Amendment and A&R Forbearance Agreement and other good and valuable consideration, each Loan Party (for itself and its Affiliates and the successors, assigns,
heirs and representatives of each of the foregoing) (collectively, the “Releasors”) does hereby fully, finally, unconditionally and irrevocably release and forever discharge
each Agent, each Lender and each of their respective Affiliates, officers, directors, employees, attorneys, consultants and agents (collectively, the “Released Parties”)
from any and all debts, claims, obligations, damages, costs, attorneys’ fees, suits, demands, liabilities, actions, proceedings and causes of action, in each case, whether known or unknown, contingent or fixed, direct or indirect, and of whatever
nature or description, and whether in law or in equity, under contract, tort, statute or otherwise, which any Releasor has heretofore had or now or hereafter can, shall or may have against any Released Party by reason of any act, omission or thing
whatsoever done or omitted to be done on or prior to the Amendment Effective Date arising out of, connected with or related in any way to this Amendment and A&R Forbearance Agreement, the Financing Agreement or any other Loan Document, or any
act, event or transaction related or attendant thereto, or the agreements of the Agents or any Lender contained therein, or the possession, use, operation or control of any of the assets of any Loan Party, or the making of any Loans, or the
management of such Loans or the Collateral on or prior to the Amendment Effective Date.
6. Affirmation of Obligations. Each of the Loan Parties hereby acknowledges, agrees and affirms (a) its Obligations
under the Financing Agreement and the other Loan Documents, including, without limitation, its guaranty obligations thereunder, (b) that such guaranty shall apply to the Obligations in accordance with the terms thereof, (c) the grant of the security
interest in all of its assets pursuant to the Loan Documents and (d) that such liens and security interests created and granted are valid and continuing and secure the Obligations in accordance with the terms thereof (subject to Permitted Liens).
Except as modified by this Amendment, each Loan Party acknowledges, ratifies, reaffirms, and agrees that each of the Loan Documents and the perfected liens and security interests created thereby in favor of the Agents for the benefit of the Lenders
in the Collateral are, and will remain, in full force and effect and binding on all of the Loan Parties and are hereby ratified and confirmed in all respects. Each Loan Party acknowledges, ratifies and reaffirms all of the terms and provisions of the
Loan Documents (including, without limitation, the Financing Agreement), except as modified herein, which are incorporated by reference as of the Amendment Effective Date as if set forth herein including, without limitation, all promises, agreements,
warranties, representations, covenants, releases and indemnifications contained therein.
7. Outstanding Indebtedness. Each of the Loan Parties hereby acknowledges and agrees that as of October 20, 2023, the
aggregate outstanding principal amount of the Loans is $102,624,000.94 and the aggregate outstanding principal amount of the Collateral Agent Advances is $3,000,000 and that such principal amounts are payable pursuant to the Financing Agreement
without defense, offset, withholding, counterclaim or deduction of any kind. The foregoing amount does not include interest, other fees, expenses and other amounts that are chargeable or otherwise reimbursable under the Financing Agreement and the
other Loan Documents.
8. No Waiver. Except as expressly set forth herein, the terms and conditions of the Financing Agreement and the other
Loan Documents shall remain in full force and effect. Nothing in this Amendment and A&R Forbearance Agreement shall be deemed to be or construed as a waiver of any Existing Event of Default or any Event of Default that may occur because of any
Specified Event or of any right, remedy or claim of the Agents or the Lenders with respect thereto, and the Agents and the Lenders specifically reserve the right to exercise any such right, remedy or claim based upon any Event of Default now existing
or hereafter arising (except to the extent set forth herein in the case of Existing Events of Default or Events of Default that may occur because of any Specified Event).
9. Amendment as Loan Document; Enforcement. The Loan Parties, the Administrative Agent and the Lenders hereby
acknowledge and agree that this Amendment constitutes a “Loan Document” under the Financing Agreement. Accordingly, it shall be an Event of Default under the Financing Agreement if (i) any representation or warranty made by the Loan Parties under or
in connection with this Amendment shall have been untrue, false or misleading in any material respect when made, or (ii) the Loan Parties shall fail to perform or observe any term, covenant or agreement contained in this Amendment. Nothing contained
in this Amendment shall prejudice or otherwise affect the Lender’s rights to enforce the provisions contained herein upon the default by any Loan Party in the performance thereof.
10. Headings. Section headings used herein are for the convenience of the parties only and shall not constitute a part
of this Amendment for any other purpose.
11. Amendments; Extensions. The terms of this Amendment may be modified, waived, or amended and the Forbearance Period
may be extended only by a writing executed by all of the parties hereto.
12. Entire Agreement; Continuing Effect. This Amendment constitutes the entire understanding among the parties hereto as
to the subject matter hereof and supersedes any and all prior agreements or understandings concerning the Forbearance by the Administrative Agent or any of the Lenders in exercising any of their rights against the Loan Parties or their properties.
Except as expressly provided herein, the Loan Documents shall continue unchanged and in full force and effect, and all rights, powers and remedies of the Agents and the Lenders thereunder are expressly reserved and unaltered.
13. Expenses. The Borrowers hereby agree to pay all expenses incurred by the Agents and each of the Lenders in
connection with the matters relating to the negotiation, preparation and execution of this Amendment, and the modification or enforcement of any of the terms hereof, including, without limitation, the reasonable fees and disbursements of counsel to
the Agents and each of the Lenders.
14. Governing Law; Waiver of Jury Trial.
(a) This Amendment shall be governed by, construed under and enforced in accordance with the laws of the State of New York, without regard to choice of law principals.
(b) The Loan Parties, the Agents and the Lenders each hereby irrevocably waive all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Amendment or the actions of the Agents or the Lenders in the negotiation, administration, performance or enforcement hereof.
15. Arms-Length/Good Faith. This Amendment has been negotiated at arms-length and in good faith by the parties hereto.
16. Review and Construction of Documents. Each Loan Party hereby acknowledges, and represents and warrants to the Agents
and the Lenders, that:
(a) such Loan Party has had the opportunity to consult with legal counsel of their own choice and have been afforded an opportunity to review this Amendment with their legal counsel;
(b) such Loan Party has carefully reviewed this Amendment and fully understand all terms and provisions of this Amendment;
(c) such Loan Party has freely, voluntarily, knowingly and intelligently entered into this Amendment of their own free will and volition;
(d) none of the Agents or the Lenders has a fiduciary relationship with any Borrower or any Loan Party, and the relationship between the Agents and the Lenders, on the one hand, and the Loan
Parties, on the other hand, is solely that of creditor and debtor; and
(e) no joint venture exists among the Loan Parties, the Agents and the Lenders.
17. Counterparts. This Amendment may be signed in counterparts by the parties hereto, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute one and the same agreement. Delivery of an executed counterpart of this Amendment by telecopier or electronic mail shall be equally effective as delivery of an original executed
counterpart of this Amendment.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date first above written.
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BORROWERS:
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SPARK NETWORKS SE
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By:
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/s/ Kristie Goodgion
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Name:
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Kristie Goodgion
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Title:
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Chief Financial Officer
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SPARK NETWORKS, INC.
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By:
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/s/ Kristie Goodgion
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Name:
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Kristie Goodgion
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Title:
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Chief Financial Officer
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ZOOSK, INC.
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By:
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/s/ Kristie Goodgion
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Name:
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Kristie Goodgion
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Title:
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Chief Financial Officer
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Email address for notice purposes,
effective with respect to the
Borrowers: birdnowbrown@gmail.com
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Amendment No. 1 to A&R Forbearance Agreement
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GUARANTORS:
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SPARK NETWORKS SERVICES GMBH
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By:
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/s/ Kristie Goodgion
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Name:
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Kristie Goodgion
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Title:
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Chief Financial Officer
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SPARK NETWORKS USA, LLC
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By:
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/s/ Kristie Goodgion
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Name:
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Kristie Goodgion
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Title:
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Chief Financial Officer
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SMOOCH LABS INC.
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By:
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/s/ Kristie Goodgion
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Name:
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Kristie Goodgion
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Title:
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Chief Financial Officer
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MINGLEMATCH, INC.
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By:
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/s/ Kristie Goodgion
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Name:
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Kristie Goodgion
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Title:
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Chief Financial Officer
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SPARK NETWORKS LIMITED
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By:
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/s/ Kristie Goodgion
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Name:
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Kristie Goodgion
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Title:
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Chief Financial Officer
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LOV USA, LLC
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By:
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/s/ Kristie Goodgion
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Name:
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Kristie Goodgion
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Title:
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Chief Financial Officer
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Email address for notice purposes,
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effective with respect to the
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Guarantors: birdnowbrown@gmail.com
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Amendment No. 1 to A&R Forbearance Agreement
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MGG INVESTMENT GROUP LP,
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as the Administrative Agent and the Collateral
Agent
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By: MGG GP LLC, its general partner
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By:
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/s/ Kevin F. Griffin
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Name:
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Kevin F. Griffin
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Title:
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Chief Executive Officer
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Email address for notice purposes:
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creditagreementnotices@mgginv.com
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Amendment No. 1 to A&R Forbearance Agreement
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LENDERS:
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MGG SPECIALTY FINANCE FUND II LP
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MGG SF EVERGREEN FUND LP
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MGG SF EVERGREEN UNLEVERED FUND LP
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MGG INSURANCE FUND SERIES INTERESTS
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OF THE SALI MULTI-SERIES FUND, LP
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MGG SF EVERGREEN MASTER FUND
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(CAYMAN) LP
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MGG SF EVERGREEN UNLEVERED MASTER
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FUND II (CAYMAN) LP
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MGG CANADA FUND LP
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MGG ONSHORE FUNDING II LLC
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MGG SF DRAWDOWN UNLEVERED FUND II
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(LUXEMBOURG) SCSp
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MGG SF DRAWDOWN UNLEVERED FUND III
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(LUXEMBOURG) SCSp
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MGG OFFSHORE FUNDING I LLC
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MGG SF EVERGREEN UNLEVERED FUND 2020 LP
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MGG SF DRAWDOWN UNLEVERED FUND III LP
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MGG SF DRAWDOWN UNLEVERED MASTER
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FUND III (CAYMAN) LP
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By: MGG Investment Group LP, on behalf of each of
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the above, as Authorized Signatory
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By:
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/s/ Kevin Griffin
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Name:
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Kevin Griffin |
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Title:
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Chief Executive Officer |
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Email address for notice purposes:
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creditagreementnotices@mgginv.com
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Amendment No. 1 to A&R Forbearance Agreement